Proposed law changes may weaken Tribes’ ability to protect sites

By Nicole Montesano

Smoke Signals staff writer

A federal law that requires developers and government agencies to consult with Tribes before making decisions that could affect them, is under threat from a proposed revision that opponents say would be devasting.

The National Association of Tribal Historic Preservation Officers explains on its website, www.nathpo.org, that Section 106 of the Tribal National Historic Preservation Act “is one of the primary federal processes Tribal nations and Tribal historic preservation officers use to ensure that sacred places, ancestral lands, burial places, cultural landscapes, historic properties, and associated traditions and practices are considered before federal agencies make decisions that may affect them.”

In practice, according to Grand Ronde Historic Preservation Office Manager Briece Edwards, that means, for example, when a new highway or hospital is proposed, or a wildfire site to be replanted, local Tribes must be consulted.

“All total, we work with around 60 to 80 state and federal agencies and offices,” Edwards said.

In mid-July, the national Advisory Council on Historic Preservation proposed significant revisions to the way the law is implemented. According to NATHPO, the proposed regulations “would substantially restructure the Section 106 process, weaken the role of Tribal nations and THPOs, and place considerably greater control with the federal agencies responsible for carrying out, funding, licensing, permitting or approving federal undertakings.”

The revisions would make consultation with Tribes optional in many instances, and exclude “noncompact, unimproved natural features such as mountains, valleys, bodies of water or landscapes, including ethnographic landscapes,” from being considered historic Tribal property.

They would also delete language that recognizes “the special expertise of Indian Tribes in assessing the eligibility of properties of religious and cultural significance. It also removes express references to the government-to-government relationship, Tribal sovereignty, treaty rights and the fact that culturally significant places are often located on ancestral, aboriginal or ceded lands,” according to NATHPO.

“It’s minimizing Tribal voices, which in many ways would appear to look like ignoring the sovereignty and the skills and knowledge abilities of the Tribe,” Edwards said. “So that’s its own problem there.”

Those are significant problems, Edwards said – and not only for Tribes.

“The suggested changes apply to all cultural resources,” he said. “Meaning that if somebody decided that a solar array or a solar farm would be a better use of the footprint of Constitution Hall in Philadelphia, they would be allowed to destroy and remove Constitution Hall and put up solar panels. This is a sea change in the law, or the interpretation of the law, that affects all citizens of the country.”

In addition, he said, “the Tribe has not been consulted about these changes, and the agency, the advisory council has not actually provided those to us for comment and review, which is standard process for that agency in particular, but also for all agencies. So that hasn’t occurred. Only by the awareness of individuals who work in that world, did suddenly this become something (we were) aware (of).”

Tribes across the country are now reviewing the proposed changes and offering comments on them. NATHPO said it is working closely with Tribes to address what they can do.

For Grand Ronde, Edwards said, state laws may offer some protection, as these also contain broad requirements for the protection of historic cultural sites.

Edwards said agencies and developers sometimes consider consultation something of a last-minute box to check off – and that can create problems. Consulted early enough, Tribes may be able to save companies or jurisdictions money by suggesting changes before thousands of dollars have been spent on design and engineering.

“I don’t know an agency that hasn’t thought about the expenditure of $10,000 for a pole barn, or billions of dollars for a bridge, that they haven’t been thinking about for years,” he said.

But often, consultation is one of the last steps in the process, rather than the first, leading to complaints that Tribes are causing delays.

“What we’re experiencing now is the vilification of Tribes,” Edwards said. “Tribes are the ostensible reason for the problem here and they’re not. This Tribe in particular, we want to work and be the advocate for the resource. The sooner we have awareness that something may be occurring, the more effective we are at that. Engineers are great. Because if you give an engineer a complete set of parameters, they can find an answer. But if you don’t tell them the cultural resources are one of the parameters, they can’t take it into the development design. And again, that then makes the resource the problem. Not the lack of planning. Which is where I would suggest it needs to sit.”

In some instances, conversations can be difficult and may span years. The Tribe often has knowledge that even accredited archeologists from non-Native firms do not, thanks to oral history, or ikanum, that spans thousands of years, as well as a broad perspective, Edwards said.

“If we’re talking about a highway project, we say, ‘Does it have to go right through here, because we know that culturally, the stories about that river, the ikanum of that place, is that it changes a lot. Have you talked to your geologist, and reviewed the integrity of that place, so that you’re not paying for the road five times, because of floods?’ … In other instances, we’ve been able to say, we know that this was a cedar harvest area, but the wildfire took it out. When you’re replanting, rather than putting fir, could you put the cedars back? Future generations will then have materials for harvest.”

When a new project is proposed, Edwards said, “We need to have a conversation: Have you accounted for all of the resources? Not just archeology. But what are the viewsheds? What are the fish? What’s the riparian? What are the plants in that area? Those plants may be the demonstration of that land being stewarded 150 years ago. And we can look at that, and go, ‘Well, this looks like those are cultural resources.’ But then, that person has their next step. And that’s different than somebody coming in saying, ‘Hey, we want to break ground on this in three months.’”