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Preservation Easements to Protect Native American Heritage Sites

Using Preservation Easements to Protect Native American Heritage Sites. They may be our best bet in protecting what sites remain.

It’s a story heard far too often around the Southeastern United States. Back in 2010 a Snowbird Cherokee friend was exasperated. In the year since the leadership at the Qualla Reservation had announced plans to build a second casino at a site between Tomatla, and Andrews, NC at least 12 Native American mounds had been bulldozed in the vicinity of Tomatla by real estate speculators, all of whom were from out of state. Most were limited liability partnerships in which the investors had no clue what was being done with their money.

None of the land tracts with mounds had water or sewer service. There was little likelihood that any commercial establishment would be interested in these sites, even if the new casino drew large crowds. The Cherokees were building hotel and restaurant facilities adjacent to the casino. It would be at least five years before any construction could legally begin on the chosen site, but the speculators were afraid that having a mound on their property would keep them from maximizing their profits.

Most of these mounds contained burials. Some were from the Woodland Period. Most were from the Early and Late Mississippian Periods. Local law enforcement knew not to enforce the Native American Graves, Protection and Repatriation Act (NAGPRA.) It was standard procedure for land speculators to grease the pockets of politicians locally and in Raleigh. Poachers came from far and wide to pick through the soil scrapped from the mounds to find skulls, pottery and stone artifacts to sell at flea markets.

As it turned out, the North Carolina Cherokees chose another site at the edge of Murphy, NC. All those mounds were bulldozed for absolutely no reason at all. In case you Creeks are snickering, Tomatla is how North Carolina mountain folk pronounced Tamatli. Yes, that’s the major branch of the Creeks that once dominated the Altamaha River Basin. They had a large colony in the Andrews Valley. The Oconee Creeks of northeast Georgia had a large colony where the Cherokee Reservation is now located.

The Cherokees try to protect Native American archeological sites on private land, but they can only use persuasion. North Carolina has one of the weakest archaeological site protection laws in the nation. The problem is exacerbated in the mountains due to the lack of zoning ordinances and land development codes. The State of North Carolina does not even have site files of most of the mounds in the mountains.

The situation elsewhere

Although other Southeastern states hopefully do a better job of protecting Native American structures than is done in the North Carolina Mountains, archaeological sites on private land are vulnerable everywhere. The general public thinks that Native American structures cannot be destroyed to make way for development. That is not the case. Repeatedly, federal courts have ruled that mounds and stone structures on private land can be destroyed at the owner’s whim, as long as NAGPRA procedures are followed.

Where local jurisdictions are more enlightened, there are procedures within planning departments that can ultimately protect mounds, stone structures and battlefield fortifications from destruction. However, these historic and prehistoric sites MUST be designated in advance on a map publicly approved by a city council or county commission. The planning official cannot call Developer Joe Jones to his office and announce, “Hey, I just found an Indian mound on your property. You won’t get your requested zoning change unless you give us a site plan that protects the mound.” That approach is known in legal circles as “arbitrary and capricious.” Judges really, really don’t like it, when planning officials pull such stunts. The developer gets what he wants; often is awarded monetary damages; and the planner gets fired.

This is exactly the headache that many planners dread. A mound or a large stone cairn complex is discovered on a large tract of land AFTER the developer submits an application for a development permit. The public, particularly those of Native American descent, is outraged, while the local government has few options. The planners and elected officials are caught between a rock and a hard place. If they bend to desire of the majority of voters, who want to save the site, they will probably lose in court. If they follow the rule of constitutional law, the planners get fired and the officials don’t get re-elected.

Fortunately, in both cases where I worked as a planner for local governmental agencies, (Asheville, NC and Cobb County, GA) we had excellent zoning ordinances that provided handsome incentives to developers or building owners who protected prehistoric or historic structures. As Principal Planner in Cobb County, I could offer the applicant such things as increased building density, no property taxes on preserved historic structures or reduction in requirements for landscaping. The developer always went away smiling.

Both in Asheville, NC and Cobb County, GA, I possessed a copy of the archaeological site files for our jurisdiction. As soon as a land development, zoning or building permit application was made, I could check the file to see if any archaeologist in the past had reported archaeological evidence or given the location a formal site number, say like “1RU73.”

Cobb County was chock full of Native American village sites and Civil War fortifications. In one case, I was able to save three large mounds near Nickajack Creek, while the developer enjoyed about a $1,100 a year property tax reduction because of a preservation easement that he granted. Nobody complained.

All along, though, there was a problem. No one knew where all the archaeological sites were, and the archaeologists either forgot where others were or refused to tell anyone else where they were. They couldn’t imagine anyone else in the world being able to spell Swift Creek Pottery and understand what it was.

Many of the most spectacular stone architecture sites that we are identifying in our Southern Highlands Survey are unknown to the archaeology profession. Many, many more have been forgotten. The stone structures are a particular problem for protection in the Lower South, because the orthodox archaeological model of Southeastern Native American history has no explanation for the stone architectural ruins. Southeastern archaeologists do not like to discuss what they don’t understand, but are quick to scream, PSUEDO-ARCHAEOLOGIST, if anyone else wants to discuss the stone ruins.

For example, in 1939 archaeologist Robert Wauchope surveyed extensive stone ruins and terrace walls at Fort Mountain in Union County, GA. This mountain has many more stone structures than the much better known Fort Mountain State Park in Murray County, GA. The Union County Fort Mountain was the capital of the fabled Kingdom of Apalache. It has an archaeological site number, but current members of the profession don’t seem to know it exists.

My understanding is that pressure from archaeologists caused the archaeological site files to be removed from all local planning agencies. The fear was that city and county planners would use the files to go out at night and dig up Indian pottery to sell at flea markets. I now know that I was probably the last local planner in Georgia to possess an archaeological site file. It was taken away from the lady who followed me in that position.

Initially, historic preservation planners were placed in regional planning agencies, who were now responsible for protecting historic and prehistoric sites. Also, state historic preservation offices (SHPO’s) were beefed up with more staff archaeologists and historic preservation planners. They worked closely with the regional planners. The system did not work as efficiently as local negotiation, but it did prevent city planners from becoming wealthy, selling contraband Indian pottery.

If an important archaeological site does not have an archaeological site number, archaeologists have forgotten that it existed, or they refuse to tell anybody else that it exists, how can planners and local officials protect it? It is the planning officials that have the constitutional powers, through negotiated land use controls, to permanently protect archaeological sites, not the archaeologists.

Centralization of archaeological site protection produced a situation that made it almost impossible to protect anonymous Native American sites. This centralization made the archaeological profession temporarily feel more powerful, but in fact, it screwed up the works, and caused the destruction of even more sites.

Then the 2001 Recession hit. Historic preservation planners in regional agencies were assigned regular planning tasks that prevented them from putting much time into identifying potential historic and prehistoric sites. Then the 2008 Depression hit. The staffs of SHPO’s were drastically reduced in order to balance state budgets. Many historic preservation planners in regional agencies were fired because of budget pressures. Now the only profession in the United States that requires a graduate degree, which has a higher unemployment rate than architects, is archaeology.

In 2014 few people are enforcing at the local level what laws we have that protect Native American and battlefield archaeological sites. Local law enforcement agencies can’t be expected to take on this role. The end results are such tragedies as the 12 bulldozed mounds in the North Carolina Mountains and the mound in Oxford, Alabama which became land fill for a Sam’s Club Store.

Preservation Easements

There is an option for cultural resource preservation that can still offer the mutual smile results that I enjoyed in Cobb County. In fact, it was one of the more popular carrots that I offered developers. This solution is also not dependent on a site being officially designated an archaeological site or on the National Register of Historic Places. It is called the Preservation Easement.

The development potential of a tract of land or building has been defined by the U.S. Court system as a financial commodity. Preventing a private land owner from bulldozing an Indian mound was defined as forced taking by government of this commodity, and therefore unconstitutional.

HOWEVER, the courts have also upheld the principal that a property owner can voluntarily donate or sell the right to develop or alter a certain parcel of land, and also be compensated by reduced property taxes because of its reduced economic utility. So, a beef farmer could allow an easement to be placed over a mound or ceremonial site, which says he no longer has the right to bulldoze the mound. His land within the easement would not be taxed, even if cattle grazed on the mound.

Theoretically, as financial commodities, preservation easements can be sold and bought by individuals, partnerships, conventional corporations, Native American tribes, foundations or non-profit corporation. Some philanthropic city planner, who became rich off of contraband Native American grave artifacts, could assuage his or her conscience by going around the country buying up preservation easements for the remaining Indian mounds and stone terrace complexes.

In practice, though, preservation easements are typically purchased or accepted by non-profit corporations, foundations or governments. Donations by individuals or corporations to these three entities can be listed as charitable donations on state and federal income tax returns.

Sometimes, individuals or organizations will actually purchase the archaeological site if they want complete control over its use, or on which to make improvements. These organizations will also sometimes obtain easements with different legal languages for various parts of the same tract.

For example, the Association for the Protection of Civil War Sites purchased a battlefield preservation easement over 43 acres of pasture and crop land on my Virginia farm, where the cavalrymen of General George Armstrong Custer, USA and General Tom Rosser dueled in one of the largest cavalry battles of the Civil War. This easement allowed us to actively farm the land, erect fences, cut down trees, etc. They purchased an archaeological easement in our bottomlands where there were two Woodland Period village sites. No digging could occur there. We donated an architectural preservation easement over our house, which was built in the Colonial Era.

In contrast, the APCWS purchased outright a 12 acre tract of woods in the back of the farm, where a Revolutionary War munitions wagon train had blown up and in 1864; and the famous Laurel Brigade had defeated a larger Union cavalry force in a battle preceding the Battle of Toms Brook. The organization wanted to build a monument to the Laurel Brigade.

Several non-profit organizations are actively purchasing preservation easements over Native American archaeological sites in the Southeastern United States. These include the Tennessee Ancient Sites Conservancy, the Archaeological Conservancy, the National Trust for Historic Preservation, the National Conservancy, the Turner Foundation and the Native American Land Conservancy.

Where there is a will, there is a way!

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Richard Thornton is a professional architect, city planner, author and museum exhibit designer-builder. He is today considered one of the nation’s leading experts on the Southeastern Indians. However, that was not always the case. While at Georgia Tech Richard was the first winner of the Barrett Fellowship, which enabled him to study Mesoamerican architecture and culture in Mexico under the auspices of the Institutio Nacional de Antropoligia e Historia. Dr. Roman Piňa-Chan, the famous archaeologist and director of the Museo Nacional de Antropologia, was his fellowship coordinator. For decades afterward, he lectured at universities and professional societies around the Southeast on Mesoamerican architecture, while knowing very little about his own Creek heritage. Then he was hired to carry out projects for the Muscogee-Creek Nation in Oklahoma. The rest is history. Richard is the Tribal Historic Preservation Officer for the KVWETV (Coweta) Creek Tribe and a member of the Perdido Bay Creek Tribe. In 2009 he was the architect for Oklahoma’s Trail of Tears Memorial at Council Oak Park in Tulsa. He is the president of the Apalache Foundation, which is sponsoring research into the advanced indigenous societies of the Lower Southeast.

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