June 26, 2020
Removal of Nazi Symbols and Inscriptions on Headstones of
Prisoners of War in VA National Cemeteries
Overview
National Cemetery and 81 other national cemeteries from
On May 12, 2020, the Military Religious Freedom
DOD to VA.
Foundation’s Founder and President, Michael L. Weinstein,
called on Secretary of Veterans Affairs (VA), Robert
More recently, the Office of the Army Cemeteries
Wilkie, to immediately remove three World War II-era
transferred certain cemeteries to NCA pursuant to
headstones located in two VA national cemeteries. These
Executive Order 13781 of March 13, 2017, and the VA’s
prisoner-of-war (POW) headstones each bear the Iron Cross
own agency reform plan. This plan was also included in a
insignia, representing a Prussian and German military honor
2018 White House initiative, Delivering Government
that included a swastika when awarded by Nazi Germany.
Solutions in the 21st Century: Reform Plan and
Two of these headstones also have a German-language
Reorganization Recommendations, which endorsed
inscription that translates to “He died far from his home for
consolidation of federal veterans’ cemeteries. According to
Führer, people and Fatherland.”
this initiative, the transfer from DOD to VA assures that
these military cemeteries “will alleviate duplicative mission
The headstones—located in Fort Douglas Post Cemetery,
requirements and entrust operational control to an agency
Utah, and in Fort Sam Houston National Cemetery,
with more expertise in running cemeteries.”
Texas—were installed during the 1940s, when hundreds of
thousands of German, Italian, and Japanese POWs were
In December 2019, Fort Douglas Post Cemetery—the
held in the United States at various military installations.
cemetery that contains the POW headstone with the
During this time, the U.S. military had standardized
swastika—was transferred to VA’s jurisdiction. In March
gravestones for its servicemembers but not for POWs.
2020, Vancouver Barracks Military Cemetery was
According to VA, approximately 1,000 of the POWs who
transferred to Willamette National Cemetery. Six more
died while in the United States were buried in military
cemeteries are to be transferred to NCA in 2020. These are
cemeteries that have since been transferred from
the Army post cemeteries at Fort McClellan, Alabama, and
Department of Defense (DOD) jurisdiction to the
the Enemy Prisoner of War Cemetery located there; Fort
Department of Veterans Affairs. VA also said it appears
Worden, Washington; Fort Stevens, Oregon; Fort Devens,
that these three headstones are the only ones bearing a
Massachusetts; and Benicia Arsenal, California.
swastika or a Nazi Germany-related inscription.
Congressional Requests
Under article 120 of the 1949 Geneva Convention Relative
On May 25, 2020, a bipartisan group of Representatives
to the Treatment of Prisoners of War, the United States
serving on the House Appropriations Committee sent a
must “ensure that prisoners of war who have died in
letter to VA Secretary Wilkie requesting that VA remove
captivity are honourably buried ... and that their graves are
the gravestones or alter them to remove the “swastika-
respected, suitably maintained and marked so as to be found
adorned headstones and messages honoring Hitler.” The
at any time.” International law does not appear to further
letter acknowledged that the cemeteries were not under VA
specify the style or content of POW grave markers.
control when the headstones were placed, but it stated that
now “there is no excuse for VA to maintain these
Department of Defense Property
headstones instead of replacing them.”
Transfer to Department of Veterans
Affairs
During the House Military Construction-VA
The National Cemetery Administration (NCA) within VA
Appropriations Subcommittee hearing on May 28, 2020,
administers most national cemeteries, with 143 cemeteries
committee members asked Secretary Wilkie about this
under its jurisdiction. The National Park Service and
issue. Secretary Wilkie did not commit to removing the
Department of the Army administer 14 and 35 national
headstones in question but stated, “I happen to think that
veterans’ cemeteries, respectively.
making sure that when people visit our cemeteries they are
educated and informed of the horror is an incredibly
Fort Sam Houston National Cemetery, located in San
important thing to do ... I think we can find [a] way to put
Antonio, is one of the 143 cemeteries under VA jurisdiction
this in historical context.”
and has been administered by VA for over 40 years.
Established by the U.S. War Department in 1937, the
Department of Veterans Affairs’
cemetery remained under the Army’s jurisdiction until
Response
1973, when Congress passed P.L. 93-43, the National
Initially, a VA spokesperson stated that the VA did not
Cemeteries Act, which transferred Fort Sam Houston
intend to “change the posture of previous administrations
by disturbing those gravesites.” However, on June 1, 2020,
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Removal of Nazi Symbols and Inscriptions on Headstones of Prisoners of War in VA National Cemeteries
VA announced that it will begin the official review process
Section 106 Process
prescribed by Section 106 of the National Historic
The NHPA authorizes the Advisory Council on Historic
Preservation Act (NHPA; 54 U.S.C §§ 300101 et seq.) to
Preservation (Advisory Council) to oversee Section 106’s
inform its determination of the best way to replace these
implementation. The NHPA-created Advisory Council is an
headstones with proper historical markers. In addition, VA
independent agency consisting of federal, state, and tribal
announced it will propose that these headstones be
government members, as well as experts in historic
preserved in the NCA’s History Collection. Also, VA stated
preservation and members of the public. Through its
it will “install interpretive signs at all VA national
authority under the NHPA, the Advisory Council
cemeteries where foreign enemy prisoners of war are
promulgated regulations for the Section 106 process at 36
interred in order to provide historical context about how
C.F.R. Part 800.
non-U.S. service members from World War I and World
War II were interred and buried on American soil.”
When a federal agency finds its project is an “undertaking”
under the NHPA, it must initiate the Section 106 process by
National Historic Preservation Act
identifying the appropriate consulting parties. Consultation
Requirements
is the backbone of the Section 106 process, and it requires
Among its various provisions, the NHPA requires federal
an agency to solicit input from outside parties when
agencies, prior to expending federal funds or granting a
considering potential impacts to historic properties.
license to any undertaking over which they have direct or
Consulting parties vary depending on the federal action, but
indirect jurisdiction, to consider the effects of the
may include the relevant state, tribal, or federal historic
undertaking on historic properties (54 U.S.C. § 306108).
preservation offices, the Advisory Council, and other
This process, commonly known as a Section 106 review, is
stakeholders as appropriate. In addition, the agency is
found in Section 106 of the NHPA.
required to seek the views of the public during a Section
106 review. According to the regulations, “the views of the
The obligation to comply with the Section 106 requirement
public are essential to informed Federal decision-making in
occurs when agencies determine both that a proposed
the section 106 process. The agency official shall seek and
federal action constitutes an “undertaking,” and that the
consider the views of the public” (36 C.F.R. § 800.2(d)).
undertaking has the potential to affect an historic property.
Federal regulations define an undertaking as
Through the consultation process, agencies are to make a
determination as to whether the undertaking adversely
a project, activity, or program funded in whole or in
affects the historic properties identified. When historic
part under the direct or indirect jurisdiction of a
properties are adversely affected, the agency and consulting
Federal agency, including those carried out by or on
parties may enter into a binding Memorandum of
behalf of a Federal agency; those carried out with
Agreement (MOA). The MOA “govern[s] the undertaking
Federal financial assistance; and those requiring a
and all of its parts,” including how the agency will address
Federal permit, license or approval.
adverse effects. If the parties are unable to agree on a
resolution of adverse effects, they may follow specified
Under the NHPA, historic properties include any prehistoric
procedures for terminating consultation (36 C.F.R.
or historic districts, sites, buildings, structures, or objects
§800.7(a)).
that are listed or eligible for listing on the National Register
of Historic Places (National Register). The National
Although the NHPA requires agencies to implement certain
Register serves as the United States’ “official list” of
processes before undertaking a project affecting historic
properties significant in “American history, architecture,
properties, it does not prohibit agencies from completing
archeology, engineering and culture” (54 U.S.C. § 302101).
those projects. Several courts have explained that the
Regulations for eligibility and listing on the National
NHPA is “a procedural statute requiring government
Register can be found at 36 C.F.R. Part 60.
agencies to ‘stop, look, and listen’ before proceeding with
agency action.” (See, for example, Te-Moak Tribe of W.
As noted above, all three headstones bearing the Iron Cross
Shoshone of Nevada v. U.S. Dep’t of Interior, 608 F.3d
insignia are located in national cemeteries. According to the
592, 607 (9th Cir. 2010).) In other words, although the VA
National Park Service, which administers the National
may be required to comply with the NHPA’s process for
Register, “[a]ll national cemeteries are considered
first considering the impact of removing the headstones
exceptionally significant as a result of their Congressional
bearing the Iron Cross insignia, the NHPA would not
designation as nationally significant places of burial and
prevent the VA from proceeding with the removals even if
commemoration,” and therefore meet the criteria for listing
this action were found to adversely affect historic
in the National Register. Accordingly, because the
properties.
headstones are located in national cemeteries and
considered “historic properties,” if the VA removes the
Heather M. Salazar, Coordinator, Analyst in Veterans
headstones or funds their removal, then that action appears
Policy
to be an undertaking within the meaning of the NHPA. VA
is therefore likely subject to Section 106 process
Mark K. DeSantis, Analyst in Natural Resources Policy
requirements for considering the effects of that action.
Barbara Salazar Torreon, Senior Research Librarian
Mainon A. Schwartz, Legislative Attorney
IF11587
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Removal of Nazi Symbols and Inscriptions on Headstones of Prisoners of War in VA National Cemeteries


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