copyright 2008 by George Johnson
(continued from Part 1)
August 24, 2008
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.
August 26, 2008
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.
August 28, 2008
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.
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.
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).
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.
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 important 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 buildings constructed and maintained with their tax money are being destroyed. The BIA is being as arrogant as the Pueblo Council. Katherine 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.
September 14, 2008
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.
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 when 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 all responsibility for the property, then obviously control was transferred.
But let's suppose, contrary to all 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.
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.
September 20, 2008 (revised 9/22/08)
Katherine 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.
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.
For a continuation of the story, please see the latest issue of The Santa Fe Review.
The Santa Fe Review
In Patagonia
