Forum Journal & Forum Focus

Section 106 in Indian Country

12-09-2015 17:35

Indian Tribes had no formal role in the national preservation partnership established by the 1966 National Historic Preservation Act (NHPA) until 1992. Since then, Indian tribes have been playing an increasingly visible role in the national preservation program. But tribes are not new to the game. Every Indian tribe has had, since time immemorial, long established means of protecting their places of traditional and cultural significance. These practices were implemented consistently and with great vigor even though they were not necessarily highly visible to the preservation community or to federal agencies implementing actions subject to review under Section 106 of the NHPA.

Section 106 of the NHPA is an essential tool for preserving places of importance to Indian tribes. All of the United States was once “Indian Country.” Every tribe surrendered vast tracts of land when making peace with the United States. Today, only a tiny fraction of land is still under the jurisdiction of Indian tribal governments. Consequently, for every tribe there are numerous places of traditional religious and cultural significance located outside of its territorial jurisdiction. Many tribes currently occupy only a minute portion of the lands they occupied in pre-contact times. Other tribes have been removed from their traditional homeland—some moved thousands of miles away. The tribal government can only directly protect places that are located within its boundaries. Some states have laws that protect historic properties, many do not. But Section 106 applies to federal undertakings whether they occur on federal or tribal, state, or private lands. The federal regulations implementing Section 106 provide a specific and mandatory role for Indian tribes in the Section 106 process. Tribes must be consulted any time a federal undertaking may affect a place of traditional religious or cultural significance to the tribe, whether that undertaking occurs on or off tribal lands. For those places not located on tribal lands, Section 106 often provides the only means a tribe has of influencing decisions about what will happen to those places of concern that may be affected by a federal undertaking.

The Navajo Nation is located in the Southwest and covers parts of Arizona, New Mexico, and Utah. It encompasses an area of more than 27,000 square miles—almost exactly the size of West Virginia—and is the largest land area governed by a single Native American tribe within the United States. Although the Navajo Nation has retained a large percentage of its original territory, millions of acres were ceded to the United States in the 19th century. Consequently, the Navajo Nation, like all tribes, has many culturally and historically important places located outside its jurisdiction. Section 106 gives the Navajo Nation a voice in what happens to such places in situations where it may be affected by a federal undertaking.

“Traditional” Approaches to Mitigating Adverse Effects

Within the preservation community, a more or less standard tool kit of preservation techniques for protecting or mitigating damage to historic properties evolved during the 1970s and ’80s. Tribal preservation techniques are sometimes quite similar to the ones found in the standard tool kit, but other times they differ dramatically. These different approaches are only just recently being recognized and accepted in the Section 106 context.

Some years ago, AT&T was upgrading long distance telephone cables by replacing copper wire with fiber optics. One of the lines AT&T was replacing ran west through the southern part of the Navajo Nation and then over the foothills of the San Francisco Peaks, a mountain range located in north central Arizona. The Peaks, which are located off of Navajo Nation lands on lands managed by the United States Forest Service, are among the most sacred places to the Navajo, as they mark the boundary of the Dine bikeyah (the traditional Navajo homeland) and are the location of significant events in Navajo traditional history.

AT&T’s cable upgrade project involved removing old, buried copper cables from a trench, cleaning the trench, and laying the new fiber optic cable in the original trench. These trenches were located in a right-of-way already owned by AT&T. However, the Federal Communications Commission (FCC) informed AT&T that the project would require compliance with Section 106.

AT&T provided the Navajo Nation Historic Preservation Department (HPD) with an archeological survey report of its existing right-of-way. The department accepted the archeological report, but informed AT&T that it needed to identify Traditional Cultural Places (TCPs)1 within the right-of-way. This led to considerable discussion between the HPD, AT&T, and AT&T’s cultural resources contractor about what needed to be done in order to identify TCPs within the project right-of-way. In particular, HPD was concerned about the San Francisco Peaks. Eventually, AT&T commissioned tribal staff to help carry out the TCP study.

To identify TCPs, tribal staff interviewed residents in the vicinity of the AT&T right-of-way. Staff also sought out and interviewed hataathli (chanters, traditional healers who are often referred to as “medicine men”) with specific knowledge of the San Francisco Peaks and the ceremonies in which they figure prominently. A hataathli was found in the western part of the Navajo Nation whose ceremonial practice included the songs that involve the Peaks. He consented to be interviewed. After the nature of AT&T’s project was explained to him, he was asked if this project would harm the Peaks. He said it would definitely cause harm to the mountains and would reduce the healing power of the ceremonies in which they figure. In Section 106 terms, he explained that the cable replacement would be an “adverse effect.”

When asked what he would recommend as a means of addressing this harm, staff expected that he would tell them that the cable should be rerouted away from the Peaks. Instead, he explained that this would not be necessary, and that he knew of a ceremony that would fix the harm of retrenching on the Peaks. He went on to say that, not only would the ceremony fix the spiritual damage to the Peaks, but in the process of doing so, it would make the fiber optics work better. In Section 106 terms, the hataathli had told us that there was a traditional means of “minimizing” or even “avoiding” the adverse effect.
Tribal staff consulted with AT&T about this proposed approach to resolving the adverse effects of the project. They were pleased that the company agreed to fund the ceremony and even asked permission to attend. The hataathli agreed to AT&T participation and conducted the ceremony. In the end, an acceptable, and even very positive, outcome was achieved.

Lessons Learned

This outcome was successful for several reasons. Most importantly, AT&T came into the process with no preconceptions. The company was willing to discuss options openly and was completely willing to admit that it didn’t understand the concept of TCPs, how to identify them, evaluate them or how to address adverse effects resulting from their undertaking. The company did not presume that it knew better than the Navajo Nation or the hataathli.

Often federal agencies and the companies they license are reluctant to engage tribes in the Section 106 process in the mistaken belief that tribes are only concerned with sacred places and that effects on sacred places cannot be mitigated. When a project will harm an archeological site or a historic building, most preservation practitioners know what to do based on their professional expertise, experience, and past practice. But when it comes to traditional cultural properties, many find themselves in unfamiliar territory. They must work with tribal governments and with tribal traditional practitioners and rely on their expertise. The preservation professionals’ expertise and experience may not prove to be especially useful when dealing with tribal concerns. In fact, it may work against the professional unless he or she is willing from the beginning to set aside his or her assumptions and accept the expertise of the real experts—the tribe’s traditional practitioners.

Effective Section 106 compliance involving Indian tribes requires open dialogue and acceptance of the fact that only tribal traditional cultural experts have the necessary knowledge and experience to identify and determine which TCPs are significant (i.e., are National Register eligible); when an undertaking will affect an important TCP and in what manner; and whether or not there are appropriate ways to avoid, minimize, or mitigate adverse effects to TCPs. The Section 106 professional’s principal role in the process, whether that person is a federal, state or tribal government official, or a technical consultant, is to facilitate communication between the federal decision maker or applicant and the traditional cultural expert. His or her other role is to ask questions relating to Section 106 determinations by the tribal expert in a manner that he or she will understand, and to communicate the responses in terms that can be readily understood by a federal official who must make a decision that is at least partially based on the outcome of the Section 106 process.

Summary

The San Francisco Peaks AT&T project illustrates some very important points about Section 106 compliance in Indian Country. First, TCPs, even TCPs of immense cultural and spiritual importance can be dealt with effectively. The presence or potential presence of TCPs in a project’s area of potential affect need not derail a project. Sometimes it is possible to use traditional means to mitigated adverse effects to such places. That is not possible unless tribal traditional practitioners are engaged openly and in good faith at every step in the Section 106 process. Their expertise is essential to making decisions about where TCPs are located, their significance, and whether and how they may be affected by an undertaking, as whether or not and by what means affects can be avoided or mitigated.

Equally important, is the lesson this case study offers about dealing with historic properties that are not TCPS. Over the last three decades, Section 106 practitioners have developed more or less standardized tools for dealing with historic properties potentially affected by a federal undertaking. If it’s an archeological site: avoid it or conduct scientific excavations to recover important data. If it’s a building: avoid, rehabilitate it or document it. The tribes have come to view these as the first choice options. But the AT&T-San Francisco Peaks case study suggests the interests of communities and historic preservation may be better served by doing away with a narrow, standard tool kit in favor of thinking much more broadly about how to deal with the effects to historic properties resulting from projects subject to Section 106.



Publication Date: Winter 2012

#Section106 #ForumJournal #NativeAmerican #AdvisoryCouncilonHistoricPreservation

Author(s):Alan Downer
Volume:26
Issue:2

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