Monday, August 31, 2009

What Is the National Historic Preservation Act About? Part III: Thank Richard Nixon for Cultural Resource Management as We Know It.

I actually lied at the end of the last segment. The big thing I said happened in 1972 actually happened in 1971, when President Richard Nixon issued Executive Order 11593, “Protection and Enhancement of the Cultural Environment.” It was in 1972 that it began to be seriously implemented. I think it’s fair to say that this executive order set the stage for cultural resource management as we know it today, and inadvertently brought about the ascendance of archaeology in the field.

I’m very hazy on just what led to the executive order; what I can report here is based on my recollections of the time, and of conversations with Bob Garvey and Jack MacDermott, another early NPS/ACHP official, and particularly on recent correspondence with the imminent retired NPS historian and Deputy Executive Director of the ACHP, Bob Utley. When the order was issued, I was deeply involved in my dissertation research in the Sierra Nevada foothills, in organizing the Society for California Archaeology’s (unsuccessful) effort to push statewide archaeological legislation, and in trying to keep body and soul together as an archaeological consultant – a very new and chancy status in those days.

As I’ve mentioned, a number of archaeologists had begun to agitate for improved federal archaeological laws, but most of us thought little of the NHPA. Part of the problem was that we were all so completely focused on salvage archaeology as the solution to all conflicts between archaeology and development, which really didn’t fit well with the “preservation and re-use in place” philosophy behind NHPA. Another part of the problem was Section 106, which didn’t kick in until a property was actually listed in the National Register. This put a terrible burden on anyone trying to – if you will – derail a project he or she didn’t like; it was necessary to nominate the property and get it listed before the agency responsible for its impending destruction had to do anything about it. Though nomination was much less burdensome then than it is today, it was still something that took time and money, and often involved literally sneaking onto an agency’s jobsite to find stuff to nominate. So those of us who DID pay some attention to NHPA wanted the law fixed to require agencies to identify places for review under Section 106.

Our focus, however, remained on amending the Reservoir Salvage Act to cover all federal actions and to require agencies themselves to fund salvage, as opposed to leaving it to NPS. NPS took advice on archaeological matters from a “Committee on the Recovery of Archaeological Remains” (CRAR), which represented the mainstream universities and archaeological organizations, and kept constant pressure on NPS to support an expansion of the Reservoir Salvage Act. NPS, trying to struggle with the intricacies of implementing NHPA – not an entirely happy fit itself with NPS’s in-house park-oriented functions – wasn’t terribly interested. But every bureaucracy responds to pressure.

Meanwhile, Congress had enacted one of the last pieces of Lyndon Johnson’s Great Society in the form of NEPA – the National Environmental Policy Act – and President Nixon found himself with a Council on Environmental Quality attached to the Executive Office of the President. CEQ was headed by Russell Train, a notable environmentalist (In those days there WERE Republican environmentalists), who went on to become the administrator of the Environmental Protection Agency. Train, or people on his staff, were acquainted with folks at NPS and the budding ACHP, including Garvey and his associate MacDermott.

It is not uncommon for agencies to pay little attention to laws enacted by Congress until they are (a) forced to by litigation or (b) told very directly to do so by their boss, the president. In the late ‘60s and early ‘70s, NPS and the ACHP perceived that this was a problem with Section 106. Agencies just weren’t paying attention. How to fix this? An executive order was an obvious strategy, but with President Johnson preoccupied with the growing disaster in Viet Nam, it wasn’t until the happy coincidence of a new president – Nixon – and a new vehicle for lobbying him – CEQ – that an opportunity presented itself.

Nixon, I should mention, was by no means an anti-environmental president, and he was particularly sympathetic to Native American interests. He was, for instance, intimately involved in returning the sacred Blue Lake to Taos Pueblo – as neat an act of governmental preservation of a traditional cultural property as there has ever been.

So Nixon, thanks to Garvey, McDermott, and Russell Train’s aide William Reilly (subsequently himself head of EPA as well as the World Wildlife Fund and other conservation organizations), issued Executive Order 11593 on May 13, 1971. The order (See ) told federal agencies to exercise leadership in preserving the nation’s historic and cultural environment, and then provided some specific directions. The major ones were:

1. By July 1, 1973, all agencies were to find all the places under their jurisdiction that might qualify for the National Register, and nominate them thereto.

2. In the interim until everything was on the Register, agencies were to treat places that were eligible for the Register as though they were already listed.

3. The Secretary of the Interior – meaning NPS – was to issue guidance about how to determine whether something was eligible.

The “nominate everything by 7/1/73” business was impossible, of course – though the quaint notion of “completing the National Register” persists even today, even in pronouncements by the ACHP, which should know better. Everyone knew that the “interim” was going to be a very long time. NPS got right to work on issuing guidance for eligibility determination, which would ultimately become the now very strange and anachronistic 36 CFR Part 63. These regulations put great stress on consultation between agencies and the “State Liaison Officers” that NHPA had created – who by now were coming to call themselves “State Historic Preservation Officers” and developing a voice of their own through their National Conference. Oddly, the regulations provided that while every determination of ELIGIBILTY had to be made by the Keeper (based on agency and SHPO recommendations) if an agency and SHPO decided that a place was NOT eligible for the National Register, that was that; it was entitled to no further consideration. Unless a “question” existed about eligibility, and a “question” existed when an agency determined that one did. Incidentally, as a newly employed archaeologist at NPS in Washington, I objected strenuously to this language, but Interior’s solicitors were shocked, just shocked, to think I could suspect that a federal agency would ever misuse this decision making authority. The Forest Service on the San Francisco Peaks in Arizona very soon proved me right, but the attorneys never apologized, and the regulation, though widely ignored and now contradicted by the ACHP’s Section 106 regulations, still survives.

The more important and determinative thing that NPS did in response to the executive order was to designate three of its employees – Larry Aten, Roy Reeves, and Jon Young – to be “Executive Order Consultants.” These three were to be the apostles to the heathen; they were to go out and beat on agency doors, wave the law and executive order in their faces, and “help” them comply. And they did, very effectively.

Aten, Reeves, and Young were and are all archaeologists. Why this was so, I don’t know, but I suspect that NPS’s architectural historians and historians just weren’t all that interested, and didn’t have much experience dealing with agencies. The NPS archaeological salvage program, however, had worked with the Corps of Engineers for years, and to some extent with other agencies, so that program’s people, now headed by a “Departmental Consulting Archaeologist,” were a natural choice.

The EO Consultants naturally targeted the agencies whose activities had lots of archaeological impacts. They didn’t ignore HUD or EPA, but their big foci were the Corps, Bureau of Reclamation, Bureau of Land Management, Forest Service. And the message they conveyed to these agencies – notably to the people who were organizing environmental impact assessment programs under NEPA – was that they needed to staff up with specialists. Specialists in what? Well, archaeology, naturally.

You can see where this is going. In the next segment we’ll explore another parallel set of events that contributed to the widely held notion that NHPA is about archaeology.

Friday, August 28, 2009

What is the National Historic Preservation About, Part II: Archaeology and Section 106 in the '60s and Early '70s

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.

Section 106

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.

Thursday, August 27, 2009

What Is the National Historic Preservation Act About? Part 1 in a Series

A reviewer on the other day said:

"I...would like to voice my concern regarding the direction that King and a few others are driving the Section 106 process. Several of King's other recent publications give me grave concern.... particularly "Places that Count" and "Saving Places that Matter." The former includes what I feel is a drastic push on the concept of TCPs that ends up trying to redefine the very intent of NHPA and what kinds of places are supposed to be protected. The second volume comes across mostly as a lay person's manual on "how to use Section 106 to derail any development you happen to disagree with." Both directions have serious ramifications for those of us involved in the protection and understanding of the archaeological record. I sincerely hope that anyone purchasing this book, Especially teachers considering this as a course manual, take this perspective into consideration, as it is very relevant to Cultural Resource Management and archaeology in general. "

I was naturally curious as to what the (anonymous) reviewer was upset about, and wondered if others were similarly concerned, so I reprinted his/her comment on the ACRA-L Listserv (ACRA standing for American Cultural Resources Association) and invited him/her and others to elaborate. What’s resulted so far is a series of queries and comments, some on-list, some off. I thought it might be useful, or at least mildly entertaining, to reprint them here and respond to them. Unless the author explicitly authorized me to reveal their identity, I’ll keep the notes anonymous. Here’s the first one:

“I know you were very active in the development of this process. I'd be interested in hearing what the ideas were at the very start when the 106 process was being created. Beyond the usual understanding of the need for protection, who came up with the idea and just how did NHPA get started? I've always wondered but never really found anything that explains it very well. Usually it is just snippets of information and I would like to understand the thought processes of the founders, so to speak.”

Let me start with a couple of clarifications. First, the writer treats “NHPA” (the National Historic Preservation Act) and its Section 106 process as though they’re the same thing. They’re not. There’s a lot more to NHPA than Section 106, and the Section 106 process is not in the law itself; it’s in regulations issued by the Advisory Council on Historic Preservation (ACHP) that direct agencies in how to implement Section 106. Second, I wasn’t at all active in the development of NHPA; as an undergraduate anthropology student at San Francisco State College (now University), I learned about NHPA around the time it was enacted. I learned about it from Eric Barnes, a remarkable fellow student who, unlike us starry-eyed “New Archaeologists,” was interested in the actual application of federal laws; I learned a great deal from Eric. The only archaeologist who was significantly involved in the development of NHPA – and this is, of course, germane to the Amazon reviewer’s point – was the late J.O. Brew of Harvard. As for the Section 106 process, I’ve been involved in its evolution, but it, too, was created before I became significantly involved in the federal system.

I should also mention at the outset that Wikipedia has a pretty good discussion of NHPA’s origins and development; see

Now: the thought processes of NHPA’s founders. The central idea behind NHPA was the general perception of social value in old things – particularly old buildings and neighborhoods, and famous battlefields. This idea that had been developing in the U.S. since the late 19th century, and had taken hold rather earlier in Europe, notably in Revolutionary France. The U.S. had taken a stab at giving this perception statutory form in the Historic Sites Act of 1935 – John Sprinkle at NPS is writing a series of papers about this statute and what it produced, to which I recommend the reader’s attention.

The New Deal, World War II, and the post-war establishment of programs like the interstate highway system and urban renewal seriously altered the relationships between the U.S. government and the citizenry. Notably, the federal government became involved in clearing “slums” to “renew” the cities, in building hydroelectric and flood control dams and reservoirs, and in building high-speed highways through the countryside. While most of these programs were welcomed by most people, it came pretty quickly to be recognized that they had their destructive sides. This was the other idea behind NHPA – that the destructive side of federal government activities ought to be controlled somehow.

NHPA itself was the creature of a task force set up largely by the National Park Service and the National Trust for Historic Preservation, with support from the U.S. Conference of Mayors, and generally sponsored by Lady Bird Johnson as part of her highly effective effort to beautify the U.S. and build up protections for its environment. This in turn was part of President Johnson’s “Great Society” program. There was a White House conference, a study tour of Europe to see how its nations were handling their historic (mostly architectural) heritage in the wake of World War II, and a modest coffee-table book called With Heritage So Rich – which is well worth reading even today. WHSR, toward its end, outlined a piece of legislation that became NHPA. The book was published in 1965; the bill was enacted in 1966. Those were the days.

The “founders” – the authors of WHSR and the legislation – were mostly historians, architects, and community-based historic preservationists. Archaeology got rather passing mention. The founders were, however, pretty convinced of the social and cultural importance of preservation. They bemoaned the destruction of old neighborhoods by highways and urban development – not just because it meant the loss of fine architecture but because it destroyed the ambience, the character, the soul of the community. I quote some of the founders about this sort of thing in some of the books my Amazon reviewer finds offensive.

What the founders were about in enacting NHPA was really two things. First, they wanted to create a system by which historic places – defined from the very beginning as “districts, sites, buildings, structures, and objects” significant in “American history, architecture, archaeology, and culture” (“engineering” was added later) could be recognized and given consideration in planning at all levels of government. The vehicle they selected to effect this purpose was a national register of historic places. There had been a list of “National Historic Landmarks” since the 1930s, but these were the Great Places, the places of putative “national significance.” The new National Register was to be more populist; it was to include places important at the national, state, and local levels. Nobody, I should acknowledge, was thinking about tribes, and the tribes weren’t making themselves known to historic preservationists.

The second thing the founders sought to do was to force federal agencies not to destroy historic places willy-nilly; this led them to include Section 106. Section 106 originally said that agencies were to take into account (i.e. consider, think about) the effects of their actions on places included in the National Register, and give the ACHP – also created by the law – an opportunity to comment on such actions. Later, the law was amended to apply to properties eligible for the Register but not yet listed.

There was some discussion in congress as to where the new historic preservation program should be lodged – in the National Park Service (NPS) or the Department of Housing and Urban Development (HUD). The fact that HUD was a strong contender of course reflects the importance the founders ascribed to the recognition and protection of historic urban neighborhoods, and to urban and regional planning. It is interesting to consider what might have happened had the program wound up in HUD, but it didn’t; it went to NPS, where it was overseen by three important men – arguably the real “founders” of the NHPA program. Earnest A. Connally was a professor of architectural history from the University of Illinois; he became the head of the Office of Archaeology and Historic Preservation. William Murtagh (the only one of the Big Three still alive and well [I hope] today) was a historian and Vice President of the National Trust; he became the first Keeper of the National Register. Robert R. Garvey, Jr. also came from the National Trust, where he had been its Executive Secretary. He had no academic credentials; he had been a Marine Corps fighter pilot in World War II (Guadalcanal), developed a thriving popcorn vending business in North Carolina, and run Old Salem, a collection of relocated historic buildings in the same state. Garvey became Executive Director of the ACHP, and in the mid-70s led it out of NPS into independent status – another whole story.

Bill Murtagh is a great guy, and I had lots of respect for Earnest Connally, but I think the architectural, professional, academic stamp they put on the program was unfortunate. I also think that lodging the program in NPS was regrettable, though probably unavoidable; it automatically imposed a sort of educational, interpretive character on the whole operation. Had the program wound up in HUD it might have become much more community-based, with a more sophisticated take on planning. But it went to NPS, and the rest, like they say, is history.

Let’s stop for now with a reflection back on my reviewer’s concern about “the protection and understanding of the archaeological record.” That concern, while deeply important to him or her, and to me, for that matter, was not central to the interests of NHPA’s founders. Some of the founders were concerned mostly about architecture, some about grand themes in American history. Some – perhaps most – were concerned about holding onto the character of American communities, as expressed in their buildings and neighborhoods. In one of my books – Places That Count – I argue that the founders were substantially concerned about protecting what decades later we would come to call “traditional cultural properties,” that is, places important for the roles they play in maintaining community identity. My reviewer apparently finds this premise disturbing.

In the next segment, I’ll look at how archaeology came into the mix of disciplines dealt with under NHPA, and how it achieved its rather dominant role in modern Section 106 practice.

Wednesday, August 26, 2009

Look Out for "Thirteen Bones"

A bit of Spam for myself here, particularly for anyone who wonders what happened to Amelia Earhart (and her navigator, Fred Noonan) when they disappeared over the Pacific in 1937. My novel, Thirteen Bones, will published in October/November by Dog Ear Press (yes, an on-demand self-publishing outfit; I got sick of being rejected by the "legitimate" houses). It tells the story of the discovery of Earhart's bones on Nikumaroro in the Phoenix Islands in 1940 by colonists from Kiribati and Tuvalu. The skeleton of the story (as it were) is factual; what I've done is to weave a tale around the historical and archaeological data.

Earhart, I should say, makes only a cameo appearance; the story is told mostly from the viewpoint of an I-Kiribati (Tunguru, "Gilbertese") boy who discovers the first of the bones, and partly from that of Gerald B. Gallagher, the administrator of the Phoenix Islands Settlement Scheme. The data upon which the story is based are, of course, from the ongoing work of The International Group for Historic Aircraft Recovery (TIGHAR; see Profits from publication (if and when they develop) will be shared with TIGHAR and with the Phoenix Islands Protected Area (PIPA), the Kiribati government program that seeks to protect the island group of which Nikumaroro is a part.