Traditional Cultural Districts: an Opportunity for Alaska Tribes to Protect Subsistence Rights and Traditional Lands

• Publication year: 2014

§ 31 Alaska L. Rev. 211. TRADITIONAL CULTURAL DISTRICTS: AN OPPORTUNITY FOR ALASKA TRIBES TO PROTECT SUBSISTENCE RIGHTS AND TRADITIONAL LANDS

Alaska Law Review
Volume 31, No. 2, December 2014
Cited: 31 Alaska L. Rev. 211

TRADITIONAL CULTURAL DISTRICTS: AN OPPORTUNITY FOR ALASKA TRIBES TO PROTECT SUBSISTENCE RIGHTS AND TRADITIONAL LANDS

Elizaveta Barrett Ristroph ^[*]

ABSTRACT

Alaska tribes have limited control over their traditional lands and waters. Tribes may increase their influence through a Traditional Cultural District designation under Section 106 of the National Historic Preservation Act. This designation does not stop development, but requires federal agencies to consult with tribes regarding potential development that may impact the district. The consultation right applies regardless of whether a tribe owns or has formally designated the district. In Alaska, where no Traditional Cultural Districts exist as of 2014, there is potential for designating large areas of land or water that correspond to the range of traditionally important species.

INTRODUCTION

Alaska tribes ^[1] have limited tools for protecting the lands that they have traditionally used for subsistence and cultural activities. Since the Alaska Native Claims Settlement Act of 1971 (ANCSA), most Alaska tribes do not own their land ^[2] and have no treaties to protect their subsistence rights. ANCSA granted 44 million acres of land to Alaska Native Corporations. ^[3] These corporations do not have government powers and not all tribe members are corporate shareholders. ^[4] While the Alaska National Interest Lands Conservation Act of 1981 (ANILCA) ^[5] withdrew large areas of federal land from development ^[6] and established prioritized subsistence uses, ^[7] it did not grant an Alaska native priority ^[8] and does not apply to non-federal lands. ^[9]

This article examines the Traditional Cultural District (TCD) designation as an opportunity for tribes to conserve culturally significant land. A TCD eligible for listing on the National Register of Historic Places (the "Register") is entitled to consideration under the National Historic Preservation Act of 1966 (NHPA). ^[10] Once entitled for consideration under NHPA, federal decisions that may affect historic or cultural aspects of the land must take into consideration TCDs. TCD designation does not completely prohibit development. ^[11] Rather, such a designation only requires federal agencies to communicate with tribes and consider mitigation measures in their decision making process.

A TCD designation could help conserve Alaska lands without running afoul of provisions in ANILCA that limit the Executive Branch's ability to withdraw more land. ^[12] While a TCD designation may result in a modification of development plans, it would not qualify as a "withdrawal" of lands from the public domain. ^[13]

Part I of this Article addresses the requirements that culturally significant land must meet to be considered for a TCD designation. Part II discusses the geographical challenges to a TCD designation. Part III analyzes the process for attaining a TCD designation, the decision whether to acquire a formal or independent agency TCD designation, and the advantages and disadvantages of both processes. Lastly, Part IV discusses the effects of a TCD designation.

I. REQUIREMENTS FOR LISTING IN THE REGISTER

To be considered for TCD designation, a piece of land must first be eligible for registration on the Register. The National Park Service (NPS) is responsible for developing regulations on eligibility for listing on the Register. ^[14] The Advisory Council on Historic Protection issues regulations governing the protection of listed and eligible sites. ^[15] NPS's regulations containing criteria for eligibility appear in 36 C.F.R. §60.4. ^[16]

As of this writing, NPS is in the process of updating its guidelines on identifying, evaluating, and documenting Traditional Cultural Properties and Native American Landscapes. ^[17] This update may lead to recommendations for revising the 36 C.F.R. §60.4 criteria. ^[18] In the meantime, the current version of NPS's Bulletin 38-1998 Guidelines for Evaluating and Documenting Traditional Cultural Properties ^[19] -may be used to understand how the criteria in 36 C.F.R. §60.4 apply to Traditional Cultural Properties.

To be eligible for listing on the Register, a property must first meet threshold requirements concerning the existence of a physical place or object and its integrity. ^[20] The place or object must then meet one of four criteria listed in 36 C.F.R. §60.4 and described below ^[21] and must not have any disqualifying characteristics. ^[22]

A. Existence Of Physical Place With A Historic Context

1. Definitions and Typical Examples

The Register includes a wide range of Traditional Cultural Properties, ranging from landscapes to structures and objects. ^[23] There is no requirement for the existence of a building or human-made improvement-"a culturally significant natural landscape may be classified as a site, as may the specific location where significant traditional events, activities, or cultural observances have taken place." ^[24]

A collection of properties comprising a culturally significant entity may be classified as a TCD (a type of Traditional Cultural Property). ^[25] A district is a unified entity that usually consists of historically-, functionally-, or archeologically-related properties. ^[26] Examples of districts include groups of habitation sites, rural villages, and transportation networks. ^[27]

2. Alternative Eligibility

Sites where culturally significant species are found (i.e., the habitat of a caribou herd or the path of the bowhead whale) could potentially be eligible for listing on the Register, even if historic events did not take place at these sites. ^[28] Legal commentator D.S. Pensley has taken this proposition one step further, arguing that Copper River salmon are "objects" eligible for listing in the Register. ^[29] Pensley suggests that an animal can be a "structure" made up of bone, flesh, sinew, and skin, while a group of animals can comprise a "district." ^[30]

Pensley discusses the case of Dugong v. Rumsfeld , ^[31] in which a U.S. District Court found that a culturally important species listed on the Japanese Register of Cultural Properties-here, the dugong-merited consideration under NHPA ^[32] in connection with plans for a U.S. military base. ^[33] The court held that the dugong species could meet the definition of "property" under NHPA § 470a-2. ^[34] It further observed that "[t]he presence of culturally significant animals had been the basis of many listings and determinations of eligibility for the National Register, including several animal habitats important in Native American tribal histories." ^[35] The court also pointed out that the U.S. National Register could include wildlife refuges culturally associated with certain species. ^[36]

Pensley notes that Copper River salmon possess traditional cultural value. ^[37] They figure largely in the Eyak mythology of the two villages established near the Copper River Delta and in the traditional ritual of the first salmon. ^[38] The fish continue to be culturally significant and are distinctly linked with a place-the Copper River Basin-through which they migrate each year. ^[39] Even if NPS would not consider Copper River salmon to be a property eligible for listing on the Register, it is possible that the habitat and migration route could be eligible for a TCD designation.

B. Integrity

Integrity is another threshold requirement for listing. A property must have "integrity of location, design, setting, materials, workmanship, feeling, and association." ^[40] This requires that the property have an "integral relationship to traditional cultural practices or beliefs" (i.e., the specific location is needed for cultural practices), and that the property must be in good enough condition such that the relevant relationships survive. ^[41] This requirement generally requires documentation showing that a tribe or group actually uses the property in question. ^[42] Proof that a property forms an integral part of the habitat used by a culturally important species might satisfy the integrity requirement, based on an interpretation consistent with the Dugong decision.

C. Criteria Under 36 C.F.R. §60.4

Once a piece of property meets the threshold requirements of physical place with a historic context and integrity, it must also meet any one of the four criteria discussed below to be listed on the Register.

Criterion A requires the land to be "associated with events that have made a significant contribution to the broad patterns of our history." ^[43] The word "our" in this criterion refers to the group that has traditionally inhabited or used the property. ^[44] The word "events" may include "specific moments in history or a series of events reflecting a broad pattern or theme." ^[45] Important subsistence hunting sites arguably meet this criterion. They have been important in maintaining the nutritional and spiritual wellbeing of the tribe that uses them, and tribal members have passed down information about their locations from generation to generation.

Criterion B requires the land to be "associated with the lives of persons significant in our past." ^[46] "Persons" includes previously living individuals as well as...