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Friday, April 27, 2012

Commenting on the need for NPS Traditional Cultural Property Update


The U.S. National Park Service (NPS), National Register of Historic Places, has asked its “preservation partners” and others to advise it about the need for new guidance on “traditional cultural properties” and “Native American landscapes.”  If you want to comment, address nr_info@nps.gov, and be sure to put “TCP/NAL Comment” in the subject line.  Below are my comments:

I see that you have requested “comments on identifying, evaluating, and documenting traditional cultural properties and Native American landscapes” from “tribal, national, state, and local historic preservation partners, National Park Service regional offices and parks, other Federal agencies, and the public at large.”  Presumably because I fall into none of the above categories, you have not requested such comments from me, but I will provide them anyway, below.

You say:
With the 1990 release of National Register Bulletin 38, Guidelines for Evaluating and Documenting Traditional Cultural Properties, NPS clarified a broader scope of properties that could be considered eligible for listing in the National Register of Historic Places (NR) for their significance as Traditional Cultural Properties, and provided written guidance on working with these properties. 

Comment:  This is a misleading introduction, to the extent it is comprehensible as an English language sentence.  It implies that Bulletin 38 expanded the range of property types that could be considered eligible for the Register, and it did no such thing.  The Bulletin simply provided a name for such properties, examples of which had been determined eligible and listed on the Register since the very beginning of the Register’s existence, and provided some guidelines for identifying and evaluating them.

You say: 
This policy direction was followed by the provision in the 1992 amendment to the National Historic Preservation Act stating:  “Properties of traditional religious and cultural importance to an Indian tribe or Native Hawaiian organization may be determined to be eligible for inclusion in the National Register.” 

Comment:  It might be worth noting that this amendment did not appear out of thin air.  It was a tribally encouraged congressional reaction to the flat refusal by the Bureau of Land Management (BLM), Forest Service, and Bureau of Indian Affairs (BIA) to pay any attention to Bulletin 38.

You say:
While Bulletin 38 remains an essential, basic resource for identifying, evaluating, and documenting TCPs, in recent years the number of requests for additional assistance in this regard from State and Tribal Historic Preservation Offices, Federal agencies, and preservation professionals has increased significantly. 

Comment:  It may be revealing that such requests have apparently not come from tribes or members of the public.  Does this tell you anything?

You then list a series of topics on which you are considering publication of more “guidance.”  Let me first suggest that you take a good hard look at the guidance you already have, and consider ways to resolve inconsistencies that exist among the voluminous piles of paper you have generated in the past.  This should certainly be done before you burden the world with MORE of the stuff.  Let me also suggest that if you’re going to issue guidance, you get help from people who know something about the subject, and that you pay some attention to the literature that has been produced in the last 22 years dealing with it.  I realize that these suggestions may run counter to long-standing NPS policy.

Below are comments on each of the points on which you say guidance is in order:

·         What constitutes a “traditional” community

Comment:  A traditional community is a community that values its traditions, including but not limited to communities of American citizens.

·             “Continuity of use” by a traditional community

Comment:  I am at a loss to understand where and how you have come up with this “continuity of use” nonsense.  It is not in the Bulletin, but NPS keeps coughing it up as an excuse for not recognizing a place as eligible.  It is particularly galling when applied to a tribal property.  “Well, sure, we ran all over you militarily, killed most of you with our diseases, marched your survivors off to a reservation 500 miles away from this place you say you value, and imprisoned you there – so gee, we’re sorry, but you haven’t continued your use of the place, so it’s not eligible.”  You really should be ashamed of yourselves for even murmuring this sort of insulting drivel.

·         Evolving uses of resources by a traditional community

Comment:  Yes, they evolve, as do communities.  So what?  What business is it of yours whether and how they do?

·         Multiple lines of documentary evidence

Comment:  Multiple lines of evidence happen.  Sometimes they accord with one another, sometimes they conflict.  That’s life.  So what?

·         Broad ethnographic landscapes

      Comment:  Broad or narrow, the term “ethnographic landscape” is insulting to those who value cultural landscapes; it implies that a landscape is important because of its role in ethnographic research.  It may be, but that’s usually beside the point.  Traditional cultural landscapes (including but not limited to many "Native American landscapes") are simply that – traditional cultural properties that happen to be landscapes, landscapes that have traditional cultural value.  Ethnography has nothing to do with it.  Please discard the term.

·         Property boundaries

      Comment:  As Bulletin 38 says, boundaries are often difficult if not impossible to define.  They are usually arbitrary, and usually irrelevant to the way a community (notably a tribe) defines the place.  They comprise an artifact of the National Register’s roots in local planning and zoning.  They are often irrelevant to determining effects under NHPA Section 106 – the real world context in which traditional cultural properties are most often considered.  Any guidance should stress that they need be defined only to the extent there is a practical reason for doing so.

·         Resource integrity

      Comment:  If the people who value a place say it has integrity, it has integrity.  It is that simple.  The place is significant in people’s minds, so if in their minds it has integrity, it obviously has integrity.  This is not rocket science. 

You go on to say that you are willing to consider other “user-identified” TCP-related issues.  I doubt if you would define me as a “user,” and I do not intend to cater to the Register’s intellectual lassitude by re-stating what I have written in the past.  Rather, I request that you consider the issues discussed in at least the following of my publications:

·     Places that Count: Traditional Cultural Properties in Cultural Resource Management.  AltaMira Press 2003
·      “Rethinking Traditional Cultural Properties?”  George Wright Forum 26:1:28-36, 2009, George Wright Society, Washington DC.
·     “A Listless Approach to Resource Management.”  Heritage Management 3:1:97-100, 2010.
·     Chapters relevant to traditional cultural properties in CRMudgeoneity, Kindle Books, Amazon.com, 2011

Thank you for the opportunity to comment.  I trust you will not find my comments "inappropriate ..... or misleading or discriminartory" (sic)

Thomas F. King

26 comments:

Darby Stapp said...

Tom, thank you for beginning a conversation on the Park Service request for addressing TCP issues. As challenging as some of the NPS topics can be, I'm not sure more guidance on how to identify or document TCPs is needed. Rather than try to force a TCP peg into the NPS hole, I think one should just document the TCP as the people describe it. If the recorder has made an adequate effort to understand the people and the importance of the place to them, all of these issues should pretty much fall out. The problem is not identification and evaluation (though some may make it so), the problem is protecting and preventing the continuing destruction of important places and the people that need them. Why doesn't the Park Service want to look for ways to help with that? Why do we keep arranging deck chairs on the Titanic? We need to stop managing TCPs to death and find ways to keep them and the people alive and help them thrive and helping protect their resource and spiritual base is one way to help with that. Isn't that NPS's charter? Darby

Darby S said...

Tom, thank you for beginning a conversation on the Park Service request for addressing TCP issues. As challenging as some of the NPS topics can be, I'm not sure more guidance on how to identify or document TCPs is needed. Rather than try to force a TCP peg into the NPS hole, I think one should just document the TCP as the people describe it. If the recorder has made an adequate effort to understand the people and the importance of the place to them, all of these issues should pretty much fall out and one would hope the NPS would accept the documentation. The problem is not identification and evaluation (though some may make it so), the problem is protecting and preventing the continuing destruction of important places and the people that need them. Why doesn't the Park Service want to look for ways to help with that? Why do we keep arranging deck chairs on the Titanic? We need to stop managing TCPs to death and find ways to keep them and the people alive and help them thrive and helping protect their resource and spiritual base is one way to help with that. Isn't that NPS's charter? Darby

Tom King said...

Thanks, Darby. I agree with you, of course, and think what really ought to happen is that we dump the National Register and instead simply try to respect, and consult about resolving impacts on, whatever people care about, rather than worrying about how much or little NPS likes it. Last I heard, NPS did not have a corner on responsible national, tribal, state or local opinion about cultural resources.

James Knobbs said...

"The problem is not identification and evaluation (though some may make it so), the problem is protecting and preventing the continuing destruction of important places and the people that need them. Why doesn't the Park Service want to look for ways to help with that?"

Isn't that part of what the register is supposed to do? By registering a TCP, doesn't that perform the function of putting the public "on notice" that a property is of cultural importance to someone? Then a developer (for instance) would at the very least have documentation on who the interested parties may be for consultation?

Anonymous said...

Our SHPO has solved the problem by simply declaring that there are no TCPs in our state, nor shall there be, ever, ever, ever, ever, ever.

John Henry said...

Tom, it's easy for you to say "dump the National Register" and just respect and resolve impacts on whatever people care about, but for those of us trying to complete section 106 efficiently and in a legally defensible way, we need Tribal TCP guidance. The TCP identification process is very time-consuming and frustrating, especially on private land, and especially with requirements that vary widely from SHPO to SHPO, tribes that are loathe to part with info. on their sites, and (often understandably) irate project proponents. I'll bet you'd be singing a different tune if your performance assessment depended on how well you were able to expedite completion of section 106!

Tom King said...

Well, John Henry, if you're working for someone who insists that you "expedite completion of 106," your boss needs remedial instruction in what Section 106, and for that matter public service, are about. But even supposing your performance assessment system is legitimate, how would "tribal TCP guidance" help you? Would it give you comfort if NPS said "a tribal TCP must be purple," so you could efficiently show that all the blue ones weren't? Or what? Seems to me you're looking for technicalities by which to squirm out from under considering places that people think are important. Wouldn't it be simpler -- and more efficient -- simply to accept that you gotta consider what people themselves think is important?

John Henry said...

We want to agree with what the tribes say is important (i.e., we would like to concur with their eligibility determinations). The problem is that, because they've provided so little context info. on why on why their sites are culturally significant, the SHPO (of a large Midwestern state) non-concurs and replies with "Unevaluated" to our TCP determinations of “Eligible”. If we tell the tribes, "Sorry, we're going to change our determinations to Ineligible because you haven’t and won’t provide sufficient eligibility justifications" (and you refuse to agree with any semblance of the context language in NPS's 1989 "Aboriginal Rock Alignments and Effigies" NRHP Multiple Property Documentation Form), THAT would satisfy the SHPO but not the tribes. And our agency won't do anything to upset the tribes. If we could hire the tribes as consultants to do the tribal surveys using detailed Statements of Work that specified deliverables, including justifications needed for Eligible, and explained in the SOW that insufficient justifications would result in Ineligible determinations, our job would be easier. The problem is, we tried crafting a SOW a few years ago, but we and the tribes couldn’t agree on the terms, so our agency has abandoned the SOW idea. Shouldn’t we be able to tell the tribes, “We would like to say your stone feature TCP sites are eligible, but we can’t, because we can’t afford to be stuck in limbo with the SHPO’s “Unevaluated” assessments.”? (And sorry if my frustration was showing in my previous comment!)

Tom King said...

So the SHPO is being a jerk. Big surprise. And the agency won't upset the tribes. But will the agency upset the SHPO? It's the agency's responsibility to determine eligibility, after all, not the SHPO's, and if there's a dispute it goes to the Keeper. That's what the regs prescribe and it's the way to "expedite 106" when the SHPO or anybody else decides to fold his or her arms and "just say no."

John Henry said...

Well, I sent someone in the Keeper's office our TCP Justification (i.e., significance and integrity) Statments, and he said that what was missing was "the context necessary to understand the significance and role of these places in the larger story of tribal traditional history culture." He said if we asked the Keeper for a determination, the Keeper would (also) say it had insufficient info. to make a determination. I assume your advice is, we just need to do our very best to be confident in our eligibility determinations and be prepared to send them to the Keeper?

Tom King said...

Yes, and understand that the Keeper's office is staffed by people who are not above doing and saying really dumb things. I think they TRY to be responsible and reasonable, but sometimes they just don't know how.

On the matter of "context," I really don't know what to say. I suppose they're asking whether there's evidence of some kind that tribes really aligned the rocks with reference to some kind of cultural traditions, as opposed to just lining them up for the hell of it. That's not an unreasonable thing to ask for. Alternatively they may be looking for some sort of massive pseudo-academic "context study," which I'd say would not be reasonable, if for no other reason than that it would be saying "we won't believe what the tribes say until you bring in a white-eye anthropologist to explain it in Euroamerican terms."

John Henry said...

Tom, Thank You for telling it like it is!
Earnestly,
John Henry

Tom King said...

Thanks, John Henry. I wish it were otherwise. And it could be, I think, if people would just put some serious effort into it.

John Henry said...

Tom, if there's any one thing I would wish for in an updated NRB 38, it's examples of "Eligible" and "Not Eligible" TCP sites, similar to the examples provided in Section VII ("How to Apply the Criteria Considerations") and Section VIII ("How to Evaluate the Integrity of a Property") of NRB 15 (in the boxes). Is that too much to ask, do you think?

John Henry said...

Tom, if there's any one thing I would wish for in an updated NRB 38, it's examples of "Eligible" vs. "Non-Eligible" TCP sites, similar to the examples provided in Section VII ("How to Apply the Criteria Considerations") and Section VIII ("How to Evaluate the Integrity of a Property") of NRB 15 (in the boxes). Is that too much to ask, do you think?

Tom King said...

Good idea. The problem I see, though, is that while there are lots of examples of ELIGIBLE TCPs on which I think NPS has made the right call, the cases that pop to mind in which places have been determined NON-ELIGIBLE tend to be cases where I think NPS has had its head screwed on crooked. Worth thinking about, though; thanks.

John Henry said...

That's the problem: I can't find any examples (exemplary or otherwise) of individual stone feature sites (e.g., stone alignments, prayer circles, fasting beds & circles, and burial cairns) that have been deemed eligible (or not) and serve as examples of “adequately documented” (or not) per p. 27 of NRB 15, or of having sufficient context. If the Turner Falls Sacred Ceremonial Hill Site D.O.E. (at www.nps.gov/nr/publications/guidance/turnerfallsdoedecision-redacted.pdf) is an example of sufficiently documented context, does that mean we need to provide such context for each fasting bed, prayer circle, etc. or must we lump all such stone features at a project site into a cultural landscape? Can we conclude that a group of burial cairns is not significant or eligible, similar to this "Not Eligible" example on p. 35 of NRB 15: "A cemetery associated with a battle in the Civil War does not qualify if the battle was not important in the history of the war."? Our tribes will only tell us such things as, they have no "constellation-related effigies", "when you destroy a site, you're destroying someone's cultural connection to the afterlife", and "If the sites disappear then we don't have any history left." Examples of eligible and non-eligible TCP sites would be very helpful, yet I've heard that the revised NRB 38 (which MAY be issued this Fall) will probably address stone feature sites minimally, if at all. Could this get any more difficult?

Tom King said...

There's a certain reluctance -- certainly on my part and I think on NPS's -- to publish stuff on offishully determined non-eligible properties, for fear it'll be misused or (in my case at least) because the determination may be/probably is wrong or just dumb. I do have one I'm considering, though.

If what you're after is guidance about how much documentation is needed, I don't think there's really any answer. You need as much as you need under the circumstances of the particular case. If everyone is willing to agree based on, say, a local group's assertion and nothing else, then that's it. If someone with some modicum of authority or power says "no, I need more evidence," then you probably need to supply it. But that someone ought to be able to say WHY he or she needs more evidence, and the fact that NRB 15 requires it for purposes of nomination is relevant ONLY if someone is nominating something; it has nothing to do with eligibility determination (unless you're going to the Keeper, in which case it probably does).

John Henry said...

[Tom: here is the revised version of my earlier comment; please accept my apology for the multiple submissions.]
Tom, I heard that you (recently?) became involved in preparing the NRB 38 Update. (Although I also heard that there’ve been five versions so far, and none have made it past the NPS’ Solicitor to get published.) Does that mean you will ensure that the Update includes examples of TCPs, including individual stone feature sites, which are eligible and ineligible under Criteria A, C, and D – especially Criterion A? We need such examples to show tribal surveyors what information we (as lead agency) need in order to explain why a TCP site is eligible. For example, (for Criterion A) we need to know what the significant event that the stone alignment, circle, or effigy is associated with, and how that event significantly contributed to the broad patterns of the tribe’s history. Because so far (after asking repeatedly), all we can get from the tribes is (for example) that they consider the site very significant, and that it’s a very important and sacred ceremonial site with a view of _____ TCP. That’s not good enough for the SHPO or the Keeper, but the SHPO wants us to make the “ineligible” determination, because he will only say is that the sites are unevaluated. In your paper, “What Are Traditional Cultural Properties”, you say, “The only way we can find out about such significance [of TCP sites] is by asking people, and we need to ask them in ways that are likely to elicit useful answers rather than making them clam up.” But what can we do when, according to an archaeologist experienced in working with tribes, a tribe is the type who “distrust(s) archaeologists and the 106 process and insist(s) that ALL stone feature sites, and even burial sites (without human remains), should be NRHP-eligible, with minimal or no justification”, and who will adamantly protest to the ACHP if their sites are determined not eligible? Would the ACHP just “wash his hands” of the issue by referring us to the Keeper for a determination (vs. telling the tribe it’s being unreasonable)? If the timeframe of the Turner Falls Ceremonial Site DOE is any indication, a decision from the Keeper could take 1.5 years! We want to determine that several of these TCP sites are eligible, but how CAN we if a tribe won’t tell us (or anyone outside its tribe) how the sites meet the NRHP criteria?

Tom King said...

Yes, I've been working with the Bull38 update for about the last 6 months, in concert with NPS and the ACHP. No, there haven't been five versions, but there have been several evolving drafts. The whole thing went to DOI solicitors for review a month or so ago; we've (or at least I've) not heard a response from them. The "whole thing" includes an update/clarification(?) of Bull38 and a set of Frequently Asked Questions about the Bulletin's application and such in such contexts as NR nominations, eligibility findings, and Section 106 review. Once the lawyers have had their whack (and, I hope, we get to whack back), both documents will go out in draft for public review.

We're including examples of eligible places -- as in the existing Bulletin but updated and expanded. We toyed with the idea of giving examples of "not eligible" places and decided against it because we felt it would be misinterpreted by people who want to say "See? See? Your place doesn't exhibit the googleplex characteristic, just like that example of a non-eligible place in the Bulletin." I continue to think that this is the wisest course of action, though I'm contemplating giving an example of a significant but (probably) non-eligible place (a tree, actually) on my blog.

In your case, based on my admittedly limited knowledge of it, I can't see why it would be such a problem to say "OK tribe, you say all stone feature sites and burial sites are eligible; let's call them eligible and move on to addressing effects."

And where in the world would Uncle Sugar, in the guise of the ACHP (or NPS) get off telling a sovereign tribal government "Nope, sorry, but your cultural place just doesn't meet our fancy-pants standards?" Would we say that to Russia? China? Kiribati?

And the tribes "distrust archaeologists?" What do archaeologists have to do with interpreting TCPs? MAYBE part of the problem lies with putting too much faith in archaeologists.

John Henry said...

Tom, are you saying that the rules for justifying a site’s eligibility are different for Indian tribes--i.e., if a tribe says a fasting circle meets Criterion A because it’s “a ceremonial site and represents a traditional tribal lifeway”, that’s good enough? Because if you are, that needs to be written in NHPA regulations and/or guidance, because most SHPOs will not agree. And the NRHP, ACHP, SHPOs, and experienced archaeologists from BLM and USFS have all told me that TCP sites are not eligible just because tribes say they are. If everyone except Indian tribes must provide lengthy eligibility justifications, that needs to be stated by an authoritative source (e.g., NPS or ACHP), don’t you agree?

Tom King said...

No, I'm not saying that the rules ought to be different for tribes, though I think an argument can be made for it where federally recognized tribes are concerned -- they're sovereigns, after all, theoretically equal to the US government and certainly superior to state governments. But I don't think ANYBODY should have to "provide lengthy eligibility justifications" for a TCP; if those who value a TCP say it's eligible, it ought to be accepted as such. NOMINATION is another matter; there you're asking NPS to bless your place with its formal recognition, so there's some justification for their insisting on whatever BS they insist on. But ELIGIBILITY is determined only for purposes of Section 106 review -- does the agency have to take effects on the place into account, or does it not? Seems to me that in a government supposedly of, by, and for the people, if the people say a place is significant, government ought to respect what they say. Rather than insisting that they hire a bunch of pricey consultants to prove it according to some set of externally imposed standards. I'm realist enough to accept the fact that bureaucracies will always demand documentation, but when all we're really saying is "this place is important to X group, in X group's cultural traditions," it seems to me that the documentation ought to be minimal. I see no justification in a democracy for insisting that a community of people prove the validity of their cultural values to some outside expert or authority.

Tom King said...

Oh, and I'm sure you HAVE been told by SHPOs, etc. and especially by "experienced archaeologists" that "TCPs are not eligible because tribes say they are." After all, SHPOs (whose governments, again, are inferior to tribal governments) want to maintain their authority, and archaeologists get paid to maintain theirs. The fact that they say it doesn't make it so. Obviously the fact that I say a TCP IS eligible if a tribe says it is doesn't make THAT so, either, but what irritates me is this: I've been saying it for decades, in books, articles, and on the web, and explaining why I think so, but the "response" is not to engage me in debate -- to say "you're full of shit, King, and here's why" -- but simply to ignore the argument and proclaim the alternative truth without rationale to gullible practitioners. I think that's irresponsible and unprofessional.

John Henry said...

Tom, Thank you. I hope your clarification will do some good!

John Henry said...

Tom, I have to say that, we, the lead federal agency, have to get consensus from the SHPO on site eligibility. Otherwise, our eligibility determinations have no meaning. If a SHPO IS following the 106 process in determining that a tribe's eligibility justifications are insufficient and invalid, then our objection is futile, because the Keeper will side with the SHPO, and the law and current guidance is on the Keeper's side. And those SHPOs, such as the NE SHPO, who concur with tribes' insufficient eligibility justifications (i.e., where tribes provide NO justification), should be challenged by the Keeper (or someone), because they are setting a non-legally defensible precedent.

Tom King said...

It's an issue that probably needs to be adjudicated. If a sovereign tribe says "Mount Mud is culturally significant to us and therefore eligible for the NRHP," is it within the rights of the white-eye State HPO to say "nope," you gotta prove it? I don't think it SHOULD be, but I understand and agree that that's the way it often works out. In a perfect world, I think government would respect what ANY citizen says is culturally significant, but I understand all too well that we don't live in a perfect world. I'd just like to try to make it a little better than it is.