Section 106 requires federal agencies to assess the effects of their actions — or the actions they license or permit — on historic, archaeological, and cultural properties listed in or eligible for listing in the National Register of Historic Places. Additionally, agencies must attempt, to the extent possible, to minimize harmful effects on these significant places. The rules governing Section 106 have been in place since 1974. As part of that framework, the government is legally required to consult with Tribal Nations about projects that may destroy or damage their sacred places or culturally significant resources.
It would also give federal agencies the right to approve projects that may damage or destroy Tribal sacred places and other culturally significant resources without consulting with Tribal Nations or seeking their expertise about them. This violates federal law and jurisprudence, which recognizes Tribal Nations as "domestic, dependent nations," and requires consultation with them on a government-to-government basis; Tribal Nations are not merely “interested parties” like community organizations or local groups.
The new regulations also remove vast swaths of our history from protection. To be considered a historic property, the new regulations say it must include, or have included, tangible human improvements – built structures – AND the historic property must be geographically compact. This change in definition will exclude entire categories of historic places from meaningful consideration under Section 106 in the future, including battlefields like Gettysburg or the Little Bighorn, cultural landscapes like Devil’s Tower in Wyoming or the Black Hills in South Dakota, archaeological resources like petroglyphs in Chaco Canyon. It lessens protection on places like the Grand Canyon, simply because they are not “geographically compact” or centered on a building or other structure.
Joe Wakins
The changed definition of "historic property" in the new regulations will remove protections for 99% of American Indian heritage and could result in the erasure of the heritage of an entire group of people in the United States – those who lived here before European colonization.
Under the proposed rule changes, the petroglyphs at Chaco Canyon would not be protected because they don't include built structures and are not "geographically compact." (Image credit: VW Pics via Getty Images)
The new regulations water down the definition of what is considered to be an "Adverse Effect" on historic properties so that they are close to meaningless. By removing indirect and cumulative effects on historic properties and eliminating the visual, atmospheric or audible elements that diminish the experience at a property, the new regulations could say that building and operating a casino or amusement park on Mount Vernon would not be considered an Adverse Effect.
Advocates of the new regulations argue that the existing regulations for protecting historic places slow down projects and make economic development more expensive than necessary. They say these new regulations create a system that allows industry to plan better with more precise information, and the processes and procedures are better explained. They argue that the narrower definitions and expanded exemptions could mean faster, more predictable reviews. In reality, however, the rules that are already in place seek to balance the need for economic development with the need to protect the fabric of America’s heritage.
Because the new rules exclude the consideration of atmospheric, audible or visual impacts of proposed projects, building a casino or amusement park right by George Washington's home in Mount Vernon, Virginia, could be considered legal if the economic benefit is considered high enough. (Image credit: Independent Picture Service via Getty Images)Those memories are fading fast, I must admit, and the historic properties are long gone. The National Historic Preservation Act was established to help prevent the destruction of the property of economically weaker groups of people at the behest of the economically strong without some level of consideration of the heritage under threat by construction; the Section 106 regulations grew out as a result of that time and has been seen to be a good compromise between economic development and economic justice.
The new regulations are currently under review with the Office of Information and Regulatory Affairs (OIRA) within the White House Office of Management and Budget.
Related storiesThere is a chance that the administration will use a rushed rulemaking process that bypasses public comment, meaning the regulations will take effect when published.
If these changes are not stopped, our children will hold us accountable for letting our shared heritage be erased merely for the convenience and benefit of a few.
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