National Register Bulletin 38 in Context

The National Park Service (NPS) is soliciting advice about revising or expanding upon National Register Bulletin 38, on traditional cultural properties (TCPs), which Pat Parker and I wrote back in the late 1980s. The Advisory Council on Historic Preservation (ACHP) is issuing guidance on the related topic of considering effects on Native American traditional cultural landscapes.


People reviewing and commenting on, or otherwise participating in, these initiatives may be interested in the history and thinking that led to Bulletin 38, and to the broader intellectual contexts in which it, and TCPs, exist. Those who are may want to take a look at Places That Count: Traditional Cultural Properties in Cultural Resource Management, published by Altamira Press (now part of Roman & Littlefield) in 2003. Here's the Table of Contents:

Chapter 1: Getting Started with TCPs

Chapter 2: How did TCPs Come Into Our Vernacular: a Personal Perspective

Chapter 3: TCPs in Broader Perspective: Examples from Far and Wide (International)

Chapter 4: And Closer to Home

Chapter 5: TCPs in Broader Perspective: Theoretical and Synthesizing Perspectives (Plato to Basso)

Chapter 6: What Makes a TCP?

Chapter 7: Bulletin 38 Revisited: Identifying TCPs

Chapter 8: Bulletin 38 Revisited: Evaluating Eligibility

Chapter 9: Beyond Identification: Managing Effects

Chapter 10: Beyond Bulletin 38: Managing TCPs Themselves

Chapter 11: Consultation

Chapter 12: Some TCP Issues

Chapter 13: A View From the Hill (Not THAT Hill)

The publisher advises me that they have about 78 paperback copies in stock and about 79 hardbound; visit https://rowman.com/ISBN/9780759100701 for information and to order. There are doubtless a few more scattered around booksellers here and there. All royalties go to Cultural Survival (http://www.culturalsurvival.org/).

Gerson on "Shrunken Liberalism"

It truly distresses me to find how often I agree with conservative columnist Michael Gerson -- most recently with today's Washington Post column today titled "Shrunken Liberalism." 

"A few days after assuming the presidency," Gerson writes, "Lyndon Johnson was warned not to waste his energy on lost causes, however worthy.  According to historian Robert Caro, Johnson responded: "Well, what the hell's the presidency for?"  The Civil Rights Act, the Voting Rights Act, Head Start, Job Corps Medicare, the Clean Air Act, the Wholesome Food Act, the Endangered Species Act and the Public Broadcasting Act followed."  Gerson might have listed NEPA and NHPA too, but I suppose they lack name recognition.

By contract, as Gerson observes, "it is extraordinary how shrunken liberalism has become."  The Obama administration's "vision," he accurately says, "add up to the Marginally Greater Society."  Acknowledging that "(i)t is hard to be Lyndon Johnson with a trillion-dollar deficit" (Gerson doesn't mention where THAT came from, but oh well), he posits that American liberalism has become "reactionary liberalism,' concerned more with "the protection of accumulated interests than the application of creative reform to new problems."

As I've written elsewhere, we see what amounts to reactionary liberalism all the time in the tiny worlds of cultural resource management (CRM) and environmental impact assessment (EIA) -- both products of Johnson liberalism.  Practice in CRM and EIA has atrophied, become corrupted, become a big part of the problem of environmental deterioration rather than the part of the solution they were meant to be, and chipped away at the underpinnings of democratic society in the process.  But the powers that be -- self-conscious liberals all in entities like the Council on Environmental Quality, the Advisory Council on Historic Preservation, the National Trust for Historic Preservation, and the national environmental groups -- can find nothing to do but keep their heads down, clinging to and protecting the status quo -- and lying through their teeth all the while.

I wonder what would have happened had Obama come in with a truly radical set of fixes for the nation's Bush-created economic woes -- including a really Rooseveltian public works-driven stimulus program a la the WPA, with provision for everything that stood in its way to find ways to adapt, with the promise of real reform when the immediate job of recovery was done.  On the other hand, I wonder sometimes why we can't just acknowledge the obvious fact that nothing can "grow" forever, that we've stressed our resources to the limit, and that we need a fundamental rethinking of our economic and political priorities.  I wonder, most broadly, what would have happened if the Obama administration had been open to truly new ideas, rather than just to ways of defending the status quo.

Even the self-professed conservative Gerson, in the end, says that "America was better off because liberals called attention to those in the dawn, the twilight, and the shadows of life" -- and, I might add, to the environment that sustains us all and the culture that gives meaning to our lives.  "And U.S. politics is worse off," he says, "because liberalism has become a shadow of its former self."

Amen.

CRL&P-4 Soon to be at a Bookstore Near You

Proofing and indexing (one of the world's truly mind-numbing jobs) are done on the 4th edition of Cultural Resource Laws and Practice, first published in 1998.  Altamira Press (Rowman & Littlefield) should have it in bookstores and Amazon, B&N, etc. in a couple of months.

I found editing this edition a truly depressing experience, making clear to me that however widely it's used in college classes, and however many CRM practitioners have it on their shelves, NOBODY has paid any attention to what it says.  Indeed, most of the dumb, counterproductive, anti-democratic, destructive practices I've railed about in all three of the previous editions remain in common use and in some cases have been enshrined in official guidance by the ostensibly expert agencies of the U.S. and various state governments.  Which I suppose should tell me something, so I guess I'm ineducable too.

The Myth of the Overworked SHPO

We hear it all the time from State Historic Preservation Officers (SHPOs) and their staffs – “You ought to see the pile of work on my desk!”  “You should see the load of stuff I have to review!”  “It’s impossible to keep up with the workload!”  

We hear this plaint, mostly, as an excuse for slow and tardy reviews of plans, proposals, and findings submitted to the SHPOs under Section 106 of the National Historic Preservation Act (NHPA) and its regulations (36 CFR 800).  We also hear it as an excuse for failing to address difficult issues and the concerns of the public, for failing to seek creative solutions to historic preservation problems – “there just isn’t time; our workload is too big.”

It’s easy to sympathize with this kind of complaint, and for the most part we do sympathize – “we” being the consulting community, the federal agencies who think they have to get SHPO sign-off on their projects, the applicants whose projects get reviewed, and the citizens whose calls to the SHPOs for help go unanswered. 

 

Increasingly, though, I’m coming to think that our sympathy is misplaced.

Item: toward the end (I hope it’s the end) of a long-running effort to negotiate a memorandum of agreement (MOA) on management of a federal campus, consultation got hung up on the SHPO’s insistence that the responsible federal agency henceforth submit for SHPO review every minor change it proposes to campus landscape features (sidewalks, benches, plantings) – even though the SHPO has agreed that the landscaping makes no contribution to the campus’ significance.

Item: After spending some two months in silent possession of another draft MOA – drafted in accordance with the most current guidance on MOA preparation – another SHPO returned it with changes; these for the most part amounted to a random rearrangement of paragraphs, often in ways that made the document more ambiguous, violating basic principles of MOA construction.  

Item: Another SHPO is consistently slow in reviewing documents, and when reminded of an impending deadline claims that the relevant document has been lost and must be re-sent.  On one occasion the lost document was found (by a visiting agency employee) on a desk adjacent to that of the reviewer, where it had apparently languished for months.  Another SHPO, uniquely among parties consulting on an MOA, cannot handle electronic transmission of documents, but must have them all delivered in hard copy.

Item: An SHPO recently sat for over a month on an agency determination of “no adverse effect” based on a showing that although there were historic properties in the vicinity, none of them would be visually affected by a new construction project and there was scant likelihood that archaeological material would be disturbed.  The SHPO finally returned the document with a letter insisting that the determination be changed (inaccurately) to one of “no historic properties affected.”

Item: Several historic preservation plans (HPPs) I’ve reviewed lately, developed in consultation with several different SHPOs, either set out internal programs to ensure that new construction and rehabilitation are done in accordance with the Secretary of the Interior’s pertinent standards and guidelines, or require that professionally qualified personnel be embedded in facility staffs to accomplish the same purpose – or both – but at the same time provide for SHPO review of virtually every action carried out under the HPP’s terms.

To judge from the above examples – and others only modestly less ridiculous – I have to conclude that the SHPOs are imposing their burdens on themselves.  

First, they simply are not willing, perhaps not able, to let go of the opportunity/responsibility to review paperwork, regardless of the need for such review:

Second, they insist on tinkering in meaningless but time-consuming ways with every piece of paper that lands on their desks – or don’t tinker, but simply equivocate and delay.

Third, they organize themselves so poorly that they can’t efficiently process the paperwork they insist on receiving.

Fourth, they have such a thin understanding of their business that the dictates they impose are often flatly wrong, inconsistent with the regulations or best practice, or simply unnecessary.

Why do they do this?  I don’t know, but the pattern suggests a sort of existential crisis.  The SHPOs don’t know what purpose they’re serving but they’re desperately afraid of losing support for serving it, so they do their damnedest to convince themselves and the world that they’re frightfully busy doing vital public business. 

And of course, the business to which they devote themselves is safe business – business that’s unlikely to get them in political trouble.  However frustrated federal agencies and applicants may get with slow and stupid reviews, the issues are too esoteric, and too penny-ante, to justify filing complaints at high political levels.  And the public is too unaware of, or confused by, the whole historic preservation game to complain about having its concerns ignored while the SHPO staffs pile, paw through, pass around, ponder, and prevaricate on routine paperwork.

How Low We've Sunk

For someone like me, who's old enough to remember politicians who actually cared about the environment, the saddest thing about the current presidential and vice-presidencial debates lies in the total unconcern about environmental matters shown by the candidates of both parties.  We've gone from a time when controlling environmental impacts could be seen as a legitimate reason for not drilling the bejeebers out of public lands and lacing them with pipelines, to a time in which one candidate accuses the other of not allowing enough drilling and the other points proudly to the number of acres he's allowed to be despoiled.  A time when one candidate just can't imagine why the other didn't go along with the Keystone XL pipeline and the other rattles off the miles of pipeline he's let be built.  And the choice presented is between "drill, baby, drill" and "build, baby, build" -- build, that is, industrial windfarms and solar banks across every available inch of public land regardless of its sensitivity.

No doubt the pendulum will swing back someday -- maybe after a couple more Deepwater Horizon-style disasters, though the first in that series doesn't seem to have had any political impact.  And the reasons for the current trend are not hard to find -- the economy, the recession, the deficit, the legitimate need to be quit of foreign oil, AND the way we practitioners have allowed impact assessment to be transformed from an enterprise designed to protect the public interest into one that whitewashes projects and keeps us rolling in dough.  I don't expect to see change for the better in my lifetime, and I'm just glad that people like Lynton Caldwell and Bob Garvey didn't live to see their lifesworks torn to shreds.

A Fishy Impression of "Cultural Resources"

It would of be unreasonable to expect fish or wildlife to know much about “cultural resources,” or to express themselves in good English.  But is it too much to expect that their human managers in government have such knowledge, or be adept at such expression?  

Apparently it is.

Case in point: the U.S. Fish and Wildlife Service’s notice of August 20, 2012 in the Federal Register announcing its final environmental assessment and finding of no significant impact on a special purpose permit application for shallow-set longline fishing (77 FR 50153).  This notice says – rather in passing, that:

No cultural resources as defined under the National Historic Preservation Act are significantly affected… because the fishery operates in the 200 mile U.S. Exclusive Economic Zone and on the high seas, far from historic sites.

Do the human, English-language-using employees of the FWS actually think that “cultural resources” are defined in the National Historic Preservation Act (NHPA)?  They are not; aside from a passing reference to “cultural resource managers,” the term is never used in the statute.  Or does the FWS humans’ use of “under” mean they think the term is defined in some NHPA-spawned regulation?  If so, they don’t specify what the regulation is.  I am not aware of any regulation of government-wide application that defines the term.

To judge from their statement, however, the FWS humans believe that only “historic sites” can be “cultural resources,” and they somehow ground this belief on their (mis)understanding of NHPA.

I suspect that their belief would come as a surprise to, for instance, some fishermen and their families, who just might regard themselves as having culture, who might regard their traditional lifeways and beliefs to be that culture’s intangible resources, who might think their boats, tackle, and on-shore facilities to be tangible resources employed in that culture’s support, and who might even regard fish as resources important to their culture's survival.  It might come as a surprise, too, to archaeologists and others who think there might be significant shipwrecks beneath the “high seas” and within the 200-mile Exclusive Economic Zone.  

I have no idea whether the activities permitted by FWS in this case have any potential to affect the tangible and intangible cultural resources of fishermen or others, or to impact shipwrecks on the bottom of the sea.  But in the English language I was taught to use, distance from land does not guarantee even the absence of “historic sites” (a term also not defined in NHPA) like shipwrecks.  Still less does it guarantee a lack of “cultural resources.”

Is there a need for remedial English instruction for U.S. government employees?

Rethinking Federal Historic Preservation

Reading the editorial pages over breakfast every morning has gotten me thinking about how the manifest if not exactly earth-shaking problems of historic preservation in and around the U.S. government might be addressed in the face of the much-trumpeted (and, I think, real) need to reduce the size and cost of the federal establishment.

One reason the trumpeting (most of it, sadly, from Republican elephants) resonates with me is that over the last 45 years I’ve seen how the government-focused preservation programs and policies created – with the best of intentions – in the 1960s and 70s have evolved.  Or failed to evolve. 

The solutions advanced by Congress in the 1960s and 70s to problems in historic preservation involved the creation of bureaucracies – the external programs of the National Park Service (NPS), the Advisory Council on Historic Preservation (ACHP), the State Historic Preservation Officers (SHPOs), all via the National Historic Preservation Act of 1966, as amended (NHPA).  This was perfectly understandable, but it failed to account for a fundamental principle:  bureaucracies tend to become fossilized, inward-looking, resistant to innovation, and self-protective.  Their own survival, and the survival-to-retirement of their employees, come to dominate their thinking and actions, at the expense of whatever they were created to do.  

This principle is not my independent invention; it reflects (poorly, no doubt) elements of the deep thinking on bureaucracy of scholars like Ludwig von Mises (http://mises.org/) and zingers like those of John Moore (http://www.tinyvital.com/Misc/Lawsburo.htm ).  The principle is no less true for being common knowledge, and its operation is evident to anyone taking more than the most casual glance at today’s U.S. federal historic preservation “program.”  No one who knows that “program” expects leadership, or even much thought, from NPS, the ACHP, or the SHPOs; the sole preoccupation of these entities today is with maintaining the status quo that allows them and their personnel to survive.  

But there are reasons for the creation of bureaucracies; they provide services and regulate things that need regulating.  The federal historic preservation bureaucracy fulfills the following functions:

1.       Service functions:

a.       Maintaining and expanding the National Register of Historic Places (NRHP);

b.      Providing a historic preservation point of contact (the SHPO) in each state capitol;

c.       Recording historic properties via the Historic American Buildings Survey (HABS) and its kin;

d.      Passing on minor grant funds and technical assistance/direction to Indian tribes and local governments; and

e.      Promulgating regulations, guidelines, standards, and the like.

2.       Regulatory functions:

a.       Assisting in/overseeing NHPA Section 106 review by ostensibly self-regulating federal agencies; and

b.      Reviewing private historic building/structure rehabilitation projects in terms of eligibility for tax credits.

There are a few other functions, but those are the main ones – all of which, of course, have various more or less complicated sub-elements.

So let’s consider: are there ways to perform these functions without the bureaucracies, or while sharply reducing them in size?  I think there are.

The National Register:  IF there is value in maintaining a national register of historic places – I’m not at all sure there is, but let’s suppose there is – there’s no reason to have a government agency do it.  The function could easily and efficiently be contracted out, to something like the National Trust for Historic Preservation.  This might just shift the bureaucracy from one place to another, but in contracting out, the federal government could put strict limits on what it would pay for, leaving it to the contractor to seek funding elsewhere if it wanted to expand or elaborate the list.  Alternatively, as I’ve argued elsewhere, the Register could be done away with altogether, letting tribal, state, and local lists take its place.

Points of contact:  The SHPOs – some of them, at least – perform useful functions, some of which are more impeded than facilitated by their overseer, the National Park Service.  A modest program of continued support is probably justified for the SHPOs and their equivalents in tribal and local governments, but the rules under which that program operates could, I think, be significantly reformed, and the whole operation could probably be merged with other programs of federal assistance.

Recording properties:  HABS and its brethren are academic quasi-research projects that were useful at their inception in the 1930s but have long ago become irrelevant.  Nothing but federal jobs would be lost if they were eliminated.

Grants and technical assistance:  As noted above, some sort of grant assistance is probably needed by tribes and local governments as well as by states, but there are probably ways to merge such grants with other like programs and achieve significant efficiencies.  As for technical assistance, it has been a long time since NPS has provided anything very useful; no one would miss such assistance if it disappeared.

Regulations, standards, guidelines:  We already have more than anyone attends to.

Assisting in Section 106 review:  The Section 106 review process has become largely dysfunctional.  It is overburdened with procedure and virtually unencumbered by substance.   Its reasonably clear initial function – to identify and resolve conflicts between historic preservation and other public interests – has been lost in the thicket of agency procedures, programmatic agreements, and intricate side-deals with SHPOs whose growth the ACHP has encouraged.  A minor amendment to Section 106 could preserve and even provide a basis for recovering the utility of Section 106 review while clarifying the roles of SHPOs and eliminating the ACHP altogether.

Tax credit review:  This undoubtedly useful function could be performed by SHPOs and/or local preservation authorities with minimal technical oversight.  Granted, someone would have to provide that oversight, but this is another function that could be contracted out.

So there: a modest reduction in the size of government coupled with, conceivably, a considerable increase in efficiency, effectiveness, and responsibility.  Obviously the devil is in the details of any such change, and I don’t kid myself about whether any such thing is likely to happen.  And I realize that I’m proposing the explicit abrogation of federal leadership in historic preservation.  But we haven’t seen any federal leadership in historic preservation in at least a couple of decades, so seriously, folks, what’s the difference?

DOI "Listening Sessions"

The Department of the Interior is holding "listening sessions" at which Indian tribes can express their views about how the Department and its bureaus are handling their responsibilities regarding "sacred sites."  "Listening," of course, does not bear any necessary relationship to "hearing," or to "doing anything;" the sessions pretty obviously constitute a public relations ploy designed to make the Department and its employees look busy while deflecting the tribes from taking any effective action on the outrages perpetrated daily by Interior in Indian Country (among other places).  The Quechan Tribe has outed the Department in the first of these exercises in flim-flam (See http://eastcountymagazine.org/node/10781).  Well done, Quechan!

In preparation for the sessions, Interior issued a press release in which it listed six issue areas about which it wanted to listen to views.  Though I'm not a tribe, and hence can't expect even to be listened to and ignored, I took the liberty of preparing the following responses, which I'm happy to share with tribes for whatever use they may make of them.

Meanings of “sacred sites” and whether the Department should attempt to define the term.

·         It is fundamental that a “sacred” place must be sacred TO someone.

·         Only that someone can say which places are and are not sacred to him or her.

·         It follows that a tribe’s sacred sites must be defined by that tribe.  The Secretary has no role to play.

·         Tribes should not be forced to identify all their important cultural places as “sacred” in order to get the Department to pay attention to them.  Any place of cultural significance to a tribe should be respected.

Personal views of existing Departmental practices and policies…..

·         Bureaus of the Department seem to have trouble respecting a tribe’s right to define the significance of its own cultural environment; hence they tend to rely on expensive and time-consuming studies by professional archaeologists and cultural anthropologists to “filter” a tribe’s views and decide what is “really” significant.  This disrespectful practice should end.  There are times when archaeological and anthropological studies are necessary and appropriate, but if a tribe says that an area (whether site, object, or landscape/riverscape/seascape) is significant to the tribe, that view should be respected, not subjected to analysis by people from another culture.

·         The Department should not apply culturally inappropriate technical standards to tribal cultural places.  For instance, many such places are extensive landscapes with vaguely defined boundaries.  This is reality, however inconvenient it may be to Departmental employees.  Bureaus of the Department should not hold such places, or tribal consultation, hostage to the definition of arbitrary boundaries – which often have no relevance to management.

·         Even if a cultural place is not physically disturbed by Departmental or Department-permitted activities, tribal associations with it may be impacted by visual, auditory, and other changes.  These effects should not be ignored because they are perceived somehow to be “indirect” or “secondary.”

Potential development of Departmental practices and policies…

·         The Secretary should adopt it as policy that any place (including any landscape, riverscape, or seascape) identified by a tribe as culturally significant is eligible for the National Register of Historic Places and must be treated as such under the National Historic Preservation Act.

·         It should be policy and practice to define project areas of potential effects (APEs) under Section 106 of the National Historic Preservation Act in consultation with tribes, and to ensure that such APEs embrace all areas where tribally valued cultural areas may be subject to direct, indirect, or cumulative effect.

·         All Interior bureaus that interact with tribes should ensure that key decision-making personnel are trained in effective tribal consultation.

·         Training should be built around the Secretary’s Standards and Guidelines for Federal Agency Programs under Section 110 of the National Historic Preservation Act, particularly Standard 5 and its guidelines (See http://www.nps.gov/hps/fapa_110.htm).

How the Department should facilitate access to sacred sites (on lands controlled by Interior)

·         Bureaus of the Department should negotiate agreements with tribes about how tribal members can access culturally important areas, and about what they can do there. 

·         These agreements should respect tribal cultural values and avoid imposing undue technical requirements.

How the Department should control and grant access to tribally provided information.

·         Bureaus of the Department should not seek or demand more information than the absolute minimum they need to meet a given management requirement.

·         When Bureaus of the Department do gather cultural information from tribes, they should absorb the minimum information necessary into their own management databases, and return the data to the tribes.

·         Bureaus of the Department should enter into agreements with tribes under which the tribes themselves hold and manage cultural data, providing access to such data by Bureaus when needed.

Whom should the Department include in determining whether a “site” is “sacred?”

·         See above about not requiring that tribes identify all culturally valued areas as “sacred sites.”

·         The question of whether a place is culturally valued by a tribe can be answered only by the tribal government, in consultation with the tribe’s membership.

·         Authoritative tribal members should be consulted about culturally valued places and their management, and they should receive the respect due any American citizen by representatives of the U.S. government.  Any information they provide about “sacred sites” or other culturally valued places should be carefully and respectfully addressed in planning, and they should be sensitively and responsibly consulted.  Cultural authorities outside a tribe (e.g. State Historic Preservation Officers, archaeologists, cultural anthropologists) may provide important insights, but do not themselves define what is and is not “sacred” or culturally significant to a tribe.