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Thursday, September 25, 2014

Forgetting Bob Garvey's Mantra

When I went to work at the Advisory Council on Historic Preservation (ACHP) in 1979, my boss was the ACHP’s first executive director, Robert R. Garvey, Jr.  Bob was one of the “Big Three” (with Earnest Connally and William Murtagh) who had set up the U.S. Government’s historic preservation program after enactment of the National Historic Preservation Act (NHPA) – which, as executive secretary of the National Trust for Historic Preservation, he had been significantly responsible for creating.  He was also substantially responsible for creating the process of federal project review under Section 106 of NHPA – the “Section 106 process” that, with various additional bells and whistles, we know and love (sic) today.

I was reminded of Bob – long retired and sadly, long dead – the other day while reading the transcript of a meeting about a Section 106 programmatic agreement (PA).  The consulting parties had labored for months to develop the PA – an intricate piece about management of a federal installation – and reached agreement on its provisions, for implementation of historic preservation plans of various kinds.  These plans would, if carried out, ensure that all changes to historic buildings and landscape elements were done in accordance with the recommended approaches in the Secretary of the Interior’s Standards for the Treatment of Historic Properties, under the supervision of qualified professionals, with various kinds of public review and opportunities to resolve disputes.

“But remember,” said the representative of the State Historic Preservation Officer (SHPO), according to the transcripts.  “You’ll still have to submit each undertaking for our review.”

“Of course,” said the federal agency’s representative, and one could imagine heads bobbing all around the table.  “That’s the law.”

Well, of course, it’s not the law.  SHPO review of projects is not a matter of law; it’s prescribed in the ACHP’s regulations (36 CFR Part 800) as part of the Section 106 process.  The regulations also provide that agencies can negotiate PAs as alternative ways to comply with Section 106 – which was what the agency, in this case, had done. 

But legalities aside, it was the SHPO’s attitude that brought Bob to mind.  Bob had a sort of mantra that he drilled into the heads of all those who worked under his direction.  It went like this:

“Our job is to work ourselves out of our jobs.”

The idea was that over time, we should get federal agencies and other change agents to address the historic preservation impacts of their actions so naturally, so mindfully, that they wouldn’t need regulatory nit-pickers like us – and the SHPOs – looking over their shoulders. 

Reviewing that transcript, it struck me that it had been a long, long time since I had heard anyone articulate or even allude to Bob’s mantra.  I don’t think most historic preservation people or agency officials or representatives of regulated industries even know about it, or can relate to it.

It seems to me that in the years since Bob’s generation departed the historic preservation scene, we’ve become comfortable with the idea – indeed, deeply committed to the idea – of a permanent historic preservation bureaucracy, whose good gray officials review every project and insist that “proper standards” – as they understand and articulate them – are followed.  The members of that bureaucracy, and those of us in the private sector that advise clients about how to comply with the law, have become deeply committed to its perpetuation, and really can imagine nothing different.  Hence the SHPO’s assertion in the transcript, and the agency’s bland acquiescence.  

In retrospect, I suppose it was inevitable.  Create a bureaucracy, and it will inevitably evolve into a self-perpetuating one.  One that, I fear, is often more concerned about perpetuating itself than about the principles and policies it was set up to advance.

I wonder, though – as we approach NHPA’s fiftieth anniversary – if we shouldn’t revisit Bob Garvey’s mantra, and think about ways to work ourselves out of our jobs.

Tuesday, August 12, 2014

Submitting a Book Proposal For the Cultural Environment, Cultural Justice Series, University of Alabama Press

Proposals Are Solicited
Series theme:  The cultural environment – that is, those aspects of the natural and built environment to which human beings ascribe cultural significance – tends to be compartmentalized for purposes both of research and of management.  Archaeologists study the leavings of past cultures; cultural anthropologists and sociologists study living cultures; architectural historians study old buildings.  Historic buildings and archaeological sites get attention in land management, urban planning and environmental impact assessment; most other aspects of the cultural environment do not. 

This series aims to promote a more holistic approach to understanding and characterizing the cultural environment.  It also seeks to explore why and how the cultural environment can be and should be conserved in the contexts of democracy, cultural diversity, globalization, economic development, environmental justice, sustainability, and national/ international law.

Subthemes:  Volumes are solicited addressing subthemes like the following:

·         Cultural Justice – seeking ways to ensure that the cultural environments of indigenous, minority, and low-income communities are not disproportionately impacted by economic development, land management, and other contemporary activities.
·         Critiques of existing governmental and industrial methods of addressing the cultural environment writ large and with reference to specific aspects, generally with reference to the need for cultural justice.
·         Little-considered aspects of and impacts on the cultural environment
·         Examples of aspects:  Culturally significant animals, plants, landscapes, viewsheds, traditional land uses, property rights, neighborhood and community character.
·         Examples of impacts: 
o   Impacts of “green” energy development on culturally valued landscapes, plants, animals, viewsheds;
o   Impacts of endangered species protection on cultural practices, land uses, and cultural uses of wildlife;
o   Impacts of official historic or other special designation on traditional uses of the cultural environment;
o   Impacts of deep-ocean fishing and other commercial activities on historically and culturally important shipwrecks;
o   Impacts of war-fighting and military intelligence on local cultural systems and their environments.
Format:  Relatively short (150-200-page) books, clear, straightforward prose, minimal jargon.  Lots of latitude for authors as to structure, but a general outline might be:
·         Introduction – What is the book about? 
·         The main issues or problems
·         What is and isn’t being done about the issues or problems?
·         What should be done about them?  In what contexts?
·         Further reading
o   Up to ca. 12 photos and/or figures (maps, etc.), up to ca. 8 tables.

Target audiences: 
·         Graduate students in anthropology, geography, sociology, environmental studies. 
·         Practitioners in cultural resource management, historic preservation, environmental impact assessment. 
·         Government officials and policy makers in heritage, environmental, cultural, land management, and urban/regional planning agencies.
What We Need From You:

·         a cover letter
·         a prospectus including a description of your proposed work and its intended audience, the length or anticipated length of the manuscript, the number or anticipated number of illustrations, and the anticipated date of completion if your work is still in progress
·         a table of contents
·         competition, if any (author/title/year) and how your book differs from competitors
·         a list of potential peer reviewers with whom you do not have a close relationship
·         a resumé or curriculum vitae (if an edited work, please include brief bios of contributors).
·         If available, also send an introduction and/or a sample chapter or two.

Contact:  Tom King at
Postal address:                 410 Windsor Street, Silver Spring, MD 20910, USA

Tuesday, July 08, 2014

How to Write Off Traditional Cultural Properties: the Gladesmen Report

I recently reviewed a report prepared for the U.S. Army Corps of Engineers by New South Associates, entitled You Just Can’t Live Without it: Ethnographic Study and Evaluation of Traditional Cultural Properties of the Modern Gladesmen Culture (See  I hoped that the report would describe a good traditional cultural properties (TCP) study that focused on places of concern to groups of people other than Native Americans.  Such studies are rare; although National Register Bulletin 38 on the identification and documentation of TCPs makes it clear that any group of people can value such places, there is a tendency to think of them as the sole property of Indian tribes and Native Hawaiians.

I was deeply disappointed by the Gladesmen report, and feel obligated to say why.

Who Are the Gladesmen?

The Gladesmen are in essence the traditional mostly Euroamerican (especially Scots-Irish) rural residents of Florida’s Everglades.  They’re broadly characterized as a subdivision of the American South’s “Cracker” culture of self-sufficient rural subsistence farming, fishing, hunting, gathering and very small-scale industry.  Gladesmen comprise the families that have for generations lived in and around the Everglades, more or less making their livings by hunting alligators and other game, fishing, plume gathering, moonshining, and small-scale agriculture (See Simmons & Ogden 2010, Ogden 2011).

The Study

The ethnographic study of Gladesmen TCPs was commissioned by the Corps of Engineers in connection with a Master Recreation Plan being developed as part of the Comprehensive Everglades Restoration Plan (CERP).  Apparently the possibility of National Register eligible TCPs was raised during public meetings on the CERP, and the Corps contracted with New South to determine whether any existed.  New South undertook a program of background research and ethnographic interviews to reach conclusions about whether any Gladesmen TCPs were present.  Having identified thirteen candidate sites, they went through them and concluded that only two were in fact TCPs eligible for the Register – though they hedge their bets by calling for some to be analyzed further if some future action threatens them.


So why did I find the Gladesmen study so disappointing?  Let me try to explain:

What Was Evaluated

It is not clear to me how the thirteen sites studied were selected, or indeed why specific sites were selected at all.  Comments on the draft report by Palm Beach County Archaeologist Christian Davenport identified a number of other seemingly relevant locations that should have been considered, as well as additional informants.  New South breezily dismisses Davenport’s comments as “outside the scope of this preliminary study.”  Exactly what the study is “preliminary” to is unclear.  What particularly puzzles me is why the authors felt compelled to focus on specific locations.  One clear feature of Gladesmen culture is the mobility of its participants; they travelled and still travel all over the Glades.  Why wasn’t the overall landscape evaluated?  By focusing on specific locations (albeit including some linear properties like roads and streams), it seems to me that the study atomizes the environment that Gladesmen value, making it easy to devalue its specific parts.

Which is what the report proceeds to do.

(Mis)understanding TCPs

Although the authors of the report have apparently at least looked at National Register Bulletin 38, there is little evidence that they’ve tried very hard to understand it.  Instead, it appears that they have cherry-picked concepts, and in some cases made them up, to support their conclusions.

In Chapter II, for example, on page 10, we are told that:

“(a)n identified historic property usually must be 50 years old to be considered a TCP.” 

This implies that a place must first be “identified” as an historic property and then considered for TCP status if it is 50 years old.  This of course stands the evaluation process on its head.  A place is a TCP if it is regarded by people as important in sustaining their traditional cultural values; having recognized that it has this value, then one applies the National Register criteria and criteria considerations to see if it is Register-eligible.  And of course, “50 years old” is a deeply simplistic gloss on the actual “Fifty-year rule” laid out in the Register’s criteria considerations.

The same paragraph characterizes the “integrity” of a TCP as referring to “a sustained, integral relationship to traditional cultural or beliefs” and a condition that is “sufficient to convey significance.”  This may be a clumsy gloss on the Bulletin’s discussion of a TCP’s two kinds of integrity – integrity of association and integrity of condition – but if so it is a clumsy one indeed.  The reference to a “sustained…relationship,” for example, is made up out of whole cloth, but neatly sets the authors up for their subsequent dismissal of eleven of the sites.  The allusion to “convey(ing) significance” – another notion not derived from Bulletin 38 – helps the authors dismiss the significance of the sites based on their own perceptions (i.e. the perceptions of those to whom the sites do or do not convey things) – never mind those of the Gladesmen.

“Continuity” Claptrap

On the same page, we are told that:

“the most critical element in whether or not a property represents a TCP is its role in long term and continuous maintenance of a given culture” (emphasis added). 

“Continuity” is a notion that has no basis whatever in Bulletin 38.  The Bulletin succinctly says, on page 18, that “(t)he fact that a property may have gone unused for a lengthy period of time … does not make the property ineligible for the (National) Register.”  Let alone ineligible to be a TCP.  Continuity as a “critical element” – or indeed any kind of element – is something that has been made up to justify dismissing the significance of places from whose use people have been lately excluded.  As many Indian tribes can testify, the fact that one has been made unable to maintain the traditional use of a place – through relocation, forcible exclusion, genocide, or other historical circumstance – by no means renders the place insignificant.   Yet the authors of the Gladesmen study elevate their whole-cloth invention to the status of “most critical element” in determining whether a place is a TCP.  They go on to explain:

“Because continuity in use plays such an important role in defining TCPs, changes in a property’s use or association through time can change the eligibility status of that property.  If extensive changes or discontinuity in use occur through time, a site that has integrity may still be eligible for recording as a historic property…. But it would not maintain the necessary level of significance for recording as a TCP.”

This “important role” that the authors assign to “continuity in use” forms the basis for the rest of the study’s dismissive “analysis.”  But it is a status assigned by the authors based on no stated authority, and it is directly inconsistent with the plain language of Bulletin 38.

Inflating Misstatements

Perhaps following Hitler’s maxim that if you tell a big enough lie often enough it becomes the truth, the authors repeatedly reframe and elaborate on their misstatements.  On page 103, Chapter VII, for instance, as they set about “identifying Gladesmen TCPs," they say that:

“(i)t is important to restate here that many properties associated with Gladesmen Culture may warrant recording as ‘historic properties’… but not all of these will meet the criteria for recording them (sic) as TCPs.  The NRHP guidelines distinguish a TCP as a property that not only meets existing criteria as a historic property … but is also one that represents a continuing association with the (Gladesmen) culture whose primary importance is its role in maintaining cultural identity and practice.” 

So now a Gladesmen TCP must not only be eligible for the Register and “represent a continuing association” (whatever that means), but must have “maintaining cultural identity and practice” as its “primary importance.”  How in the world is anyone supposed to ascertain whether a place meets all these new and inventive standards?  Who, for instance, is supposed to decide whether a place’s role in “maintaining cultural identify and practice” is “primary?”  As opposed to secondary, tertiary, or quaternary? 

Note, too, the reference to “NRHP guidelines.”  What guidelines are these?  Certainly not Bulletin 38.  The bibliography also refers to National Register Bulletin 15; if that bulletin provides advice upon which the authors base their assumptions, it would have been helpful for them to have provided a specific citation.  But no, we are simply assured that New South’s case is grounded on “NRHP guidelines.”

The mysterious “guidelines” are referred to again on page 124, where we are told that:

“NRHP guidelines distinguish a TCP as a property that not only meets existing (as opposed, one imagines, to nonexistent) criteria as a historic property … but is also one that represents a continuing association whose primary importance is its role in maintaining cultural identity and practice.” 

The authors go on to warn us that:

“(p)roperties will not meet TCP criteria if the continuity of their use has significantly changed over time, if they do not retain sufficient integrity, and, most importantly, if they do not contribute to maintaining Gladesmen Culture as a whole.”

Again, as far as I can tell, New South has made up these standards on the spot, out of thin air.

Who Sez?

But let’s assume just for a moment that there really is some National Register guideline that makes all those preposterous statements.  How would one operationalize it?  Notably, who is to determine whether the use of a place has “significantly changed?”  Or whether it retains “sufficient” integrity?  “Sufficient” relative to what?  And who decides whether a place contributes to maintaining Gladesmen Culture, particularly “as a whole?” 

New South never tells us, but it becomes abundantly clear that the invariable answer to the question of “who says” is:  you guessed it, New South.  Despite Bulletin 38’s repeated calls for evaluating the significance and integrity of places with reference to the views and beliefs of those who value them, the Gladesmen report authors never miss a beat in skipping from describing properties to evaluating them, with never a reference that I could find to the views of Gladesmen themselves.  Chapter IX presents the study’s “results,” which the authors unblushingly identify on page 131 as “New South Associates’ findings.” 

The Bottom Line

And what are these findings?  That eleven of the thirteen properties described just haven’t been “demonstrated” (by whom?) to be TCPs, or lack “sufficient” information to permit evaluation.  Two properties – a duck camp and the site of an airboat association (already identified by the Corps as eligible for the Register) are identified as honest-to-gosh TCPs.

Here’s one typical example of how New South writes off possible TCPs.  It happens to be Duck Camp #2, but it could be any of the others.

“Oral history suggests that this campsite has been in use by modern Gladesmen since the late 1950s, as well as during earlier times.  However, use of the camp by regional Gladesmen changed with its ownership by Governor Kirk, and the current camp cabin was not built until the 1970s.  While the location has a known Gladesmen association that qualifies it as an historic property, New South does not recommend Duck Camp #2 to the NRHP as a TCP.”

Just like that.  The site is associated through oral history with Gladesmen use since sometime before the late 1950s but New South in its Olympian wisdom “does not recommend” it as a TCP. 

Why?  Well, we’re not told, but maybe it has something to do with that 1970s house.  But we’re talking about a site here, are we not?  Which in NRHP lingo means a piece of real property regardless of any buildings or structures on it.  Or maybe it’s something in the oral history – maybe people say “naah, we don’t care about that place.”  If that’s what they say, it might have been nice of the authors to mention it.  But New South apparently feels no need to justify its judgments with data; it is sufficient that it “does not recommend” the place.

The statement does go on:

“The camp appears to be typical of a mid-century Everglades backcountry camp that is used by an individual or a small number of people.”

Is this some sort of implicit standard?  Must the camp be atypical?  Used by more than a “small” (sic) number of people?  We are not told.  We are told, however – in another unsubstantiated statement of imperious opinion, that:

“Duck Camp #2 does not exhibit a continuing association with modern Gladesmen Culture as a whole and therefore is not recommended as a TCP.”

Excuse me?  Have the authors not just asserted that Duck Camp #2 has a Gladesmen association extending back to before the 1950s?  Is this somehow not “continuing?”  Did Governor Kirk’s ownership sever that relationship?  If so, how?   Or is the failure somehow to reflect association with Gladesman culture “as a whole” what dooms the camp?  The (somewhat) detailed data on Duck Camp #2 found on pages 156-60 does not clarify.

The rest of the evaluations are similar.  Each briefly summarizes descriptive data on the site and then states a conclusion, substantiated by nothing other than New South’s self-assumed authority


What are we to make of this report?  It’s certainly not an example I intend to cite – except perhaps as an indicator of how not to evaluate TCPs.  But why in the world is it as it is?  Does it give the Corps of Engineers anything it can really use in designing and carrying out the CERP?  Does it give Gladesmen any help in preserving these places that, as the report’s title implies, they “just can’t live without?”  Did preparing it accomplish anything other than to support some New South employees for awhile and bring New South some overhead? 

I don’t know, but I do know that the report butchers the very notion of traditional cultural properties, wildly misinterpreting Bulletin 38.  I suspect, too, that it has given the Corps an ostensibly authoritative basis for writing off the traditional cultural significance of Gladesmen sites – and perhaps more importantly, of Gladesmen cultural landscapes – as it moves forward with implementing the CERP.


Ogden, Laura A.
2011   Swamplife: People, Gators, and Mangroves Entangled in the Everglades.  Minneapolis, University of Minnesota Press

Parker, Patricia L. and Thomas F. King
1990    Guidelines for the Evaluation and Documentation of Traditional Cultural Properties.  National Register Bulletin 38.  Washington DC, National Register of Historic Places, National Park Service.

Simmons, Glenn, and Laura Ogden

2010   Gladesmen:  Gator Hunters, Moonshiners, and Skiffers.  Gainesville, University Press of Florida.

Saturday, June 28, 2014

"Representing" an Indian Tribe: Part Two


On June 25, I posted a copy of a letter that I’d written to Department of Defense John Rymer about the behavior of the Seattle District, U.S. Army Corps of Engineers (See immediately preceding post below).  Needless, I imagine, to say, I’ve not gotten a response. 

Here, I want to focus on one part of my letter – in which I said:

What I in fact did, with the permission of the Lummi leadership, was to telephone a representative of the EIS contractor ……………. to tell them that I was working with the Lummi and to encourage them to address the Tribe’s actual concerns with impacts on the Xwe’chi’eXen landscape.  The District and project proponent have tended to ignore this landscape, instead focusing solely on an externally defined archaeological site called 45WH1.  Naively perhaps, I thought the EIS contractor was in the business of collecting data from a wide range of sources in order to assess objectively the project’s environmental impact and inform the Corps’ public interest decision.  This is apparently not the case; rather than taking my call or responding to my voicemail message by contacting the Lummi, the EIS contractor apparently reported the contact directly or indirectly to Col. Estok.

It’s that naïve expectation I’d like to explore a bit here. 

The Naïve Expectation

To elaborate: my expectation went like this:

1.    The purpose of an environmental impact assessment (EIA) is to make a fair, honest, comprehensive, at least reasonably objective assessment of a proposed action’s environmental impacts.

2.    That’s presumably what the company in question has been engaged to do, in this case in the form of an environmental impact statement (EIS).

3.    Part of their scope of work, presumably, is to gather the data necessary to form a basis for this assessment.

4.    So they ought to welcome input from all sources.

5.    My experience is that in this case, for whatever reason, it’s been hard for the Corps to quite come to grips with the Tribe’s concern for the landscape, as opposed to the specific archaeological site.

6.    Ergo, the company ought to welcome and respond positively to what amounted to an offer to facilitate their coordination with the Tribe, to help ensure their understanding of the Tribe’s environmental concerns.


Well, I was obviously wrong, because the company’s representative did not take my call, did not return it, and indeed the only action the company seems to have taken was to scurry off to the Corps, or perhaps to their more immediate client, to report about me – whereupon the Corps undertook to sever my relationship with the Tribe.


I hear my contractor colleagues chortling:  “Serves you right, King.  What did you think they’d do?  Their responsibility is to their client.” Who is probably either explicitly or implicitly (through a funding arrangement via the Corps) the project proponent.

Which strikes me as a problem.  If your responsibility is to your client – who very likely wants the project to move ahead, or at least to see it processed through the regulatory system with minimum muss and fuss – isn’t that a tad inconsistent with your responsibility to do a fair, balanced, comprehensive assessment of impacts?

To be fair myself, I’ve tried to imagine the shoe being on the other foot.  What if someone had called me up and said “Look, your tribal client isn’t giving you the full story, and I really think you ought to consult with XYZ?”  Would I have run off to the Tribe to tell them?

Well, yeah, maybe I would have, but then, I’m not under contract to produce an impact assessment; I’m under contract to help the Tribe get its point of view attended to.  If my job WERE to assess impacts on the environment, presumably in service to the greater public good, I DON’T think I’d go tell my client about the call.  Instead I’d try to follow up on it, see whether it revealed anything that was relevant to my analysis. 

Why?  Because my responsibility as an impact analyst would not be to my very likely (duh) self-interested client, but to the environment, and to the “public interest” that the Corps is so wont to spout off about. 

Moreover, I’d argue that even my client’s interests would be better served by my being open to information from outside – even from “the other side” – than by having me consider only sources approved by the client.  If they want only their own information considered, why in the world do they need me – or the company – to consider it?  Just to put a polish on the analysis to impress the review agencies and flummox the public?  That’s not supposed to be what EIA is about, but to me it doesn’t even seem like good business.  “Look before you leap” is good business, and you can’t look if you deliberately blindfold yourself. 

It seems to me that if I were the EIA company my responsibility to my client – if I have one, as opposed to a responsibility to the environment and the public interest – is to help my client avoid being blindsided.  I should find out what the hot-button environmental issues are, so they can be factored into planning and decision-making before they burst out in a public hearing or become grounds for litigation.

But to judge from my experience with Col. Estok and his troops, and the EIA company, mine is at best a minority opinion. 

Would anyone care to articulate the majority opinion?  

Wednesday, June 25, 2014

"Representing" an Indian Tribe: Part One

Text of a letter sent yesterday (6/24/14):

June 24, 2014

The Honorable John T. Rymer
Inspector General
U.S. Department of Defense
4800 Mark Center Drive
Alexandria, VA 22350-1500

Dear Mr. Rymer:

I write as a taxpayer, voter, veteran, and owner of a small business to request that you investigate what I believe to be at least negligent, and quite possibly intentional, interference in my business activities by personnel of the Seattle District, U.S. Army Corps of Engineers, including District Engineer Colonel Bruce A. Estok. 

Besides being objectionable to me as a small businessperson, the District’s behavior concerns me because it suggests a bias in favor of the applicant for a Corps Clean Water Act (CWA) permit,  calling into question the District Engineer’s ability to make the public interest decision required under 33 CFR §§ 320-330.

By way of background:  I am an independent contractor who consults, writes, and teaches about historic preservation and environmental impact assessment.  My specialty is federal agency compliance with the National Historic Preservation Act (NHPA).  Although I sometimes teach and consult for DOD and other federal agencies, much of my work today is done for Indian tribes.  I assist tribes in making sure that their traditional cultural places are recognized as eligible for the planning consideration guaranteed by the NHPA for places that are eligible for the National Register of Historic Places (NRHP); I also support tribes in consulting with federal agencies and others under Section 106 of the NHPA.  I am the author of most contemporary textbooks on such matters, and am generally recognized as expert in dealing with them.

I am under contract with the Lummi Nation, a federally recognized tribe in Washington State, to assist that tribe in consultation with the Seattle District in connection with the Corps’ potential issuance of a CWA permit for the proposed Gateway Pacific coal terminal at Cherry Point near Bellingham, Washington.  The project is currently the subject of an environmental impact statement (EIS) being prepared for the Corps.

I have been critical of the District’s handling of this case.  My strong impression is that the District’s approach has been and continues to be disingenuous and prejudicial to Lummi interests, as well as  to the integrity of a cultural landscape called Xwe’chi’eXen by the Lummi.  I believe Xwe’chi’eXen is eligible for the NRHP.

On May 28, after repeated efforts by the Lummi to prevail upon the Corps to pay attention to their concerns, Lummi leadership met with Col. Estok and members of his staff.  In the course of their conversation, Col. Estok informed the tribal leaders that I had contacted staff of the EIS contractor, purporting to “represent” the Lummi nation.

Of course, no one can “represent” a sovereign Indian tribe without the express permission and direction of the tribal government.  Because unscrupulous whites have pretended to such representative status over the last few centuries, with disastrous results, tribes are universally and understandably very sensitive about such pretensions.

I have never suggested to anyone that I “represent” the Lummi.  What I in fact did, with the permission of the Lummi leadership, was to telephone a representative of the EIS contractor – a company for which I formerly provided training – to tell them that I was working with the Lummi and to encourage them to address the Tribe’s actual concerns with impacts on the Xwe’chi’eXen landscape.  The District and project proponent have tended to ignore this landscape, instead focusing solely on an externally defined archaeological site called 45WH1.  Naively perhaps, I thought the EIS contractor was in the business of collecting data from a wide range of sources in order to assess objectively the project’s environmental impact and inform the Corps’ public interest decision.  This is apparently not the case; rather than taking my call or responding to my voicemail message by contacting the Lummi, the EIS contractor apparently reported the contact directly or indirectly to Col. Estok.

Exactly how my voicemail message came to be misinterpreted as a statement that I “represented” the Lummi is not known to me.  However, it would clearly be in the interests of the Gateway Pacific project proponent to deprive the Lummi of access to expert advice, and by casually reporting that I had said I “represented” them, Col. Estok – whether negligently or intentionally – advanced those interests.

Whatever Col. Estok’s intention, his statement inappropriately and improperly raised questions in the minds of the Lummi leadership about my actions.  They contacted the EIS contractor and ascertained the actual content of my voicemail message (See attached letter of June 3), so it is my hope that Col. Estok’s action will not have a serious impact on my relationship with the Tribe.  However, Col. Estok has not formally corrected the record, which continues to reflect his untrue allegation.  As you may be aware, such allegations can take on lives of their own; if the false and defamatory rumor were spread that I was in the habit of purporting to “represent” tribes with whom I work, it would have a serious and deleterious impact on my business, and on my ability to help tribes make sure that their cultural environments are properly considered in environmental impact assessment.

I ask that you investigate this matter, and if you find – as you will – that my account of the matter is accurate, you exercise your authorities and responsibilities to ensure that the Corps immediately issues a formal statement correcting the record. 

Thank you for your attention to this request.

/S/ Thomas F. King

Thursday, June 19, 2014

Historic Horses

 Friends of Animals ( ) and the Cloud Foundation ( have filed a petition with the Secretary of the Interior seeking to have a segment of North America’s wild horse population listed as an endangered species (See ).  Part of the rationale for listing is that the Bureau of Land Management (BLM) is allegedly mismanaging wild horses on public lands, failing to protect their habitat and removing them from their traditional ranges.

Wild horses are certainly “cultural resources.”  They have played important roles in the history of the West, and particularly in the histories of many Indian tribes.  They have iconic status in popular depictions of the West, and are treasured by many outdoor and equestrian groups.  Yet when BLM undertakes an action aimed at managing them – for example a roundup – it doesn’t do much (if anything) about compliance with Section 106 of the National Historic Preservation Act (NHPA).  Its people don’t sit down with groups that value wild horses and negotiate memoranda of agreement stipulating how a herd’s cultural values will be protected.  It doesn’t seek the comments of the Advisory Council on Historic Preservation (ACHP).

Why not?

Because horses, and animals in general – however obvious they may be as cultural resources – are not eligible for the National Register of Historic Places (NRHP), and Section 106 of NHPA requires agencies only to consider the effects of their actions on places included in or eligible for the NRHP.  So BLM needs to address the effects of its wild horse management under the National Environmental Policy Act (NEPA), but not under NHPA – except to the extent that such management may churn up archaeological sites or other places eligible for the NRHP.

That, at least, is a gloss on the government’s party line.  But does it make sense?

Well, that depends on your perspective.  The NRHP is, after all, the National Register of Historic Places, so the first question is: is a horse a place?  Most of us, most of the time, would probably say “no.”  But when one is sitting on a horse, is one not in a “place?”  Or what if one is a flea, living its entire life on a horse’s belly; is the horse not a “place” from the flea’s perspective?

More to the point, the National Park Service divides the world of historic properties up into “districts, sites, buildings, structures, and objects.”  In 2005, the District Court for the Northern District of California raised the question of whether an animal could be defined as an “object.”  The case at hand was Okinawa Dugong v. Rumsfeld[1], dealing with a proposed base on Okinawa that would, if built, threaten the habitat of the Okinawa Dugong, an iconic animal listed in Japan’s equivalent of the NRHP.  The court mused:

Defendants contend that a wild animal cannot qualify as a “property” and that there is no indication in the NHPA (National Historic Preservation Act) and its amendments, the accompanying legislative history, the implementing regulations and guidelines, or case law that Congress “sought to expand the NHPA’s statutory coverage in order to protect or preserve wild animals.”  See Def.’ Mot. At 3, 13.  “Wild animals” fails to describe the relevant group of animals at issue here, namely those with special cultural significance protected under foreign historical preservation laws which are deemed “equivalents” of the National Register of Historic Places.  Taking defendants’ point, nonetheless, very little precedent exists governing the question of whether a living thing can constitute a property eligible for the National Register.  The decision of the one district court that has dealt with the issue undermines defendants’ argument that the dugong is automatically disqualified.  In Hatmaker v. Georgia Department of Transportation, 973 F. Supp. 1-47 (M.D. Ga. 1995), plaintiffs sought a preliminary injunction against continued construction of a federally-funded road widening project that involved destruction of an oak tree of significance in Native American history.  The court held that the tree was at least potentially eligible for placement on the National Register and granted the preliminary injunction.  Id. At 1056-57.  In a subsequent case, in which the Department sought to have the injunction dissolved, the court again rejected the defense’s argument that an unaltered tree could not qualify for the National Register.  See Hatmaker v. Ga Dep’t of Transp. 974. Sup. 1058, 1066 (M.D. Ga. 1997).  In assessing the applicability of the statute, the court emphasized the verifiable nature of the contested object’s historic qualities. Id. At 1067.

Hatmaker is analogous to the present case. While animals obviously differ from trees, their distinguishing qualities are not significant under the plain language of the statute.  The dugong may, like a tree, fall under the category of “object” as “a material thing of functional, aesthetic, cultural, historical or scientific value that may be, by nature or design, movable yet related to a specific setting or environment.” 36 C.F.R. § 60.3(j)[2].

To the best of my knowledge, NPS has never addressed this question as a matter of policy.  If a tree can be eligible for the NRHP, why cannot a horse?  Or an eagle, a whale, or, say, a population of animals like a herd of horses or a school of fish?

In practice, we’ve usually dodged the question – either by ignoring it and taking it as given that “animals can’t be eligible for the NRHP,” or by addressing not the animals per se but their habitat.  In 2004, for example, in a report for the Klamath River Intertribal Fish and Water Commission, I argued that California’s Klamath River was eligible for the NRHP in part as salmon spawning habitat – salmon being of existential cultural significance to the tribes along the river.  Following the lead of then-Yurok Tribal Historic Preservation Officer Tom Gates, I defined the Klamath as a “riverscape” district, with the salmon among its character-defining features[3].  This assessment was accepted by the California State Historic Preservation Officer (SHPO) and the Federal Energy Regulatory Commission (FERC) for purposes of NHPA Section 106 review.  Around the same time, I failed in attempting the same sort of argument with respect to Southern California’s Coyote Canyon and its erstwhile wild horses.  However, that was in the context of a formal nomination to the NRHP, in which it is traditional to pick fatuous nits – and in fairness, the wild horses had been removed from the canyon, so their association with it was a bit tenuous.

Presumably now the U.S. Fish and Wildlife Service (FWS) will be preparing some kind of response to the Friends of Animals/Cloud Foundation petition.  It occurs to me that this response – whatever it is – ought to be a federal undertaking subject to review under NHPA Section 106, because it surely is the kind of federal action that has the potential to affect historic properties.  Particularly if wild horse habitat – to say nothing of the horses themselves – can be defined as NRHP eligible.  I certainly hope that FWS will undertake such review; it might provide a context in which the cultural significance of wild horses -- and other animals -- could be systematically addressed.

[2] Memorandum and Order, No. C 03-4350 MHP, filed March 2, 2005: I.B
[3] King, T.F. First Salmon: the Klamath Cultural Riverscape and the Klamath River Hydroelectric Project.  Klamath River Intertribal Fish and Water Commission, 2004.

Wednesday, June 11, 2014

Su Nu Nu Shinal Dancers Need Support

One of California’s better preserved and interpreted historic sites is Fort Ross, the early 19th century Russian fur-hunting settlement on the Sonoma County coast.  In recent years the California Department of Parks and Recreation, which administers the site, has done a fine job of working with the Kashia Pomo community on whose ancestral land the settlement was built.  In contrast with the state’s Spanish, Mexican, and American colonizers, the Russians enjoyed relatively cordial and collegial relations with their Pomo neighbors, and these relations have been renewed in recent years.

Now the Su Nu Nu Shinal Dancers – traditional Pomo dancers – are going to Russia on a performance tour.  They’ve raised almost enough money for the trip, but still need a little more.  I’ve just made a contribution, and hope you will too.  The Fort Ross Conservancy, a 501(c)(3) non-profit, is helping organize the trip and handling donations.  You can learn more and make a contribution at  A worthwhile cause.