The Santa Fe Review

A Journal of Commentary and Reportage

copyright 2008 by George Johnson

Dispatches from the Land and Water Wars

updated 9/22/08

Buffalo Thunder Casino and Resort. photos by George Johnson, copyright 2008

1. Retrofit Arithmetic (and Rainbarrel Economics)
2. The San Juan-Chama Shell Game
3. The Case of the Disappearing Aquifer
4. The Creative Hydrology of Suerte del Sur
5. The City, the County, and a Water Tax Revolt
6. Water Numerology at City Hall
(Our story thus far)
7. The Woman at Otowi Gauge
8. "Forget it, Jake. It's Chinatown."
9. The Las Campanas Connection
(Our story continues)
10. The Engineering Solution


11. The Sorrows of San Acacio
12. The City's Dubious Water Report
13. Where the Water Went
14. Shutting Down the River Again
15. Picking on the Davises
16. The Tom Ford Webcam
17. Galen Buller's Day Off
18. Forgive and Forget
19. Election Postmortem
20. El Molino Gigante

21. Hotel Santa Fe
(Our story continues)
22. The Environmental Impact of Jennifer Jenkins
23. The Short-term Rental Racket
24. Archbishop Lamy's Parking Lot
25. Mayor Coss's Lost Gamble
26. Tommy Macione Swamp
27. Sweeney Center Blues
28. The Tragedy of the Commoners
29. Councilors, Cops, and Russian Dolls
30. West Side Story

31. Taking Back the River
32. The Case of the Clovis Pigs
33. The San Juan-Chama Shell Game Revisited
34. The Santa Barbara Review and The Return to Santa Fe
35. Kepler's Inquisition . . . The Ballad of Jerry Peters . . . and the Blizzard of '06
36. The Top 10 Stories of 2007
37. The Thornburg Dilemma
38. Santa Fe's Dying River Plan
39. Blinded by Pseudoscience (or the Great Wireless Conspiracy)
40. Blinded by (Andrew Davis's) Light

41. Invasion of the Spa People
42. Buying Back the River
43. The State of the City
44. Before the Fall
45. The Environmental Impact of Selfishness
46. The Battle for Talaya Hill
47. The New Urbanism Scam
48. Festival of the Cranes
49. The Fall of the House of Thornburg
50. Who Owns the Plaza?
51. Summer Doldrums
52. A Walk Up the Rio Mora
53. Indian Ruins

August 24, 2008

54. Buffalo Thunder

Driving last Sunday past Camel Rock, on my way to the new Buffalo Thunder resort and casino, I thought about an evening I spent in 1992 playing bingo at Tesuque Pueblo. I was just starting to write Fire in the Mind, and a visit to Tesuque's bingo hall seemed like a perfect way to introduce one of the book's themes: the tension in life between randomness and order. Sitting on folding chairs inside a corrugated-steel building, where Camel Rock Casino now stands, we marked our cards as the emcee called out numbers. I left a little poorer but with some good material for the book.

This was before the state of New Mexico agreed, under the Federal Indian Gaming Regulatory Act, to allow tribes to run full-scale gambling operations. Some, like Pojoaque, were doing so anyway, and the pueblo's governor, Jake Villarreal, threatened to open a nuclear waste dump if the state tried to interfere with his casino plans.

Ultimately New Mexico caved and gambling became legal. That, for better or for worse, is how Indian sovereignty is supposed to work: it is granted legislatively by the United States Congress and is subject to regulation. Now there are six casinos between Santa Fe and Velarde. With the opening of Buffalo Thunder, three of them are owned by Pojoaque Pueblo.

As I pulled into the parking lot, geysers of water were erupting from the putting greens. Between the casino and the highway was a large, scooped-out depression -- a settling pond for runoff or a future lake. In an interview with the Reporter, John "Duff" Taylor, who came from Nevada to run gambling at Buffalo Thunder, compared the place to the Bellagio, one of the most grandiose casinos on the Las Vegas Strip.

I was in Las Vegas last summer to write about a symposium called Magic and Consciousness at a hotel across from Caesar's Palace. Between sessions I wandered through the Bellagio and my favorite, the Venetian, where gondoliers navigate an indoor Grand Canal, winding their way to an air-conditioned Piazza San Marco.

For all the water and energy it is consuming, Buffalo Thunder is not even close. From the outside it looks more than anything like a Scottsdale golf resort, a place where you might see John McCain. Downstairs, off the main entrance, is one more dark, crowded, clanging casino, already acquiring the ineradicable odor of spilt beer and smoke. It was not yet noon and gamblers, a disproportionate number of them with walkers, electric scooters, or wheelchairs, were already clinging to the slot machines and roulette tables. I doubt that many of them made it upstairs, where a spacious promenade, lined with a veneered imitation of Anasazi stonework, led past high-end shops, restaurants, and galleries to the hotel lobby. There was no one in the jacuzzi or the swimming pool.

When I was growing up in Albuquerque, the Indians were the good guys. I believed it when I read that they had a special relation to the sky, the water, and the land. I remember the magic of a Christmas Eve at Acoma when the road to the mesa top was lined with luminarias (north of La Bajada they are called farolitos) and a bonfire burned in front of the church. One cold November night during college, I stood with some friends at Zuni, transfixed by the Mudheads of Shalako. It was thrilling to think of a better world hidden within the corrupt corporate culture of America. Privately I hoped for a second Pueblo Revolt.

I know good things have come from Indian self-determination. But as I headed back down the Strip toward Santa Fe, I was met with another of the abuses: the enormous cellphone towers built on a patch of Nambe Pueblo trust land to circumvent county height regulations. Last I heard the pueblo had scaled back plans for its own space-age theme casino with an indoor amusement park. Maybe the market is finally becoming saturated.

Before going home, I turned into the Tesuque Flea Market, thinking it would be fun to take pictures. But I was stopped by the sign. "No Cameras. No Sketching."

Why? I can understand the rationale for suspending First Amendment rights at ceremonial dances. The rituals are considered sacred, and as spectators we are guests on the land. But the flea market?

A secrecy that arose four centuries ago to shield tribal religious beliefs from the Franciscan overseers has become pandemic. Nobody questions this. Some $40 million of public money was spent to build the new campus at the Santa Fe Indian School. But neither the school nor its administrator, the All Indian Pueblo Council, is held accountable for laying waste to historically protected buildings, which were also constructed with federal funds. The New Mexican would rather opinionate about downtown parking, while Zane Fischer in the Reporter suggests that it is disrespectful to insist that the tribes obey the same federal laws that bind us all.

We have heard nothing from Governor Richardson, Senators Bingamen or Domenici, or Congressman Udall. This is, after all, an election year. From the perspective of the pueblo leaders, the timing of the destruction was pitch perfect.

George Johnson

August 26, 2008

There is something poignant about Dave Maass of the Reporter aspiring to be Norman Mailer at Chicago '68 as he blogs from the Democratic National Convention in Denver. The closest thing he has found so far to a riot has been a blocked-off street where police were quietly arresting protesters engaging in civil disobedience. "Something very strange going on," he muses and, video camera in hand, slides behind a curtain in a hotel ballroom to watch from the window. "Sure looked like we were living in a police state," he later wrote. "But then again, everyone seemed quite calm and safe on the ground."

The real action, it turns out, had happened one street over where officers used pepper spray to subdue a crowd near Civic Center Park. The Rocky Mountain News was covering the story while Mr. Maass went off to Governor Richardson's poolside party.

Meanwhile David Alire Garcia, who recently left the Reporter to help start the New Mexico Independent (an effort we'll be writing more about soon), has been filing point-and-shoot reports about the New Mexico delegation. On the day before the convention, he attended a "blogger training" session at the Colorado Media Matters office (we're not told what that is) where one of the speakers argues "that online journalists are on the ground floor of a new model of journalism that will eventually be the norm. And soon."

God, I hope not. These uncogitated, you-are-here snippets pale beside the craftsmanship of a real pro like the New Mexican's Steve Terrell. Be sure to read his piece in this morning's paper: "New Mexico delegates schmooze and booze at convention." Mr. Terrell is also having fun blogging, but when he's done he goes back to his hotel room to do the real work.

One week ago Donald Sutherland, the Federal Preservation Officer at the BIA's national headquarters in Virginia, told me via email that his office has no records pertaining to the transfer of the Santa Fe Indian School campus into a trust controlled by the All Indian Pueblo Council. He referred me to Bruce Harrill, the Regional Archeologist for the BIA's office in Albuquerque. By the end of the week, an email I sent Mr. Harill had not been answered so I faxed and then mailed a certified letter to the regional director, Larry Morrin:

	August 22, 2008
	
	Dear Mr. Morrin:
	
	I am writing to ask your office whether, under Section 106 of the
	National Historic Preservation Act, protections were put into
	place on the historic buildings at the Santa Fe Indian School
	before they were transferred through a trust to the All Indian
	Pueblo Council. I also request copies of the relevant documents
	-- deeds, covenants, etc. -- turning over responsibility for the
	property to the trust.
	
	Many thanks in advance. I look forward to hearing from you.
	
	Sincerely yours,
	
	George Johnson

If this doesn't work I guess I'll have to file a Freedom of Information Act request.

Postscript

I received an email from Dave Maass of the Reporter offering some context for the video he posted last night about the police nonaction in downtown Denver. The scene was the aftermath, he explained, of the bigger melee covered by the Denver press.

	I had missed the earlier action because I was covering Ted
	Kennedy and Michelle Obama's addresses at the Pepsi Center. I
	left to attend the Richardson party because a) I'm a NM
	journalist and I'm supposed to be covering NM stuff and b) I'd
	gotten all I could at the scene.
	
	I posted that video at 4:30 am, well before newspapers hit the
	stands and well before I could've put all the pieces together.
	
	And after posting it, I had to be up up at 6:30 am to make the
	New Mexico delegate breakfast. Surely, you can cut some slack to
	a solitary, low-budget journalist covering both the protests and
	the politics when the Rocky Mountain News has a team to cover
	both. 

Good point. Mr. Maass has been doing fine work for the Reporter, and I look forward to what he writes, on paper, about his Denver exploits.

George Johnson

August 28, 2008


Santa Fe Indian School Dining Hall with WPA murals
(Gilbert Washburn in One House, One Voice, One Heart)

Finally a sign of action in the Indian school mess: Katherine Slick, New Mexico's Historic Preservation Officer, sent a letter yesterday to Mr. Morrin, the regional BIA director in Albuquerque, asking him to respond to the strong evidence that his office has violated the federal Historic Preservation Act. (If you're just tuning in, you can read the background to the story here.) In addition to the points we've made in these pages, she deals what appears to be the decisive blow. Public Law 106-568 (sections 821-824), transferring the school into an Indian trust, includes this provision:

	(c) APPLICABILITY OF LAWS. -- Except as otherwise provided in
	this subtitle, the land taken into trust under section 823 (a)
	shall be subject to the laws of the United States relating to
	Indian lands. 

That would include the Preservation Act, which requires federal agencies to put protections in place before surrendering control of public lands. She also cited a case last year in which land was about to be placed into trust for the benefit of Santo Domingo pueblo. In a memorandum, a BIA Solicitor confirmed that the agency is indeed responsible for ensuring in advance that cultural resources will be protected.

As Ms. Slick notes in her letter, three of the historic buildings in Santa Fe have not yet been razed. These include the old cafeteria. If this is what historian Sally Hyer refers to (in One House, One Voice, One Heart) as the school dining hall, it is (was?) the site of some of the most important of the 1930's murals.

According to Raam Wong in today's Journal, the Santa Fe Fire Department has been granted permission to use the cafeteria and other remaining buildings to conduct training sessions.

	Fire officials say an old dormitory and other decades-old
	structures offer a rare opportunity for crews to knock down
	doors, shatter windows and spray their hoses.
	
	"It's stuff that we actually don't have the props to do right
	now," Assistant Fire Chief Charlie Velarde said. 

Great. That is the extent, so far, of the city's reaction to this whole affair. The fact that the city council doesn't have jurisdiction hardly bars it from expressing an opinion -- we know what it thinks about Iraq -- or for joining Ms. Slick in demanding to know whether Federal laws have been broken.

The Journal also reports that asbestos is currently being removed from the buildings and that next week we should see some of those "negative pressure" tents. The reason some buildings are still half standing, we're told, is because workers are sorting the debris into piles for recycling.

George Johnson

August 29, 2008

Dominated by a handful of cranks, the bedlam that passes for the New Mexican's Readers Forum is hardly ever worth enduring. But yesterday, when I pulled up a guest column from Sunday by Bob Harcourt, who taught at the Institute of American Indian Arts when it was still at the Cerrillos Road campus, I was in for a surprise.

First let's hear from Mr. Harcourt:

	Having spent roughly 15 years as a staff member working in those
	magnificently well-built and well-maintained structures (at least
	they were through 1980), with their beautiful interior
	woodworking and murals created by such White House-recognized
	artists as Allan Houser, it sickens me that such remarkably
	treasured local monuments were so callously rendered into the
	dust of eternal debris, with little or no effort to save
	anything. 

He goes on to write that some Indian alumni are equally distressed.

Attached at the bottom of the page, where hardly anyone would ever see it, is a commentary by Stephanie Jones, who says she has been studying the old Indian School murals as part of her doctoral dissertation work in the United Kingdom:

	The twenty or so murals that were wrapped around the cafeteria
	interior were statements against assimilation and reflected the
	change in federal policy for Indian Education during the Charles
	Rhoads BIA administration. I cannot stress the immense
	historical, political and aesthetic value they had for the
	history of Indian art production and federal government
	patronage.
	
	I will forever remain shocked and sorrowful that an Indian art
	centre like Santa Fe would allow the destruction of such an
	important part of social and art history.

It is the cafeteria, of course, that is about to be used for firefighting practice. According to Ms. Jones's post, slides of the murals will be shown in Taos at the Southwest Art History Conference in October. By that time the originals will probably have been destroyed.

While the New Mexican slumbers, the Journal has picked up on the story about Katherine Slick's letter to the BIA:

	A key state official has asked the federal Bureau of Indian
	Affairs to clarify whether decades-old buildings that have been
	demolished at the Santa Fe Indian School were subject to the
	National Historic Preservation Act. 

I think that puts too dull a point on it. I know Ms. Slick is trying to step gingerly. But as we've noted before, Section 106 of the Preservation Act seems unambiguous on this matter.

George Johnson


Santa Fe Indian School, August 28, 2008

September 3, 2008

Burglary report

I guess I understand now why Santa Fe Police Captain Gary Johnson didn't return my call. I had contacted the department on Monday, August 25, and asked to speak to the detective assigned to the burglary I reported in early July. County Sheriff Greg Solano had just announced that his deputies had busted a major burglary ring, and the kind of items they had recovered -- computers and other electronic equipment -- sounded just like the stuff, some $8,000 worth, that was stolen from my home office.

I was surprised when my call was transferred directly to Captain Johnson, the head of investigations. I only got his voicemail but I was momentarily impressed. Had my burglary been given such high priority that the top man himself was on the job? Or had the case been assigned to no one, leaving the receptionist uncertain about where to send my call?


From the FBI videotape

By the end of the week, when no one had called back, it was clear that the captain had other things on his mind: the release by the city of a puzzling videotape in which he and his brother, Police Chief Eric Johnson, are targets of an FBI sting operation. The tape, recorded in January 2003, shows the officers (not yet administrators) searching a Cerrillos Road motel room after receiving a tip that drug money had been left inside. They didn't take the cash, which was sitting in a wastebasket, but why did investigators think that they might? And why was the tape kept secret until City Councilor Patti Bushee insisted that it be shown? By continuing to withhold information while blaming the whole affair on politics, Chief Johnson further undermines public confidence in the SFPD.

On Monday, one week after I inquired about my burglary, I finally got a message from a detective on my answering machine: the sheriff's department would be displaying items from the recent bust at its headquarters on Highway 14. (Coincidentally, a third Johnson brother is the head of investigations for the county.) I drove out there this morning to take a look but none of the goods were mine. Insurance covered most of my loss but it would have been comforting to know that the burglars had been caught.

I continue to discover more missing items -- two folders from my filing cabinet labeled "check stubs" and "credit cards." As a friend observed, the burglars were hardly your usual meth addicts looking for a TV to pawn for a fix. We'll probably never know. Yesterday I picked up a copy of my police report ($1 a page): "status inactive."

While I was at the sheriff's office, I introduced myself to Mr. Solano, who was posing for a videocamera in front of the loot. He told me he read The Santa Fe Review (he remembered my burglary) and I told him that I read his blog.

KSFR, Santa Fe's public radio station, has been doing some excellent enterprise journalism. Last week the news director, Bill Dupuy, told me that he had sent reporters to the County Clerk's office to see if any covenants concerning historical protection had been attached to the deed for the Indian School. Not only were there no covenants. There was no deed.

There may be a perfectly innocent explanation. The county records department is not exactly high tech. But here is another instance where the lack of public disclosure only serves to fuel suspicions.

On Monday KSFR interviewed me for an update of the story (the segment begins about four minutes into the broadcast).

Postscript

I received a reassuring email this morning from Sheriff Solano:

	The same suspects often commit countless burglaries and there
	is a good chance one of the 13 arrests we have made in the
	last few months could have been the one who stole your items.
This afternoon I also heard by telephone from Captain Johnson, who apologized for not getting back to me sooner and described some of the work his burglary detectives have been doing in recent weeks -- including the questioning of a suspect who has been involved in the past in Eastside break-ins.

George Johnson

September 4, 2008

The State of the City (and River)

Mayor Coss was a busy man yesterday, joining the Flying Elvises (or Elvi, as they call themselves) for the grand opening of the Buffalo Thunder casino in Pojoaque, then returning to town to deliver his State of the City address.

It was the eve of tonight's burning of Zozobra, and Mr. Coss was optimistic: 40 new police officers have been hired since January 2007 and the burglary rate is down. More effort has been going into creating affordable housing and increasing middle-class home ownership. The Railyard Park and the convention center are almost done. "The official sound of Santa Fe," he noted, "is the jack hammer." I wouldn't count that as a plus, but in many ways the city is less of a mess than when he took office.

As he did last year, Mr. Coss affirmed his commitment to a flowing Santa Fe River. Though it sounded like the same old rhetoric, his administration may be finally embarking on something resembling a rational river management plan.

Over Labor Day weekend, the city quietly turned the river back on. (It's been bone dry.) The flow is small, about two cubic feet per second. There was more water running down the Arroyo Hondo on Monday when I walked to the trestle east of Old Galisteo Road. But according to an email from David Groenfeldt of the Santa Fe Watershed Association, the city plans to peg the flow released from the lower reservoir, Nichols, to the amount coming into the upper reservoir, McClure. That is what we have been calling for all along.

	The City Water Division will review the flows each week [Mr.
	Groenfeldt wrote], and anticipates keeping the river flowing
	for the next few months and possibly to the end of the year.
	The goal is to lower the overall level of the reservoirs to
	50% of capacity so there will be room for snow melt next
	Spring.  

We will soon resume our usual carping and nay-saying, but tonight let's raise a margarita to the annual demise, courtesy the Kiwanis Club, of Old Man Gloom.

George Johnson

September 5, 2008

Postscript

From the backyard I could only see the fireworks bursting over Zozobra's head and hear the amplified groans as he burned. But the video on the city's new cable channel was excellent. Too bad about the sound. From my garage band days, I would guess that the constant buzz was caused by a bad ground connection or an impedance mismatch. Maybe it will be fixed next year.

September 6, 2008

I had missed a curious news brief in Friday's New Mexican until a reader, Candelora Versace, pointed it out in an email. In his attempt to bring back the Santa Fe River, Mayor Coss may soon have the Lord Jesus on his side. The very first event at Santa Fe's new convention center will be REVIVE Santa Fe: A 7-Day Gathering to Know & Experience the Refreshing Presence of the Lord. Associate Pastor Kyle Martin of the Dallas Bible Church says he was inspired to organize the event after learning that an environmental organization had named our river as America's most endangered.

"To me," he wrote, "this was a huge spiritual sign of the Holy Spirit not being present in the city."

Arriving in town on a fact-finding mission, Pastor Martin met with the mayor and the Santa Fe Watershed Association and stood in the dusty river bed, contemplating how it is "drying up because of mankind's sins."

	In the year of 1942 when the farmers went off to fight for
	our country, local individuals took the farmers' irrigation
	supplies in order to control more of the city's water
	supply. The same thing happened in the Vietnam War.
	Injustice and prejudice were becoming evident sins from the
	past. And the river was the symbol of their sinful actions.

Time to repent. The Santa Fe gathering, September 15 to 21, could be better than a rain dance. In Dallas, the pastor writes, a 2 1/2-year drought came to an end when his ministry put on a 40-day tent revival.

George Johnson

September 9, 2008

In his column this month, "Understanding Adobe," Edward Crocker, the contractor/archaeologist who runs Crocker Ltd. Architectural Conservation, condemns the "cowardly" manner in which the Santa Fe Indian School rushed to demolish the historic buildings.

"My first reaction was anger and sadness," he writes. "The second reaction was: how ugly, how calculated . . ."

	I suggest, and in all seriousness, that the piles of debris that
	look like a contagion on the campus of the Santa Fe Indian School
	be left, just as they are, so that they can be noted as a site of
	conscience for all sides in this unhappy episode to contemplate.

Maybe that is what the school has in mind: Six weeks after the whirlwind demolition, the debris is still there. And more than two weeks have passed since I wrote to Bruce Harrill at the BIA asking for any information showing that his agency complied with Section 106 of the National Historic Preservation Act when it turned over the school to the pueblos.

Nor has any evidence arisen to suggest that either the BIA or the All Indian Pueblo Council ever filed an amendment to the environmental impact report for the new campus, which stated that the buildings would be preserved. So there is another likely violation of federal law. Finally there are the lingering questions about asbestos abatement -- did it actually occur or only on the forms submitted to the credulous officials at the Dallas office of the EPA?

It's astonishing what one can get away with in Santa Fe. There are so many stories here for a good investigative reporter to pursue.

George Johnson

Postscript

Mark Oswald, the editor of the Journal's Santa Fe edition, has written to say that his paper had a full report on the forthcoming Santa Fe revival, scooping the New Mexican (which just had a news brief) by five days. I don't know how I missed it. The story includes this interesting tidbit: Mayor Coss himself will speak on the first night about "the condition of Santa Fe."

September 10, 2008

We've noted here before that the environmental impact statement, required by federal authorities for the construction of the new Indian School, stated that the old campus would be preserved. Since then, I've found a story in the New Mexican's archives, dated May 17, 2002, which reinforces that intent: the school's superintendent, Joe Abeyta, is quoted as saying that the All Indian Pueblo Council hopes to maintain and restore the century-old buildings:

	 They are in desperate need of remodeling [Mr. Abeyta said],
	 but they are the spirit of Santa Fe Indian School. There's a
	 value that goes far beyond the physical appearance. 

All the stranger then to read the revelations in Tom Sharpe's frontpage story in today's New Mexican. When Congress appropriated $23.2 million for the new school, he reports, it was "to expand, replace and add buildings." He also quotes an Interior Department document stating that the older buildings "have deteriorated to a point where [they] no longer meet today's standards" and that their eligibility for the National Register "means that major renovation and modernization will be cost prohibitive and economically unfeasible for the BIA to undertake."

Maybe so. But that doesn't mean you can just knock them down without following the procedures required by the National Historic Preservation Act -- and without amending the environmental impact statement.

The Interior Department went on to report that "the historic buildings will be transferred to the All Indian Pueblo Council of New Mexico and removed from the BIA's inventory after the new school is built." But, again, that can't be done without what the bureaucrats call "a Section 106 undertaking," in which there are consultations with preservation officials and a public accounting.

Mr. Sharpe also quotes a man identified as the school's government liaison, who insisted on anonymity. (According to an earlier New Mexican story, his name is Gil Vigil). He told the New Mexican that there are no plans to delay the destruction of the remaining three buildings.

	"We are not pleased with your reporting," he said, declining to
	say what reports, by what reporter or even what media. "If you
	quote me, we won't be so kind in the future."

Members of the public may be equally displeased that their tax money is being used, illegally it appears, to erase history. The BIA is being as arrogant as the Pueblo Council. Katherine "Kat" Slick, the historic preservation officer who has questioned this abuse, told Mr. Sharpe "that she had yet to hear from the BIA and didn't expect to." In that case she should be demanding that the Inspector General of the Department of the Interior investigate whether there has been a misuse of federal funds.

George Johnson

September 14, 2008 (revised)

The BIA has come out of hiding. The day after my posting of September 10, Larry Morrin, director of the agency's office in Albuquerque, finally responded to Katherine Slick's letter about the Indian School. But his answer, as reported this morning by Mark Oswald in the Journal, doesn't make sense.

Mr. Morrin claims that he had no power or obligation to stop the demolition of the historic buildings because the pueblos are the "beneficial owners of the land held in trust by the United States" and can use it "according to their needs without intervention from the federal government."

But that would be true only if the government had surrendered its control of the campus, in which case Section 106 of the National Historic Protection Act requires the creation of "adequate and legally enforceable restrictions or conditions to ensure long-term preservation of the property's historic significance." (Section 36 CFR Part 800.5 -- Protection of Historic Properties). By failing to impose these, the BIA has forfeited more than a dozen historic landmarks, all built with public money, and now awaits the destruction of three more.

Grasping for a defense, Mr. Morrin goes on to argue that the BIA has actually not transferred the campus out of federal jurisdiction and that Section 106 therefore does not apply.

He can't have it both ways. Either the BIA is responsible for the property or it handed over responsibility to the tribes. It is hard to be sure without seeing the letter, but it sounds as though Mr. Morrin is trying to draw a distinction between "transferring" land, as through a sale, and putting it into trust. But Section 106 is worded to apply either way -- whenever control of government property is given to another party.

He also disregards the fact that complying with Section 106 was a condition under which the environmental impact statement for the new campus was approved: "all vacated buildings will be maintained" and a study of the best use of the buildings "will be coordinated with the Bureau of Indian Affairs and the New Mexico Historic Preservation office."

Ms. Slick told the Journal that she found the BIA's response unsatisfactory -- "It doesn't settle it for me" -- and is considering further action. She is in a lonely position. Out of a misplaced sense of political correctness, neither the Historic Santa Fe Foundation nor the Old Santa Fe Association has been willing to help. Nor has the mayor, the governor, or our congressional delegation.

George Johnson

September 15, 2008

I've received my own reply from Mr. Morrin, and it confirms what I hypothesized in my previous post. (Here is the full text of his letter.) He is indeed arguing that placing federal land into trust for the benefit of tribes does not constitute a "transfer" -- meaning that the BIA was not required to put protections into place before it gave away the historic buildings on the Indian School campus.

But, again, that can't be right. Interior Department regulations clearly state that the purpose of Section 106 of the National Historic Preservation Act is to prevent "adverse effects," which "include, but are not limited to: Transfer, lease, or sale of property out of Federal ownership or control without adequate and legally enforceable restrictions or conditions to ensure long-term preservation of the property's historic significance."

If the BIA indeed surrendered responsibility for the property, then obviously control was transferred.

But let's suppose, contrary to logic, that Mr. Morrin is right. If there was no transfer then the demolition of the buildings took place on federal land. Not only was there a violation of Section 106 but also, it would seem, theft and destruction of government property. If so then the U.S. Attorney for New Mexico should be investigating along with the Inspector General of the Interior Department.

Mr. Morrin also argues that the pueblos themselves are blameless because Congressional legislation converting the campus into trust land "did not include a requirement [for them] to comply with Section 106." But that is beside the point. The law was already in place. Unless specifically exempted by Congress, one party or another -- the pueblos or the BIA -- had to initiate Section 106 consultations before the demolition.

With the likelihood of litigation and perhaps criminal prosecutions, the BIA's strategy is to obfuscate -- to spin the illusion of some quantum limbo where neither the trustee (the federal government) nor the beneficiary of the trust (the Indians) has any responsibility whatsoever for what happened to millions of dollars' worth of public property.

But let's dig down another level. No matter who owns the land, Section 106 is also triggered by any action "performed, assisted, funded, approved, licensed or permitted by the federal government." Mr. Morrin acknowledges this in his letter but goes on to claim that the requirement is moot because the pueblos funded the demolition themselves. Whether or not that is true, federal money was used to build the new campus -- and there was federal approval granted through an environmental impact statement, which specifically said that the buildings would be preserved. In addition, EPA permits were issued for asbestos removal. (Whether the permits were actually complied with remains uncertain.)

An official I know in another federal agency crisply summarized the situation:

	If the land was transferred out of federal ownership without
	protection, then that was a violation of Section 106. If the
	project was funded or permitted by the government then the
	demolition was a federal undertaking and it was a violation of
	Section 106. If the land was not transferred out of federal
	ownership, then the demolition happened on federal land so it was
	a violation of Section 106.
	
	Hard to say which scenario is correct, but any way you look at it
	somewhere along the line someone violated Section 106.

George Johnson

September 16, 2008

Postscript

One month and three weeks after the issue arose, the New Mexican has finally published an editorial on the destruction of the old Indian School buildings:

	There's been something unseemly in the haste with which Santa Fe
	Indian School's administration has torn down the old part of its
	campus along Cerrillos Road.
	
	Historic buildings, some with murals for the ages and many with
	carved-wood posts, beams and other hallmarks of Pueblo and
	Pueblo-revival architecture, were laid waste earlier this year in
	total disregard of community concerns -- which school officials
	have disdained as impositions on sovereignty claimed by the
	campus as Indian trust land.
	
	Similar scorn has been given the federal Historic Preservation
	act . . .

The editors go no further than to call for a "time out" before the remaining three buildings are leveled. But at least another voice has been added to the barely audible chorus.

Also today, I received an email from Marilyn Bane, president of the Old Santa Fe Association, objecting to my observation that neither her group nor the Historic Santa Fe Foundation has taken a public stand on the sad fate of some of Santa Fe's most important historic buildings.

	I have to remind you that it was I (in response to a message from
	Karen Heldmeyer) and representing the Old Santa Fe Association,
	who dragged reporters out of bed and alerted them to the
	demolition going on that early Saturday morning, and that it was
	I, as president of OSFA, who gave a 20-minute on-location
	interview later that morning to Channel 4, which chose to edit it
	to an admittedly sappy sound bite.
	
	The Historic Santa Fe Foundation not only recorded parts of the
	demolition (which you previously credited) but made every effort
	that day and in succeeding days to find out who actually had
	jurisdiction and whether the demolition could be halted . . .

That is all to the good. But what has been conspicuously absent is the kind of strong, coordinated campaign that the groups mounted against the new County Courthouse or the Archdiocese's proposed development downtown. When it comes to the pueblos, the preservationists are pursuing a double standard.

George Johnson

September 20, 2008 (revised 9/22/08)

Kat Slick caved. According to a report issued by her office, Ms. Slick, the State Historic Preservation Officer, has bought the BIA's position on the Santa Fe Indian School hook, line, and sinker:

	 Slick has come to the conclusion that the administrative agency
	 did not transfer the property, rather Congress mandated the SFIS
	 property be held in trust by a legislative act with the
	 following language:  "All right, title, and interest of the
	 United States in and to the land, including improvements and
	 appurtenances thereto, described in subsection (b) are declared
	 to be held in trust for the benefit of the 19 Pueblos of New
	 Mexico." If the BIA had transferred the property, compliance
	 with laws and attendant regulations, such as NEPA [the National
	 Environmental Protection Act] or NHPA [the National Historic
	 Protection Act], applying to the administrative action would
	 need to be performed. The 106 provision of NHPA is directed to
	 actions of federal agencies, not the actions of the Congress.
	 Therefore, the BIA had no compliance responsibilities.

But if the land wasn't "transferred," it remains federal land, which is already subject to the NHPA:

	Section 2. It shall be the policy of the Federal Government, in
	cooperation with other nations and in partnership with the 
	States, local governments, Indian tribes, and private
	organizations and individuals to
	
	(3) administer federally owned, administered, or controlled
	prehistoric and historic resources in a spirit of stewardship for
	the inspiration and benefit of present and future generations

If the BIA didn't violate Section 106, it violated Section 2 -- the very heart of the preservation act -- and, specifically, Section 110: "the heads of all Federal agencies shall assume responsibility for the preservation of historic properties which are owned or controlled by such agency."

Ms. Slick seems to overlook another crucial matter: All Indian reservations are trusts created by Congress. The same Omnibus Indian Act that gave rise to the Indian School reservation also contained a statute establishing reservations/trusts for eight California tribes. In doing so lawmakers included the same language Ms. Slick quoted above: "All right, title, and interest of the United States in and to the land, including improvements and appurtenances thereto . . . [etc., etc.]" A quick Google search shows that this is standard boilerplate used when Congress creates Indian reservations. The wording obviously doesn't mean that these lands are immune to federal law.

Maybe Congress could have chosen to make an extraordinary exception for the Indian School trust. But it didn't. Instead it declared, as it did with the other reservations, that the property "shall be subject to the laws of the United States relating to Indian lands." Those include NHPA and NEPA.

Today's New Mexican reports that Ms. Slick decided to drop the fight after "many readings of the letter and the law -- as well as discussions with the staff of U.S. Sen. Jeff Bingaman, D-N.M., and the Advisory Council on Historic Preservation." Reading between the lines, I suspect that this is what really happened: the senator, responding to pressure from tribal leaders, persuaded Ms. Slick to back off. There are a lot of Democratic votes in Indian land.

George Johnson

Postscript

Scooping her rivals in the local media, KSFR's Marion Cox has obtained the first lengthy interview with a Pueblo Council official about the demolition at the Indian School. Gil Vigil, the tribal liaison with the federal government (and the same fellow Tom Sharpe quoted anonymously in the New Mexican), mostly dodges Ms. Cox's questions. He says that destruction of the remaining buildings will go ahead as planned: "While these buildings may have historical value to some people, our value is not the same." Contradicting Larry Morrin, he also says that Congress "transferred" the campus to the pueblos. Here is a summary and a link to the podcast.

September 25, 2008

While I was downtown this morning, catching the ribbon cutting for the new convention center, I mailed this letter to the Office of Investigations of the Inspector General of the Interior Department.

George Johnson

on to Part 55, Spirit Worlds . . .

Coming soon: A trip to the Railyard . . . Santa Fe's long-range water plan . . . The affordable housing "carrot game" . . . Surreal estate . . . Mansion watch . . .

A Special Report: The Mysterious Destruction of the Santa Fe Indian School

The Tom Ford Webcam (stolen July 7, 2008, back online July 17)

The Andrew and Sydney Davis Webcam

Plaza Webcam

Who Owns the Plaza? (this may take a minute or so to load)

A Stroll Along Shirley Maclaine Boulevard


The Santa Fe Review

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See the current flow of the Santa Fe River above McClure Reservoir with the USGS automated gauge.

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