I've been seeing more and more cases in which agencies are unnecessarily complicating their compliance with Section 106 of the National Historic Preservation Act, and disrespecting Indian tribes in the process, by getting all wrapped up in largely irrelevant nitpickery about the application of standards and procedures in whose development the tribes have had no part. And with all due respect for the tribes, I wonder why they're being so good-natured about this disrespect. If I were a tribe, I know I'd be sick to death of having federal and state officials decide whether and how places significant to me were (and were not) eligible for the National Register, and what kinds of data I'd be required to cough up in order to get the agencies to consider impacts on them. So I thought to myself, "OK, Self, if you were a tribe, what would you do?" And myself responded: "Assuming I'm a tribal government, I'd pass a resolution to send to all federal agencies and State Historic Preservation Officers, saying in essence: 'look, you arrogant dummies; WE are the only ones who can decide what's significant to us, and if you're going to pretend to respect our cultural values you'd bloody well better respect that.'"
So I tried to draft such a resolution, in proper resolution language, presented below. I have no pride of authorship, intend to retain no copyright, and invite any tribe that's interested to do with it as such tribe may desire.
RESOLUTION OF THE ________(TRIBE)________ TRIBAL COUNCIL
WHEREAS the ___(Name of Tribe)___ (Tribe) is a sovereign American Indian tribe entitled to government-to-government relations with the government of the United States of America; and
WHEREAS the government of the United States of America, including all agencies thereof, has a trust responsibility to manage tribal lands and tribal cultural and natural resources, including tangible and intangible cultural resources valued by the Tribe wherever such resources may occur, in a manner responsive to the interests of the Tribe and its members; and
WHEREAS the cultural values and spiritual beliefs of the Tribe are intimately related to its ancestral lands, to natural places, and to the plants, animals, and spiritual qualities of such lands and places; and
WHEREAS the government of the United States of America has created a system for addressing the impacts of its actions on land-related cultural values that is built around the eligibility of culturally important lands, water bodies, and other places for the National Register of Historic Places; and
WHEREAS the regulations governing the National Register of Historic Places (36 CFR 60) were developed by the U.S. National Park Service without consultation with Indian tribes, and without evident consideration for tribal concerns; and
WHEREAS the Congress of the United States of America in 1992 added Sections 101(d)(6)(a) and (b) to the National Historic Preservation Act, reminding agencies of the United States government that places of religious and cultural importance to tribes could be eligible for the National Register of Historic Places and directing agencies to consult with tribes about the impacts of their actions and decisions on such places; and
WHEREAS under current regulations eligibility for the National Register is decided substantially by agencies of the U.S. government in consultation with State Historic Preservation Officers; and
WHEREAS it is fundamentally inconsistent with the principles of tribal sovereignty and the trust responsibility borne by agencies of the United States government toward Indian tribes for federal and state officials to decide on the eligibility of tribal places, and hence on the responsibility of agencies to consider the effects of their actions on such places;
NOW, THEREFORE, the _____(name of tribe)_____:
I. ASSERTS that all lands, water bodies, and other places it so identifies as historically, culturally, or spiritually important to the Tribe must, as a matter of the United States government’s trust responsibility toward the Tribe, be assumed by all federal agencies to be eligible for the National Register of Historic Places; and
II. INSISTS that all agencies of the United States government:
(a) Accept and respect the above assertion with reference to any land, water body, or other place identified by the Tribe as historically, culturally, or spiritually important;
(b) Respect tribal interests in and values ascribed by the Tribe and tribal members to such places;
(c) Consult in good faith with the Tribe to identify such places as may be affected by agency actions, approvals, and other decisions directly, indirectly, or as parts of a pattern of cumulative effects;
(d) Consult in good faith with the Tribe concerning potential impacts on such places as may arise from federal agency actions, approvals, or other decisions, seeking agreement with the Tribe about measures to avoid, reduce, compensate for, or otherwise mitigate any adverse effects on tribal cultural and spiritual values and interests; and
(e) Refrain from imposing regulatory or other standards and burdens on the identification and management of places important to the Tribe, or on consultation with the Tribe, to whose imposition the Tribe has not explicitly acceded, except where such standards or burdens are specifically enacted by the United States Congress.