Written by Ti Hays
On Friday, a state district court in New Mexico dealt a setback to the effort of several Indian tribes and pueblos to gain increased protection and recognition for Mount Taylor - included on our 2009 list of America's 11 Most Endangered Places. The court determined that a state review committee violated state law when it listed the Mount Taylor Traditional Cultural Property (“TCP”) in the State Register of Cultural Properties. In short, the court felt that the TCP, which includes Mount Taylor’s summit, slopes and principal mesas (several hundred square miles, all told), was simply too big, and could not “reasonably be inspected and maintained” by the committee, as required by state law.
The court did, however, reject claims by the plaintiffs—a coalition that includes mining companies, ranch owners and a state land grant community—that the listing violated the state constitution’s Establishment Clause and “Criteria Consideration A” of the National Park Service’s regulations. Those authorities generally prohibit state agencies from overly endorsing or favoring a particular religious belief or practice in their decision making. The court found no such flaw with the committee’s decision, however, since it furthered a variety of secular goals, as pointed out in an amicus brief filed last September by the National Trust and several advocacy groups. “Although sacred in the traditions of the nominating tribes,” the court wrote, “Mt. Taylor has thousands of areas important to our state’s history and national heritage, and to the nominating tribes, besides being of religious significance, the property listed is a legitimate part of their respective histories and cultures.”
It is unclear, at this point, whether the committee or Pueblo of Acoma, which intervened in the case, will appeal the decision. However, even if the decision stands, the Mount Taylor TCP will remain eligible for listing in the National Register of Historic Places, as determined by the U.S. Forest Service in 2008. This means that, in spite of Friday’s ruling, the tribes will still be consulted over federal projects on the mountain that may affect the TCP, including most, if not all, of the large-scale mining proposals.
Ti Hays is the public lands counsel for the Law Department of the Trust for Historic Preservation.