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Tuesday, November 01, 2011

Traditional Cultural Properties, “Long-Term Use,” and “Sustained Awareness”

I’m reviewing a report on an area’s “cultural resources” (by which the authors seem to mean archaeological stuff, with an occasional bow to old buildings), prepared in connection with an environmental impact assessment of a proposed land use project. Toward its end, as something of an afterthought, the report talks a little about whether the landscape within which lie the hundreds of “archaeological sites” it’s described might be a “traditional cultural property” (TCP) that’s eligible for the National Register of Historic Places.

The report was prepared by contractors working for the private company that proposes to build stuff all over the subject landscape, so predictably (given sad current practice) its authors do everything they can to downplay the area’s cultural significance – except to some extent the research significance of the “archaeological sites,” which they can be paid to dig up as “mitigation.” So, despite pretty vehement representations by tribes that value the landscape (and without consulting the tribes, the SHPO, or apparently anybody else), they say nope, it’s not a TCP.

Why? Because, they say:

TCPs … must exhibit long term use or sustained awareness by the community.

In other words, if the relevant community hasn’t “used” the property over the “long term,” and/or maintained some kind of unspecified “awareness” of it, the property is not a TCP.

Now, in this particular case it’s notable that nobody seems to have asked the tribes whether and how they “use” the landscape in question, or what “awareness” they have of its cultural significance (Archaeologists, after all, are experts, so they must just know this stuff through osmosis or something).  In fact there are good reasons to think that tribal members are well aware of the landscape and its cultural character, and use it for both spiritual purposes and the education of youth. But never mind the particulars: does it make sense to say, in principle, that a community must continue to “use” a place, or be “aware” of specifics about it, in order for it to be a TCP, and eligible for the National Register as such?

Continuing Use

National Register Bulletin 38 ( ), which (like it or not) is the National Register’s official word on the subject, says:

The fact that a property may have gone unused for a lengthy period of time, with use beginning again only recently, does not make the property ineligible for the (National) Register.

The Bulletin goes on to posit a situation in which a group revered a particular mountain in the past, but then was forcibly relocated to someplace where it could not readily access the mountain, and coerced into a religious conversion that caused them to ignore the mountain’s spiritual significance. It goes on to imagine the group now undergoing a cultural revival in which it seeks to reconstruct its relationship with the mountain, and concludes:

The fact that the contemporary use of the peak has little continuous time depth does not make the peak ineligible; the peak’s association with the traditional activity reflected in its contemporary use is what must be considered in determining eligibility.

So you don’t have to have “continuing use,” and let me add that it would be especially ironic (to put it mildly) for the federal government – which for many decades pursued policies of disconnecting tribes from their traditional religions and lands – to insist on “continuing use” as a prerequisite to recognizing a place’s cultural significance.

Sustained Awareness

But does the tribe or other group not at least have to be aware of the place in order for it to be significant? We didn’t think about this one in writing Bulletin 38, but it soon came up in practice, and I discussed it on pages 256-7 of Places That Count, my 2006 book on TCPs ( . As an example I looked briefly at Hopi and Zuni beliefs that their ancestors traveled all over the Southwest after their emergence into this world, guided, facilitated, and impeded by supernatural forces. The Hopi and Zuni have said that wherever their ancestors left evidence of their passing, that’s a TCP. They don’t know where all those places are, but they know them when they see them. Similarly, I quoted from an Australian case in which an aboriginal expert from one part of the country was able to recognize a place in an area he had never before visited, because of the way it is described in a traditional story, and thus know that (a) it was associated with a moiety not his own and (b) it was to be respected as such.

Clearly, a Hopi or Zuni elder cannot be said to have had “sustained awareness” of, say, archaeological site AZ-CIB-666P5 (if there is such a place), which he or she has never seen.  But he or she knows that such places – with particular kinds of potsherds and masonry – are associated with the ancestors, and he or she knows that if he or she does visit it, there are things to be done to show respect – prayers, maybe an offering – and that one ought not mess the place up if one can help it. The aboriginal expert in the Australian case knew that there were things to do – maybe recite from a song, maybe refrain from picking things up – to respect the ancestral spirits of the moiety associated with the hitherto unvisited place. Are these associations sufficient to make such a place eligible for the National Register? I think so, though perhaps reasonable people can disagree. But surely it is clear that the mere fact that the Hopi don’t know precisely where each site associated with the ancestors is and what it looks like does not automatically make such sites ineligible for the Register; still less does it render them “not-TCPs.”

Unfortunately, the “continuing use” and “sustained awareness” criteria seem to be slipping into the practice of identifying (or trying hard not to identify) TCPs – spurred by the desire to avoid recognizing and dealing with such properties and to facilitate the projects of those who pay us CRM practitioners to make ostensibly objective and authoritative studies. If you want to use these criteria to help your client run roughshod over the cultural environment, that’s up to you, but please don’t pretend that you’re reflecting some widespread best practice or government guideline.


Tim Keefe said...

Tom, thanks for the post on this issue. As a CRM person working for a state agency I've struggled with the TCP concept to degrees like many. In particular one of my main struggles is with the idea you discuss of how can a location be a TCP if no one knew of it until they saw it. I think I understand the gist of what you are saying (clearly when a site can be said to be associated with a cultural group it clearly can show its importance by just being). My struggle is this, what prevents an individual from just saying an area is a TCP for political expediency? I especially think this is true when you consider landscape features that no one has noted as having special significance until someone sees it. What would not constitute a TCP in a landscape in this context? A brook, a ridge line, a forested area, a beach, a boulder, etc. What about historical locations in this context?

I try my hardest to keep an open mind on this particular point but I clearly struggle with the application as I see loopholes that are easily exploited in the guidance and application of how TCPs should be looked at.

Thomas F King said...

Tim, I wrote a bit about this in my TCP book, "Places That Count." Basically, there's nothing to keep someone from lying about the significance of a place, but what if they do? The practical effect of treating a place as historically significant under federal law is that it gets considered in planning, and there's nothing to keep the federal agency, in the end, from saying "sorry, Mr. Nimby, we're going to blow away your TCP in the public interest." If Mr. Lying Nimby is the only one who's concerned about it, he's not going to get any more hearing than any other American citizen concerned about any other environmental variable, and that much hearing is surely his right. If we're talking a more draconian state or local law that says "historic places are inviolate," then I can't imagine the relevant historic preservation authority agreeing that Mr. LN's TCP merited inviolability without Mr. LN lining up a bunch of his friends and neighbors to back him up -- and if he does that, isn't it just a fundamental exercise in democracy? In other words, someone can surely lie, but I don't see that it makes any practical difference.

Unknown said...

I agree, for the most part Mr. King. However, it is not so cut and dry when it comes to federal transportation projects. Treating a place as historically significant under federal law invokes Section 4(f) analysis to identify other feasible and prudent alternatives that avoid use of the 4(f) property. This is problematic when a potential TCP is identified late in the planning process because "no one knew it until they saw it," especially in cases where no other historic properties or Section 4(f) properties were known to exist in the project APE. Section 4(f) analysis can delay the environmental process for an extended period of time and impact project scope, cost, and schedule.

Thomas F King said...

Section 4(f) of the DOT Act does screw things up, and in my opinion we'd all be a lot better off without it. But unless there's been case law on the subject that I'm not aware of (always a possibility), regarding a place as eligible for the Register, without any formal "determination" by the SHPO or Keeper, doesn't necessarily trigger 4(f). The original court case that applied 4(f) to properties as we understand them (involving a TCP in Hawaii) dealt with a site that had been formally determined eligible at least by the SHPO; the court said that IT couldn't be mucked with if there were prudent and feasible alternatives, but it didn't discuss places that an agency and SHPO might agree to TREAT as eligible without a formal determination. This, I think, is another reason to stay away from formal determinations, and to keep the Keeper at arm's length.