Written by Ti Hays
Last Wednesday, the National Trust’s Law Department filed an amicus brief in support of the New Mexico Cultural Properties Review Committee’s decision to list Mount Taylor—included on our 2009 11 Most Endangered Historic Places list—in the State Register of Cultural Properties (“State Register”). The filing was opposed by the plaintiffs, who include several mining companies and New Mexico’s public lands commissioner. However, following a hearing in Lovington, New Mexico on September 13th, state district court judge William Shoobridge allowed the National Trust and several of its partners—the All Indian Pueblo Council, American Anthropological Association, Association on American Indian Affairs, Sierra Club and Society for American Archaeology—to file the brief.
The plaintiffs have challenged Mount Taylor’s State Register listing on a variety of constitutional and procedural grounds, two of which we addressed in our brief. First, plaintiffs have argued that the decision lacks a “valid secular purpose” under the New Mexico Constitution’s Establishment Clause and was made solely to advance the religions of the pueblos and tribes (Acoma, Laguna, Zuni, Hopi and Navajo) that nominated Mount Taylor to the State Register. Like its federal counterpart, the state’s Establishment Clause requires government action in the area of religion to have one or more such purposes. However, as our brief explains, the nomination has several “valid secular purposes,” including protecting Mount Taylor’s archaeological, cultural and historic features, which number in the hundreds of thousands and are documented throughout the nomination.
Second, plaintiffs have claimed that Mount Taylor is not significant primarily for “historical” reasons, as the applicable regulations require for cultural properties that are “used for religious purposes.” In response to that argument, our brief cites the extensive “ethnohistoric” documentation prepared by each of the five tribes with the assistance of professional anthropologists and included in the nomination. Additionally, our brief points the court to the U.S. Forest Service’s 2008 determination, which the tribes also included in the nomination, that Mount Taylor is chiefly significant for “historical” reasons.
The court has tentatively scheduled oral argument in this case for December. In addition to the Committee, the Pueblo of Acoma will also argue in support of the listing decision, as the pueblo has successfully intervened in the case as a defendant.
Ti Hays is the public lands counsel for the Law Department of the Trust for Historic Preservation.