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Saturday, August 29, 2015

Not Being Mister Nicey-Nice. The Donald Has a Point

It’s embarrassing to find merit in Donald Trump’s bellowings, but he did say something in Dubuque a few days ago (as reported in the Washington Post on August 25) that strikes a chord with me. He asserted that when politicians get to Washington:
They look at these beautiful buildings, these beautiful halls and all of a sudden they become impotent.
There’s something to this, and it applies not only to politicians but to all of us, I think, who succumb to Potomac fever – whether we’re elected to come here, or come to be employed by government and its appendages (lobby firms, law firms, etc. etc.) as working stiffs.
I don’t think it’s the beautiful buildings that does it, though; it’s the insistence that we all talk nice to each other.
We don’t have to be nice, but we have to talk nice; never say anything that could offend.
Which means, of course, never saying anything that could be challenging to anyone’s beliefs or conclusions.
I’ve observed the operation of this ethic for decades in the National Park Service, where one is expected never, never to say anything ill of one’s colleagues, their ideas, institutions, or programs. Everyone is understood to be giving 110% to their work, and doing great things for the American people and the world, all the time. Which is why we taxpayers continue to pay for anachronisms like the National Historic Landmark program.
But the demand that we all be Mister or Mizz Nicey-Nice has spread widely. I suppose The Donald’s comment caught my eye because I had just been told (very politely) by a client that I was simply too invested in a case I’d been working on, and had as a result insulted a federal agency official who, I’d suggested, had not dealt honestly or wisely with the case and was likely contributing to what could be a destructive and expensive impending disaster. I was told that I should apologize. Not being Mister Nicey-Nice, I declined to do so, leading to stunned silence by everyone else involved. At least my client confronted me with my perceived misdeed, though; I appreciate that. In most such cases, I suspect, clients and others just roll their eyes and cover their ears lest they be damaged by my malignity.
The real malignity, I think, is demanding nicey-niceness. Government needs honesty, even when it’s brutal, and though needless brutality is to be abhorred, it seems to me that if the choice is between being offended and being ill-advised, government and its agents ought to welcome, indeed encourage, offensiveness.
But that’s not the way it works in Washington; we must be polite, genteel, inoffensive. Which does add up to impotence. Whether or not it’s the buildings that do it, chalk one up for Mr. Trump.

Friday, August 21, 2015


The brutal murder of Syrian archaeologist Khaled Asaad – beheaded and, according to some reports, crucified at the site of ancient Palmyra to which he had devoted much of his professional life, has to give pause to any archaeologist’s train of thought. It certainly does mine.

I didn’t know Mr. Asaad, but I grieve for him, his family and colleagues, and honor his memory. Especially because, according to news reports, he was killed by “people” of the self-styled Islamic State because he refused to tell them where some of Palmyra’s archaeological treasures are hidden. I hope his colleagues show similar resolve, but escape similar fates. I hope I would be as honorable as he if I found myself in his situation.

Mr. Asaad’s murder, and the “Islamic State’s” other depredations, bring two memories bubbling up in my mind, products of my very marginal acquaintance with the Middle East.

The first: my family and I were visiting a madrassa in Cairo. I sat quietly on the courtyard pavement and watched the students – young kids in tunics and skullcaps – at their lessons. Which involved monotonic recitations from the Koran, accompanied by rhythmic bows toward Mecca. Our Egyptian hostess said that this was essentially the sum total of the madrassa’s curriculum.

The second: I was walking along a street in a toney, upscale part of Istanbul, near Taksim Square, and was startled by the shop windows. Turkey at the time was pushing for membership in the European Union, and the windows could have graced stores in any of that continent’s major cities. Americans are prudes compared to Europeans; even the most ordinary consumer product in Europe seems to be hawked by fashion models in breathtakingly pornographic poses. The same rampant sexuality was on display there in Istanbul. Even as a fairly worldly if elderly American I felt a bit put off by its in-your-face character, and I had to wonder how the grizzled, vested Turkish men and chador-clad women on the street felt about the spectacle. And I thought (this was somewhat before the Arab Spring) that this east-west dialogue (monologue?) might not end well.

These vignettes associate themselves in my mind with the murder of Mr. Asaad because I, probably like almost everyone else on this continent, wonder what on earth could make people engage in the seemingly gratuitous violence in which ISIS indulges. And I think: suppose the only education you’ve had comprises mindless memorization and recitation from the Koran – much of which, to judge from what little I’ve read in translation, deals with the Prophet’s struggles to rid the Kaaba and then all Arabia of idolaters. Believers are encouraged to do terrible things to unrepentant idolaters, and if that old man who takes care of all those pagan statues at Palmyra isn’t an idolater, what on earth is he? Yes, there’s a horrible logic to it.

So how to combat it? Facebook is awash with calls for strong action – send in the Marines, bomb the bastards back to the Stone Age. But we’ve been there, done that, and it hasn’t worked out too well. And except for their RPGs and Humvees and Twitter-savvy, the followers of ISIS are already in the Stone Age (the Neolithic, anyhow); they’d hardly notice.

Surely one should start with the madrassas. Somehow break up the pedagogical monopoly exercised by ill-educated clerics whose curricula are limited to the words of the Prophet and their choice of early Imams; give kids access to the broader world, a wider range of ideas, and maybe their blind adherence to medieval prejudice can be broken. Maybe the internet can do this; maybe we should be distributing iPads across the Arab World.

But to open minds you’ve got to open eyes, and eyes that are offended by what they understand to be visual proofs of the outside world’s depravity – like those shop windows in Istanbul – will tend to be closed. Or open only to hazard guilty glances that make the viewer feel unclean, needing to expiate his sins by, say, beheading an idolater. We need, in short, to exercise some restraint, some self-awareness, imagine ourselves in the slippers of those kids in the madrassa, and find ways to reach them.

I’m only ten years younger than Mr. Asaad, and utterly lack Middle Eastern credentials; I can't do anything about the situation and suppose I’m being presumptuous even to expound on it. But I do grieve for Mr. Asaad, and for Palmyra, and for all the other archaeologists and sites over which ISIS exercises power. And for those poor, brain-deadened madrassa kids, one of whom probably took his knife to Mr. Asaad’s throat. I wish there were SOMETHING we could do.

Saturday, July 18, 2015

A Reflection on Cultural Appropriation

The planned Rainbow Family of Living Light gathering (herein Rainbow) in He Sapa, the Black Hills, has caused serious tensions within the Oceti Sakowin. Many of us see the Rainbow gathering as engaging in cultural exploitation, and some of their activities as desecrating our holiest site by appropriating and practicing faux Native ceremonies and beliefs. These actions, although Rainbows may not realize, dehumanize us as an indigenous Nation because they imply our culture and humanity, like our land, is anyone’s for the taking.

Nick Estes and others, writing in Indian Country Today. Read more at

Some decades ago, I was driving at night through the Black Hills. As a U.S. government official, I was on my way to testify in court in support of an occupation encampment set up by members of the American Indian Movement (AIM) on land controlled by the U.S. government.

As I drove, wisps of snow blew across the beams of my headlights. In their delicate waverings they seemed to assume ethereal forms that my tired brain linked to the spirit-beings that surely inhabit the Hills. I felt a powerful sense of connection with the people whose interests I was scheduled to address in court, and with their ancestors.

So, was I engaging in cultural appropriation?

Or what about, a few nights later, when I doffed my clothes and entered a sweatlodge with some Lakota and Cheyenne friends and colleagues, to sweat and sing and pray?

Hypothetically, what if there hadn’t been any Lakota or Cheyenne people present? What if it had been only a bunch of white-eyes, but we really needed a sweat?

On my office wall I have an abalone necklace, give me by an elder in a tribe for which I worked once on California’s northwest coast. By keeping it, am I appropriating the tribe’s culture? What if I were to wear it?

Or what about the pile of indigenous art and artifacts that we took out of my late wife’s office at the National Park Service after her death? By keeping them, displaying them, was she engaging in cultural appropriation?

I daresay she thought she was showing respect for the tribes and communities and individuals who produced the things. Plus she thought they were pretty, intellectually engaging, and reminiscent of people and places that were important to her, and that inspired her work. Was she wrong?

I can sympathize with indigenous people – with people of any society or community – who get indignant when “mainstream” society starts glomming onto their cultural symbols and practices, in effect taking possession of them, distorting them, cheapening them. But I wonder how far we can go in expressing and accommodating such indignation without splintering into a formless hodge-podge of subcultures, each viciously guarding its prerogatives.

I habitually wear trousers, which at some point in the past my western European ancestors appropriated from the horsemen of the steppes. My shrink recommends Buddhist meditation. I’m typing these thoughts using Arabic script. I’ll be dining next week at an Indonesian restaurant. Members of different cultures routinely mix and match practices, cuisines, artifacts, bits of language. Our cultures change as a result – always have, presumably always will, sometimes doubtless for worse, but often, arguably, for better. Or at least for neutral.

I’m glad to have tortilla and sashimi and borsht to eat, and I don’t think I’m appropriating Spanish, Japanese, or Russian culture by including them in my diet. I don’t think I’m appropriating Chuukese culture when I tell someone raan annimw for “hello.” Or maybe I AM appropriating when I nibble another culture’s food, or butcher a word or phrase  – I’m using a bit of it, after all – but I don’t think I’m doing that culture injury, or disrespecting it.

But it seems that a lot of people would say I’m wrong. Or maybe I’m just missing something. What do you think?

Tuesday, June 09, 2015

Review of "An Ethnographic Assessment of Some Cultural Landscapes."

Review of An Ethnographic Assessment of Some Cultural Landscapes in Southern Wyoming and Idaho, by Deward E. Walker, Jr., Pamela Graves, Joe Ben Walker, and Dan Hutchison.  Richland, WA 2015: Memoir 11: Journal of Northwest Anthropology. March 2015; 325 pages; 300 color photographs; available at  $49.95 

I’m grateful to Darby Stapp of the Journal of Northwest Anthropology (JONA) for sending me a copy of Cultural Landscapes to review. It’s a book with many excellent qualities, and I recommend it to anyone interested in cultural landscapes – particularly traditional cultural landscapes (which comprise, yes, a type of traditional cultural property or place) of importance to American Indian tribes/First Nations.

The book is divided into two parts: a literature review and a set of landscape-by-landscape descriptions. As someone who doesn't know beans (or potatoes) about Wyoming and Idaho, I found the first part most helpful; it provides up-to-date synopses and literature reviews regarding some things that make cultural landscapes important – that they’re often critical to the maintenance of a group’s spiritual and cultural integrity, that they can have therapeutic value for individuals, that they can, in a sense, encapsulate a group’s identity.  For example:

Groups in northwestern North America seek the intrinsic or embedded sacredness of nature and do not force their notions of sacredness onto the land in the manner of the pyramid builders and earth sculptors we see in both the Old World and Mesoamerica (p. 19).

View sites are located to allow protective isolation of the individuals and groups who use them as well as to provide undisturbed views of the significant cultural landscape and its objects of cultural significance. They can be used for vision questing or to make important historical or cultural events.  Certain view sites associated with cultural landscapes tend not to be revealed as they are considered confidential, sacred sites that are used inter-generationally  (p 22).

Theories such as the Kaplans’ Attention Restoration Theory describe ‘the restorative effect of natural environments on human mental fatigue’ (Verlarde et al 2007:200). Geslers Therapeutic Landscpes concept uses ‘the idea of place identity” and specific places to improve patients’ health. Gesler ‘employed an expanded definition of the concept of landscape taken from cultural geography with the aim of exploring the positive, healing or therapeutic characteristics of place’(Verlande et al 2007:200).

Gones’ (2008:369) ethnographic interview with a Fort Belknap (Montana) tribal member revealed that ‘participation in indigenous ritual spaces enacted or performed in designated sacred places on or near the reservation’ was far more beneficial than therapy with IHS (Indian Health Service) psychiatrists (p. 37)

There’s a great deal of material like this – food for thought, and good references to pursue for further research and application. And the book provides a useful though probably not comprehensive typology of cultural landscape types in Southern Wyoming and Idaho (pp. 41-128).

So, I recommend Cultural Landscapes, and expect to get a lot of use out of it myself.

Still, I come away from it with an ambiguous, ambivalent feeling; I’m not quite sure what the authors were really trying to accomplish.

The research upon which the book is based was performed “in response to a request by the Shoshone-Paiute Tribes of the Duck Valley Indian Reservation (DVIR) for ethnographic research concerning identification and function of cultural landscapes in the vicinity of the Gateway West Transmission Line right-of-way (GTLROW) in southern Wyoming and Idaho” (p. vii), and the landscapes described are along various alternative GLT rights-of-way. But the authors never tell us how they think their research should inform planning for the GTL, which is apparently being carried out by the Bureau of Land Management (BLM) and reported in an environmental impact statement (EIS). We are told that the landscapes “may be adversely affected” by the GTL (p. vii) and that they are not reported in the EIS (p. viii) – and there the authors leave the matter. This is pretty unsatisfying. Is BLM’s EIS therefore deficient?  Are the landscapes all eligible for the National Register of Historic Places? Should impacts on them be considered in the EIS? Or under Section 106 of the National Historic Preservation Act, or any other legal authorities? How may the landscapes be impacted if the project is built? What might be done about such impacts?

There are vague, rather teasing hints, for example:

Some areas are disturbed by intrusions introduced within the viewshed although not within the landscape itself. For example, a row of wind turbines on a ridge can be seen for miles, disrupting the landscape of the valleys around them without actually being installed in them (p. 11).

Presumably the same observation applies to a transmission line, but the authors make nothing of this; try as I might, I cannot find anything about the GTL’s impacts that I, at least, can sink my teeth into, or get my hands around, or otherwise metaphorically muse upon. There’s not even a map showing where all the landscapes are, or how big they are. For a book about something as definitively grounded as landscapes, the whole book is strangely abstract.

I’m guessing that this results from the fact that all the authors are academics or current students in academia; I’ve observed a certain reluctance in academic circles to sully one’s hands with the muck of management, the rancid reek of realpolitik. There’s an academic tendency, I think – and I suffer from it myself, as a writer of textbooks – to think that if we just give people the benefit of our careful characterizations of the world, they should be able to make sense of them and apply them to whatever real world issues are troubling them.  Unfortunately, not everyone is very good at taking – say – the characterization of a landscape and somehow figuring out what problems may arise from stringing high voltage transmission lines across it. It would be nice to get some guidance from the experts.

The authors do provide one perfectly lovely, kind of humorous graphic that reflects on the landscape impacts of transmission lines. They mention – quite in passing, and do nothing with it – that “Europeans have noticed the unaesthetic impact of power lines on open landscapes, as can be seen by Massachusetts-based Choi+Shine’s efforts to transform ‘mundane electrical pylons into statues’ in Iceland” (p. 11). Then on page 14 they then give us a picture of what I take to be Choi+Shine’s transmission line.  Or rather of its towers, which take the form(s) of giants, and being of lattice-like steel beam construction, spooky giants at that, marching out over the coldly sere Icelandic landscape. I have no idea how Icelanders feel about this transmission line, but I intend to find out; I think it’s kind of a kick in the pants, and I wonder how something like it would be received in the American Southwest, or Australia. Or along the route of the GTL. Maybe BLM ought to try to find out.

Monday, June 01, 2015

Diversity and National Historic Landmarks?

Trying to leverage ethnic and social diversity into the National Historic Landmarks (NHL) program is like trying to get Christianity to embrace polytheism. Or maybe to get Judaism or Islam to do so, since Christians do have that weird Trinity thing.

That was the thought that kept coming to me as I rode the Washington Metro home last Thursday from a meeting that the National Park Service (NPS) held on the subject – that is, on diversity in the NHL program – at the George Washington Masonic Memorial in Alexandria. I’d taken part at the request of NPS Associate Director Stephanie Toothman and NHL/National Register boss Paul Louther, but I’m still trying to figure out why they invited me. Maybe as a token bow to my non-loyal opposition status, or my faltering work on National Register Bulletin 38, or something.

Wait a minute, I hear people asking. The National Historic Landmarks Program?

Yes, there is such a program – established under the 1935 Historic Sites Act and still chugging along, because Washington DC almost never terminates something once it’s started. And because it justifies the conduct of “theme studies” upon the basis of which places are nominated as Landmarks; such studies are nice, generally meaningless bits of vote-candy that members of congress can dole out to preservation-minded constituents. Never mind that enactment of the National Historic Preservation act (NHPA) in 1966 made the program irrelevant by creating the much more inclusive (though still sadly limited) National Register of Historic Places.

I found myself throughout the day feeling a real sense of cognitive dissonance. Many of the people participating – mostly academics and representatives of “diversity” communities ranging from African-American to LGBT – didn’t seem really to know that there WAS a NHPA, or what the National Register was. It was like they had somehow discovered the NHL program without learning anything about what’s happened since 1935. I found myself (to my considerable alarm) sympathizing with Advisory Council on Historic Preservation Executive Director John Fowler as he struggled manfully to convey a glimmer of how what they were talking about did and didn’t relate to NHPA Section 106. Eyes glazed over.

What they were talking about was how to get more diversity-related places – that is, places associated with ethnic and social minorities – nominated to the NHL list. Nomination as an NHL involves preparing documentation that if anything is even more onerous than what has to be compiled for a National Register nomination, and they then must be processed by an advisory committee to the Secretary of the Interior before being, maybe, inscribed by the Secretary in the list. They must be found by the Secretary to be “nationally significant” in commemorating and illustrating the nation’s history.

Nationally significant. Think about that for a moment.  Suppose you’re, say, a Sikh American living in Kansas City, and your local house of worship is very, very important in maintaining your community identity. So you decide to nominate it as an NHL.  How do you show that it’s “nationally significant” when most Sikh Americans live on the two coasts and in a few non-coastal cities that aren’t KC? And why should its “national” significance matter anyway?

And suppose you do somehow get it listed; what good does it do you? Or do it, or do your community? Well, if a federal agency is going to muck it up, then the agency has to go through what amounts to NHPA Section 106 review with NPS involvement, but unless you’re a real fan of NPS, that’s a pretty thin advantage vis-à-vis just getting it included in the National Register – or, for that matter, when and if the federal threat arises, getting it recognized as eligible for the Register.  Other than that…

Well, there’s the pride factor; getting it listed is something the community can point to with pride. That was made much of at the Alexandria confab. But is going through a laborious nomination process to get your house of worship listed the most efficient way to generate pride in and respect for the KC Sikh community? If it were up to me, I think I’d want to consider options.

Plus there’s this question: who the devil is the Secretary of the Interior to decide what’s most important in the heritage of American Sikhs, or anybody else? What kind of democracy are we living in?

The case that kept being brought up as an example of NHLs as beacons of diversity was that of the World War II Japanese-American internment camps; it was said that the theme study leading to the listing of many camps, and their listing, has been very important to the Nisei/Sansei community. That’s undoubtedly true, but in the one internment camp case with which I’ve been involved – that of Tule Lake, California – NHL listing has been a somewhat mixed blessing. Because of the NHL program’s strict nomination procedures, only a small portion of the camp could be listed, though the whole place is obviously eligible for the National Register. Now there’s a proposal for an airfield expansion, requiring FAA assistance and therefore Section 106 review, and the local powers behind the project get confused (to put it charitably) about why they need to consider impacts on anything but the officially listed NHL. At last report, this was causing the camp’s veterans and their families considerable trouble.  Had the focus of attention from the beginning been Register eligibility rather than on NHL nomination, their lives would probably be simpler and the camp would get more thoughtful consideration.

My quick spiel to the assembled enthusiasts in Alexandria (we were limited to 5 minutes) proposed, of course, that the NHL program is a silly anachronism that’s long outlived its usefulness and ought to be done away with. Needless to say, this was not well received.

In fact, it pretty clearly wasn’t received at all. Aside from one academic who scolded from the podium that “in fact, mister King, NHLs ARE important” (oh; thanks for that), everyone happily went on to talk about the challenges of nominating places – and, amusingly, non-places like distinctive cultural practices and beliefs. And of course, to complain about how the program really, truly, needs more money from congress.

NPS did provide a pretty nice free lunch, though.

Saturday, May 30, 2015

I Was Wrong

Back on April 27, I blogged about the newly published draft National Park Service (NPS) regulation on tribal plant gathering in National Parks (See I implied that the regulation was pretty good, and I assumed it was; after all, my late wife had worked diligently for some 20 years to make it happen.

Well, I was wrong. It’s a dreadful regulation. Below are the comments I filed yesterday with NPS. I hope others will read the thing and comment too. Especially tribes, intertribal groups, Native Hawaiians, and their supporters.


          May 30, 2015

Joe Watkins, Office of Tribal Relations and American Cultures
National Park Service
1201 Eye Street NW.,
Washington, DC 20005

Reference: Draft tribal plant gathering regulations: RIN 1024-AD84

Dear Joe,

I am writing to comment on the draft NPS regulation published in the Federal Register on April 20, 2015 concerning plant-gathering by tribes in units of the National Park System (RIN 1024-ADF84).

I have followed the development of this regulation with considerable interest over the years, and would like to regard its issuance as a positive step in the development of mutually respectful relationships between Indian tribes and the U.S. Government. Sadly – apparently due to late, unexplained changes from earlier drafts – I cannot. Deficiencies in the published draft include the following:

Deficiency #1: An agreement no longer functions as a permit

A key feature of the draft regulation negotiated between NPS and tribes over the last couple of decades was the provision that agreements between tribes and parks would function as permits, authorizing gathering by tribal members under tribal regulation subject to the agreement’s conditions and NPS oversight. This feature has been removed from the published draft, leaving tribes and their members subject to the requirement of 36 CFR §1.6 that they obtain a separate permit for each gathering action.

In other words, where earlier drafts of the regulation provided for tribes to regulate the activities of gatherers under the terms of their agreements with NPS, the published draft has the tribes negotiate agreements and then seek, or leave their members to seek, separate permits from the relevant Park’s management.

One is left to wonder why in the world any sensible tribal government would negotiate an agreement with NPS. What purpose would it serve, particularly since a Park’s management would be under no obligation even to consider its terms in reaching its quite separate §1.6 permit decisions? Any tribal government that gives the matter much thought is, I think, likely to throw its hands up in disgust and walk away, concluding – rightly – that its ostensible trustee, the U.S. government, has played bait and switch once again.

One also has to wonder what has driven this change from the earlier drafts. Whose oxen would be gored by not trusting tribal governments to regulate the actions of their members, subject to the various controls placed on the administration of agreements by the regulatory language? Where did this change come from, and why was it made?

I strongly suggest that NPS return to the notion of the agreement as a permit, whose terms will be administered by tribal governments subject to monitoring by the relevant Park units and regional offices.

If NPS is not inclined to adopt this suggestion, I ask that it explain its unwillingness to do so, providing whatever legal and/or policy bases there may be for this disrespect for sovereign tribal governments.

Deficiency #2: Deletion of minerals

Earlier drafts of this regulation covered not only the gathering of plants but the collection of certain minerals – specifically renewable, naturally redeposited minerals like salt and clay, collected traditionally by tribal members for personal consumption, religious purposes, and the creation of various art and craft items. This provision has been deleted without explanation from the published draft. Why?

Minerals like sand for sand painting, clay for pottery, and salt are tremendously important in the traditional cultures of many tribes; they occur in limited areas, often within National Parks. Their collection has little likelihood of diminishing Park resources. The earlier drafts wisely provided for their collection; the published one does not.

Again, my recommendation is to go back to the provision worked out in earlier drafts. If NPS cannot bring itself to do this, I request that it at least explain the reasoning behind the provision’s deletion.

Deficiency #3: Deletion of allowance for minor commercial use

The earlier drafts carefully avoided implying that minor use of gathered materials for “commercial” purposes was prohibited, and stressed in prefatory language that such minor use was not prohibited. The published draft has deleted all language relating to this issue. This creates the potential for utterly unnecessary conflicts with tribes and their members who wish to, say, sell a basket some of whose materials have been gathered from a park. Such conflicts will be absurd wastes of time – as will the controls a tribe or park will have to impose to prevent such “commercial” uses from taking place.

I request that NPS restore the allowance for small-scale and incidental commercial use, or provide an explanation of its decision not to.

Deficiency #4: NEPA overkill

The published draft requires that an environmental assessment (EA) be prepared on execution of each agreement, necessarily leading to a finding of no significant impact (FONSI). This is unnecessarily burdensome on both tribes and Parks. Given the miniscule potential for significant impact on the quality of the human environment presented by small-scale plant (and mineral) gathering by tribal members, with all the controls imposed by the regulation, agreements with tribes should be categorically excluded from detailed review under the National Environmental Policy Act (NEPA), subject to the “extraordinary circumstances” provision of 40 CFR § 1508.4. Should an “extraordinary circumstance” arise, of course an EA would be prepared in accordance with standard NEPA procedures, hopefully but perhaps not inevitably leading to a FONSI.

I request that NPS re-think its burdensome approach to NEPA review, or explain its rationale for imposing such burdens on tribes and itself.

Deficiency #5: Failure to address other authorities

Many locations where tribes and their members have traditionally gathered plants (and minerals) for cultural purposes are – by virtue of their being so used – traditional cultural places that may be eligible for inclusion in the National Register of Historic Places (NRHP). Accordingly, entering into agreements with tribes to regulate use of such places – arguably improving their management at little or no cost to the government while respecting tribal traditions – is consistent with the requirements of Section 110(a)(2)(B), (D) and (E) of the National Historic Preservation Act (NHPA). It would seem only just for NPS to take credit for this consistency. There may be some marginal possibility of adverse effects on such locations that would require review under Section 106 of the NHPA, which should also be acknowledged and addressed, perhaps via a simple “program comment” under 36 CFR § 800.14(e).

Such locations, and the activities carried out there, often have spiritual importance to tribes. Accordingly, the locations may be “Indian sacred sites” as defined in Executive Order 13007. Since that executive order not only directs agencies to avoid impacts on such sites but also to ensure tribal access to them, the regulation – if its deficiencies are corrected – would appear to advance the executive order’s purposes. Yet executive order 13007 isn’t even referenced in the published draft. Neither are the American Indian Religious Freedom Act or the Religious Freedom Restoration Act, although again, arguably, implementing the regulation (with corrections) would seem to advance their purposes.

Finally, the published draft fails to mention executive order 12898 on environmental justice. Tribes have been subjected for centuries to disproportionate adverse environmental impacts by being excluded from their traditional plant and mineral gathering places. The draft regulation (if corrected) would be a step toward relieving tribes of this burden, but the draft as published maintains and exacerbates it.

I request that the above authorities be considered and addressed in revising the draft.

Deficiency #6: Non-recognized tribes and Native Hawai’ians

The published draft makes no provision for gathering by members of tribes that are not federally recognized, or by Native Hawai’ians. I am aware, of course, of the special relationship between the U.S. government and federally recognized tribes. I also understand that the tribes consulted by NPS in drafting the regulation supported limiting gathering under agreements to members of federally recognized tribes. Nevertheless, this limitation may create unnecessary and disproportionate adverse effects on tribes that are not recognized but do constitute minority and often low-income communities, and on Native Hawaiians in similar situations. Special attention to the environmental interests of such communities is required by executive order 12898.

I understand that in California, where there are many non-recognized tribes, arrangements have sometimes been worked out under which recognized tribes in effect “stand in” for non-recognized groups having traditional associations with areas of concern or cultural sensitivity. Surely there should be ways to flex an improved version of this regulation enough to allow a recognized tribe to permit members of a non-recognized tribe to collect plants (and minerals) under the terms of its agreement with NPS.

Gathering by Native Hawai’ians certainly presents a different problem, since there are no federally recognized groups to serve as intermediaries. Since Native Hawai’ians still constitute a minority even in Hawaii, however, and particularly given the recognized and acknowledged injustice of our government’s overthrow of theirs, something should be done to respect their interests in managing and using their plants and minerals. Federal agencies including NPS have worked out ways to repatriate cultural items to Native Hawai’ian organizations under the Native American Graves Protection and Repatriation Act (NAGPRA), and Parks in Hawaii routinely consult and coordinate with Native Hawai’ian organizations on other matters. Such arrangements might serve as models for interactions regarding plants and minerals.

I request that NPS at least consider relieving the disproportionate environmental impact of its regulatory approach on non-recognized tribes and Native Hawai’ians, and if it cannot bring itself to do anything about the problem, explain why it cannot.

Relationship to Forest Service Regulation

NPS’s Federal Register notice also asked for comments on how NPS’s rule might be better aligned with the regulation recently published by the USDA Forest Service at 36 CFR 223.16.

The Forest Service’s regulation is admirably simple and straightforward, and in contrast with the NPS effort seems reasonably respectful of tribal interests. It suffers from many of the same deficiencies as does the NPS draft (limitation to federally recognized tribes, failure to address minerals, simplistic exclusion of commercial use), but these deficiencies are understandable in the case of the Forest Service given the specific authority under which it is issued. Refreshingly, in contrast with the NPS effort, the Forest Service regulation does not drive tribes through a two-step process of first negotiating an agreement and then – perhaps – getting a permit.

The Forest Service regulation was drafted in response to direction given it by Congress in the Food, Conservation and Energy Act of 2008 (the Farm Bill) authorizing it to provide trees, tree parts, and other plant materials to tribes at no cost for traditional purposes. I suggest that NPS consider the possibility that Congress’ action on the Farm Bill suggests a congressional intent that the Federal establishment actually try to accommodate tribal cultural needs, and rethink its approach accordingly. As to how the two agencies might better “align” their respective regulations, I suggest that both jointly consult with tribes and Native Hawai’ians to seek ways of arranging for tribal access to plants and minerals on both National Forests and National Parks in ways that impose minimum burdens on indigenous people.

Thank you for your attention to these concerns. If I can be of any assistance to you in addressing them, I would be happy to do so.


Tuesday, May 05, 2015

Don't Sweat the Small Stuff: Using 36 CFR 800.3(a)

Suppose you’re a federal official, or a contractor for a federal agency, with a piece of land to manage. Or maybe you’re a State Historic Preservation Officer (SHPO) consulting with such an agency.
Suppose you’re SURE that no historic properties, known or unknown, are likely to be affected by operations on the land – maybe because you’ve studied the place and consulted with everyone concerned and found nothing to be concerned about, maybe because the kinds of things being done there (say, routine maintenance) just doesn’t do any damage.
Suppose, as a result, you want to stop spending time doing standard NHPA Section 106 review on each and every operation (e.g. each building remodel or ditch-digging project, but don't know how.
What do you do?
I get this question pretty often, and people usually usually ask about negotiating a programmatic agreement (PA) or some other "program alternative." Which takes months or years to negotiate, bores everyone to tears, usually becomes dangerously bloated and subject to misinterpretation, and often, once in place, is simply (and understandably) ignored.
People, you don't have to go to so much trouble. Fixating on such things, I think, is an expression of an all-too-common distortion of​ the 106 review process, in which everybody agonizes over small, routine, pretty much insignificant issues and develops ponderous documents stipulating how they’ll be addressed.
The flip side of this distortion is ignoring the big, nasty issues and impacts and closing interested parties out of "consultation.” That last word usually defined as "getting the SHPO to approve our projects."
In other words, everybody sweats the small stuff and ignores the important cases where there are real issues to be resolved, of importance to real people.
There’s a simpler way to quit wasting time on reviewing routine, virtually-no-impact operations.
If a federal agency is really sure that its undertakings on a given facility have no potential to affect historic properties, then the agency and its helpers ought to look at 36 CFR 800.3(a). This section of the Section 106 regulations says that in initiating review of a proposed undertaking:
The agency official shall determine whether the proposed Federal action is an undertaking as defined in § 800.16(y) and, if so, whether it is a type of activity that has the potential to cause effects on historic properties. (underscore added)

It goes on to say:

 If the undertaking is a type of activity that does not have the potential to cause effects on historic properties, assuming such historic properties were present, the agency official has no further obligations under section 106 or this part. (underscore added)

In other words, the agency can -- unilaterally and without going through any particular process, conclude that -- say -- routine operations at the Fred Noonan Institute for Aerial Navigation have no potential for effect on historic properties, and hence do not require review under Section 106. Document that for the record and proceed with no further 106 work.

No PA, no exemption, no SHPO buy-in.

I have some caveats, of course:
1.    You need to be REALLY sure there's no potential for impact -- direct or indirect, or contributions to cumulative impact, on any and all kinds of historic properties.
2.    But of course, you may be wrong, so you need to provide somehow for cases where impacts DO arise.
3.    Time passes, history happens, change comes, so you probably ought to reconsider your finding from time to time.

Some have been known to argue that if an action-type (say, ditch-digging) has the theoretical, abstract potential for impact (You can never be SURE what's in the ground, or not, or whether there's something historic about Building 72 that nobody's noticed despite the fact that it was built in 2012), an action falling into that type must be reviewed. There is some intellectual legitimacy to this sort of argument, but it is truly an argument for devoting limited resources to BS debates, and -- as one wise Federal Preservation Officer who used Section 800.3(a) effectively once asked me, "Who the &^%$# is going to sue?"

So seriously, if you’re a federal agency official, or a consultant advising such an official, or an SHPO consulting with such an official, consider Section 800.3(a). Applied responsibly, it can save a lot of time and trouble, and allow you to apply your limited personnel and financial resources to cases that actually matter.