Water from heavy rains over the weekend pours over Snoqualmie Falls, Monday, Dec. 13, 2010, near Snoqualmie, Wash.
Ted S. Warren / AP
This story originally appeared on Underscore Native News.
Sweeping changes to Section 106 of the National Historic Preservation Act proposed by the federal Advisory Council on Historic Preservation (ACHP) would alter the tribal consultation process, potentially disrupting Native nations’ involvement in development that occurs on ceded lands, threatening protections for cultural artifacts and sacred sites across the United States.
“Ultimately, the changes are going to fundamentally change how [Section] 106 works entirely,” said Crystal Miller, Walker River Paiute Tribe, who has a doctorate in American Indian/Native American Studies and is the cultural sovereignty director for the Association on American Indian Affairs.
The regulations have ensured that tribes have a seat at the table with federal agencies when development projects are being considered. The proposed changes would undercut that.
“It strips out language that recognizes tribal sovereignty and even the government-to-government relationship,” Miller said.
At their core, the proposed changes would make tribal consultation optional and alter the definition of a historic property, narrowing when Section 106 applies and giving federal agencies the authority to determine what should be public information.
Cultural Heritage Partners, a law firm focused on advancing the principle of cultural heritage as a human right, believes the changes operate beyond ACHP’s jurisdiction which creates opportunity for legal challenges, according to Jessie Barrington, partner and chair of the Tribal Nations Practice at Cultural Heritage Partners, and a citizen of the Confederated Tribes of Coos, Lower Umpqua Siuslaw Indians.
Cultural Heritage Partners plan on legally challenging whatever is going to be published, according to Barrington.
“It seems very clear to me that there are very obvious issues with the regulations,” said Barrington.
Under the current version of Section 106, federal agencies are responsible for initiating the review process to consult with tribes when projects off tribal lands have the potential to affect historic properties of significance to Native nations.
The red-lined version redefines a historic property as one that is geographically compact, and explicitly excludes features such as mountains, valleys, bodies of water or landscapes.
“When we go pray, we don’t go pray to a four wall place. Sometimes we go to the land to pray, a sacred site to pray, so that is significantly impacted in the changes in [Section] 106,” Miller said.
Fewer projects would trigger Section 106, because the new regulations limit the definition of a historic property, according to Barrington. The Association also has concerns with how Section 106 would be initiated when federal agencies can unilaterally decide the usefulness of public participation weighed against the cost of public interest, according to Miller.
“We’ve seen proposed revisions, but we’ve never seen anything this hasty,” Miller said.
ACHP does not have the authority to alter some of the general regulation changes that occur within the proposed revisions, according to Barrington, who has full confidence in fighting against these regulations.
“Nothing is finished and we are not spectators,” Barrington said. “The ACHP can do whatever they want, put that on a piece of paper and try to jam it down everyone’s throat, but at the end of the day they only have a very limited role in the process.”
The proposed Section 106 changes are currently under Office of Information and Regulatory Affairs review ahead of publication in the Federal Register. From there, the changes will be open for public comment for an expected 30 days.
Asked to reflect on what the United States would look like if these changes are implemented, Miller said, “I see a full pathway of destruction of sacred sites, cultural properties, history. It’s a rewrite of American history, further excluding American Indians in that particular history.”
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