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More on TCPs and Section 106



Thomas F. King

I'm writing to comment on the "Point--Counterpoint" in SAA Bulletin 13(4) on "Historic Preservation and Native American Sites," which pitted Kurt Dongoske, Michael Yeatts, T. J. Ferguson and Leigh Jenkins of the Hopi Tribe against Lynne Sebastian of the New Mexico State Historic Preservation Office (SHPO). I do so hoping to clarify a technical but important issue of regulatory interpretation about which both parties seem to be confused. At the same time, perhaps I can reduce the confusion that may exist in the minds of readers uninitiated to the rubric of historic preservation by the arcane shorthand language used in the discussion. I offer these observations as one of the authors of the federal regulations and guidelines on which the "Point--Counterpoint" authors base their argument, and as one who continues to be involved in their interpretation.

For the benefit of the uninitiated: under Section 106 of the National Historic Preservation Act (NHPA) and the implementing regulations of the Advisory Council on Historic Preservation (36 CFR Part 800), federal agencies must consider and consult with the SHPO and other parties about the effects of their actions (land management, road building, military training...) on "historic properties." "Historic property" is defined by the NHPA as any property included in or eligible for the National Register of Historic Places. The National Register, a list of significant historic and prehistoric properties maintained by the National Park Service (NPS), includes districts, sites, buildings, structures and objects that meet criteria set forth in NPS regulations (36 CFR 60). These criteria are four, labeled a through d, and can be glossed as follows:

Criterion a: Association with important events or patterns of events in history, prehistory, or culture.

Criterion b: Association with important people in the past.

Criterion c: Possession of distinctive characteristics of a class, school of architecture, etc.

Criterion d: Known or likely to contain data important in history or prehistory.

A fundamental principle of the eligibility determination process is that evaluation is based solely on the significance of the property. Management concerns--what one wants to do with the property--are not to be considered. Just as one is not supposed to determine a wetland to be dry, a floodplain to be immune to immersion, or an endangered species to be thriving because one wants to manage the land in a particular manner, one is not supposed to determine a property eligible or ineligible, or eligible under one criterion as opposed to another, because of how one wants to manage it. We are supposed to evaluate properties solely on their merits. Then, in the remainder of Section 106 review, we figure out what to do with them. Their merits are, of course, considered in figuring out what to do, but they are not determinative. Any historic property, whatever criterion summarizes its significance, may be destroyed after Section 106 review if that review does not reveal a mutually agreeable way of preserving it. But every historic property, whatever criterion summarizes its significance, deserves the consideration that Section 106 review affords.

One kind of property that may be eligible for inclusion in the National Register is the "traditional cultural property" or "traditional cultural place" (TCP). TCPs are places whose historical significance is based in whole or in part on the roles they play in the ongoing traditional cultural life of communities; they are naturally eligible for the National Register most often under Criterion a because the ongoing cultural life in which they play a part is rooted in the traditional past--i.e., it reflects significant events or patterns of events in the community's cultural past.

Archaeological sites of all kinds, naturally, are most often detemined eligible for the Register under Criterion d, because they contain important data.

An archaeological site may be a TCP, and vice versa. Properties are often determined eligible under multiple criteria. Therefore an archaeological site that is a TCP may be eligible under both criteria a and d.

So what is the argument about? The Hopi say that the archaeological sites created by their ancestors are eligible under Criterion a because of their association with the ancestors, as well as under d because of the data they contain. It seems reasonable enough, so what is the problem?

The problem is that Sebastian thinks that "(i)f all archaeological sites were eligible under Criterion a, every federal undertaking that impacted an archaeological site would require (Advisory) council review" [SAA Bulletin 13(4):42]. In other words, the Advisory Council would have to get involved in how to deal with every archaeological site threatened by a federal undertaking. This would be a time-consuming exercise, inconvenient for federal agencies, and pointless in the eyes of SHPOs and agencies who feel that the Advisory Council has little to contribute to decisionmaking about historic properties. Many tribes, however, feel that the Advisory Council is the only thing that stands between their TCPs and the unfettered ambitions of agencies; because of a history of bad relations between tribes and state governments, and because of the principle of tribal sovereignty, SHPOs tend not to be trusted by tribes.

But wait, how do we get from the National Register criteria to Advisory Council review? Why must the council review impacts on a properties and not on d properties?

Actually, for no reason whatsoever. It is all a misinterpretation. In the Advisory Council's regulations, there is something that we sometimes call the "research exception to the Criteria of Adverse Effect" [36 CFR 800.9(c)(i)]. Remarkably, under this exception, one can destroy a historic property and claim to have "no adverse effect" on it--thus reducing (though not eliminating) the amount of Advisory Council review a project gets--if three standards are met:

1. The property is "of value only for its potential contribution to archaeological, historical, or architectural research;"

2. This value "can be substantially preserved through the conduct of appropriate research;" and

3. The agency demonstrates that the research will be "conducted in accordance with applicable professional standards and guidelines."

The research exception was conceived by the Advisory Council in the mid-1970s, when it had no archaeologists on staff, wasn't particularly interested in archaeology, and wanted to minimize its focus on archaeology. At the time NPS, for which I worked, objected violently, as did SAA and other archaeological interests, because the exception appeared to assign archaeological sites to second-class citizenship, and doom them to routine salvage and destruction. We prevailed upon the council to define the exception tightly, as described above. The property had to be of value only for research, it had to be simple enough to plausibly recover all relevant data, and the agency had to be committed to recover the data in accordance with an acceptable research design.

Over the years, however, the tests articulated in the regulations for application of the research exception have come to be widely interpreted to mean something quite different and more simple-minded. "Value only for research" has come to be equated with National Register Criterion d, and it has come to be assumed that any d property can be blown away under the research exception. Conversely, it is assumed that if the property is eligible under any other criterion, it can't be similarly subjected to summary recordation and destruction. This is why Sebastian thinks that if Hopi ancestral sites are found eligible under Criterion a it will mean Advisory Council review of effects on them, while if they are found eligible only under d, the council will not be involved.

However, the research exception doesn't say anything about the National Register criteria, for some very good reasons. Most notably, because as discussed above, one is not supposed to consider treatment when one determines eligibility. Letting eligibility define treatment creates a door that swings both ways; it inevitably allows treatment to define eligibility. Because Sebastian sees recognizing an archaeological site's associative (Criterion a) significance as unnecessarily complicating the process of arriving at treatment decisions, she wants to avoid recognizing that significance. Conversely, of course, it is probably at least in part because the Hopi see eligibility under Criterion a as triggering further review, which they think will protect their interests and those of their ancestors, that the Hopi want their ancestral sites determined eligible under this criterion. What both parties are doing is letting their desires about treatment influence their evaluation of properties, and that inevitably taints the objectivity of the eligibility determination process.

Another reason the research exception doesn't refer to the National Register criteria is that the assignment of properties to different classes of significance is a rather serendipitous matter. Not long ago, I reviewed the archaeological program of a major Indian tribe, and surprisingly found that its staff never regarded any property as eligible under anything other than Criterion d. This is a common phenomenon: archaeologists think in terms of d;,while historians and architectural historians think in terms of a. The National Register criterion that gets assigned has more to do with the evaluator's training and interests than with the property evaluated. This haphazard assignment of "letter grades" should not be allowed to define how a property would be treated.

Finally, the research exception isn't just for archaeological sites, although archaeological sites are most commonly determined eligible under Criterion d. The research exception is for properties whose "value" lies only in their "potential contribution to archaeological, historical, or architectural research." It applies to a deteriorating old barn with which there is nothing to do but make a record and knock it down, as well as it does to an archaeological site.

So the research exception does not refer to the National Register criteria, or even to the "significance" of the property. It refers to "value," which is intended to mean "value in the contemporary world," as opposed to historical, architectural, or cultural significance. In the case of our hypothetical old barn, it may be a fine example of barn architecture, and eligible under Criterion c, and it may be the barn in which Elsie the Borden Cow was born and hence be eligible under Criteria a and b, but if it's too rotten to be kept up or moved, if it has no value for adaptive use, public interpretation, or any other continuing function, then there is no point at all in subjecting its demolition to extensive review; it can be recorded and demolished under the research exception. Conversely, if the community really values that barn, and wants to prop it up as a monument to Elsie, the fact that some surveyor may have checked Criterion d on his evaluation form should not doom it to destruction after only expedited review.

Thus the decision about whether Hopi ancestral sites are eligible under Criterion a should be made without reference to the research exception. If they are determined eligible under a, this does not mean that the research exception cannot apply; it can apply if the consulting parties agree that a given property has no contemporary value other than for research. Conversely, the research exception may not apply to a property determined eligible only under Criterion d if the consulting parties find that the property has contemporary value that argues for its preservation in place.

The "consulting parties" must include the Hopi wherever a property of traditional religious or cultural importance to them is involved; this is required by Section 101(d)(6)(B) of NHPA. Sebastian indicates that "(t)ribes are consulted concerning all archaeological sites that they want to be consulted about, regardless of the eligibility criteria..." [SAA Bulletin 13(4):42], so one would think that Hopi participation would not be a problem. Her position on the eligibility issue, though, suggests that when she says "tribes are consulted" she does not necessarily mean that tribes are listened to. The logic of her position would seem to dictate that if she sees a property as eligible only under Criterion d, she will pay no attention to a tribal assertion that the property has cultural value that should be considered before a decision is made to blow it away after data recovery.

Finally, regarding Sebastian's rule that "(n)o written record...(and) no oral tradition" equals "no eligibility under criteria a or b [SAA Bulletin 13(4):13], it should be noted that this is not a rule established by the National Register criteria. Sebastian's rule seems to me to be arbitrary and capricious. The National Register criteria require "association" with events or people in order to be eligible under a or b, not some sort of association that is defined or known before the property itself is discovered. Actually, I cannot imagine how any archaeological site that is eligible under Criterion d could not be eligible under Criterion a. How can we honestly say that a property contains information significant in history or prehistory (the requirement for eligibility under d) if we don't think that the place is associated with important events or patterns of events in the past?

I think the participants in the "Point--Counterpoint" discussion in SAA Bulletin 13(4) would be well advised to stop twisting around the language of the NPS and Advisory Council regulations, and devote their time instead to figuring out how best to manage impacts on places that have value to both archaeologists and Indian tribes. The Section 106 review process is supposed to be about resolving conflicts between preservation of historic properties and contemporary land uses. We do the public interest a disservice when we short circuit the process by manipulating the meaning of words.

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David A. Phillips, Jr.

I'm distressed to see how a debate in the SAA Bulletin over applying National Register criteria to Native American sites [Ferguson et al., 13(2):12-5, 13(3):10-13, Sebastian, 13(3):3] has degenerated [Anyon, 13(5):4]. Surely we can do better than this. For those who do not live and breathe the Section 106 process, the question is whether we give most prehistoric Native American sites protection under the law by citing National Register Criterion d alone, or add an extra argument for protection by also citing National Register Criterion a. The conceptual advantage to the extra step is that it may lead to more sites being avoided or excavated during the Section 106 triage. The practical disadvantage is that the extra step is redundant (once a site is eligible, it's protected, no matter how it got there), but can cause more delays in construction projects and add to the list of people who are fed up with the federal historic preservation process.

Part of the argument revolves around whether an archaeological site should automatically be considered important to a tribe's history, and thus eligible under Criterion a, even when the site is not mentioned in a tribe's written or oral records, has no traditional uses(even intellectual ones), and in fact was not known to exist before it was brought to the tribe's attention. Not citing Criterion a in such cases doesn't deny the cultural historical link between the site and the tribe, it merely acknowledges that under current federal rules and guidelines, a reasonable and appropriate response is to give the site the same amount of protection under a different criterion. If this is not acceptable to tribes, the solution is to change the National Register criteria and guidelines, not to berate SHPOs for following rules they are supposed to follow.

I agree with Anyon that the differences between SHPOs and tribes are substantive. I disagree, however, that using only Criterion d "paves the way for the automatic mitigation of effect through data recovery." Having worked with the New Mexico SHPO for a decade, I'm not aware of a single instance where that office viewed data recovery as inherently under Criterion d and if Anyon's goal is to avoid more sites, he should argue for avoidance on its own merits rather than try to drag it in on the coattails of Criterion a.

Finally, I am distressed by Anyon's accusations that the New Mexico SHPO is so interested in saving "developer's time" and "profit lines" that it would rather "dismiss" tribal concerns than take them seriously. Such personal attacks may retard resolution of the issue that has been raised. We are all in a leaky canoe; I would like to see less hitting of others with buckets, and more bailing.

David A. Phillips, Jr. is principal investigator for SWCA, Inc., and president, New Mexico Archaeological Council

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