Monday, April 26, 2010

A Tribal Resolution

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.



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.


Max Dean said...

I think a tribe could probably "insist" all they like, and an agency could continue to neglect consultation or neglect the input that they get. Making a tribal resolution wouldn't necessarily change that. The recent push in the federal agencies for better consultation doesn't mean that a project manager can't still neglect the process, at least as far as I know.

Rather than fighting the system, might it be better to co-opt it? 36 CFR 800 and the National Register evaluation process are pretty well entrenched. Instead might it be better, given that we can agree that Native American groups have important professional input on NR evaluations and project reviews in the same way that a SHPO would, that THPOs, given a definition of some geographic area of interest, would have the ability to concur/not concur during the 36 CFR 800 process? That sort of thing is much more work, but might get more to the heart of the problem.

Max Dean said...
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Thomas F King said...

Sure, an agency can ignore a tribe's insistence, but insistence seems to me like the first step; one can't very well blame the agency for not paying attention to what one hasn't said. I'm not sure I understand what sort of "co-option" you're proposing as an alternative. Or how it would be established without the tribe first making its wishes known.

Alan said...

I like the resolution, but shouldn't it include commitments from the tribe about what they'll do in response for respectful consideration? Commitments like responding to requests in a timely manner, providing adequate information about places of tribal importance to allow consideration and conslutation to proceed, and providing a point of contact with whom the agency can coordinate the consultation effort could provide a more reciprocal tone.

But I'm concerned that if the agencies retain legal responsibility and accountability for their decisions (like National Register eligibility determinations), shouldn't agencies insist that tribes provide the kinds of information that will allow them to make informed and defensible decisions, rather than accept a blind presumption that a property is eligible "because we say so?"

Thomas F King said...

I don't see why a tribe would want to make such commitments, or what justification the U.S. government could have for expecting them. You're saying the U.S. government should respect tribal sovereignty only if the tribes pre-emptively give assurance that they'll play nice? Don't you think that's a tad arrogant? And while federal agencies do in practice "insist" on tribal adherence to BS documentation (and other) requirements, I don't think they have a shred of authority to do so, and I can't imagine why a tribe would resolve to accommodate agencies in this way.

You suggest that agency accountability for decisions justifies an agency in demanding the "information that will allow them (the agency) to make informed and defensible decisions." It seems to me that if a tribe says (for instance) that a place is culturally important to its people, that's all the agency needs to know. The tribe has asserted it; the agency should report this fact and respect it. Now, making an "informed and defensible decision" about, say, whether and how to carry out an action that affects that place may require further consultation, including getting more information about what is and isn't offensive to the cultural value the tribe ascribes to the place, but the agency has no more business questioning the tribe's ascription of value to the place than it would have questioning Jewish, Muslim, or Christian attachments to Jerusalem.

Alan said...

I'm saying that there is a need for mutual respect within the context of the Section 106 process, and that this has a better chance of being achieved if each side is willing to recognize the legitimacy and needs of the other. Where the tribes propose to remind the agencies through a resolution of their expectations and demands, they can also use that as an opportunity to assure the agencies of their intent to participate in the Federal decision-making process in a manner that accomodates the needs of the agencies. Simple assurances, like meeting deadlines and providing needed information and a point of contact could go far in establishing better working relations, which is really the point, right?

I'm also saying that there's a difference between an agency recognizing that something is culturally valuable to a tribe, and an agency assuming that everything culturally valuable to a tribe automatically qualifies for the National Register. Nothing prevents the agency from doing the former (and acting on that under other EO's and statutory requirements), but for purposes of Section 106, like it or not, the latter is a decision that remains squarely with the agency, and is reached through the application of appropriate NR standards and guidance in consultation with others. If an agency chooses to ignore those standards and blindly assume that everything a tribe (or any other party)ascribes cultural value to is eligible, the agency's decision about eligibility and all subsequent decisions in the 106 process are vulnerable to challenges.

So if tribes want to issue a resolution calling on agencies to respect their interests in the Section 106 process, it only makes sense that the tribes express a willingness to respect the legal roles of the agencies, and the process itself, with their commitment to cooperate in a manner that allows the agencies to fulfill their roles and complete the process. They certainly don't have to do this, but I think a resolution that sets this tone would be more effective than one that amounts to a slap in the face and kick in the groin.