A federal advisory council is proposing sweeping changes to regulations intended to protect historic sites. The proposed regulations could prevent historic Ohio tribes from saving their sacred sites.
To better understand the relationship these regulations have to over 50 federally recognized tribes with ancestral ties to the Ohio River Valley, read more on the legal definitions for "government-to-government relationship" and " federal Indian trust responsibility."
If the changes were to go through, Greg Werkheiser, founding partner of the law firm Cultural Heritage Partners said, “I don't say this lightly, it would gut historic and cultural preservation practices and the movement in this country,”
60 years of precedent
The regulations can be found in Section 106 of the National Historic Preservation Act of 1966.
For 60 years, the goal of it has been for agencies overseeing federally funded or permitted projects to “seek ways to avoid, minimize or mitigate” adverse impacts on properties listed or eligible for listing on the National Register of Historic Places.
“Section 106 is about pausing and talking before we just assume that a project has to move forward and the cost of that project (moving) forward is us having to sacrifice culture and history,” Werkheiser said.
The National Register of Historic Places lists more than 100,000 sites consisting of nearly 2 million archaeological and historic resources — think buildings, sites, districts, structures, and objects.
The Section 106 review process also requires federal agencies to notify local governments, state historic preservation offices and tribal historic preservation offices or governments about these project undertakings, and consult with the interested parties.
“It can be everything from a church, to a historic downtown, to a cemetery, to a sacred site for tribes. And if there are impacts, the law doesn't guarantee that any impact cancels the project,” Werkheiser said.
“It just requires a respectful conversation, a collaborative conversation, an honest, transparent conversation about what the project's harms will be, and a creative conversation about ways to avoid those if possible.”
What the proposed changes would do
On July 24, the Advisory Council on Historic Preservation, the federal agency that oversees the Section 106 process, voted by email to approve revisions to these regulations after being given a week to consider the changes.
The revisions make consultation optional, narrows the scope of what is considered damaging to a site and make public comment periods on projects an optional step.
“So it is very possible that tribes show up one day and see bulldozers going through a sacred site and have had no notice, let alone an opportunity to participate."
It also deletes acknowledgement that historic properties on ancestral or ceded land may concern American Indian tribes, effectively carving them out of the notification and consultation process in those instances.
“And so what that ends up meaning is that that government-to-government relationship and trust responsibility is stripped, and tribes ... they get treated to the same rights as if it were any community non-profit. It doesn't acknowledge the inherent sovereignty that federal recognition in particular acknowledges within the federal legal framework,” Werkheiser said.
Many federally recognized tribes no longer live in their homelands due to colonization and forced removal by federal and state governments. Ohio is one such case, with over 50 federally recognized tribes with ties to the Ohio River Valley.
“So it is very possible that tribes show up one day and see bulldozers going through a sacred site and have had no notice, let alone an opportunity to participate,” Werkheiser said.
According to an internal memo from the Advisory Council’s general counsel reported by NPR, it states the current rules "create confusion and uncertainty for both the public and regulated entities and contribute to agency delays.”
It also claims the revisions would help "agencies strike a more appropriate balance between evaluating effects on historic properties and advancing critical federal projects."
The changes have drawn criticism from tribal representatives, archaeologists, historic preservation officers and some politicians.
Before the vote, the National Association of Tribal Historic Preservation Officers (NATHPO), the membership association representing tribal government officials implementing preservation laws, published a statement saying it “is deeply concerned that changes of this magnitude are being advanced without giving Tribal Nations a meaningful opportunity to review the proposal.”
“The ACHP’s proposed regulations are an affront to Tribal sovereignty,” said Ira Matt (Séliš), NATHPO’s executive director.
“Any effort to diminish our voice or disregard the places, traditions, and practices we hold sacred is egregious and represents a violation of the federal government’s trust and treaty responsibilities that is neither morally nor ethically defensible.”
The changes aren’t official; the revisions have to go through an internal review, and then the council has to allow a 30-day window for public comments. That public comment period hasn’t opened yet.
Cultural Heritage Partners is circulating an online resource to help people draft comments ahead of the comment period opening.
Werkheiser said the revised regulations will likely lead to lawsuits.
Ohio’s state historic preservation office would see impacts
The revised regulations would also weaken the role state historic preservation offices would play in the Section 106 process, making consultation with them on projects optional where it was once required, Werkheiser said.
State historic preservation offices, which were also created by the National Historic Preservation Act, are responsible for reviewing and commenting on any archaeological work completed on Section 106-permitted projects in their jurisdictions.
“Not only does it just cut off and cut out tribal consultation, it cuts the knees out in terms of the role that state historic preservation offices or SHPOs play in this whole process, in this ecosystem,” he said.
WYSO reached out to Ohio History Connection, which oversees Ohio’s State Historic Preservation Office for comment on these changes.
In an email, State Historic Preservation Officer Diana Welling wrote “Ohio's State Historic Preservation Office (SHPO) is closely monitoring this process and working to ensure that preservation partners, local governments, consulting parties, applicants, property owners, and interested members of the public have access to accurate information about the proposed changes and the federal comment process.”
Welling said the goal is to keep Ohio’s preservation community up to date on the proposed regulatory changes. The office will be sharing information and resources in the coming weeks, she said.
Ohio’s State Historic Preservation Office already underwent staffing cuts last year, after delays in the release of federal funding directed to the office.
