By AHW Board Member Kaycee Prevedel

Barely one month ago, on July 24, the Advisory Council on Historic Preservation (ACHP) proposed sweeping changes to how Section 106 of the National Historic Preservation Act (NHPA) was to be implemented. For some, these changes became nothing more than talking points on the news or in the local paper. For others, especially for those who work in and with cultural resources, the news was shocking – the implications of the proposed changes will impact all aspects of how consultation is done, how cultural resources are viewed, and potentially violates our government’s federal Indian trust responsibility. 

Archaeologists and other preservation professionals have not always been successful in conveying to the public why their work is important, impressing upon people why our history and historic resources are important, or emphasizing why it is important to protect these spaces and places. However, any shortcomings our fields may have should not result in the wholesale dissolution of such a key aspect of the NHPA. 

Section 106 has been an integral component of the NHPA since it was signed into law by President Johnson in 1966. In basic terms, Section 106 is a review process – it gives both interested parties and the public a voice in protecting and maintaining historic properties in their communities. A Section 106 review is required to take place whenever a federal, or federally-assisted project – has the potential to impact a historic property. In identifying “interested parties”, the federal government is obligated to consult organizations such as State Historic Preservation Offices (SHPOs), Tribal Historic Preservation Offices (THPOs), local governments including, but not limited to, Certified Local Governments (CLGs), and federally recognized Indian tribes or Native Hawaiian organizations. With these consultants, the project’s proposed adverse effects are discussed along with ways to mitigate damages. If an agreement is reached, a Memorandum of Understanding (MOU) is signed and executed. At its best, Section 106 was designed to be collaborative and inclusive, and to honor different perspectives in what constitutes “damages” to a historic property. 

The changes proposed by the ACHP completely gut this process. Instead of mandating that the project identifies “interested parties”, the proposed changes allow the federal government, at its own discretion, to decide whether – if ever – to tell any community that it is about to undertake a project which could harm or destroy a historic resource. This means highways, with their long history of destroying minority neighborhoods, can be built without review and burial sites belonging to either tribal Nations or American communities could be developed without input. 

The changes proposed by the ACHP remove from historical protection “significant cultural landscape features” which could mean that federal agencies would no longer have to consider adverse effects to landscapes such as the Grand Canyon. It also requires historic resources to be “geographically compact” and have “tangible remains” which will severely inhibit how traditional cultural landscapes and historic properties are identified, defined, and protected and risks erasing lesser-known histories, especially Native American places of cultural significance. Many cultural areas are significant because of their proximity to natural spaces, such as water sources, geological formations or viewshed. These proposed changes would gut efforts to preserve places and disregard Indigenous ways of knowing.

The changes proposed by the ACHP allow federal agencies to no longer take into account the consequences of their actions on historic properties, other than those actions which directly damage the property. Damage to a historic property constitutes more than just having to tear something down. It can mean a pristine viewshed is irreparably damaged with the development of a mining operation; it can mean medicinal plants are destroyed when water is diverted for a dam; it can mean sites of religious importance can no longer be accessed by those who still use them, and so much more. 

The changes proposed by the ACHP allow agencies to not do any archaeological work if they themselves deem it is not cost effective. For many, cultural resource archaeology (CRM) is one of the key ways in which damage to historic properties can be mitigated. The work is expensive and time-consuming, but it allows for the history of any site to be documented as fully as possible and saved before being destroyed. These artifacts can be used by universities, museums, students, and more to explore more of what we don’t know about the past. The amount of archaeological work done in these contexts will likely be severely limited, as profit motive is given the green light to outweigh adverse effects to historic sites and properties. This also impacts the ways in which states can adjudicate historic preservation within their own boundaries as these changes trample on the rights and roles SHPOs play in preserving historic sites.

Finally, the changes proposed by the ACHP no longer require the federal government to consult with Tribal nations, or to seek their expertise in regards to protecting their own cultural resources. This, beyond almost everything else, may be the most important consequence of the proposed changes to Section 106. Since 1831 the law of the land when it comes to federal Indian law, has been the federal Indian trust responsibility. This doctrine, established in Seminole Nation v. Georgia, states that the United States has an enforceable obligation to protect tribal treaty rights, lands, assets, and resources with respect to American Indian and Alaska Native tribes and villages. By removing Tribal nations from the conversation of historic preservation, the federal government is grossly neglecting their obligations to a people who still utilize their own historic places and spaces in their own ways. 

The NHPA was not perfect, nor was Section 106. However, the proposed changes will very likely slow what is left of the Section 106 process, delaying the very projects that these changes are hoping to fast track. The changes are rife with inconsistencies, lack clarity and will cause organizations, communities, and developers confusion and likely added expenses as they work to understand how to implement these new rules. Politicians seem to be unaware that laws like the NHPA were passed due to widespread anger from varied constituent groups over projects that bulldozed through historic places and spaces including the construction of the Cross-Bronx Expressway, the demolition of Pennsylvania Station, and widespread demolitions in downtown Boise, Idaho. If we were once able to rally to make our voices heard to politicians across the county and demand protections for our heritage and history, we can do it again. 

• The proposal would dismantle the consultative Section 106 process that has protected historic and cultural places for nearly 60 years. Consultation with State and Tribal Historic Preservation Officers, local governments, Tribes, preservation organizations, and the public would become optional and largely controlled by the federal agency overseeing the project.
• Federal agencies would gain sweeping discretion over public participation and project review. Agencies would be able to shorten comment periods, decide whether public input is “useful,” and place internal project managers in charge of evaluating and consulting on the impacts of their own projects.
• The revisions would weaken the federal government’s responsibility to Tribal Nations and cultural heritage. By narrowing consultation requirements and protections for Traditional Cultural Properties and cultural landscapes, the proposal would make it much harder for Tribes to advocate for sacred, ancestral, and culturally significant places, through the elimination of ‘government-to-government’ consultation.
• Thousands of historic places would lose protection under new, restrictive definitions. Raising the typical age threshold from 50 to 100 years would exclude many Art Deco, Mid-Century Modern, and other important resources, while requirements that historic properties be “geographically compact” would threaten noncontiguous historic districts, cultural landscapes, rock art sites, and natural places with historic significance.
• Despite being presented as “streamlining,” the proposal would make Section 106 less efficient. States already use programmatic agreements with transportation departments and federal agencies to expedite review. Weakening or eliminating these established agreements would discard processes that are already working and would create greater confusion, delays, and inconsistency.

To get involved and join the Alliance for Historic Wyoming during the Section 106 comment period, email us today.