Traditional Cultural Properties and Policy

Traditional Cultural Properties and Policy Northern Arizona University, Department of Anthropology Tanachy Bruhns, Heather Eastman, Shayna Marks Introduction Culturally significant places play an important function as transmitters of interpersonal and intergenerational knowledge. Living communities depend on places with cultural significance for spiritual and functional continuity. The term traditional cultural property refers to attempts to evaluate and identify places of cultural significance for preservation. Sacred sites is a broader term which refers to areas Indigenous peoples or other groups consider significant. This poster reviews how federal agencies interact with Native American communities regarding traditional cultural properties. The integrity of culturally significant places and the integrity of tribal cultures which spiritually rely on sacred sites and intergenerational knowledge rests upon successful land management practices and healthy relationships between tribes and federal agencies.

Traditional Cultural Properties  Federal agencies follow guidelines published by the National Park Service and the Advisory Council on Historic Preservation to identify, evaluate, and inventory TCPs.  Currently Bulletin 38 defines “traditional” as beliefs, customs, and practices of a living community of people that have been passed down through the generations, usually orally or through practice (King and Parker 1990).  The cultural significance of historic properties plays a major role in a living community’s historically rooted beliefs, customs, and practices.

Suggestions for the Protection of Sacred Sites and TCPs Native American sacred places have often been misunderstood or identified without early and meaningful consultation with those communities which hold them sacred. More meaningful consultation and collaboration between U.S. government agencies and tribal communities can be further developed by acknowledging tribal communities as valid stakeholders in land management. The suggestions and methodologies listed below have been suggested to improve relationships between U.S. government agencies and tribal communities pertaining to the protection of sacred sites and tribal cultural properties.

Ethnographic Consultation

Indigenous Concepts of Sacred Sites “A culture’s vitality is literally dependent on individuals living within a community with the natural world. The land’s features and the sense of place and kinship they create, are central to the identity of a native individual and people. The land with its water, plants and animals is a spiritual creation put into motion by the gods in their wisdom…maiming the relationship between man, nature and the supernatural, to ignore these teaching, is to the ignore the purpose of life, the meaning of existence” – Gregory Cajete (2000)

United Nations Declaration on the Rights of Indigenous Peoples  Articles 11, 12 and 25 state that Indigenous peoples posses the right to practice, promote, and protect their spiritual and religious traditions  Including the right to maintain, protect, and have access to religious and cultural sites, in privacy, and the right to foster a relationship between themselves and sacred sites (12-1, 25)  States also should provide redress for spiritual or cultural property taken without free, prior, or informed consent, or in violation of Indigenous law, customs or traditions (11-2)

Federal Indian Policy  Indigenous tribes are separate from states and from foreign entities (U.S. Constitution, Article 1, Section 8)  Subject only to the plenary power of’ congress

Determining Eligibility 1) Ensure that the entity under consideration is a property 2) Consider the property’s integrity 3) Evaluate the property with reference to the National Register Criteria 4) Determine whether any of the National Criteria considerations (36 CFR 60.4) make the property ineligible

Problems with current TCP evaluations  The National Historic Preservation Act evaluation criteria is primarily for evaluating buildings.  The term “Traditional Cultural Property” needs to be redefined.

Involved tribal and spiritual leaders in decision making On-site consultation and survey Produced formal signed summary of discussions and issues from each tribe Showed tribal and spiritual leaders the proposed route of the bypass before any work began

Ethnographic consultation further examines the relationships between communities and sacred sites by:

Rerouted proposed route after tribal leaders expressed a concern involving the destruction of a sacred mound site

Interviewing members of the community

NDDOT bought easements around the mounds to protect the sites from future developments (Federal Highway Administration Resource Center 2008)

Attending community events and visiting sites Reviewing historical maps Consulting literature reviews (Branam 2010)

Redefining Concepts Redefining concepts allow for compromises between involved parties and allow the needs of all involved parties to be met: More inclusive definitions of concepts such as “community”, “sacred”, and “religion” Definitions should reflect the values of all stakeholders, including tribal communities (Branam 2010)

Reevaluating the National Historic Preservation Act

 Structures or archeological sties are seen as of higher value than TCPs.  Definitions of “traditional” and “continuity of use” are difficult to interpret.

 TCP identification needs to be an ongoing aspect of the evaluation and preservation process

 Cross cultural education/training

 Property boundaries are difficult to define.

 Continuing dialogue and guidance on concepts and methodologies for the identification, documentation, and registration of sacred sites (King 2009)

 Early Consultation with Tribes in the Section 106 process and NEPA process

 Integrity and locations of TCPs are compromised during evaluation.

Developing a Positive Relationship with Tribal Communities Reviewing NPS Bulletin 38

 Meaningful consultation before mitigation, protection, and preservation  Additional on-site consultations  Involvement of tribal communities in decision-making throughout the process

 Indigenous lands = federal trust lands

 Recognition that tribal consultation goes beyond obeying the law  Acknowledgement and respect for tribal sovereignty and government-to-government relationships

AIRFA and the First Ammendment National Register Bulletin 38 was initially published in 1990. Since 1990 no comprehensive review of the Bulletin’s practical application has been done.

 Serves primarily as a form of a joint resolution, rather than law, leading to little enforcement

In 2006 the Preserve America Summit Panel Report recommended: “Update National Park Service Bulletin 38 on Traditional Cultural Properties (TCPs) to enable Federal agencies, SHPOs, and historic preservation professionals to more effectively identify, evaluate, and interpret resources of various cultures.”

 Lyng v. Northwest Indian Cemetery Protective Association (1988), ruled the Free Exercise Clause of the First Ammendment not appropriate in defense of sacred sites

Leading up to the 100th anniversary of the National Parks, the National Park Service announced in the Director’s call to action document that the NPS is conducting a comprehensive effort to review and update Bulletin 38.

 Judge ruled the case a property dispute, rather than infringement of Indigenous religious freedom

The NPS asked for comments from April 2011 to September 2013. Drafts of the the new guidelines for review and comment were released in Fall and Winter of 2013. The new revised and completed guidelines are expected to be published late February 2014.

 Supported federal land ownership, minimized Indigenous use rights because Native peoples

The North Dakota Department of Transportation (NDDOT) and the North Dakota’s division of the Federal Highway Administration meaningful consultation with tribal communities pertaining to the proposed route of the Jamestown Bypass:

 NHPA must take into account the impact their policies and actions have on properties listed or eligible to be listed on the National Register

 Domestic dependent nations i.e. ward to guardian relationship (Cherokee Nation v. Georgia 1831)

 The American Indian Religious Freedom Act (1978) requires federal agencies to respect the customs, ceremonies, and traditions of Native Americans (PL. 95341, 92 Stat. 469)

Case Study: Jamestown Bypass

 Recognize that pre-existing relationships between Native Americans and non-Native Americans has been a result of a painful past (Federal Highway Administration Resource Center 2008)

Tribal Conslutation. US Department of Agriculture Forest Service 2013 Web 8 Dec. 2014

Suggestions for the Future

 Define confusing terms such as “properties” and “places”  Develop a new program for TCPs that is completely separate from the National Register program.  More legal protection of sensitive information.  Interagency cultural sensitively training.  Acknowledge interests of “removed” tribes  Develop Department of the Interior standards for cultural anthropologists.

References Advisory Council on Historic Preservation
2012 Native American Traditional Cultural Landscapes and the Section 106 Review Process: Questions and Answers. ACHP, Washington, DC. Branam, Kelly M. 2010. Survey to Identify and Evaluate Indian Sacred Sites and Traditional Cultural Properties in the Twin Cities Metropolitan Area. Cajete, Gregory. Native Science 2000. Natural Laws of Interprependence, Santa Fe, NM: Clear Light Publishers Federal Highway Administration Resource Center (U.S.) 2008. In Their Own Light: A Case Study of Effective Tribal Consultation. King, Thomas F. 2009. Rethinking Traditional Cultural Properties. Milholland, Sharon. "In the Eyes of the Beholder: Understanding and Resolving Incompatible Ideologies and Languages in the US Environmental and Cultural Laws in Relationship to Navajo Sacred Lands." American Indian Culture and Research Journal 34, no. 2 (2010): 103124. National Park Service
1990; Revised 1992;1998 Guidelines for Evaluating and Documenting Traditional Cultural Properties. Bulletin 38. Yablon, Marcia, Property Rights and Sacred Sites: Federal Regulatory Responses to American Religious Claims on Public Land. 2004