The NHPA's Cultural Resource Surveys: Inefficient and Too Expensive
In 2009, Tribes took notice when President Obama ordered the executive branch to develop tribal consultation policies. I remember thinking about how this would play out. Regardless of whether the agencies moved at an acceptable pace or in an acceptable manner, the fact that this was on the assignment board for all secretaries was monumental. Two and a half years into his administration, Tribes have had more opportunities than ever before to identify problems, propose solutions, and advance their priorities to the highest level of American government. I was hopeful that my Tribe’s issues would be elevated to a level that would make a difference.
If you were to survey Tribes and national associations in an effort to create a list of priorities, you would most likely find a matrix of issues for decision-makers to work within. As I travel this nation, I hear tribal leaders speak about the painstaking process of getting their land into trust. Federal recognition/acknowledgement is only spoken of by the Tribes who most recently earned their designation because nerves are still raw.
Almost every national tribal association promotes dialogue about tribal economies, economic development and sustainability, all under the cover of sovereignty. After all, isn’t the true purpose and central focus of tribal government about providing services and programs to its members so that their quality of life is enhanced?
When canvassing the myriad of Tribes, national associations, lobbyists and lawyers, and tribal leaders there is one issue that is glaringly absent from all of the dialogue: Funding for National Historic Preservation Act compliance (Section 106). The National Historic Preservation Act (NHPA), in addition to its layers of regulations that are supposed to protect historic and cultural resources, also authorizes Tribal Historic Preservation Offices (THPO). The NHPA does in fact provide a small amount of funding for THPOs through the National Park Service.
The NHPA requires cultural resource surveys whenever a federal action is initiated. This is critical because the development of any reservation is pretty much a federal action because of ground disturbing activity or funding sources, at the very least. Who performs cultural resource surveys? For the Seminole Tribe, the BIA Eastern Regional Office has to review and approve all actions. A cultural resource survey, performed according to the Secretary of Interior's standards, must be reviewed by the BIA's singular Regional Archaeologist.
Let's say the Tribe pays for the survey because the federal agency charged with the trust responsibility never did any environmental or cultural surveys of their own. The data collected by the Tribe or their consultant belongs to the Tribe. So, when the report goes to the BIA Archaeologist to review and approve, what information do they have on which to base their opinion? Wait, it gets more complicated because after the BIA approves, they send it to the SHPO or THPO for concurrence. Yes, the THPO.
To save everyone time and money we should amend the regulations or the legislation to bypass the BIA when a Tribe has a THPO. The Seminole Tribe of Florida has its own site files, archaeologists, and archaeological collection inventoried and stored with the nation's first and only tribally-governed museum to earn accreditation. Capacity and ability are not an issue for the Seminole Tribe because they invest in the protection or preservation of its historic resources. There are Tribes who do not have the funding to make historic preservation or its requirements a priority because they have people to feed, educate and shelter.
To expand on this issue yet again, do you know how much a cultural resource survey costs? Thousands of dollars per acre. This is not an inexpensive federal requirement for Tribes who wish to use the land held in trust by the federal government. Fences, wells, houses, government buildings, schools, clinics, utility lines, sheds, chickees, you name it—you dig a hole or disturb the ground and/or use one penny of federal funding, NHPA kicks in.
USET's tribal leaders (United South and Eastern Tribes) passed two resolutions calling for the Secretary of Indian Affairs to add cultural resources to the matrix of budget priorities. At last look, cultural resources and historic preservation are not on the Department of Interior’s budget priorities. There is no funding for the BIA’s compliance and review responsibilities. Self-Determination? Don’t waste your time even asking. There is no funding available so pursuing a P.L. 638 contract to do this work is not an option.
So, for all of the tribal leaders and national associations who are demanding their land be placed into trust, I suggest you start factoring in how you are going to pay for the surveys required under the National Historic Preservation Act. Unless you have millions stored away in a mattress somewhere, you will reach a stumbling block that will seem insurmountable. Tribal leaders, please get behind this issue and start to ask the questions.
Tina Marie Osceola is the former Chief Historic Resources Officer for, and a member of, the Seminole Tribe of Florida. She has a BA in Political Science from Rollins College and an MPA from Nova Southeastern University.