A Small Window into the National Environmental Policy Act of 1969

Leading Up to the Policy

The National Environmental Policy Act (NEPA) has a similar history to its cultural resource legislation cousins, such as the National Historic Preservation Act, in that it was implemented in reaction to destructive processes.  According to King (2013:23), “the publication and widespread popularity of Rachel Carson’s Silent Spring, the need for federal government action to protect the environment came to be widely recognized.”  If you are not familiar with Carson’s work, it highlighted how indiscriminate use of pesticides, like DDT, was damaging the health of the environment, wildlife, and people.  There also was the constant development of highways, cities, and so on.  Areas of environmental importance were being negatively impacted by unchecked development.  Something was necessary to slow down the process and force people to consider all of the potential impacts that could harm the ‘quality of the human environment.’  And, that’s where NEPA comes in.

NEPA was passed by Congress in 1969 and signed into law by President Nixon on January 1, 1970.  This created a national policy of providing a detailed statement of environmental impacts, “subsequently referred to as an environmental impact statement (EIS), for every recommendation or report on proposals for legislation and other major federal action significantly affecting the quality of the human environment” (Luther 2005:1).

 Goals of NEPA

  • The Council on Environmental Quality (CEQ): provide advice to the president on environmental issues, monitor the overall state of the environment, and require the president to submits an annual report on the environment to Congress.
  • Provide guidance to help agencies plan and manage all federal actions.
  • Require agencies to consider adverse environmental effects (direct and indirect impacts), create alternatives to these actions, etc.
  • Provide the public a means and opportunity to be involved in federal agency planning efforts (i.e. a new trail being constructed on National Park Service Lands).

NEPA and Cultural Resources

There is wording in NEPA referring to historic and cultural resources present on public lands. For example, the policy states that Federal programs must “preserve important historic, cultural, and natural aspects of our national heritage, and maintain, wherever possible, an environment which supports diversity, and variety of individual choice” (1970:2).   Consequently, negative impacts to archaeological resources must be considered during any federal action, just like the Section 106 process outlined in the NHPA.  Since performing the Section 106 process is necessary for federal archaeologists, much of what is needed for NEPA compliance can be achieved through Section 106 (i.e. copy and paste the work into the NEPA document).  Both NEPA and Section 106 are crucial in protecting and preserving the past.

References

King, Thomas

2013 Cultural Resource Laws and Practice. Fourth Edition. AltaMira Press, New York.

Luther, Linda

2005 The National Environmental Policy Act: Background and Implementation. CRS Report for Congress. Congressional Research Service.

United States Congress

1970  National Environmental Policy Act: 42 USC 4371, March 5, 1970. Washington, D.C. U.S. Government Printing Office.

 Links

http://nationalaglawcenter.org/wp-content/uploads/assets/crs/RL33152.pdf
https://en.wikipedia.org/wiki/National_Environmental_Policy_Act

 

A Brief History of the Native American Graves Protection and Repatriation Act of 1990

What is NAGPRA?

The Native American Graves Protection and Repatriation Act (NAGPRA) of 1990 is a crucial piece of legislation in the history of cultural resource management, providing for the protection and repatriation of Native American and Native Hawaiian human remains and objects (United States Congress 1990:169). The basic human right to cultural heritage, and respect of that heritage, is driving force behind this Act.

Leading Up to NAGPRA

We can trace the mistreatment of Native American human remains and cultural items early on in American history. For example, once landing in the New World, the pilgrims began exploring an abandoned village, including graves. A published journal from the time, states (Winslow 1622), “We opened the less bundle likewise, and found . . .the bones and head of a little child, about the legs, and other parts of it was bound strings, and bracelets of fine white beads . . .we brought sundry of the prettiest things away with us, and covered the corpse up again.” And that is just one example. Scientists, museums, and even the U.S. Surgeon General systematically collected Native American bodies.

Many of the protections assigned to cemeteries and unmarked graves that were once part of a cemetery largely did not apply to Native American remains until late into the 20th century. All 50 states had passed statutes to regulate the disturbance and treatment of human remains, the management of cemeteries, and to prohibit vandalism and desecration. However, the wording specifically applies to recognized cemeteries (i.e. the western concept of a cemetery). Up until 1990, in Arizona it was perfectly legal—although not ethical—to excavate and sell human remains as long as the remains were not from a recognized cemetery. Even federal laws, like the Antiquities Act of 1906 did not prohibit the excavation of remains; as long as you had a permit, it was considered permissible. The Archaeological Resources Protection Act of 1974 treated human remains and sacred objects as archaeological resources, and, the law did nothing to attempt repatriation of existing collections.

Although studies showed the loss of sacred objects as incredibly damaging to Native American communities and religion, there was typically backlash by the scientific community to repatriate sacred items and human remains. In 1989, the American Association of Museums and the Heard Museum of Phoenix created a panel of museum staff, scientists, and Native Americans. This panel determined that Native American remains and sacred objects should be treated with the same respect as any human remains. The resulting report, ‘Report of the Panel for a National Dialogue on Museum-Native American Relations’ (1990), ended up providing the framework for NAGPRA.

Wording of the Law

NAGPRA, at its most basic level, is fundamentally about equal treatment under the law. The law attempts to accomplish two goals: (1) the ongoing protection of Native American graves, and (2) the repatriation of existing collections of human remains, funerary objects, sacred objects, and objects of cultural patrimony. In order to achieve these two goals, NAGPRA:

  • Outlines consulting procedures with tribes to protect existing graves and cultural materials.
  • Outlines procedures to follow if and when human remains are discovered and/or excavated.
  • Imposes criminal penalties for the trafficking of human remains and NAGPRA related items.
  • Outlines procedures to summarize and inventory human remains and NAGPRA related items in existing collections.
  • Outlines how to notify Native American and Native Hawaiian groups about the inventories, how to resolve disputes of ownership, and the repatriation process.

Why Do We Need NAGPRA?

Indigenous rights are human rights. The long history of abuse towards Native Americans, as well as scientific appropriation of Native American cultural material, indicates the need for this piece of CRM legislation. What is startling is how long it took for such a law to be implemented and it is also surprising the backlash it experienced from the archaeological community. There was a fear that the law would be detrimental to scientists’ ability to conduct studies (see the controversy surrounding Kennewick Man); but we must ask ourselves, as archaeologists and concerned citizens, what is more important: scientific studies or the informed consent of descendant communities? The answer is obvious. Archaeology should be a collaborative effort. Archaeologists need to continue to develop strong relationships with indigenous groups, going beyond just consultation by truly engaging with these communities throughout the United States. NAGPRA helped set archaeologists on a more ethical path, and hopefully, it will continue to develop a more inclusive field.

References:

King, Thomas F.

1998 Cultural Resource Laws and Practice: An Introductory Guide. Altamira Press, Walnut Creek, California.

McManamon, Francis P.

2000 Archaeological Method and Theory: An Encyclopedia, edited by Linda Ellis, Garland Publishing Co., New York and London. Electronic Document, https://www.nps.gov/archeology/tools/laws/nagpra.htm.

United States Congress

1990 Native American Graves Protection and Repatriation Act: 25 USC 3001, November 16, 1990. Washington, D.C. U.S. Government Printing Office.

United States Congress

1974 Archaeological and Historic Preservation Act, Amended Reservoir Salvage Act, May 24, 1974. Washington, D.C. U.S. Government Printing Office.

United States Congress

1906 American Antiquities Act of 1906: 16 USC 431-433, June 8, 1906. Washington, DC: US Government Printing Office

Winslow, Edward (and others)

1622 Relation or Journal of the Beginning and Preceedings of the English Plantation Settled at Plymouth in New England, by Certain English Adventurers Both Merchants and Others. Electronic Document, http://mayflowerhistory.com/primary-sources-and-books/.

American Folklife Preservation Act of 1976

What is the American Folklife Preservation Act of 1976?

The considerable range of cultural resources requiring protection and preservation, as well as the growing interest in American traditional culture, led to the enactment of the American Folklife Preservation Act in 1976. The declaration of intent and purpose provides similar language as the National Historic Preservation Act. American folklife, according to Section 2(a), “has contributed greatly to the cultural richness of the Nation and has fostered a sense of individuality and identity among the American people” and “that it is in the interest of the general welfare of the Nation to preserve, support, revitalize and disseminate American folklife traditions and arts” (United States Congress 1976:1). Consequently, preserving cultural traditions and educating the public on said traditions should not be sacrificed over progress or cultural differences. According to Groce (2010), “increased awareness and pride in ethnic and regional diversity of the American people—contributed to a concerted lobbying campaign by cultural specialists, who believed the time had come for a national center devoted to the preservation and study of folklore.” The Act, therefore, created the American Folklife Center (AFC) in the Library of Congress as a space to preserve and present American folklife.

Why do we need this law?

The American Folklife Center has undertaken a wide range of folklife documentation, fulfilling its role of procuring, exhibiting, communicating, preserving artifacts and audio and visual records representing some aspect of American folklife (United States Congress 1976:3). Such materials and educational programs would be made available to other public, private, and nonprofit educational institutions for greater public awareness of folklife, as related in Section 5(6). The center has coordinated efforts in preservation with the National Park Service, and with state and local organizations (King 1998:19). Dissemination of information on folklife to the public led to the Center’s annual Festival of American Folklife in Washington, D.C. The Center, therefore, has fulfilled its goal of supporting the research and scholarship of folklife to “contribute to an understanding of the complex problems of the basic desires, beliefs, and values of the American people in both rural and urban areas” (United States Congress 1976:1). The educational programs provide a profound resource for the public in understanding the importance and diversity of cultural resources.

Groce, Nancy

2010 History of the American Folklife Center. Electronic document, http://www.loc.gov/folklife/AFChist/index.html, accessed April 23, 2011.

King, Thomas F.

2000 Federal Planning and Historic Places: The Section 106 Process. Altamira Press, New York.

United States Congress

1976 American Folklife Preservation Act, Public Law 94-201, January 2, 1976. Washington, D.C. U.S. Government Printing Office.

Links:

https://www.loc.gov/folklife/

https://www.law.cornell.edu/uscode/text/20/2103

National Park Service Organic Act of 1916

Enactment of the National Park Service Organic Act, 16 USC 1, in 1916 follows the intent of the Antiquities Act by establishing the National Park Service. The act created an agency with the mission to protect, conserve, and preserve both natural and cultural resources on public lands for future generations (King 1998:13). Establishing the National Park Service allowed for the regulation of designated areas as national parks, monuments, and reservations. According to the Act, the main purpose of the National Park Service is to “conserve the scenery and the natural and historic objects and the wild life therein and to provide for the enjoyment of the same in such manner and by such mans as well leave them unimpaired for the enjoyment of future generations (United States Congress 1916:1). As cultural resource managers, archaeologists, and/or concerned citizens, it is our duty to ensure that the National Park Service, and the Department of the Interior as a whole, keep to this promise of keeping our parks and national monuments protected and preserved for future generations.

King, Thomas F.

2000 Federal Planning and Historic Places: The Section 106 Process. Altamira Press, New York.

United States Congress

1916 The National Park Service Organic Act: 16 USC 1, 2, 3, 4, August 25, 1916. Washington, D.C. U.S. Government Printing Office.

The National Historic Preservation Act (NHPA)

The following may be a bit dry, but I love this stuff (i.e. I’m a huge CRM legislation nerd) . . .

What is the NHPA?

A major piece of cultural resource management legislation that provided laws for the protection of cultural resources and identified the need for increased public knowledge of cultural resources was the National Historic Preservation Act (NHPA). The Urban Renewal Program launched by the Kennedy administration increased the destruction of natural and cultural resources (King 1998:15). City slums, which were once historic centers, were destroyed in the name of progress. As King (2000:16) notes, federal agencies “damaged or destroyed stuff that people valued because it embodied their history. . .This was sometimes necessary; the old often, maybe usually, had to make way for the new.” First lady Johnson coordinated a program during the Johnson administration to create a comprehensive report on historic preservation needs. The report recommended that Congress should create a national historic preservation program, outlining the legislative provisions in the National Historic Preservation Act (King 1998:15).

Signed into law by President Johnson on October 15, 1966, the National Historic Preservation Act established a process for preserving United States historic heritage, including historic properties. Congress declared in Section 1(b)(1)(3) that “ the spirit and direction of the Nation are founded upon and reflected in historic heritage. . . historic properties significant to the Nation’s heritage are being lost or substantially altered, often inadvertently, with increasing frequency” (United States Congress 1966:1). Government agencies would now have a compliance process that forced them to think and plan before inadvertently or purposefully destroy a property of significance on public lands. Such properties include both prehistoric and historic archaeological sites and historic buildings. Section 106 of the Act provides the specific compliance process for any Federal undertaking. As for public education, the Act sets provisions to not only protect and preserve significant properties for the benefit of the public, but also endeavors to involve the public.

NHPA and Public Outreach

Did you know that there is language in the law to provide education and outreach to the public? The language of the National Historic Preservation Act is explicit in stating the importance of preserving historic heritage for the public before it is lost through “progress.” The Act also states in Section 1(b)(2), “the historical and cultural foundations of the Nation should be preserved as a living part of our community life and development in order to give a sense of orientation to the American people” (United States Congress 1966:1). Therefore, “the preservation of this irreplaceable heritage is in the public interest so that its vital legacy of cultural, educational, aesthetic, inspirational . . .will be maintained and enriched for future generations of Americans” (United States Congress 1966:1). In order to pique public interest in historic heritage, Section 101(3)(G) states that designated State Historic Preservation Officers (SHPO) have the responsibility to provide the public information, education, training, and any technical assisted needed in historic preservation (United States Congress 1966:7). Section 401 describes the necessity of a coordinated National initiative to promote research, provide training, and distribute information on preservation (United States Congress 1966:43). Consequently, education is crucial for the public to understand the preservation process.

The Act does make provisions for public involvement during the Section 106 process to voice concern of the potentially negative effects of an undertaking on a significant property. Section 110(2)(E)(ii) of the Act notes that consultation with the interested public, including Indian tribes, is necessary in the identification and evaluation of historic properties (United States Congress 1966:21). SHPO developed education programs on historic preservation, as well as the National initiative to promote training in historic preservation, have the potential to provide the public with the necessary information to become a major voice during the Section 106 consultation process.  The public has every right to demand a role in the compliance process and expect the government to hear their voice, due to the process outlined by Section 106.

King, Thomas F.

2000 Federal Planning and Historic Places: The Section 106 Process. Altamira Press, New York.

United States Congress

1966 National Historic Preservation Act of 1966:16 USC 470, October 15, 1966. Washington, D.C. U.S. Government Printing Office.

Links:

https://www.nps.gov/history/local-law/nhpa1966.htm

 

A (Very Brief) History Leading Up to Current CRM Legislation

Interest in academic archaeology in service of the government and public in the United States can be traced to Thomas Jefferson in 1799 (Schroeder 2009:169). While president of the American Philosophical Society, Jefferson asked the organization to record antiquities before such artifacts were lost to future generations. Examples of both government and civic preservation include the protection of ancient earthen mounds throughout the Midwest (Schroeder 2009:172). The Ohio Company designated ancient mounds and earthworks in Ohio as important public places for preservation. However, unlike modern legislation in cultural resource management, government intervention was minimal until the 19th century and the pressure placed on the government by the concerned public over destroyed historic and prehistoric ruins. As Schroeder (2009:172), “most of the earliest efforts at preservation were accomplished by communities, civic groups, and other organizations exerting efforts to assure the protection of ancient monuments.”

During the 19th century, with the growing popularity of antiquities collections, European museums tended to focus on craft demonstration in order to generate a greater interest in antique material than the cultural aspect of material culture. However, American museums and preservation societies focused on material culture as opposed to artifact demonstrations, especially with historic houses (Anderson 1982:292). By the mid-19th century, Americans were keen on historic preservation efforts. This effort was rooted in the need to preserve what civic leaders and middle-class professionals considered to be traditional American beliefs and cultural values. Groups like Sons of the American Revolution and Society for the Preservation of New England Antiquities hoped to create a sort of shrine to the past, idealizing of the nation’s founding fathers and influential sites from the American Revolution (Durel 1986:230). Historic houses, such as George Washington’s home of Mt. Vernon, provided tangible access to the past, demonstrating a need for continued preservation of historic places and presenting history to the public.

Three major exhibitions brought Indian antiquities to the forefront: the Columbian Historical Exposition of 1892 in Madrid, Spain, and the 1904 World’s Columbian Exposition of in Chicago and the Louisiana Purchase Exposition in St. Louis, Missouri (Thompson 2000:210). The exhibitions displayed the material remains of recently excavated regions of the American Southwest. The display of Indian antiquities romanticized the American west and generated a demand for Indian antiquities and art. Growing interest in archaeological materials led to looting of ancient ruins in the American southwest with the discovery of monumental ruins such as the Mesa Verde Cliff dwellings in Colorado (Hutt et al. 1992:19). Railroad construction during the mid to late 19th century, “facilitated long-distance shipping of goods, including large, fragile collections of archaeological materials, which previously had been transported in wagons” (Hutt et al. 1992:19).

Public concern with the destruction of antiquities and the growing professionalization of anthropology provided a role for the government in preservation and archaeology. For example, Casa Grande in southern Arizona was the first federally preserved prehistoric archaeological site in 1892, due to petitions to Congress by supporters of preservation (Schroeder 2009:172). The need for federal legislation was brought to the forefront by archaeologist Edgar Lee Hewett. Knowing key members of Congress and professional societies, Hewett was appointed a member of the American Anthropological Association (AAA) to work towards creating antiquities legislation (Thompson 2000:236). Hewett’s work the AAA helped establish the language of the Antiquities Act of 1906 and the groundwork for future cultural resource management legislation. And the rest is history.

Important Cultural Resource Legislation in the United States

  • Antiquities of 1906
  • Organic Act of 1916
  • Historic Sites, Buildings, and Antiquities Act of 1935
  • Reservoir Salvage Act of 1960
  • National Historic Preservation Act of 1966
  • National Environmental Policy Act of 1969
  • Archaeological Resources Protection Act of 1979
  • Native American Graves Protection and Repatriation Act of 1990

References Cited

Anderson, Jay

1984 Time Machines: The World of Living History. The American Association for State and Local History, Nashville.

Durel, John W.

1986 The Past: A Thing to Study, a Place to Go. In Public History: An Introduction, edited by Barbara J. Howe and Emory L. Kemp. Robert E. Krieger Publishing Company, Malabar.

Hutt, Sherry, Elwood W. Jones, and Martin E. McAllister

1992 Archaeological Resource Protection. The Preservation Press, National Trust for Historic Preservation, Washington, D.C.

Schroeder, Sissel

2009 Thinking About a Public and Multidisciplinary Archaeology. Reviews in Anthropology 38: 166-194.

Thompson, Raymond Harris

2000 The Antiquities Act of 1906 by Ronald Freeman Lee. Journal of the Southwest 42(2): 197-269.

A Resource Law With Teeth: The Archaeological Resources Protection Act of 1979

ARPA-nator

This is the script from an episode I wrote and recorded for the ARCH365 Podcast on the Archaeology Podcast Network (APN) – Click Here to Listen!

On October 31st, 1979, the Archaeological Resources Protection Act, otherwise known as ARPA, was signed into law by President Carter. You might be asking yourself, so what? What’s so important about ARPA? Before ARPA, there was very little archaeologists could do to prosecute looters of archaeological sites in the United States. The Antiquities Act of 1906 was the first real US cultural resource management law, but by the 1970s, it was, well, antiquated.

What is ARPA all about?

The need to better protect archaeological resources came to the forefront in several court cases that showcased how ineffectual the Antiquities Act was in prosecuting those caught looting archaeological sites.   One case, U.S. vs Diaz pretty much declared the act unconstitutional. Something had to be done! People were getting away with damaging sites and stealing artifacts. In a later discussion on the development of ARPA, archaeologist Janet L. Friedman (Friedman 1985) wrote:

“The birth and growth of the Archaeological Resources Protection Act was a chronicle of self-righteous special interests, jealous turf-protectors, and conflicting value systems. For every archeologist devoted to protecting irreplaceable sites, there was a metal-detector manufacturer equally devoted to protecting the rights of hobbyists. For each conservationist dedicated to saving sites for all of the people, there was an enthusiast dedicated to making arrowhead collecting available to the individual.”

Fortunately, Congress took action with the help of the Society of American Archaeology, Department of the Interior, Department of Agriculture, the Department of Defense and the Tennessee Valley authority. And the law came into fruition.

The first sentence of ARPA really breaks down the law to its primary purpose: ‘to protect archaeological resources on public lands and Indian lands, and for other purposes.’ Public lands are anything regulated by the U.S. government, like the National Park Service, Forest Service, Bureau of Land Management, and so on.

The key points of ARPA

  • The law provides a variety of definitions, such as what is an archaeological resource, and what constitutes public lands.
  • Outlines a rigorous permitting system to conduct archaeological excavations.
  • Allows Native American tribes to issue or deny archaeological permits for work proposed on Indian lands.
  • Mandates that all federal agencies must consult with Native American tribes before issuing permits.
  • Provides clear and severe penalties for the looting and/or vandalism of sites. That can include a fine up to $20,000 and jail time for two years for first time offenders!
  • And, outlaws the trafficking illegally obtained archaeological resources.

So, if you’re walking along on a nice National Park Service trail and you spot a really cool projectile point or pottery fragment—can you take it? Or, if you’re visiting someplace like Mesa Verde, can you sit on the walls or carve your name near some rock art? Or, can you conduct your own so-called excavation on some site you found on Forest Service lands? With ARPA, the answer is a resounding NO! Not only could you receive a fine, you could go to jail. And you don’t want to tell people you went to jail for taking artifacts or harming a site, now would you? Thanks, ARPA!

Arch365 2017