Removal of Nazi Symbols and Inscriptions on Headstones of Prisoners of War in VA National Cemeteries




Updated February 12, 2021
Removal of Nazi Symbols and Inscriptions on Headstones of
Prisoners of War in VA National Cemeteries

Overview
Fort Sam Houston National Cemetery, located in San
During World War II, hundreds of thousands of German,
Antonio, is one of the 143 cemeteries under VA jurisdiction
Italian, and Japanese prisoners of war (POWs) were held in
and has been administered by VA for over 40 years.
the United States at various military installations. During
Established by the U.S. War Department in 1937, the
this time, the U.S. military standardized gravestones for its
cemetery remained under the Army’s jurisdiction until
servicemembers but not for POWs. Under article 120 of the
1973, when Congress passed P.L. 93-43, the National
1949 Geneva Convention Relative to the Treatment of
Cemeteries Act, which transferred Fort Sam Houston
Prisoners of War, the United States must “ensure that
National Cemetery and 81 other national cemeteries from
prisoners of war who have died in captivity are honourably
DOD to VA.
buried ... and that their graves are respected, suitably
maintained and marked so as to be found at any time.”
More recently, the Office of the Army Cemeteries
International law does not appear to further specify the style
transferred certain cemeteries to NCA pursuant to
or content of POW grave markers.
Executive Order 13781 of March 13, 2017, and VA’s own
agency reform plan. This plan was also included in a 2018
According to the Department of Veterans Affairs (VA),
White House initiative, Delivering Government Solutions in
approximately 1,000 of the POWs who died while in the
the 21st Century: Reform Plan and Reorganization
United States were buried in military cemeteries that have
Recommendations, which endorsed consolidation of federal
since been transferred from Department of Defense (DOD)
veterans’ cemeteries. According to this initiative, the
jurisdiction to VA. In 2020, three of these POW headstones
transfer from DOD to VA assures that these military
became a topic of controversy. The headstones—located in
cemeteries “will alleviate duplicative mission requirements
Fort Douglas Post Cemetery, Utah, and in Fort Sam
and entrust operational control to an agency with more
Houston National Cemetery, Texas—were installed during
expertise in running cemeteries.”
the 1940s, and each bears the Iron Cross insignia,
representing a Prussian and German military honor that
In December 2019, Fort Douglas Post Cemetery—the
included a swastika when awarded by Nazi Germany. Two
cemetery that contains the POW headstone with the
of these headstones also have a German-language
swastika—was transferred to VA’s jurisdiction. In March
inscription that translates to “He died far from his home for
2020, Vancouver Barracks Military Cemetery was
Führer, people and Fatherland.”
transferred to Willamette National Cemetery. Six more
cemeteries are to be transferred to NCA in 2020. These are
On May 12, 2020, the Military Religious Freedom
the Army post cemeteries at Fort McClellan, Alabama, and
Foundation’s Founder and President, Michael L. Weinstein,
the Enemy Prisoner of War Cemetery located there; Fort
called on then-Secretary of VA, Robert Wilkie, to
Worden, Washington; Fort Stevens, Oregon; Fort Devens,
immediately remove the three World War II-era headstones
Massachusetts; and Benicia Arsenal, California.
located in the two VA national cemeteries. VA said it
appears that these three headstones are the only ones
Congressional Requests
bearing a swastika or a Nazi Germany-related inscription,
On May 25, 2020, a bipartisan group of Representatives
and proceeded with the Section 106 Review process under
serving on the House Appropriations Committee sent a
the National Historic Preservation Act (NHPA). On
letter to VA Secretary Wilkie requesting that VA remove
December 23, 2020, the VA cemetery director and workers
the gravestones or alter them to remove the “swastika-
at Fort Sam Houston National Cemetery removed and
adorned headstones and messages honoring Hitler.” The
replaced the two controversial headstones. As of February
letter acknowledged that the cemeteries were not under VA
2021, it is unknown whether the third headstone, located in
control when the headstones were placed, but it stated that
Utah, has been removed or replaced.
now “there is no excuse for VA to maintain these
headstones instead of replacing them.”
Department of Defense Property
Transfer to Department of Veterans
During the House Military Construction-VA
Affairs
Appropriations Subcommittee hearing on May 28, 2020,
The National Cemetery Administration (NCA) within VA
committee members asked Secretary Wilkie about this
administers most national cemeteries, with 143 cemeteries
issue. Secretary Wilkie did not commit to removing the
under its jurisdiction. The National Park Service and
headstones in question but stated, “I happen to think that
Department of the Army administer 14 and 35 national
making sure that when people visit our cemeteries they are
veterans’ cemeteries, respectively.
educated and informed of the horror is an incredibly
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Removal of Nazi Symbols and Inscriptions on Headstones of Prisoners of War in VA National Cemeteries
important thing to do ... I think we can find [a] way to put
Section 106 Process
this in historical context.”
The NHPA authorizes the Advisory Council on Historic
Department of Veterans Affairs’
Preservation (Advisory Council) to oversee Section 106’s
Response
implementation. The NHPA-created Advisory Council is an
independent agency consisting of federal, state, and tribal
Initially, a VA spokesperson stated that VA did not intend
to “change the posture of previous administrations by
government members, as well as experts in historic
preservation and members of the public. Through its
disturbing those gravesites.” However, on June 1, 2020, VA
authority under the NHPA, the Advisory Council
announced that it would begin the official review process
promulgated regulations for the Section 106 process at 36
prescribed by Section 106 of the National Historic
C.F.R. Part 800.
Preservation Act (NHPA; 54 U.S.C §§300101 et seq.) to
inform its determination of the best way to replace these
When a federal agency finds its project is an “undertaking”
headstones with proper historical markers. In addition, VA
under the NHPA, it must initiate the Section 106 process by
announced it would propose that these headstones be
identifying the appropriate consulting parties. Consultation
preserved in the NCA’s History Collection. Also, VA stated
is the backbone of the Section 106 process, and it requires
it would “install interpretive signs at all VA national
an agency to solicit input from outside parties when
cemeteries where foreign enemy prisoners of war are
considering potential impacts to historic properties.
interred in order to provide historical context about how
Consulting parties vary depending on the federal action, but
non-U.S. service members from World War I and World
may include the relevant state, tribal, or federal historic
War II were interred and buried on American soil.”
preservation offices, the Advisory Council, and other
National Historic Preservation Act
stakeholders as appropriate. In addition, the agency is
Requirements
required to seek the views of the public during a Section
106 review. According to the regulations, “the views of the
Among its various provisions, the NHPA requires federal
public are essential to informed Federal decision-making in
agencies, prior to expending federal funds or granting a
the section 106 process. The agency official shall seek and
license to any undertaking over which they have direct or
consider the views of the public” (36 C.F.R. §800.2(d)).
indirect jurisdiction, to consider the effects of the
undertaking on historic properties (54 U.S.C. §306108).
Through the consultation process, agencies are to make a
This process, commonly known as a Section 106 review, is
determination as to whether the undertaking adversely
found in Section 106 of the NHPA.
affects the historic properties identified. When historic
properties are adversely affected, the agency and consulting
The obligation to comply with the Section 106 requirement
parties may enter into a binding Memorandum of
occurs when agencies determine both that a proposed
Agreement (MOA). The MOA “govern[s] the undertaking
federal action constitutes an “undertaking,” and that the
and all of its parts,” including how the agency will address
undertaking has the potential to affect an historic property.
adverse effects. If the parties are unable to agree on a
Federal regulations define an undertaking as
resolution of adverse effects, they may follow specified
a project, activity, or program funded in whole or in
procedures for terminating consultation (36 C.F.R.
part under the direct or indirect jurisdiction of a
§800.7(a)).
Federal agency, including those carried out by or on
Although the NHPA requires agencies to implement certain
behalf of a Federal agency; those carried out with
processes before undertaking a project affecting historic
Federal financial assistance; and those requiring a
properties, it does not prohibit agencies from completing
Federal permit, license or approval.
those projects. Several courts have explained that the
Under the NHPA, historic properties include any prehistoric
NHPA is “a procedural statute requiring government
or historic districts, sites, buildings, structures, or objects
agencies to ‘stop, look, and listen’ before proceeding with
agency action.”
that are listed or eligible for listing on the National Register
(See, for example, Te-Moak Tribe of W.
of Historic Places (National Register). The National
Shoshone of Nevada v. U.S. Dep’t of Interior, 608 F.3d
Register serves as the United States’ “official list” of
592, 607 (9th Cir. 2010).) In other words, although VA may
properties significant in “American history, architecture,
have been required to comply with the NHPA’s process for
archeology, engineering and culture” (54 U.S.C. §302101).
first considering the impact of removing the headstones
Regulations for eligibility and listing on the National
bearing the Iron Cross insignia, the NHPA would not have
Register can be found at 36 C.F.R. Part 60.
prevented VA from proceeding with the removals even if
this action were found to adversely affect historic
As noted above, all three headstones bearing the Iron Cross
properties.
insignia had been or are located in national cemeteries.
According to the National Park Service, which administers
Heather M. Salazar, Coordinator, Analyst in Veterans
the National Register, “[a]ll national cemeteries are
Policy
considered exceptionally significant as a result of their
Mark K. DeSantis, Analyst in Natural Resources Policy
Congressional designation as nationally significant places
of burial and commemoration,” and therefore met the
Barbara Salazar Torreon, Senior Research Librarian
criteria for listing in the National Register. Accordingly,
Mainon A. Schwartz, Legislative Attorney
because the headstones were located in national cemeteries
IF11587
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.
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Removal of Nazi Symbols and Inscriptions on Headstones of Prisoners of War in VA National Cemeteries


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https://crsreports.congress.gov | IF11587 · VERSION 2 · UPDATED