The Trump administration is trying to loosen regulations around development projects on historic and culturally significant land. Proposed changes to the National Historic Preservation Act would make it optional for federal agencies to consult with Native American nations about these projects, as reported locally in Underscore Native News. The proposal would also change the definition of a historic property to exclude mountains, rivers and other landscape features that tribes consider sacred or culturally significant.
Dr. Crystal Miller is the cultural sovereignty director for the Association on American Indian Affairs. She joins us to talk about what the changes could mean for tribal sovereignty.
Note: The following transcript was transcribed using AI and validated for accuracy, readability and formatting by an OPB volunteer.
Dave Miller: From the Gert Boyle Studio at OPB this is Think Out Loud. I’m Dave Miller. The Trump administration is trying to loosen regulations around development projects on historic and culturally significant lands. As reported locally in Underscore Native News, proposed changes to the National Historic Preservation Act would make it optional for federal agencies to consult with Native American nations about these projects. Dr. Crystal Miller is a cultural sovereignty director for the Association of American Indian Affairs. She’s also an enrolled citizen of the Walker River Paiute Tribe. She joins us now. It’s great to have you on Think Out Loud.
Dr. Crystal Miller: Yeah, good afternoon. It’s a pleasure to be here.
D. Miller: What are the reasons that Congress included tribal nation specific provisions within the National Historic Preservation Act in the first place?
C. Miller: Well, I mean, I think there’s a lot that can be said about that, but the inclusion of Native nations in the first place is really just a recognition of tribal sovereignty, and it was a step moving toward upholding the trust and treaty responsibility that the federal government owes to Native nations.
D. Miller: The real section that we’re talking about here, the provision of this big federal law, it’s called Section 106. What are ways that this section is being used currently? In other words, how does consultation currently work before any potential rule change?
C. Miller: Yeah, so under Section 106, consultation is a mandate to consult with Native nations, and so if there is traditional knowledge or a Native nation comes forward and says this is a sacred place to us, this is a cultural area to us, it would trigger 106 and so the federal government is required to then consult with Native nations to consider how impacts to these particular places would affect those particular Native nations.
Maybe they will not have access to that space or that place or that geographical location, or maybe the impacts are irreparable. And so the federal government would then have to consider what those impacts would be in order for a project to move forward or maybe it kills the project entirely, but that consultation piece is a key recognition and also upholds the sovereignty of Native nations in the process as well as the federal government recognizes that there is this nation-to-nation relationship.
D. Miller: I want to read one of the key sections of the rule that would be removed if this change were to be finalized. It’s a little long, but I think it gets to the heart of what we’re talking about here. So this is part of the rule as it currently stands:
“The agency official shall ensure that consultation in the Section 106 process provides the Indian tribe or Native Hawaiian organization a reasonable opportunity to identify its concerns about historic properties, advise on the identification and evaluation of historic properties, including those of traditional religious and cultural importance, articulate its views on the undertakings effects on such properties and participate in the resolution of adverse effects. It is the responsibility of the agency official to make a reasonable and good faith effort to identify Indian tribes and Native Hawaiian organizations that shall be consulted in the Section 106 process. Consultation should commence early in the planning process.”
In the proposed rule change, all of that would be struck. If that were to happen, what kind of consultation with Indian nations, with tribal leaders, would still be required?
C. Miller: Yeah, so before I jump into the question, I really want to kind of hit on the point that you just read. And so the point of that is extremely important in terms of recognition of sovereignty and how that actually plays out, like what is the actuality of that in the playing field. And so right now as the rules stand, Native nations have the ultimate expertise on what actually constitutes a sacred site. And so like I’d mentioned briefly earlier, if the nation says that this particular mountain or maybe this river basin or maybe it’s just the entire landscape holds religious and cultural value, the federal agency as it stands now is legally required to factor that into the project planning. And so thinking about what effects that will have if these proposed changes are adopted as written, consultation becomes optional.
And so there is no longer a mandate under Section 106 to consult with Native nations. And then to take it even further, the proposed regulations also give the federal government the full discretion to decide if they’re going to inform the general public, to which Native nations then fall under the general public. On impact, the federal government decides if it is in the public’s interest to know about these particular impacts. And so essentially consultation is stripped, acknowledgement is stripped, transparency and information between the two nations respecting each other as sovereigns has been stripped and no longer active. And then the federal government can essentially move forward with projects as they see fit without even consulting with Native nations under 106.
D. Miller: Another deleted provision – or I say this assuming it’s going to go forward and we can talk about that in just a second – but another provision on the chopping block says that the federal government has to consult with Indian tribes and Native Hawaiian organizations when they attach religious and cultural significance to historic properties off tribal lands. What does that mean? What kinds of changes would this mean in terms of various lands, whether it’s on tribal land, ceded off tribal lands? What are the changes in terms of the kinds of lands we’re even talking about?
C. Miller: Well, I think what’s important in that particular clause is the terminology change between what is even understood as a historic property moving forward under the new regulations. And so the change of terminology from things that would trigger Section 106 for Native nations thinking about sacred places isn’t always structural. And the changes attempt to make it structural. And so essentially there are many different places that all Native nations have ties to in relation to the land that are non-structural.
Again, it could be a ceremonial site that the nation still utilizes or practices, or it could be ceremony places that nations use for ceremony and literally anything under the sun that Native nations still actively use to practice their culture that does not or would not constitute under the new term as a historic property because it’s non-structural. And so with that terminology change, it changes the entire landscape for Native nations in terms of protection of these particular places because those places don’t have a physical wall or they’re non-structural, it wouldn’t even trigger Section 106. There wouldn’t even be a review.
D. Miller: One more line that I want to dig into that would be cut is this:
“Consultation with an Indian tribe must recognize the government to government relationship between the federal government and Indian tribes.”
What are the implications of cutting this line?
C. Miller: Yeah, the implications of that, essentially it actually feels like a repeat of history, right? And so we don’t want to deal with Native nations as they are, in respect to sovereignty and them being an actual nation that preexists the United States, right? And so that line in particular being stripped would essentially conglomerate or put Native nations in the same bucket as the general public to which the federal government does not owe the trust and treaty responsibility to.
And so with that we become another commenter during the public comment period, if there’s one, we become another individual on the list that they can decide they may or may not consult with or they may or may not provide information to if impacts are happening to said lines that are directly tied to specific Native nations.
And so essentially it strips the sovereign aspect, the recognition aspect, because the federal government in and of itself can’t strip sovereignty, that predates the federal government, right? And so it strips the recognition in which the federal government abused Native nations and then weakens the abilities of Native nations to protect those particular places outside of their own jurisdictional land, knowing that all of this land is Native land, regardless if it lies within imposed reservation boundary or not.
D. Miller: In a memo, the Trump appointee-led advisory council that recommended these rule changes wrote that the current regulations “create confusion and uncertainty for both the public and regulated entities and contribute to agency delays,” and they said that their proposed revisions would help “agencies strike a more appropriate balance between evaluating effects on historic properties and advancing critical federal projects.” What’s your response to these stated reasons for the rule change?
C. Miller: There’s a lot of conversations happening around that, and we’ve had internal conversations about the proposed masking of that these proposed regulations are an attempt to streamline processes just generally across the board, but if you are actively removing a specific demographic to which you hold a trust and treaty responsibility to, or you have always since time immemorial, or at least since time and invasion, held a nationhood relationship with, it is no longer streamlining permitting. The process of that can’t be masked by what is actually being stripped from Native nations.
D. Miller: Practically speaking, what effect do you think this rule change would have on the timelines of projects? I guess I’m wondering if there are other avenues for legal objections to say some mining project that would happen if this rule were changed that would make it so the delay would be just the same?
C. Miller: Well, I like to flip that kind of on his head, to be honest, right? So even in that statement, right, it sounded like the delay was with the Native nations. And that’s always been the stigma around the messaging that the federal government attempts to portray or impose upon Native nations. And so I always flip the paradigm or kind of flip it on its head and think about why aren’t we having the conversation about what is the actual foundation of particular delays, right, because Native nations are not the delay in process, especially considering that there is an inherent responsibility to consult with them and also under Section 106 as it current stands, a legal obligation to consult with Native nations.
And so because the federal government falls short in considering that in their planning phases or does not follow their own legal obligations, why is the burden always falling on Native nations to be the ones that are considered or impose stigma created on them that they are the barrier between that? And so with that being said, I think there are definitely other options and other avenues that can be done to kind of… We all want specific advancements, but we don’t want advancements at one, the cost of the advancements can’t come at the cost of sovereignty, and they can’t come at the cost of our sacred lands and our sacred sites.
And so I actually flipped that paradigm kind of on its head, because there is this stigma that’s created, and I think that regardless if it’s consciously stated or subconsciously stated, America generally thinks tribes, that Native nations are the ones that are in the way and I don’t see it that way, especially if you have a legal requirement to do something that you’re not doing. You’ve slowed your own project down.
D. Miller: I appreciate that, that flipping. What legal recourse would there be to challenge this rule change if and when it goes through?
C. Miller: Mhm. Well, I think right now there are a lot of different organizations who are already thinking about that and holding a bunch of meetings on litigation strategies of what these proposed regulations would do and what it would mean. I think right now one of the conversations that are happening is in the process of streamlining permitting just generally across the board, the objective is to not weaken protections of particular places in the process, and I think that that’s going to be a major argument.
We saw that large congressional note that came out with over 700 signees, including Native nations, and as well as us at the association, and with that we’ve just had large conversations about what the argument is going to be, and surround and ensure that Native nations’ voices are at the front of that fight. And we know that at the end of the day, I don’t know who will take the lead, but somebody will definitely litigate against this.
D. Miller: Crystal Miller, thanks very much.
C. Miller: Thank you.
D. Miller: Dr. Crystal Miller is an enrolled citizen of the Walker River Paiute Tribe and the cultural sovereignty director for the Association on American Indian Affairs.
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