Last time I discussed the latest legal maneuverings concerning the decades-delayed Solenex petroleum lease on Marias Pass. Since 1998, most of the delay can be pinned on the National Historic Preservation Act (NHPA) of 1966. NPHA birthed our National Register of Historic Places – those locations of “historical significance” that matter to our shared heritage.
NHPA’s rubber meets the road in Section 106, which requires federal agencies to “consult” in order to make sure federal actions avoid or minimize “adverse” impacts to historic places or items. In 1992, NHPA was amended to add places of tribal historical significance to the preservation mix, in the form of “Traditional Cultural Districts,” TCDs for short.
As a result, the federal government and the tribe began a series of ethnographic studies, not on the Reservation, but on the neighboring 130,000-acre Badger-Two Medicine (B2M) segment of the Lewis and Clark National Forest.
Significantly, the B2M is referred to as the “ceded strip” because in 1896, the Blackfeet sold 800,000 acres of what became Glacier National Park east of the Continental Divide as well as the Badger – for $1.5 million while retaining the right to hunt, fish, and collect timber as long as the land stayed public – with the hunting and fishing in accordance with Montana game laws.
Of course, Glacier became a national park in May 1910, no longer “public land.” In the 1920s, the Blackfeet sued regarding the loss of those rights for $250,000 (not restoration of those rights) and lost. Plaintiffs failed to prove the extent of actual use of their park rights in the 15 years prior to park establishment.
The first studies led to 90,000 acres found “eligible” for TCD designation by the “Keeper” of the National Register in 2002, but didn’t include the Longwell lease site. Oops. Subsequent work aimed to render the remaining 40,000 acres of “increase area” in the B2M eligible.
While “eligibility” is not formal designation, under the law, “106 consultation” is triggered once items are found eligible for the Register.
Places where “significant traditional events” occur are eligible, as are “culturally significant landscapes.” Items must make a “significant contribution to the broad patterns of our history;” be associated with “persons significant in our past;” “embody distinctive characteristics;” and yield “information important in prehistory or history.”
Great, but has any of this ethnographic work found “historically significant” items deserving of National Register status?
Well, at the Solenex hearing June 10, Judge Richard Leon asked, “What’s this cultural stuff consist of, interviewing some folks?” Solonex attorney Steven Lechner responded the cultural studies had been “redacted, so I really don’t know what’s in them.”
The Court: “Excuse me? Redacted?”
Mr. Lechner: “Redacted.”
The Court: “National security purpose? What’s going on?”
It so happens under Section 304 of NHPA, the Secretary of Interior can withhold disclosure if doing so causes a “significant invasion” of privacy, risks exposure and harm to historic resources, or impedes traditional uses.
Thanks to that fine East Side journalist, Darryl Flowers of the Fairfield Sun Times, I have copies of the “increase area” studies, both redacted into utter gibberish. Here’s a typical sentence from the older copy: “It is generally believed that the XXXXXXXXXXXXX is such that resources like XXXXXXXXXXXX are more powerful than those XXXXXXX. That is why certain XXXXXXXX and XXXXXXXX require that people go to Two Medicine Ridge to XXXXXXXX.”
The newer version, apparently rewritten from the first for submission to the Keeper, is 205 pages. From Page 39 to the end, all but three pages are utterly blacked out. The attached 124-page Appendix has pages 47 to 102 (Traditional Use Areas and Resources) completely blacked out, followed shortly by another 18 pages of solid black.
If these studies involved Blackfeet antiquities on Blackfeet lands, such secrecy would be acceptable. But last I checked, the B2M is National Forest. Clearly, the TCD process will affect the value of these lands to average Americans, right?
Yep – so why in tarnation aren’t average American citizens entitled to access and study the facts on which these designations may be made?
The answer to that, my fellow peasants, is redacted.