Frequently Asked Questions

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 What has been happening since 2006?

The U.S. Army Corps of Engineers received the public comments in 2006, took those into consideration, revised the Draft Effects Report, and provided that revised report to the Assistant Secretary of the Army for Civil Works (ASA/CW) for review and approval.

At the same time, USACE prepared a draft Memorandum of Agreement (MOA), which was required by law, should the ASA(CW) approve the Draft Effects Report.

The MOA was signed in May 2015 by the ASA/CW and the Assistant Secretary for Indian Affairs (DOI/IA). The MOA outlines the process by which the agencies will continue to consider the transfer of jurisdiction of some Garrison Project lands within the reservation boundaries from the Army to the Interior.

 When will USACE begin working on the transfer again?

At the time the Memorandum of Agreement was signed, funds were not available to execute the outlined process.

As part of the Fiscal Year 2016 budget, the Assistant Secretary of the Army for Civil Works (ASA/CW) has directed that funds be made available to implement the MOA .

Those funds are expected by mid-April. When USACE receives the funding, work with the Bureau of Indian Affairs to implement the provisions of the MOA will begin.

 What is the USACE position regarding the jurisdictional transfer?

The U.S. Army Corps of Engineers has been directed to implement the Memorandum of Agreement and is following the outlined process. The process has included public involvement and been documented to ensure transparency. In line with the Commander's commitment in 2005, to conduct a transparent process, public input was gathered prior to any decisions being made. USACE is committed to be transparent as the process continues.

 What was the Tribal Chairman’s request of the Assistant Secretary of the Army for Civil Works?

In a letter dated July 26, 2012 the Chairman of the Mandan, Hidatsa, & Arikara Nation  (MHA), Tex Hall reiterated to The Assistant Secretary of the Army for Civil Works (ASA/CW) the MHA Nation’s desire have 36,000 acres of lands around the Garrison Project transferred to the BIA to be held in trust for the MHA Nation. This was identical to the request in 2004.

 What were the public’s concerns from the 2005 and 2006 public meetings?
Public comments/concerns on the draft Effects Report fell into four major areas: 
  1. The legality of the Fort Berthold Reservation Mineral Restoration Act  
  2. The equitability of the action
  3. Access to the lake
  4. Future management of the lands
 What was the conclusion in the final Effects Report and has it been published?

The Final report has not been published and because this process is just being restarted, the release date is not yet determined. 

 Where are the lands and is a map available? 

The lands that have been requested are adjacent to the shores of the Garrison Project/Lake Sakakawea and within the exterior boundaries of the Fort Berthold Reservation, all in North Dakota. The lands are no longer needed for construction, maintenance and operation of the Garrison Project/Lake Sakakawea. 

The map shows the vegetative management lands (green) that were proposed for transfer and the recreation and wildlife lands that were being retained by the Corps.

 Was any of the land the Tribe is requesting flooded in 2011?

Yes. In the Draft Effects Report the proposed transfer elevation was 1854 ft. mean sea level. During the 2011 flood, the maximum pool reached 1854.6 ft. msl.

 How will National Environmental Policy Act (NEPA) requirements be handled?

The Draft Effects Report explains that because this would be an administrative transfer of lands from one Federal agency to another Federal agency, the action is categorically excluded from NEPA (NEPA, Part 1508.4 “Categorical Exclusion” and Engineering Regulation 200-2-2, Paragraph 9.r.).

 In 1991, there were no excess lands but in 2006 there are, how can this be?
Excess lands are determined using different criteria and a different process governed by The Property Act. 

The Fort Berthold Mineral Restoration Act (FBMRA) allows for project lands that are “no longer needed” for the purposes of construction, maintenance, or operation of the project to be declared as trust lands and held by the United States for the benefit of the Three Affiliated Tribes. The jurisdictional transfer process determines whether and how much land is no longer needed for construction, maintenance, or operation of the project, not what is excess.

 Why are lands only within the reservation seen as no longer needed and the lands outside are not?

The Fort Berthold Mineral Restoration Act only applies to the lands within the exterior boundaries of the reservation.

 How does this action/decision relate to the Garrison Master Plan?

The project Master Plan review process provides an opportunity to look carefully at how and for what purposes we are using project lands. These lands were not withdrawn from consideration during the master planning process and, therefore, they were considered for alternate land use/purposes. In the final Garrison Master Plan, it was determined that the most effective use of these lands would be for a vegetative management purpose.

 Is it true that the number of acres proposed for transfer has grown from what was in the Draft Effects Report?

The footprint of the lands has not changed, but there is now a more accurate representation of the lands proposed for transfer. 

The Corps used the Public Land Survey System (PLSS), existing Geographic Information System (GIS) data, and coordinate geometry (COGO) to create more accurate GIS tract data set for the area being proposed for transfer. 

  • The PLSS provided the standard governmental sub-section division of township, range and sections for the area under consideration for transfer.
  • The COGO process involves the creation of accurate geographic representations of tracts based on their legal description.
  • An existing GIS contour line of the exclusive flood pool elevation (1854 msl) was used to identify the area of the tract proposed for transfer.

By using the COGO process to define the tracts within the transfer area, an accurate geographic depiction of the actual legal description for each tract was generated. This process allowed for a more accurate depiction of the tracts in relation to one another as well as the area represented by each.

 What is being done with the lands that were previously owned by someone other than the Tribe?

After completing the research it was clear that of the lands proposed for transfer, most were acquired from the Three Affiliated Tribes, but there were some that were acquired from parties other than the Three Affiliated Tribes.

During the public comment period, concerns were raised about the equity of returning land acquired from private entities to the Three Affiliated Tribes. However, under Fort Berthold Mining Restoration Act, there is no provision for transfer of project lands to any entity other than the Three Affiliated Tribes. As a result, Congress would have to provide new authority if transfer back to the original private owners is desired.

 State and Federal officials have questioned the legal authority that you are using to take this action. Why are you proceeding?
The Fort Berthold Reservation Mineral Restoration Act, PL 98-602, 98 Stat. 3152 (Oct. 30, 1984) provides clear and unambiguous authority and criteria for the Army and Interior to proceed.
 Will the Corps require the Tribe to provide guaranteed public access to the existing cabin sites and public use areas within the boundaries of the reservation? If so, how will access be assured with subsequent Tribal councils?
Access will not be impacted by this action because those lands identified for use as recreation lands and wildlife management lands will be retained and the access related to those uses will be maintained. Access to the shoreline along other routes or pathways is and has been carefully managed so as to minimize adverse impacts to the land, threatened and endangered species and cultural resource sites. The administrative transfer will not affect this policy.
 How will hunting and fishing licenses/jurisdiction be handled?

On April 1, 2008, the Three Affiliated Tribes and North Dakota Game and Fish Department signed two Memorandums of Understanding, one concerning the regulation of fishing and boating and another concerning regulation of hunting, pertaining to those activities on Fort Berthold Reservation. These agreements detail how hunting, fishing and boating law enforcement will be cooperatively addressed.

 The Corps is proposing to use elevations as a boundary for the transfer. With this type of description, how will the deeds be filed with the county recorders?

Because this is a Federal agency to Federal agency transfer, the deed will not change. The United States of America will remain as the official title holder.