Monday, May 16, 2016

National Register Bulletin 38: The Unauthorized Update -- And -- Unauthorized Answers to Frequently Asked Questions About Traditional Cultural Places

In 1990, the National Register of Historic Places, a division of the U.S. National Park Service, published National Register Bulletin 38, “Guidelines for Identifying and Evaluating Traditional Cultural Properties,” authored by Patricia Parker and me.  Chapter 2 of my 2003 book, Places That Count (, recounts how Bulletin 38 came to be, and the early reaction to it.

Bulletin 38 has been used – sometimes to good effect – by American Indian Tribes and a few other communities to ensure that places of traditional cultural value to them are considered by federal agencies whose actions may destroy or damage them. As a result, such agencies, and some of the industries they regulate, have been pretty unhappy with it. So have some State Historic Preservation Officers (SHPOs) and cultural resource management consultants who prefer to acknowledge the cultural value only of places that professional historians and archaeologists can define and evaluate.

In response to complaints from those who find Bulletin 38 altogether too populist, in 2012 NPS launched an effort to rewrite it. This effort first involved a widespread effort to solicit comments from all concerned, which resulted in receipt of a large corpus of written comments plus notes on a series of public meetings and meetings with tribes and intertribal groups.

As is its wont, NPS then dithered, regularly assuring the world that it was thinking about the comments, but doing nothing. I – among others – became concerned that (a) its people would end up writing something unfortunate or that (b) by being forever under review, Bulletin 38 would come to be regarded by practitioners as less authoritative than other National Register direction. So in early 2014 I proposed to NPS that it contract with me to digest the comments and prepare a revised draft. Rather to my surprise, NPS responded favorably to my proposal. The contract was let, the comments and notes were shared with me, and I went to work. As an NPS executive with her own fish to fry (left to rot by NPS after her death in December of 2014, but that’s another story), Parker did not participate in the effort.

It soon became apparent that the great bulk of the comments NPS had received dealt not with Bulletin 38 itself, but with how traditional cultural places are dealt with by agencies and others in planning and impact assessment under the National Historic Preservation Act (NHPA), and to some extent under the National Environmental Policy Act (NEPA). As a result, NPS officials and I agreed that we should draft not only a new version of Bulletin 38 but also a set of “frequently asked questions” (FAQs) – and answers – about how such places should be considered and addressed, particularly under Section 106 of the NHPA. Since the Advisory Council on Historic Preservation (ACHP) oversees Section 106 review, NPS invited the ACHP staff to participate in developing the FAQs, and they agreed to do so. A series of quite congenial meetings and draft reviews ensued, leading to my submission of complete drafts of the Bulletin and FAQs in August/September 2014.

Some time passed, and then the ACHP staff returned a very substantially rewritten “draft” of the FAQs, which they made clear they expected to become the basis for any further discussions. They declined to explain the rationale for their changed approach, or to negotiate with both my draft and theirs on the table. They declined, in fact, even to identify the individuals responsible for the new draft, or to share mark-ups of working documents. My review of the ACHP draft, however, made it apparent to me that its main thrust was to muddle and obfuscate, wherever possible substituting lengthy paragraphs full of weasel words for straightforward declarative statements, and in some cases (for example, in treatment of confidentiality under Section 304 of the NHPA) to insist on interpretations  of law and language that are simply (in my reasonably well informed opinion) simply wrong. And again, this revised draft was presented as a non-negotiable fait accompli.

Needless to say, I objected vigorously, and both NPS and ACHP Chairman Wayne Donaldson did what they could to promote a meeting of the minds. These efforts failed; the ACHP staff was simply not willing to come to the table unless their draft formed the basis for consultation. By this time (early 2015), my contract had run out, I had performed all the work it called for, and I was coping with Parker’s untimely demise, so NPS paid me off and went its way. Its representatives have, however, kept me more or less informed of progress, or lack thereof. Early this year I was given the opportunity to comment on another draft of the FAQs, which usefully contained images and examples, but remained, in my opinion, both obfuscatory and unhelpful.

I have come to the conclusion that in all probability an updated Bulletin 38 and related FAQs will never see the official light of day, so in order to allow interested people to have something to consider, I've posted -- on at -- the drafts I submitted back in 2014 . These of course have no official imprimatur at all, but they do represent what one somewhat experienced practitioner, in consultation (he thought) with NPS and ACHP staff, was able to offer. I suggest that they be considered an informed though unofficial representation of good practice with respect to traditional cultural places.

UPDATE 5/26/2015: At the request of NPS, I have removed the Unauthorized Update from


Bill said...

Pretty crazy saga, Tom. I used Bulletin 38 as a foundation for the oral defense of my comprehensive exam and have applied it in the past to argue for TCPs. It seemed pretty straightforward to me as it was. Going to have to see the changes to get an idea of what others didn't like/wanted rewritten.

Giovanna peebles said...

Tom, I very much appreciate your willingness to put these drafts out there. Very important for all practitioners who care including the new generation of folks who don't have the likes of you on speed dial.

Anonymous said...

Thanks Tom!