NHPA Section 106 and Tribes: A Look Back and Paths Forward

By Special Contributor posted 03-13-2015 10:40

  
Tribal members visit a petroglyph site on BLM land in Southeast Utah. | Credit: Amy Cole, National Trust for Historic Preservation
Tribal members visit a petroglyph site on BLM land in Southeast Utah. | Credit: Amy Cole, National Trust for Historic Preservation

Section 106 of the National Historic Preservation Act has been instrumental in protecting historic resources for almost five decades now. But when it was first enacted, there was no mention of the role of tribal governments in the process. In 1992 Congress amended the Act to mandate that federal agencies consult with Indian tribes and Native Hawaiian Organizations that attach religious and cultural significance to historic properties that may be affected by an undertaking. These amendments brought about a major set of changes in the national historic preservation program, including (1) the authorization for tribes to establish THPO programs and take over functions that would otherwise be performed by SHPOs on tribal lands; and (2) the statutory right of each tribe to be a consulting party when a proposed federal undertaking would affect a historic property that holds religious and cultural importance for the tribe. As of November 2014, there were 154 Tribal Historic Preservation Programs that had been approved by the National Park Service.

As part of the Forum series on Section 106, the editors at the Preservation Leadership Forum blog sent a short email survey asking three preservation practitioners who have worked extensively with projects affecting places of importance to the tribes to share their thoughts on the Section 106 consultation process.

Courtney Ann Coyle, a California preservation attorney; Tom King, a consultant in Maryland who is also the author of several books on Section 106 review; and Dean Suagee, an attorney with a firm that represents tribal governments, provided thoughtful written responses to the following questions:

In what ways do you think Section 106 consultation works well?

Coyle: When Section 106 is done correctly, it brings all the necessary parties to the table in a familiar, credible, flexible framework and in a timely fashion. It allows space for conversations and negotiations about a proposed project, its effects, and methods to resolve harms.

King: Section 106 consultation is one of the very few ways that tribes (and others) can actually get federal agencies to address cultural concerns in a meaningful, consultative fashion. I can’t say that it works WELL to achieve such purposes, but most other review processes (e.g., under NEPA) don’t work at all.

What are some ways in which Section 106 consultation does not work? What needs improvement?

Suagee: A basic problem is that, in many cases, the staff and decision-makers in many federal agencies just do not seem to take seriously the messages that tribal representatives try to convey, at least not if it would mean saying “no” to a “development” project or a resource extraction project. It’s been three and a half decades since the enactment of the American Indian Religious Freedom Act, and it seems that tribal religious practitioners still do not get the respect they deserve, much less appreciation or understanding. The protection of endangered species is afforded much greater legal and management-oriented status. This disjuncture needs to be remedied.

Another aspect of this problem is that it is perhaps compounded by the fact that historic preservation has evolved into the main federal process that can be used to protect tribal sacred places. One factor in this compounding of the problem is that tribal people who use the historic preservation process tend to be largely concerned with trying to protect sacred places, rather than with preserving historic properties. While these concepts should go hand in hand, that is easier said than done. It seems to me that, at least in some cases, when an issue is framed as religious, non-Indians become reluctant to pursue the conversation, and this is compounded by the perceived or real need for confidentiality regarding certain aspects of tribal religions. If we could emphasize matters of historic significance more comprehensively, we could get better at talking with each other, and we might get more from the conversation.

In addition, tribal knowledge often seems to be relegated by agencies as secondary to western scientific knowledge when potential impacts are being analyzed or considered. This is perhaps nowhere more apparent than in the NEPA process when Environmental Impact Statements are prepared. Tribal knowledge gained over countless generations has the potential to inform issues of cultural significance on site-specific and landscape levels of consideration, as well as ecological concerns. Although this latter aspect, which in recent years has earned the acronym TEK (Traditional Ecological Knowledge), has increasingly gained attention (particularly in landscape-scale situations), it is rarely taken into account with the same level of seriousness as Western paradigms, and is even more rarely placed in the broader context of historic preservation.

Coyle: Tribes are often brought in too late to the project—for example, after the draft EIS has been published or after the project has irreversible momentum. For Section 106 discussions to have legitimacy, they need time, reflection and checking back with stakeholders. This may mean convening at several points in the life of a proposed project such as environmental scoping, draft environmental documents, technical reports such as surveys, ethnographies and tribal values reports and mitigation/treatment plans, and prior to a project decision. Not a check-the-box exercise. Not necessarily streamlined. And that the decision might include denial of the project.

King: Section 106 consultation is limited by being focused on potentially impacted “historic properties” as defined with reference to Euroamerican-biased criteria. Section 106 specialists tend to use narrow definitions and arcane language that make tribes (not to mention just plain citizens) roll their eyes in confusion and disbelief. Ideally, 106 review (or something like it but less esoteric) should be uncoupled from the National Register and applied to whatever is of broad cultural importance to tribes (or others) in whatever environment is subject to effect by a proposed federal action.

How has Section 106 consultation evolved over the last 50 years?

Coyle: Guidance from the ACHP in recent years has proven helpful. Especially relative to cultural landscapes, that there is more to it than drawing tight circles around archaeological sites, and tribes needing a role in selection of consultants working in the tribes' traditional territory. SHPOs acknowledging that agencies and applicants should first be going to the tribes and then to the SHPO, can help this process. Much of this is common sense and already reflects best practices, but it is helpful to have it written into guidance by the agencies that oversee Section 106 implementation. It gives tribes a reference to point to when trying to work with parties who may not be familiar with tribal resources or tribes or those who are stuck in an old-school way of handling these resources.

The rise of THPOs and professional tribal cultural resource departments is also changing the way consultation is occurring. This can help to develop peer-to-peer communication and promote respect, qualities that also can lead to better Section 106 processes.

The potential for noninvasive study has deepened. The use of ground penetrating radar, historic human remains detection canines, aerial and historical photography, and use of existing collections has increased. These nondestructive methods to assist in determining significance and potential for effect, should be more widely acknowledged by practitioners within the Section 106 process.

Suagee: In an essay I wrote for Past Meets Future: Preserving America’s Historic Environments1, I predicted that, “As the tribal programs develop, they will remake and revitalize the national and state programs with which they will interact.” I believe this remaking and revitalization is underway, though we still have a long way to go. In that essay, I expressed the hopeful view that “Over the next quarter century, as people of the dominant American society become better informed, stereotypes will be replaced with knowledge about particular tribes.” I would like to think that some of that has actually happened. I also said:

As the people of the dominant society become reconciled to our insistence on self-determination, our tribal governments will finally be accorded widespread recognition as permanent features in the political landscape of North America. Over the next quarter century, the implementation of tribal amendments to the National Historic Preservation Act of 1966 will contribute to the acceptance of our permanence.

I don’t think the “acceptance of our permanence” has happened yet. Maybe in the next half century.

What are some things you’d like to see change in the future?

Suagee: I would like to see some formalized options for resolving conflicts in ways that actually preserve tribal sacred places, and, on a broader scale, cultural landscapes, perhaps adding a step in the resolution of adverse effects to consider transfer land from federal public status to Indian trust status. Perhaps a new variety of preservation easement to protect tribal interests. Perhaps a procedural step at which, if a tribe asserts that an undertaking would result in a deprivation of religious freedom, then the federal agency would have to affirmatively consider options to avoid or alleviate the deprivation, and document the consideration of such options.

I would also like to see some concerted efforts to coordinate the NHPA Section 106 process and the various aspects of the Endangered Species Act (ESA), especially Section 7 consultation. Many of the places that hold religious and cultural importance for tribes are also inhabited by culturally important wildlife and plants, some of which may qualify for protection under the ESA. It seems to me that the implementation of these two federal laws ought to be much better coordinated. I would particularly like to see the wildlife agencies respectfully take into consideration tribal ecological knowledge (TEK). More broadly, federal land managing agencies could get better at using land management processes that are designed to protect environmentally sensitive areas to also preserve historic properties that hold religious and cultural importance for tribes. I would like to see the NHPA process evolve such that the documentation of TEK for use in federal review and planning processes becomes a standard practice.

King: I’d like to see a thorough revision of the 106 process and related review systems. Ideally, this would involve:

  1. Doing away with the National Register, or at least uncoupling Section 106 review from it;
  2. Migrating 106 review over to the NEPA world, mandating consultative review of impacts on whatever tribes and others see as culturally valuable in the environment—places, plants, animals, water, air, sociocultural practices, the night sky, etc.;
  3. In this context, retaining (and improving) the model of consulting-to-agreement, with provision (as today) for consultation to be terminated and a final comment rendered by some authoritative entity when agreement can’t be reached;
  4. In the event of failure to reach agreement, requiring the relevant agency to make its decision with explicit reference to the policies articulated in the laws (e.g. NEPA § 101(b), NHPA § 2)— explaining how its decision either is consistent with those policies, or must be inconsistent in order to avoid unacceptable impact on the broad public interest; and
  5. Finding an alternative or alternatives to today’s idiotic practice of having environmental impact assessment, including identification of impacts on historic places, performed by people employed by project sponsors.

Coyle: The things that could benefit the process are not necessarily all Section 106 related. Yet, the processes are interrelated and the results in one feed another.

Tribes need to write their own histories. Archaeologists in general cannot be looked at to do this. It is outside their area of practice and training. Capacity must be built within the tribes so that each tribe can have the resources to participate fairly in the process and present evidence in a manner that is accurate and respectful to their histories.

If effects cannot be avoided, then treatment must benefit tribes—not just archaeologists. For too long archaeologists have been looked to to determine the mitigation and treatment of tribal cultural resources. This must change. Tribal governments should be able to present their own tribal priorities which should be recognized by agencies as having nexus to the project's effects. This can include building tribal professional capacity, educational scholarships, funds to repatriate lands, build tribal cultural centers and programs, etc. These priority lists can also form a framework for meaningful programmatic mitigation, funding big ticket priorities across several projects, to honor proportional mitigation. There have been too many missed opportunities in programmatic mitigation, particularly in the renewable energy sector.

Honest cumulative impact analysis also must happen. It is not now happening within the Section 106, NEPA or mini-NEPA processes. This is resulting in unaccounted for harms to tribes and tribal cultural resources. The consultants working in those areas must work harder to disclose those impacts and not just try to write them out of existence in the name of project clearance and cost minimization. There is so little meaningful cumulative impact analysis out there. This is an area that could also benefit from effective guidance.

Tribes still are not well-integrated into land use planning. Perhaps more resources and training would help. It is unclear that tribes see the benefit in participation, especially when federal agencies fail to find the funding to perform required surveys pursuant to NHPA Section 110 or to fund land management plans.

Finally, it would help if the federal staff were better trained and experienced in working productively with tribes. Often they lack experience in effective consultation, have never written a National Register nomination for tribal resources, have never worked with tribes on avoidance or mitigation measures, etc. This often leads to the consultants for the applicants driving those discussions, which can lack independence and be rife with conflict of interest.

Notes:

1. See Dean B. Suagee, Keepers of the Native Treasures, in Past Meets Future: Preserving America’s Historic Environments (Antoinette J. Lee, ed., National Trust Historic Preservation, 1992).

Want more? Read the full Section 106 series and the series on Section 110 of National Historic Preservation Act on this page

The National Trust is committed in its work in protecting traditional cultural properties. specifically The Southwest Intervention Fund, part of the National Trust Preservation Funds grant program provides grant funding to further preservation efforts of traditional cultures in the Southwestern states. Grants are open to Forum members and range from $2,500 to $10,000.



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