Wednesday, April 13, 2011

NHPA Doesn’t Trump NAGPRA

I encountered a situation yesterday that made me think there’s a need to clarify the relationship (such as it is) between compliance with Section 106 of the National Historic Preservation Act (NHPA) and the discovery provisions of the Native American Graves Protection and Repatriation Act (NAGPRA). In the case I encountered, a survey for NHPA purposes had revealed a “prehistoric” site whose surface and immediate subsurface expression amounted to a few flakes and a fragmentary projectile point. The site was determined not eligible for the National Register of Historic Places, so it was not further considered under NHPA. It was also not further considered under NAGPRA, and therein lies a problem.

The NAGPRA regulations, at 43 CFR 10.3(c), say:

(1) The Federal agency official must take reasonable steps to determine whether a planned activity may result in the excavation of human remains, funerary objects, sacred objects, or objects of cultural patrimony from Federal lands. Prior to issuing any approvals or permits for activities, the Federal agency official must notify in writing the Indian tribes or Native Hawaiian organizations that are likely to be culturally affiliated with any human remains, funerary objects, sacred objects, or objects of cultural patrimony that may be excavated. The Federal agency official must also notify any present-day Indian tribe which aboriginally occupied the area of the planned activity and any other Indian tribes or Native Hawaiian organizations that the Federal agency official reasonably believes are likely to have a cultural relationship to the human remains, funerary objects, sacred objects, or objects of cultural patrimony that are expected to be found. The notice must be in writing and describe the planned activity, its general location, the basis upon which it was determined that human remains, funerary objects, sacred objects, or objects of cultural patrimony may be excavated, and, the basis for determining likely custody pursuant to Sec. 10.6. The notice must also propose a time and place for meetings or consultations to further consider the activity, the Federal agency's proposed treatment of any human remains, funerary objects, sacred objects, or objects of cultural patrimony that may be excavated, and the proposed disposition of any excavated human remains, funerary objects, sacred objects, or objects of cultural patrimony. Written notification should be followed up by telephone contact if there is no response in 15 days. Consultation must be conducted pursuant to Sec. 10.5.
(2) Following consultation, the Federal agency official must complete a written plan of action (described in Sec. 10.5(e)) and execute the actions called for in it.

So in this case, should the presence of a small “prehistoric” site have caused the federal agency official to determine that the work planned at the location might “result in the excavation of human remains…” etc? I imagine that honorable people could disagree about this, and I for one would hate to see all the complicated requirements of 43 CFR 10.3(c) triggered every time an artifact, flake, or potsherd shows up in a survey; this would unreasonably complicate the lives of agencies and tribes (and Native Hawaiian groups) alike. But the point to keep in mind is that the presence or absence of a property that the agency and State Historic Preservation Officer (or Keeper of the National Register) judge eligible or not eligible for the National Register has nothing to do with NAGPRA. The two statutes are totally independent of one another. So an agency really has to make two separate, independent determinations: under NHPA it has to decide whether its project will affect anything eligible for the Register; under NAGPRA it must determine whether its project may unearth Native American graves or cultural items. Neither statutory requirement trumps the other.

Monday, April 11, 2011

On the Preservation of our Timeless Words of Wisdom

A current Facebook discussion of the topic compells me to re-post the following, which I think I posted some time ago (but have lost track.....)

Those concerned about what seems the inevitable transition from paper books to kindle-ware and Google-scanning may be interested in the recently translated text of a cuneiform tablet allegedly found in the ruins of Ninevah in Iraq. Like most antiquities in that country that have been found since the American invasion destroyed its historic preservation infrastructure and drove its residents to dig up and sell their heritage for food and clothing, it was unearthed by looters and sold on the black market, so its provenance is unsure. However, it appears to date to about 1000 BCE, when papyrus scrolls – long used along the Nile but new in Mesopotamia – were beginning to replace clay tablets as the popular writing medium. Like many such tablets, it has lost its first and last lines of script to erosion, but it appears to be a personal letter from one scribe to another. Loosely translated from the Akkadian, it goes like this:

“Yea, Inkidont, mark my words; the teaching of scribbling on flattened grass bodes ill for literacy and its pleasures. Soon, I fear, the calming smell of drying clay tablets will disappear from our writing chambers, together with the satisfaction one feels in the resistance of clay to stylus. In the reading chamber, the soft click-click of tablet on tablet will be no more, replaced by the crackling cacophony of “scrolls” being rolled and unrolled, and the stink of the “ink” slathered on the papyrus in imitation of script. Our children will lose all respect for literature when it is slothfully “written” in black liquid on rolled-up mats, to say nothing of the loss in dexterity that will come from unfamiliarity with the stylus! And oh, Inkidont, I shudder for the effect on our household economies! Clay is everywhere, and easy to acquire and make into fine tablets, but papyrus must be bought from those thieving Phoenician and Hebrew merchants! The transfer of wealth from east to west will be as a great sucking sound rolling across the desert. And what to do with this papyrus when it wears out? Leave it to litter the streets? Unlike tablets, it has no re-use as a building material, a doorstop, to throw at one’s child or pig….. And the stuff is useless if you spill beer on it…..”

Saturday, April 09, 2011

Nominating TCPs to the National Register

A few years ago, during one of the U.S. Congress’ periodic bouts of distemper over the national historic preservation “program” (sic), one of the dyspeptic congressmen found it scandalous, just scandalous, that so many properties had been found eligible for the National Register of Historic Places in the course of review under Section 106 of the National Historic Preservation Act, but never nominated for formal listing. Surely this meant that unimportant places were being blessed with the imprimatur of eligibility. The congressman’s staff asked me in to discuss this outrageous misuse of the law.

I explained, of course, that nomination usually served no useful purpose, particularly if the place you were considering was likely in the end to get blown away. I explained that there were often reasons to keep information about historic places confidential. I explained that nomination is a time-consuming, costly pain in the butt, and often a waste of time and money. I explained that there are lots of ways to protect and otherwise manage historic places that don’t require the nonsense paperwork associated with nomination. I doubt if I made much of an impression; congressional staffers, like those who employ them, tend to be much better at talking than listening, but the rhetoric about nomination did cool down a bit thereafter.

So I was mildly surprised, and deeply depressed, to see the idea laid on the table again recently, not by a raving right-wing Fool On The Hill, but by a certified liberal-type academic (LTA) who’ll remain nameless in this blog unless s/he wants to debate the matter. The LTA had polled a number of State Historic Preservation Officers (SHPOs) about how many traditional cultural properties (TCPs) had been nominated to the National Register, and found the answers to range from “none” to “very few.” The same poll revealed much SHPO uncertainty about how many TCPs had been treated as eligible for the Register in the course of Section 106 review without detailed documentation. This, the LTA suggested, was a pretty Bad Thing.

Of course, I think precisely the opposite. As I’ve pointed out far too often in too many venues, with regard not only to TCPs but all kinds of historic properties:

1. Nominating stuff to the Register is not required by law.

2. Nominating stuff to the Register is expensive and troublesome.

3. Nominating stuff to the Register can require eliciting information that people (especially indigenous groups and their elders) often don’t want to reveal.

4. Section 106 requires equal consideration of places that are included in the Register and places that are eligible for it.

5. Agencies and SHPOs/THPOs can simply agree to treat a place as eligible for the Register, and go on to consult about how best to manage impacts on it.

6. This is usually (though not necessarily always) more efficient for the agency and more respectful toward those who value the property than going through an elaborate process of eligibility determination or nomination.

So why did the LTA think it was bad that more TCPs hadn’t been nominated? Well, he said, if they’re not nominated, then there’s no record of them with the SHPO, and if there’s no record of them, project proponents and their consultants will assume they don’t exist and proceed with their projects without considering them or consulting anyone.

I suppose that could happen, and maybe it happens more often than it should, but when it does happen it’s a pretty stark violation of the Section 106 regulations. Since the LTA didn’t seem aware of what those regulations say, maybe others aren’t either, so let’s take a look. Here’s the relevant section from 36 CFR 800:

§ 800.4 Identification of historic properties.

(a) Determine scope of identification efforts. In consultation with the SHPO/THPO, the agency official shall:

(1) Determine and document the area of potential effects, as defined in § 800.16(d);

(2) Review existing information on historic properties within the area of potential effects, including any data concerning possible historic properties not yet identified;

(3) Seek information, as appropriate, from consulting parties, and other individuals and organizations likely to have knowledge of, or concerns with, historic properties in the area, and identify issues relating to the undertaking's potential effects on historic properties; and

(4) Gather information from any Indian tribe or Native Hawaiian organization identified pursuant to § 800.3(f) to assist in identifying properties, including those located off tribal lands, which may be of religious and cultural significance to them and may be eligible for the National Register, recognizing that an Indian tribe or Native Hawaiian organization may be reluctant to divulge specific information regarding the location, nature, and activities associated with such sites. The agency official should address concerns raised about confidentiality pursuant to § 800.11(c).

(b) Identify historic properties. Based on the information gathered under paragraph (a) of this section, and in consultation with the SHPO/THPO and any Indian tribe or Native Hawaiian organization that might attach religious and cultural significance to properties within the area of potential effects, the agency official shall take the steps necessary to identify historic properties within the area of potential effects.

(1) Level of effort. The agency official shall make a reasonable and good faith effort to carry out appropriate identification efforts, which may include background research, consultation, oral history interviews, sample field investigation, and field survey. The agency official shall take into account past planning, research and studies, the magnitude and nature of the undertaking and the degree of Federal involvement, the nature and extent of potential effects on historic properties, and the likely nature and location of historic properties within the area of potential effects. The Secretary's Standards and Guidelines for Identification provide guidance on this subject. The agency official should also consider other applicable professional, State, tribal and local laws, standards and guidelines. The agency official shall take into account any confidentiality concerns raised by Indian tribes or Native Hawaiian organizations during the identification process.

So one does not – or should not, if one wants to be legal – just waltz into the SHPO’s files, look around, and if one doesn’t see anything on the list, waltz out again and fire up the bulldozers. But to the LTA, that is apparently what “really happens,” and instead of trying to do anything about it, the LTA proposes that more TCPs should be nominated to the Register.

Let me suggest that academics and others who would like to see better consideration given to TCPs – or anything else – under 106 ought to focus on the above regulatory language and hold agencies, project proponents, and SHPOs accountable for its implementation. Filling out paperwork is not the point. Good planning and respectful consultation, as the regulations require, is.