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Working with Section 106 ACHP Native
American Program: Guidance for Federal Agencies Section
106 and Indian Tribes Consulting
with Indian Tribes in the Section 106 Review Process
Introduction The Section 106 Review Process
Introduction
This guidance is a clarification of the requirements for Federal agencies
to consult with Indian tribes in the Advisory Council on Historic Preservation's
(ACHP's) regulations, "Protection of Historic Properties" (36
CFR Part 800), implementing Section 106 of the
National Historic Preservation Act (NHPA). Accordingly, it outlines when Federal
agencies must consult with Indian tribes and what the consultation must address.
It is not meant to be a comprehensive guide on consultation and, thus, does not
address how Federal agencies conduct consultation or which Indian tribes to contact
regarding specific projects. The National Historic Preservation Act
The National Historic Preservation Act, amended in
1992, is the basis for the tribal consultation provisions in ACHP's regulations.
The two amended sections of NHPA that have a direct bearing on the Section 106
review process are Section 101(d)(6)(A), which clarifies that historic properties
of religious and cultural significance to Indian tribes may be eligible for listing
in the National Register, and Section 101(d)(6)(B), which requires Federal agencies,
in carrying out their Section 106 responsibilities, to consult with any Indian
tribe¹ that attaches religious
and cultural significance to historic properties that may be affected by an undertaking.
ACHP's regulations incorporate these provisions and reflect other directives about
tribal consultation from Executive orders, Presidential memoranda, and other authorities.
Section 106
Section 106 of NHPA requires Federal agencies to
consider the effects of their actions on historic properties and to seek comments
from ACHP. The purpose of Section 106 is to avoid unnecessary harm to historic
properties from Federal actions. Commonly known as Section 106 review, the procedure
for meeting Section 106 requirements is defined in ACHP's regulations, "Protection
of Historic Properties" (36 CFR Part 800). The regulations include both general
direction regarding consultation and specific requirements at each stage of the
review process. What ACHP's regulations say about consultation with
Indian tribes Section 800.2(c)(2) of the
regulations outlines important principles and general directions to Federal agencies
regarding consultation:
- The regulations remind Federal agencies that
historic properties of religious and cultural significance to an Indian tribe
may be located on ancestral, aboriginal, or ceded lands of that tribe. Accordingly,
agencies must make a reasonable and good faith effort to identify Indian
tribes that attach such significance but may now live at great distances from
the undertaking's area of potential effect.
- Federal agencies should be
respectful of tribal sovereignty in conducting consultation and must recognize
the government-to-government relationship that exists between the Federal Government
and federally recognized Indian tribes.
- The regulations also provide for
an Indian tribe to enter into an agreement with a Federal agency regarding any
aspect of tribal participation in the review process. The agreement may provide
the Indian tribe with additional participation or concurrence in agency decisions
under Section 106 provided that no modification is made to the roles of other
parties without their consent.
Is consultation with Indian tribes
required only when an undertaking will occur on or affect historic properties
on tribal lands? No, NHPA and ACHP's regulations require Federal agencies
to consult with Indian tribes when they attach religious and cultural significance
to a historic property regardless of the location of that property. The
circumstances of history may have resulted in an Indian tribe now being located
a great distance from its ancestral homelands and places of importance. It is
also important to note that while an Indian tribe may not have visited a historic
property in the recent past, its importance to the tribe or its significance as
a historic property of religious and cultural significance may not have diminished
for purposes of Section 106.
Does a property of traditional cultural
and religious importance requiring agency consultation with tribes under Section
101(d)(6) of NHPA have to be determined eligible for the National Register or
meet the National Register criteria? Yes. NHPA only requires consultation
with Indian tribes and Native Hawaiian organizations regarding those properties
of traditional religious and cultural importance that are listed in or eligible
for the National Register. However, agencies should be aware that Sections 800.4(a)
and (b) require them to consult with Indian tribes
and Native Hawaiian organizations that might attach religious and cultural significance
to a property when the agency carries out the identification and National Register
evaluation of potential historic properties. Likewise, Executive
Order 13007, the American Indian Religious
Freedom Act, or other authorities may impose obligations, independent of Section
106 and NHPA, with regard to Indian sacred sites that do not meet the National
Register criteria. Agencies should review their own internal policies in that
regard.
If there are no federally recognized Indian tribes in the State
where the project is located, does the Federal agency still have to consult with
any tribes? The Federal agency has to make a reasonable and good faith
effort to identify Indian tribes that may have an interest. The present absence
of federally recognized Indian tribes in a State does not absolve the agency of
its obligations to make a reasonable and good faith effort to identify Indian
tribes that should be consulted. The circumstances of history may have resulted
in an Indian tribe now being located a great distance from its ancestral homelands
and places of importance.
What is a Federal agency's responsibility
to consult with a State-recognized Indian tribe or non-recognized Native American
group? Under ACHP's regulations at Section
800.2(c)(5), the Federal agency may invite such groups to participate in consultation
based on a demonstrated interest in the undertaking's effects on historic properties.
However, the term "Indian tribe" in NHPA refers only to Federally recognized
Indian tribes. Accordingly, under NHPA and ACHP's regulations, only a federally
recognized Indian tribe has the right to participate in Section 106 consultation.
Where can I find information on Indian tribes? The Department
of Interior, Bureau of Indian Affairs (BIA) maintains a list of federally recognized
Indian tribes and posts this information on its Web page at www.doi.gov/bureau-indian-affairs.
There are also BIA regional offices throughout the country.
How does
a Federal agency consult with an Indian tribe that does not want to divulge information
about a historic property of religious and cultural significance? An Indian
tribe may not wish to divulge information, or may be prohibited from disclosing
certain kinds of information, about certain historic properties. Therefore, the
Federal agency should remain flexible in its approach to identification and evaluation
of historic properties and consultation to resolve adverse effects.
Section
304 of NHPA provides protection from public disclosure of information about a
historic property that might result in harm to the property, a significant invasion
of privacy, or impediments to traditional religious practice at a site. ACHP's
regulations include reminders of the need for Federal agencies to consider tribal
and public concerns regarding sensitivity of information. Several Indian
tribes assert that they have an interest in a historic property. Is the Federal
agency obligated to consult with all of them? What if the tribes disagree?
Federal agencies should keep in mind that there may be multiple Indian tribes
that attach significance to a historic property. There may also be Indian tribes
that attach significance to historic properties on another Indian tribe's lands.
The Federal agency is obligated to consult with each of the Indian tribes and
may have to approach the consultation with flexibility. It is often the case that
all consulting parties do not agree. Federal agencies should approach all such
consultation with an open mind, carefully weighing the views of all parties in
concluding the Section 106 review process.
If the Federal agency has
not identified an Indian tribe nor invited that tribe to participate, what can
the Indian tribe do? The tribe may write to the Federal agency requesting
to be a consulting party. If the tribe is one that attaches religious and cultural
significance to a historic property in the area of potential effect, the tribe
must be considered a consulting party by the agency.
The Section 106 Review Process
The following guidance is divided into two major sections: consultation on tribal
lands and consultation off tribal lands. While the basic steps of the review process
are the same for undertakings on or affecting properties on tribal lands and undertakings
off tribal lands, there are some differences in the consultation requirements.
The guidance is structured this way to help clarify consultation requirements
for instructional purposes only.
Consultation with Indian Tribes for Undertakings On or Affecting Tribal Lands
Federal agencies should recognize that in addition to the consultation requirements
embodied in ACHP's regulations, tribal sovereignty and other authorities also
influence consultation, may dictate additional consultation, and further strengthen
an Indian tribe's position in the Federal decisionmaking process. ACHP's regulations
recognize an Indian tribe's sovereign authority on its tribal lands in several
ways. The regulations require the Federal agency to provide an Indian tribe an
opportunity to review, and, thus, to concur in or object to, agency findings and
determinations. The regulations also require Federal agencies to invite the tribe
to sign memoranda of agreement (MOAs), and if the tribe terminates consultation,
ACHP must comment to the head of the agency rather than execute an agreement without
the tribe. Federal agencies should be aware, however, that the sovereign status
of Indian tribes on their lands may dictate other obligations and requirements
in addition to those outlined in ACHP's regulations. I. Initiation
of the Section 106 Process
One of the first steps a Federal agency takes
is to determine if the undertaking may occur on or affect historic properties
on tribal lands and, if so, whether the Indian tribe has assumed the duties of
the State Historic Preservation Officer (SHPO) under Section 101(d)(2) of NHPA².
If a tribe has assumed the duties of the SHPO, does the SHPO still
participate in consultation for undertakings on tribal lands? Only if
a non-tribal property owner within the exterior boundaries of the reservation
requests that the SHPO participates, or if the Tribal Historic Preservation Officer
(THPO) and agency agree to invite the SHPO to participate, does the SHPO still
participate in consultation for undertakings on tribal lands. In all other cases,
the Federal agency consults with the THPO in lieu of the SHPO on tribal
lands.
What is the purpose of the provision that allows property owners
on tribal lands to request SHPO participation in addition to the THPO?
The provision, following the express language of Section 101(d)(2)(D)(iii) of
NHPA, provides that a non-tribal property owner who owns lands within the exterior
boundaries of a reservation can request the SHPO to participate in a Section 106
consultation even when the tribe has assumed the role of the SHPO. It is designed
to provide an opportunity for a property owner, whose interests in historic preservation
may not necessarily be represented by the THPO, to include the SHPO in the consultation.
Does the THPO have the same role and responsibilities in the Section
106 process on tribal lands as the SHPO does off tribal lands? Yes, the
THPO carries out all of the Section 106 review functions of the SHPO and is bound
to respond to requests to review an agency's findings and determinations within
the time frames set by the regulations. Failure of a THPO to respond when there
is such a time frame permits the agency to assume concurrence with a finding or
determination or to consult with ACHP in the THPO's absence. Subsequent involvement
by the THPO is not precluded but the THPO cannot reopen a finding or determination
that it failed to respond to in a timely manner earlier in the process.
When there is no THPO, who represents the tribe in consultation for an undertaking
on tribal land, including signing an MOA on behalf of the tribe? Tribal
participation in the Section 106 process is conducted through the tribe's official
governmental structure. The formal representation, including designation of the
tribal signatory for the tribe, is determined by the tribe in accordance with
tribal law, internal structure, and governing procedures. Other tribal members
who wish to participate in the Section 106 process must do so as members of the
public and may seek to become consulting parties with the consent of the Agency
Official. However, the views of the Indian tribe are provided only by an officially
designated representative of the tribal government.
When there is no
THPO, does the agency also consult with the SHPO? Yes, the agency consults
with the tribal designated representative and the SHPO when there is no
THPO. If the SHPO withdraws from consultation, the Federal agency and the tribal
representative may complete the review process. An Indian tribe may enter into
an agreement with the SHPO specifying the SHPO's participation in the Section
106 review process on tribal lands.
Does the Federal agency have to
consult with other Indian tribes when the undertaking is on tribal lands?
A Federal agency must make a reasonable and good faith effort to identify Indian
tribes that attach religious and cultural significance to historic properties
affected by the undertaking. Some tribes may attach such significance to historic
properties located on another tribe's lands. The Federal agency must consult with
them as well. While this may present challenges in carrying out consultation,
it does not absolve the Federal agency from the obligation to consult. The Federal
agency must respect a tribe's sovereignty in matters such as access to historic
properties within the reservation. Accordingly, it may be necessary for the agency
to consult with each tribe individually and to do so off the reservation.
II. Identification of Historic Properties
What are the consultation
requirements at this stage of the process? The Federal agency is required
to consult with the THPO/tribal representative: 1) to determine and document the
area of potential effects; 2) to review existing information; 3) to seek
information from consulting parties and gather information from Indian tribes
to assist in identifying historic properties which may be of religious and cultural
significance; and 4) to carry out identification and to evaluate the National
Register eligibility of identified historic properties. What happens
if there is a disagreement between the SHPO and tribal representative on National
Register eligibility? The concurrence of both the SHPO and the tribal
representative is required for an agency's determination of eligibility or ineligibility
to stand. If either disagrees, the Federal agency is obligated to seek a formal
determination of eligibility from the Keeper of the National Register.
What happens if there is a disagreement between the THPO and the agency on
National Register eligibility? The agency must seek a formal determination
of eligibility.
III. Assessment of Adverse Effects
What
are the consultation requirements at this step? The Federal agency consults
with the THPO/tribal representative: 1) to apply the Criteria of Adverse Effect
to historic properties within the area of potential effects, and 2) in reaching
a finding of "no adverse effect." What happens if there is
a disagreement between the THPO/tribal representative and the agency on a finding
of "no adverse effect"? If the THPO/tribal representative disagrees
within the 30-day review period, the agency must either consult with the THPO/tribal
representative to resolve the disagreement or request ACHP to review the finding.
IV. Resolution of Adverse Effects
What are the consultation
requirements at this step? The Federal agency consults with the THPO/tribal
representative and other consulting parties in an attempt to develop and evaluate
alternatives or modifications to the undertakings to avoid, minimize, or mitigate
adverse effects. Any consulting party may request ACHP to participate in this
consultation. What happens if agreement is reached? The Federal
agency and consulting parties, including Indian tribes, develop an MOA outlining
how the adverse effects will be resolved. The Federal agency must invite the THPO/tribal
representative to be a signatory to an MOA.
What happens if the Federal
agency and the THPO/tribal representative fail to agree? The agency must
then invite ACHP to join the consultation. The THPO/tribal representative may
determine that further consultation will not be productive and terminate consultation.
The tribe must then notify the agency and other consulting parties of the determination
and the reasons for terminating. ACHP must comment when the Indian tribe terminates
consultation since the agency and ACHP cannot execute an agreement without the
tribe.
When an undertaking takes place or affects historic properties
on tribal lands, can a two-party agreement be concluded between an agency and
an Indian tribe when the SHPO opts out of consultation even though the tribal
representative is not a THPO? Yes, because such a tribe has the same rights
as a THPO. An Indian tribe may reach agreement with a Federal agency on the terms
of an MOA. Execution of the MOA by a tribal representative and the Agency Official
(along with filing the MOA with ACHP) would complete the Section 106 process.
Consultation with Indian Tribes
for Undertakings off Tribal Lands
I. Initiation of the Section
106 Process If the undertaking will not occur on or affect historic
properties on tribal lands, is the Federal agency required to consult with Indian
tribes? Yes, Section 101(d)(6)(B) of NHPA requires consultation with Indian
tribes that attach religious and cultural significance to historic properties
(hereinafter "relevant Indian tribes"). The Federal agency must make
a reasonable and good faith effort to identify such Indian tribes and invite them
to be consulting parties. If such Indian tribes have not been invited by the agency
to consult, the tribes may request in writing to be consulting parties and must
be considered as such by the agency. II. Identification of Historic
Properties
In the initial information gathering steps, does the Federal
agency consult with Indian tribes? The Federal agency consults with the
SHPO to determine and document the area of potential effects, review existing
information, seek information from consulting parties, and gather information
from Indian tribes to assist in identifying historic properties that may be of
religious and cultural significance. Does the Federal agency consult
with Indian tribes to carry out identification and evaluation of historic properties?
Yes, the Federal agency consults with the SHPO and relevant Indian tribes
to carry out identification and to evaluate the National Register eligibility
of identified historic properties.
Does the Federal agency need to
obtain a relevant Indian tribe's concurrence with eligibility findings?
No, but the Federal agency must acknowledge that Indian tribes possess special
expertise in assessing the eligibility of historic properties that may be of significance
to them. Also, if an Indian tribe disagrees with an agency's determination of
eligibility, the Indian tribe may ask ACHP to request the agency to obtain a determination
from the Keeper of the National Register. However, ACHP retains the discretion
as to whether or not it should make the request of the Federal agency.
Does an agency consult with a relevant Indian tribe in determining if there
are historic properties affected? No, but the agency does provide notification
of the finding to relevant Indian tribes and makes the documentation available
for public inspection.
What happens when the Federal agency finds that
there are historic properties which may be affected by the undertaking?
The agency notifies relevant Indian tribes, invites their views on the effects,
and proceeds to assess adverse effects, if any.
III. Assessment of
Adverse Effects
Which parties does the Federal agency consult with
to apply the Criteria of Adverse Effect to historic properties within the
areas of potential effect? The agency consults with the SHPO and relevant
Indian tribes to apply the Criteria of Adverse Effect to historic properties within
the areas of potential effect. When proposing a finding of "no
adverse effect," does the agency consult with Indian tribes? No,
the agency consults with the SHPO in reaching a finding of "no adverse effect"
and notifies consulting parties including relevant Indian tribes and provides
them with documentation.
What happens if a relevant Indian tribe disagrees
with a finding of no adverse effect? If a relevant Indian tribe disagrees
with a finding of no adverse effect, it must specify in writing the reasons within
the 30-day review period. When a timely filing of disagreement is received, the
Federal agency must either resolve the disagreement or request ACHP to review
the "no adverse effect" finding. Relevant Indian tribes can also request
ACHP to review an agency's finding. The agency should seek the concurrence of
Indian tribes that attach religious and cultural significance to the historic
property subject to the finding. This means that the agency is encouraged, but
not legally required, to obtain such concurrence. If the relevant Indian tribe
does not concur and disagrees with the proposed finding, it can refer the matter
directly to ACHP for resolution.
IV. Resolution of Adverse Effects
Which parties does the Federal agency consult with to develop and evaluate
alternatives or modifications to the undertakings to avoid, minimize, or mitigate
adverse effects? The Federal agency consults with the SHPO, relevant Indian
tribes, and other consulting parties. The Federal agency must provide project
documentation to all consulting parties at the beginning of consultation. Any
consulting party may request ACHP to participate in consultation. What
happens if agreement is reached? If agreement is reached, the Federal
agency and consulting parties, including relevant Indian tribes, develop an MOA
outlining how the adverse effects will be addressed.
Is the Federal
agency obligated to invite a relevant Indian tribe to sign or concur with the
MOA? No, the agency may, but is not required to, invite the relevant Indian
tribe to sign or concur. An Indian tribe that signs the MOA has the same rights
with regard to seeking amendment or termination of the agreement as the other
signatories. Refusal by a relevant Indian tribe to sign or concur, however, does
not invalidate the MOA.
What happens if agreement is not reached?
If agreement is not reached, the Federal agency, SHPO, or ACHP, if participating,
may terminate consultation. Other consulting parties, including relevant Indian
tribes, may decline to participate but they cannot terminate consultation. After
consultation is terminated, ACHP issues its formal comments to the agency head.
Other Opportunities and Consultation
Requirements
Requests from Indian Tribes for ACHP Participation
in Consultation Any party, including Indian tribes, may request that ACHP
review the substance of any agency's finding, determination, or decision on the
adequacy of an agency's compliance with the regulation. An Indian tribe may request
that ACHP enter the Section 106 review process because of concerns about the identification
of, evaluation of, or assessment of effects on, historic properties. An Indian
tribe may request ACHP involvement in the resolution of adverse effects or where
there are questions about policy, interpretation, or precedent under Section 106
or its relation to other authorities such as the Native American Graves Protection
and Repatriation Act (see Appendix A of the regulations).
Consultation with Indian Tribes in the Development of Program Alternatives
The Federal agency must conduct government-to-government consultation with affected
THPOs or tribal representatives, and relevant Indian tribes in the development
of program alternatives. If a program alternative includes undertakings that
would affect historic properties on tribal lands, the agency must identify and
consult with the Indian tribes having jurisdiction over such lands. A Programmatic
Agreement only takes effect on tribal lands when the THPO, Indian tribe, or designated
tribal representative is a signatory to the agreement. If a program alternative
may affect historic properties of religious and cultural significance to an Indian
tribe located off tribal lands, the agency must identify those Indian tribes and
consult with them. When the proposed program alternative has nationwide applicability,
the agency must develop and implement appropriate government-to-government consultation
with Indian tribes in accordance with existing Executive orders, Presidential
memoranda, and applicable laws. In all cases, the agency and ACHP must take
into account the views of Indian tribes in reaching a final decision.
¹NHPA defines "Indian
tribe" as "an Indian tribe, band, nation, or other organized group or
community, including a Native village, Regional Corporation or Village Corporation,
as those terms are defined in section 3 of the Alaska Native Claims Settlement
Act (43 U.S.C. 1602), which is recognized as eligible for the special programs
and services provided by the United States to Indians because of their status
as Indians" (16 U.S.C. 470w). ²The 1992 amendments
included provisions for Indian tribes to assume the responsibility of the SHPO
on tribal lands. The regulations use the term "THPO" to mean the Tribal
Historic Preservation Officer under Section 101(d)(2). Updated
August 22, 2005
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