National Register Bulletin 38 is Doomed

Twenty-three years ago, the National Register of Historic Places published National Register Bulletin 38, on the identification, evaluation, and documentation of “traditional cultural properties” (TCPs).  Patricia Parker and I had authored the bulletin a couple of years earlier; the story of its creation comprises Chapter Two of my 2003 Places That Count (https://rowman.com/ISBN/9780759100701). 

We wrote NRB 38 to counteract a trend then apparent in American historic preservation – the devaluation of places valued by communities in favor of those valued by professional elites (notably architectural historians and archaeologists).  Archaeological sites and buildings of architectural interest were being afforded all the (admittedly dubious) protections of federal law, while traditional neighborhoods and places of spiritual significance to tribes and Native Hawaiians were given short shrift.  NRB 38 has done some good in leveling the playing field; tribes have made particularly skillful use of it in litigation.

The National Register is now embarked on a campaign to do something to or with NRB 38.  If its people know what they want to do, or why they want to do it, they are not sharing this intelligence with the rest of us, but they are earnestly holding webinars at which they read Powerpoint slides and ask for input. 

Until recently I was more amused than concerned about the Register’s effort; it looked like simply a way for its people to look busy while they wait for retirement and I didn’t think it would amount to much.  After the latest webinar, though – into which I didn’t plug, but about which I’ve heard a good deal from outraged participants – I am much more pessimistic.

There are interests – notably among the extractive industries and in those industries’ traditional handmaidens, the Bureau of Land Management and Forest Service – who very much dislike NRB 38 and would like to clip its wings.  They’ve grown sufficiently used to archaeology, and co-opted enough archaeologists, to make the identification and handling of archaeological sites a fairly routine matter.  You find them, you draw lines around them, you evaluate them as insignificant if you can, and if any of them are so significant you can’t pretend they’re not, you dig them up.  It costs money sometimes, but it’s predictable; it seldom raises issues that can actually threaten your plans.   Old buildings are usually even easier to manage; find them, document their architecture, knock them down or move them away.  All this can usually be worked out with the State Historic Preservation Officer (SHPO), with minimum involvement by anyone less tractable. 

TCPs are different; they’re often quite large (whole mountains, lakes, landscapes, seascapes) and ill-bounded, and their values are perceived mostly by plain people, in more or less local communities.    These people tend not to want their special places to be screwed up, and they’re seldom as easy or cheap to buy off as are archaeologists or architectural historians, or as easy to flim-flam as is the average SHPO.  So it would be easier to put in mines, railroads, solar farms, wind farms, power plants and transmission lines if TCPs were not regarded as eligible for the National Register.  Failing that, it would benefit the industries and simplify the lives of agency bureaucrats and SHPOs if the rules for recognizing a TCP could be made more like those for recognizing an archaeological site.  If, for example, it were necessary to establish hard and fast boundaries, show that there are physical expressions of something “cultural” (artifacts, structures) on the ground, document that people have been using the place consistently for over fifty years for some professionally definable cultural purpose.

And this, I now fear, is what the National Registrars will do – not with any particular malice, but because they’re just too inexperienced, too gullible, too naïve to recognize what’s wrong with such notions.  They’ve made it very clear that they think it quite inappropriate, even impossible, to consider the real world implications of what they do.  Think about how a tweak here and a tinker there will play out in land use planning, or environmental review?  No, no, that’s for people like the Advisory Council on Historic Preservation (ACHP) to think about; what the National Register does is – well, register stuff. 

So what they’re likely to do is tweak and tinker with NRB 38 to make it more like some of their other bulletins, tightly oriented toward how to fill out nomination forms.  On page X, in block Y, select from the following three options: M, N, or O.  I can imagine, too, an effort to define words like “community” to exclude any group that isn’t or can’t be somehow formally recognized by officialdom.  So the Big Sky Historical Society can have TCPs but an informal group of cattle ranchers can’t; so a federally recognized tribe can but an unrecognized tribe can’t. 

The result will be to make it harder – if not impossible – for a community or tribe to get its special places recognized as Register-eligible, and hence deserving of consideration under Section 106 of the National Historic Preservation Act (NHPA).  This narrow-mindedness will inevitably bleed over into practice under the National Environmental Policy Act (NEPA) and other federal and state laws.  No matter that the place is of deep cultural importance to people on the ground; if you can’t fill out the nomination form the way the registrars want it filled out, and justify its importance in the esoteric language of history, archaeology, or maybe cultural anthropology, your place just doesn’t qualify.  This may generate business for certain specialized consultants, but it will do nothing for the places that tribes and other communities hold dear. 

Nor will it do anything for the National Register’s relevance to the real world, but I doubt if that’s important to the Register’s staff; they like irrelevance; it’s a safe condition.

Several commenters have told NPS what would actually be helpful.  Don’t focus on the clerical niceties of nomination; instead advise government agencies and other change agents about how to address TCPs in planning and decision making.  Take it as given that if a place is important to a community – including a self-defined community – it’s the obligation of a government that’s supposed to be by and for the people to give that place careful consideration before doing something to it.  Talk with the people who value it, deliberate with them about ways to protect its significance while realizing whatever public interest is served by the decisions that will affect it.  See what can be done to put such protections in place and make them work.

But that kind of thing, the registrars point out, isn’t their game; it’s supposedly the game of the ACHP.  Fair enough, though the ACHP has largely abandoned the field of play.  So maybe the registrars ought to talk with the ACHP, maybe share the effort.  Or maybe they should satisfy themselves with clarifying a few unfortunate word choices and dated assumptions in the Bulletin and leave any further guidance on the subject to the ACHP, the Council on Environmental Quality (CEQ) or some other entity that actually relates to reality.  I don’t expect them to exercise such broadmindedness or restraint, however.  They have convinced themselves that the National Register is the indispensable centerpiece of the nation’s historic preservation program, so only they can correct NRB 38’s deficiencies – whatever they are.

A number of people have asked me what they can do about the Register’s threatened fixes – besides filing eloquent comments, as many have done, and waiting for them to be misunderstood, ignored, or both.  The only recommendation I’ve been able to come up with is to take the matter up with higher levels in the Department of the Interior food chain.  I don’t know that this is a particularly hopeful option – the Obama administration has done little but disappoint in matters like this – but it is just possible that if the Secretary of the Interior were made aware of what is being done in her name by her minions at the National Register, her people would give the registrars a little adult oversight.  Of course, the Secretary is under orders from our keen-minded president to “greenlight” energy projects on the public lands, and hang the environmental laws, so expecting responsibility from her for the cultural environment is probably a fruitless enterprise.  What’s sad is that there’s not necessarily a conflict between energy development and taking care of the places that matter to people.  What creates conflict are government policies that encourage change agents to ignore the impacts of their actions on anything their own experts can’t weigh and measure using finely calibrated professional (or other) procedures – regardless of what those affected think is important.  People who value places that professional practitioners can't appreciate or registrars assign easly to pigeonholes are left with nothing to do but fume, demonstrate, and litigate.  NRB 38 was designed to help create conditions in which such conflicts could be identified early and resolved by consensus; what the registrars seem to be about will, I fear, have the opposite effect.