Mexico > mainland USA #worldinterview #19

Mexico > mainland USA

Interviewee: Kevin Bartoy

What is the United States strategy to look after and cope with a large number of archaeological sites and respond to the demands of international protocols regarding the conservation of world heritage sites?

The short answer would be I don’t think there is a strategy. The laws and regulations of the federal government in the United States only afford protection to archaeological sites if they are on federal lands or if the projects that may affect them have a federal nexus. That is, funded or permitted through a federal agency. Some states, including my own, have laws and regulations in place offering protection to archaeological sites. It is actually a misdemeanour in the State of Washington to knowingly disturb an archaeological site regardless of where it is or who is doing the disturbance. Any disturbance requires a permit through a state agency. It is a felony to knowingly disturb a burial site.

Overall, I do not think that listing as a world heritage site or international protocols have any real effect on the day-to-day work that we do. Applicable federal, state, or local law is complied with, but I have never had an instance in my 25 years as a cultural resources professional to have complied with international protocols. In the US, I believe much more effective action in regards to archaeological sites would happen at the state or local level.

It is my impression that world heritage sites and international protocols are much more things of a political or academic realm. I seldom see their effect on the actual resources that we deal with on a daily basis.

How does the United States build capacity for minority groups to get involved in archaeology and museums?

This is a difficult question for me to answer as I have not been directly involved in diversity issues within a museum or academic setting in terms of hiring and promotion. I can speak for my agency however within the State of Washington. “Inclusion” is one of three agency emphasis areas for the Washington State Department of Transportation. As an agency, we believe that we want our workforce to look like the communities that we serve. We try to do this through outreach to historically underserved and underrepresented communities, including communities of color and tribal governments. We promote and expand participation of disadvantaged business enterprises in our contracting. We also continue to expand our efforts in community engagement and environmental justice to better involve and reflect the needs of the diverse communities we serve.

What are the roles of federal and non-federal recognized tribes in federal, state, county and city projects?

This would depend on how the project was funded or permitted. If there is a federal nexus, applicable federal laws and regulations apply. Those laws require consultation with federally recognized tribes. We often will consult with non-federally recognized tribes as “consulting parties” not as tribal governments. The difficulty is that this consultation often makes the federally recognized tribes upset. It is a fine line and we point out that such consultation is not “government to government” in those cases. If there is no federal nexus, then the rules would fall to the states or local governments. Living in a relatively progressive state, we have laws and regulations in place that require us to consult with tribal governments at the state level. There is no distinction made for federally recognized tribes at the state level.

The tribes are given an opportunity to comment on projects and oftentimes the state agency who regulates cultural resources compliance is a strong advocate for the tribes. So much so that projects will not be approved unless the concerns of the tribes are addressed. This happens on state or federal projects. In the State of Washington, many of the federally recognized tribes are politically and economically powerful, so they have quite a voice and their concerns must usually be addressed for a project to move forward. I do not think that this is the case in many other places within the US however.

In Washington State, we are also unique in the treaties that were signed by tribal governments and the United States during the territorial period. These treaties included reserved rights for “usual and accustomed” fishing, hunting, and gathering places. As with many native cultures, the tribes in Washington State do not make a distinction between natural and cultural resources. However, the treaties, which are the “law of the land,” afford the tribes a much stronger legal position and much greater power in relation to natural resources, so this is often the focus of our consultation. Since the fisheries in Washington State afford a great deal of economic benefit to the tribes, natural resources often take greater consideration over cultural resources. Yet, both are critically important to the tribes and all tribes in the Salish Sea have both natural and cultural resources staff who participate in consultation.

Again, I would say in my experience, having worked in several states over the past 25 years, Washington State and its relation to the tribes is unique.

What is CRM (cultural resources management) and which laws and agencies help protect cultural resources?

Cultural Resources Management is a poorly named field that seeks compliance with a gamut of cultural, archaeological, and historical laws and regulations. It is a large industry as practiced in the United States and is part and parcel of the environmental permitting and approval process that projects must go through to move forward. The term is poor because it includes this compliance type work as well as work in museums or parks. Some work is done for industry, some for government, some for private citizens, some for non-profits. The field includes archaeologists, cultural anthropologists, biological anthropologists, historians, and architectural historians. Seldom are cultural resources “managed.” They are usually identified, classified, and then mitigated if they would be affected by a project.

There are a number of laws on the federal level, most notably the National Historic Preservation Act (Section 106). There is also the Archaeological Resources Protection Act, the Native American Graves Protection and Repatriation Act, Section 4(f) of the United States Department of Transportation Act, and the National Environmental Policy Act. There are also a number of state and local laws and regulations that vary throughout the country.Resources as disparate as traditional cultural places, archaeological sites, and historic buildings are grouped together in this legal framework.

The primary law is the National Historic Preservation Act, which, despite its name, does not “preserve” anything. The act was put in place in 1966 as a reaction against widespread development in the United States that was actively demolishing historic structures. This development was primarily related to highway construction. The act simply asks federal agencies to consider the effects of their projects on historic properties and to mitigate those effects where they are adverse. The results of the law are seldom preservation, but often result in other forms of mitigation.

The one law that does have some teeth in terms of preservation is one that you seldom hear about unless you work in transportation. Section 4(f) of the United States Department of Transportation Act requires agencies of the United States Department of Transportation to avoid 4(f) resources, which include historic properties as well as parks, trails, wildlife preserves, etc. This law will often result in preservation although it seldom does for archaeological sites, which do not have to be “preserved in place” unless their value is determined to be more than the data they contain.

About Kevin:

Environmental Program Manager, Washington State Ferries.

Washington State Ferries is the largest ferry system in the United States. As Environmental Program Manager, I ensure compliance with a multitude of laws and regulations (federal, state, and local) necessary for the design, construction, and maintenance of our facilities throughout the Salish Sea. I am a trained archaeologist and am the lead for cultural resources compliance in my current position, but also oversee compliance for natural resources, planning, sustainability, etc.

I have published several papers and articles related to the work that I do for Washington State Ferries, and previously in other positions at the Washington State Department of Transportation.

Prior to joining the Washington State Department of Transportation, I had previously worked in academia, the private sector, and a non-profit museum as an archaeologist and cultural resources professional. I have published several articles and an edited volume as part of that work.

Questions from Eduardo Escalante in Mexico.

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