Over the past thirty years, Tribes have exercised growing influence in federal land management and permitting decisions, precipitated, in part, by amendments to the National Historic Preservation Act (“NHPA”) and evolving perspectives in cultural resource management and historic preservation. Despite the increased influence Tribes have gained in federal decision-making processes with the NHPA, it is often an ineffective tool to protect tribal cultural resources. Indigenous cultural resources and perspectives on cultural resource stewardship often do not fit easily within the NHPA’s framework. Nevertheless, until federal law is changed to actually protect Indigenous cultural resources, Tribes must operate within this existing legal framework. To do so effectively, Tribes, practitioners, and some federal agencies have developed tools, resources, and guidance intended to better protect Indigenous cultural resources and represent Indigenous ways of knowing within the NHPA. Still, these efforts often fall short, while Tribes’ ambitions to utilize the existing legal framework to protect their cultural resources grow. Out of this has developed the “traditional cultural landscape” as a more effective and culturally appropriate way of advancing Indigenous culture, perspectives, and stewardship within the NHPA’s existing legal framework. Traditional cultural landscapes provide a framework within the NHPA that Tribes can utilize to meaningfully influence federal decision-making and achieve more holistic approaches to cultural resource management and protection in federal land management and permitting decisions. This, of course, has spurned vehement opposition from industry, many in the cultural resource management and historic preservation profession, and even federal and state agencies, who argue that traditional cultural landscapes, and landscape-level resources and preservation generally, have no place within the NHPA and the federal preservation framework more broadly. This Article examines the need and legal framework for the recognition and incorporation of traditional cultural landscapes within the NHPA and hopefully serves as a resource for Tribes and other Indigenous and traditional communities working to protect their own traditional cultural landscapes.
Furlong, Wesley James. "“Subsistence is Cultural Survival”: Examining the Legal Framework for the Recognition and Incorporation of Traditional Cultural Landscapes within the National Historic Preservation Act." Tribal Law Journal 22, (2023). https://digitalrepository.unm.edu/tlj/vol22/iss/4