Joint RDC and AMA Comment Letter on Bulletin 38

July 17, 2018

The Honorable Lisa Murkowski
United States Senate
Washington, D.C. 20510

Re: Bulletin 38 Revision and Ch’u’itnu Traditional District 

Dear Senator Murkowski:

The Resource Development Council for Alaska, Inc., (RDC) and the Alaska Miners Association (AMA) are writing to request your office seek a ruling from the General Accounting Office (GAO) on whether Bulletin 38, “Guidelines for Evaluating and Documenting Traditional Cultural Properties,” is a rule as defined by the Congressional Review Act (CRA). 

It is our understanding that revisions to Bulletin 38 had been proposed but were never finalized during the final days of the Obama Administration. One of the proposed changes would have been used to expand the definition of a historic property beyond the terms of statute to include landscapes and properties associated with cultural practices or beliefs of any living community. However, the National Historic Preservation Act (NHPA) does not recognize traditional cultural landscapes as a property type eligible for listing. The existing Bulletin 38 expressly disclaims eligibility for non-properties and cultural resources that are purely intangible, recognizing no legal authority to address them unless they are somehow related to a specific historic property. 

Given the revised Bulletin 38 was never finalized, we are left concerned with the current status. As you know, the CRA compels an agency to submit a copy of the rule to Congress before it can take effect. The CRA also provides an opportunity for Congress to disapprove a rule by adoption of a resolution, which we would support in the case of Bulletin 38 in order to give the Department of Interior time to craft a new Bulletin that is consistent with statute. Understanding whether Bulletin 38 is a rule as defined by the CRA will help bring clarity to this issue.

If and when revisions are contemplated going forward, it is important to recognize the significant concerns such revisions, lacking statutory authority, could have on responsible resource and community development in Alaska. The National Park Service and the Advisory Council on Historic Preservation (ACHP) proposed revised Bulletin 38 regulations which would create a new property type, “traditional cultural district,” which replaces “landscape.” Under such a revised approach, any place that is valued by any racial, ethnic, minority, majority group, community, or organization whose members share traditions, beliefs, practices, lifeways, arts, crafts, or other social institutions, would be considered eligible. Such updates to the Bulletin depart from any existing law or regulation and could have a substantial effect on land use designations in Alaska, Hawaii, and the contiguous 48 states.

We are particularly concerned with the Native American Rights Fund proposal to list 109,000 acres (170 square miles) of state and private land in Southcentral Alaska on the National Register as a “Traditional Cultural District.” The nomination, commonly referred to as the Ch’u’itnu Traditional District, was considered by the Alaska Historical Commission and, despite objection by the vast majority of land-based property owners, it was accepted by the Commission. 

The decision is extremely troubling. The proposed area, encompassing broad swaths of land, is not supported by any verifiable information identifying any physical features or specific location of where people regularly returned or where a historic or culturally significant event occurred. 

The proposed Ch’u’itnu designation does not meet the criteria for listing on the National Register of Historic Places because it is the type of expansive outline, supported in large part by unidentified and unidentifiable sites, traditionally rejected by the National Park Service Keeper and the courts. It would set a precedent where virtually all land in Alaska historically used for subsistence, including among other places the National Petroleum Reserve-Alaska, the Colville River Delta, and the Coastal Plain of the Arctic National Wildlife Refuge, could be nominated as a traditional cultural district.

It is a major threat to Alaska Native corporations and could result in a “taking” of lands conveyed under the Alaska Native Claims Settlement Act (ANCSA) for economic and resource development for the well-being of all Alaska Native people. Proposals such as Ch’u’itnu would likely be seen by Alaska Native entities as a violation of their conveyances under ANCSA.

Consequently, large swaths of private, state, and public land could be determined eligible with little public or landowner awareness. This not only holds true in Alaska, but could also be used throughout the entire nation. The designation would be used as a means to stop development projects or impose additional and substantial delays and costs through litigation and required mitigation. 

Efforts in earlier years, including those by former U.S. Senator Frank Murkowski, recognized the significant impact amendments to the NHPA would have on Alaska. Most notably in 1992, H.R. 1601 and S. 684 would have included “landscapes” as historic properties, including trails, roads, and places that figured in traditions and lifestyles of ethnic groups. The Department of Interior and the National Park Service also expressed concern about applying the provisions of the NHPA to intangible values and suggested it is not appropriate for those values to be included in the National Register of Historic Places. Ultimately, the amendments to the NHPA were rejected.

Given revision of Bulletin 38 may now be under review by senior Department of Interior officials, there is a unique opportunity to ensure a new Bulletin is consistent with statute.  The ACHP needs to be returned to its original mission intended by Congress to restore decision-making authority to the federal agencies with jurisdiction. We would appreciate your inquiry to the GAO on the aforementioned question.

Sincerely,