Enforcing Traditional Cultural Property Protections

Abstract

There are many challenges associated with enforcing the protections afforded Traditional Cultural Properties (TCPs) under the National Historic Preservation Act (NHPA). This paper examines how the rules and procedures that animate the law can create a striking disconnect between what the law appears to provide and what it actually delivers. After providing some brief background regarding the literature of legal geography and the protections offered to TCPs, this paper outlines some basic information regarding how administrative law polices both the entry to and operation of the formal legal space known as the federal judicial system through various jurisdictional requirements. It also addresses how mitigation requirements under Section 106 of the NHPA have been undermined as a result of legal processes and interpretive case law. As a relevant example, it uses the current controversy over proposed uranium mining on New Mexico's Mount Taylor. Deemed eligible for federal designation as a TCP in 2008, Mt. Taylor provides a case study in the challenges associated with protecting sacred lands within the processes and frameworks of the current legal system. While the NHPA gives the appearance of honoring Indigenous ontologies, its materialization often results in little more than bureaucratic procedures giving only the appearance of adequate treatment by limiting judicial enforcement.