Overview
During World War II, hundreds of thousands of German, Italian, and Japanese prisoners of war (POWs) were held in the United States at various military installations. During this time, the U.S. military standardized gravestones for its servicemembers but not for POWs. Under Article 120 of the 1949 Geneva Convention Relative to the Treatment of Prisoners of War, the United States must "ensure that prisoners of war who have died in captivity are honourably buried … and that their graves are respected, suitably maintained and marked so as to be found at any time." International law does not appear to further specify the style or content of POW grave markers.
According to the Department of Veterans Affairs (VA), approximately 1,000 of the POWs who died while in the United States were buried in military cemeteries that have since been transferred from the Department of Defense (DOD) to VA. In 2020, three of these POW headstones became a topic of controversy. The headstones—located in Fort Douglas Post Cemetery, UT, and in Fort Sam Houston National Cemetery, TX—were installed during the 1940s, and each bore the Iron Cross insignia representing a Prussian and German military honor that included a swastika when awarded by Nazi Germany. Two of these headstones also had a German-language inscription that translated to "He died far from his home for Führer, people and Fatherland."
On May 12, 2020, the Military Religious Freedom Foundation's Founder and President, Michael L. Weinstein, called on then-VA Secretary Robert Wilkie to immediately remove the three World War II–era headstones located in the two VA national cemeteries. VA said it appeared that these three headstones were the only ones that contained a swastika or a Nazi Germany–related inscription and proceeded with the Section 106 Review process under the National Historic Preservation Act (NHPA). On December 23, 2020, the VA cemetery director and workers at Fort Sam Houston National Cemetery removed and replaced the two controversial headstones located there. On March 8, 2022, VA's National Cemetery Administration (NCA) removed the third controversial headstone in Fort Douglas Post Cemetery and replaced it with a historically accurate headstone.
Department of Defense Property Transfer to Department of Veterans Affairs
The VA's NCA administers most national cemeteries, with 155 cemeteries under its jurisdiction. The National Park Service and Department of the Army administer 14 and 30 national veterans' cemeteries, respectively.
Fort Sam Houston National Cemetery, located in San Antonio, TX, is one of the 155 cemeteries under VA jurisdiction and has been administered by VA for almost 50 years. Established by the U.S. War Department in 1937, the cemetery remained under the Army's jurisdiction until 1973, when P.L. 93-43, the National Cemeteries Act, was enacted, which transferred Fort Sam Houston National Cemetery and 81 other national cemeteries from DOD to VA.
More recently, the Office of the Army Cemeteries transferred additional cemeteries to NCA pursuant to Executive Order 13781 of March 13, 2017, and VA's own agency reform plan. This plan was also included in a 2018 White House initiative, Delivering Government Solutions in the 21st Century: Reform Plan and Reorganization Recommendations, which endorsed the consolidation of federal veterans' cemeteries to "alleviate duplicative mission requirements and entrust operational control to an agency with more expertise in running cemeteries."
In December 2019, Fort Douglas Post Cemetery—the cemetery that contained the POW headstone with the swastika—was transferred to VA's jurisdiction. In March 2020, Vancouver Barracks Military Cemetery was transferred to Willamette National Cemetery. Additional Army cemeteries were transferred to NCA in 2020, including those at Fort McClellan, AL; Fort Worden, WA; Fort Stevens, OR; Fort Devens, MA; and Benicia Arsenal, CA.
Congressional Requests
On May 25, 2020, a bipartisan group of Representatives serving on the House Appropriations Committee sent a letter to then-VA Secretary Wilkie requesting that VA remove the gravestones or alter them to remove the "swastika-adorned headstones and messages honoring Hitler." The letter acknowledged that the cemeteries were not under VA control when the headstones were placed but that "there is no excuse for VA to maintain these headstones instead of replacing them."
During the House Military Construction-VA Appropriations Subcommittee hearing on May 28, 2020, committee members asked then-Secretary Wilkie about this issue. He did not commit to removing the headstones in question but stated, "I happen to think that making sure that when people visit our cemeteries they are educated and informed of the horror is an incredibly important thing to do…. I think we can find [a] way to put this in historical context."
Department of Veterans Affairs' Response
On June 1, 2020, VA announced it would begin the official review process prescribed by Section 106 of the NHPA (54 U.S.C. §§300101 et seq.) to inform its determination of the best way to replace these headstones with proper historical markers.
Following this review, all three headstones were ultimately removed and replaced with historically accurate government-furnished headstones. The previous headstones are with the NCA History Program and scheduled to eventually be on display at the National VA History Center in Dayton, OH. VA is also installing "interpretive signs at all VA national cemeteries where foreign enemy prisoners of war are interred in order to provide historical context about how non-U.S. service members from World War I and World War II were interred and buried on American soil." NCA installed interpretive signage on December 6, 2021, in Burial Section ZA of Fort Sam Houston National Cemetery and is currently developing signage for the headstone in Fort Douglas Post Cemetery. In addition, throughout 2022, VA plans to install interpretive signing at other POW gravesites in VA national cemeteries.
National Historic Preservation Act
Among its various provisions, the NHPA requires federal agencies, prior to expending federal funds or granting a license to any undertaking over which they have direct or indirect jurisdiction, to consider the effects of the undertaking on historic properties (54 U.S.C. §306108). This process, commonly known as a Section 106 review, is found in Section 106 of the NHPA.
The obligation to comply with the Section 106 requirement occurs when agencies determine both that a proposed federal action constitutes an "undertaking" and that the undertaking has the potential to affect a historic property. Federal regulations define an undertaking as
a project, activity, or program funded in whole or in part under the direct or indirect jurisdiction of a Federal agency, including those carried out by or on behalf of a Federal agency; those carried out with Federal financial assistance; and those requiring a Federal permit, license or approval.
Under the NHPA, historic properties include any prehistoric or historic districts, sites, buildings, structures, or objects that are listed or eligible for listing on the National Register of Historic Places. The National Register serves as the United States' "official list" of properties significant in "American history, architecture, archeology, engineering and culture" (54 U.S.C. §302101). Regulations for eligibility and listing on the National Register can be found at Title 36, Part 60, of the Code of Federal Regulations.
As noted above, all three headstones bearing the Iron Cross insignia had been or are located in national cemeteries. According to the National Park Service, which administers the National Register, "All national cemeteries are considered exceptionally significant as a result of their Congressional designation as nationally significant places of burial and commemoration" and therefore met the criteria for listing in the National Register. Accordingly, because the headstones were located in national cemeteries and considered "historic properties," removal of the headstones or funding of their removal would appear to be an undertaking within the meaning of the NHPA.
Section 106 Process
The NHPA authorizes the Advisory Council on Historic Preservation to oversee Section 106's implementation. The NHPA-created Advisory Council is an independent agency consisting of federal, state, and tribal government members, as well as experts in historic preservation and members of the public. Through its authority under the NHPA, the Advisory Council promulgated regulations for the Section 106 process at Title 36, Part 800, of the Code of Federal Regulations.
When a federal agency finds its project is an "undertaking" under the NHPA, it must initiate the Section 106 process by identifying the appropriate consulting parties. Consultation is the backbone of the Section 106 process, and it requires an agency to solicit input from outside parties when considering potential impacts to historic properties. Consulting parties vary depending on the federal action but may include the relevant state, tribal, or federal historic preservation offices; the Advisory Council; and other stakeholders as appropriate. In addition, the agency is required to seek the views of the public during a Section 106 review. According to the regulations, "the views of the public are essential to informed Federal decision-making in the section 106 process. The agency official shall seek and consider the views of the public" (36 C.F.R. §800.2(d)).
Through the consultation process, the agency is to make a determination as to whether the undertaking adversely affects the historic properties identified. When historic properties are adversely affected, the agency and consulting parties may enter into a binding Memorandum of Agreement, which "govern[s] the undertaking and all of its parts," including how the agency will address adverse effects. If the parties are unable to agree on a resolution of adverse effects, they may follow specified procedures for terminating consultation (36 C.F.R. §800.7(a)).
Although the NHPA requires agencies to implement certain processes before undertaking a project affecting historic properties, it does not prohibit agencies from completing those projects. Several courts have explained that the NHPA is "a procedural statute requiring government agencies to 'stop, look, and listen' before proceeding with agency action." (See, for example, Te-Moak Tribe of W. Shoshone of Nevada v. U.S. Dep't of Interior, 608 F.3d 592, 607 (9th Cir. 2010).) In other words, although VA may have been required to comply with the NHPA's process for first considering the impact of removing the headstones bearing the Iron Cross insignia, the NHPA would not have prevented VA from proceeding with the removals even if this action were found to adversely affect historic properties.
Document ID: IF11587