Archaeology in the Federal Government
When the National Park Service was created in 1916, it soon found itself managing a variety of archaeological sites, so over the years it built up a degree of competence in the field, and employed a number of people -- some professionally credentialed, others not -- as archaeologists. Besides managing archaeological sites in parks, it exercised the Secretary of the Interior's general coordinative and standard-setting responsibilities under the Antiquities Act of 1906.
In the 1930s, some of the programs developed to pull the U.S. out of the Great Depression involved archaeology. Labor-intensive excavations of sites scheduled for annihilation behind Tennessee Valley Authority dams were mostly justified as ways to put people to work, but they gave birth to the vague notion that government should do something to salvage archaeological data (or artifacts) from reservoir projects.
After World War II, when the Corps of Engineers was authorized to begin damming up the Missouri River, archaeologists at NPS and the Smithsonian launched the Missouri River Basin Project, doing salvage archaeology in Corps project areas with the (probably grudging) acquiescence of the Corps. The program soon became too much like the real world for the Smithsonian, and it backed out, leaving the field to NPS. In 1960, NPS was successful in getting passage of the Reservoir Salvage Act, authorizing annual appropriations to NPS to support its archaeological work on Corps projects.
NPS archaeology had two foci of attention: managing sites in parks whose missions involved interpretation of such sites, and salvage in Corps reservoirs. An archaeologist (for many years J.O. Brew) also sat on the advisory board that vetted potential National Historic Landmarks, but that was about the closest archaeologists came to the historic preservation programs that NPS was cooking up with the National Trust during the Kennedy-Johnson years.
Outside government, there was growing concern among archaeologists about site-destruction caused by federal government programs that were NOT under Corps of Engineer jurisdiction. That is, there was growing concern about such destruction going on without the conduct of salvage excavations. The Federal Highway Administration allowed state highway departments to fund salvage excavations (but not analyze the results), but most other agencies had neither the responsibility nor, they argued, the legal authority to pay the slightest attention to archaeology. None of the agency archaeological programs we know and love today -- in BLM, the Forest Service, the Corps -- existed.
Archaeologists and the Implementation of NHPA
In the late 1960s Archaeologists – including me, but Bob McGimsey of Arkansas was the major mover and shaker, along with his comrade-in-arms Hester Davis, Carl Chapman of Missouri, and Ray Thompson of Arizona – began to agitate for an expansion of the Reservoir Salvage Act to address all kinds of federal construction projects, and to authorize/direct the causative agencies themselves to fund salvage of the stuff they were destroying. Most of us were blissfully unaware of the parallel movement underway among historic preservationists, which had by then led to the enactment of NHPA, whose implementation NPS was putting into train.
A colleague who has written in response to my ACRA-L posting recalls reading the minutes of a Society for American Archaeology (SAA) meeting in 1967 or 68, where NPS representatives made a pitch for archaeological participation in the development of its programs under the newly minted NHPA. The minutes suggest, he says, that the members listened politely and said thanks, but expressed little interest. My own pertinent recollection is from an SAA meeting in about 1968, where there was a session dealing with NHPA and the great threat it posed to the integrity of archaeological site records. The perception was that the historic preservation people had gone sneaking around behind our backs and gotten Congress to create this “national register” thing, and these squirrely state liaison officers (later called state historic preservation officers), who would capture all the site records maintained by academic institutions and open them up to the pothunters.
In a nutshell, as the 70s got underway, there was very, very little engagement between the archaeological community and the developing NHPA programs in NPS. This was to change rather dramatically, however, if messily.
Let’s leave archaeology for a bit and look at how practice under Section 106 developed after NHPA’s enactment in 1966. Recall that my Amazon critic (quoted in the first segment of this discussion) accused me of having written “a lay person's manual on ‘how to use Section 106 to derail any development you happen to disagree with’” – implying that such “derailment” is not a proper use of Section 106, or perhaps that the interests of “lay persons” should not be given countenance. I beg to differ -- not only based on my own preferences, but on the history of the Section 106 process.
Section 106, as enacted in 1966, said that agencies were to “take into account” the effects of their actions on places included in the National Register, and give the Advisory Council on Historic Preservation (ACHP) a “reasonable opportunity to comment” on such actions. The newly-minted ACHP staff – essentially made up of executive director Robert Garvey and NPS historians Glennie Murray, Lou Wall, and Ben Levy – were confronted with the problem of figuring out what “taking into account” meant, and persuading agencies to do it.
One of the first cases to come to the ACHP under Section 106 was that of the old U.S. Mint in San Francisco, a National Historic Landmark (and therefore “grandfathered” into the National Register) which the General Services Administration (GSA) wished to expunge from the federal estate. The Mint is a fine old building, and had lots of defenders in San Francisco. According to Garvey – as I recall a conversation we had exploring the development of 106 practice – it was in the context of the Mint case that he came up with the idea of consultation with concerned parties as a core element in an agency’s “taking into account.” The late Fred Rath, who as the National Trust’s representative also took part in the case, once assured me that it was he, not Garvey, who came up with the idea. Maybe so, but my slight experience with Rath, who I found to be rather elitist, and my intensive acquaintance with the very populist Garvey, makes me lean toward the latter as the one who experienced the epiphany.
A pretty obvious epiphany, you may say. You got a problem among people, you sit ‘em down and talk about it, and try to reach agreement. Utterly obvious, certainly, but to this day agencies resist the idea of such negotiations, particularly with “lay people.” And the Mint case took place long before the bookstores started filling up with books about conflict resolution like Getting to Yes and Getting Past No. But nonetheless, a reliance on consultation was a pretty obvious, down-home kind of idea, which is one reason I think it was likely Bob Garvey’s idea; he was that kind of guy.
The Mint was saved, and the idea was born that consultation should be an important part of an agency’s account-taking.
The ACHP at this point did not have “rulemaking authority” – it couldn’t issue binding regulations. But it could issue guidance, and it was in this form that “the Section 106 process” first saw the light of day. By now it was 1972, and the ACHP had added an important weapon to its arsenal in the person of Ken Tapman, a Department of the Interior solicitor who became the ACHP’s General Counsel. Ken set about making the ACHP’s guidelines just as regulatory as he could possibly make them without the actual authority to do so; they were issued in the Federal Register, with a Code of Federal Regulations designator – 36 CFR 800 – even though they were technically not binding on anyone. There is another whole story to be told about how the regs became regs, but suffice to say that agencies began to get the idea – through the ACHP’s jawboning and through litigation – that “taking into account” the effects of their actions on historic properties meant consulting with concerned parties and trying to reach binding agreements. An agreement duly executed per the procedures would demonstrate both that the agency had taken effects into account and that it had given the ACHP its opportunity to comment; only in the absence of an agreement would the Council itself – a rather unwieldy body of presidential appointees, agency heads, and others named in the statute – actually “comment.”
It was at this point, incidentally, that I began to get involved in Section 106 work, in concert with a couple of California Indian tribes. As an archaeologist working for the Agua Caliente Cahuilla Tribe in Palm Springs, trying to derail a Corps of Engineers dam in Tahquitz Canyon, from which the tribe’s ancestors emerged from a lower world at the beginning of time, I was astounded when Garvey expressed a lot more interest in the Tribe’s oral traditions and beliefs than in my archaeological data. As a co-plaintiff with Pomo groups in Warm Springs Dam Task Force v. Gribble (378 F.Supp. 240 (N.D.Cal.1974)), I happily conspired with Tapman to use the ACHP’s procedures in an attempt to derail a dam in the Russian River basin, helping to cause the Corps to sit up and take notice of the procedures. We won at Tahquitz Canyon, lost at Warm Springs, but in losing prevailed on the Corps to pay a great deal more attention than it had to both archaeology and tribal concerns like the preservation of traditional plant resources.
Something else happened in 1972 that greatly influenced the development of Section 106 practice and the participation by archaeologists in that practice. I’ll turn to that in the next segment. My point, for the moment, is simply that consultation with concerned parties has been at the core of the Section 106 process from its beginning, and so have citizen efforts to “derail” projects they “happen to disagree with” -- like demolishing the San Francisco Mint and damming up Tahquitz Canyon. It seems to me that the very purpose of Section 106 review is to give citizens the right to say “wait a minute” to federal agencies whose proposed actions may damage something they, the citizens, care about. Not that the derailment need be successful, but the ability to threaten derailment, and to actually derail if one has a strong enough crowbar, is necessary if federal agencies are to be kept from running roughshod over citizens’ cultural concerns.