Home Working with Section 106 ACHP Native American Program: Guidance for Federal Agencies

  Introduction

Participation of Native Hawaiian organizations in consultation

Role of Native Hawaiian organizations in initiation of the Section 106 review process (Step I)

Role of Native Hawaiian organizations in identification of historic properties (Step II)

Role of Native Hawaiian organizations in assessing adverse effects (Step III)

Role of Native Hawaiian organizations in resolving adverse effects (Step IV)

Requests from Native Hawaiian organizations for ACHP participation

Involvement of Native Hawaiian organizations in the development of program alternatives

Introduction

The 1992 amendments to the National Historic Preservation Act (NHPA) place major emphasis on the role of Native Hawaiian organizations. Subsequent revisions published May 18, 1999, to the regulations of the Advisory Council on Historic Preservation (ACHP¹), 36 CFR Part 800, incorporate specific provisions for Federal agencies to consult with Native Hawaiian organizations throughout the process.

Consultation with Native Hawaiian organizations in the regulations

• The Federal agency (agency²) must consult with any Native Hawaiian organization that attaches religious and cultural significance to historic properties that may be affected by an undertaking (henceforth, Native Hawaiian organizations). Such organization is a consulting party.
• The agency must make a reasonable and good faith effort to identify Native Hawaiian organizations to be consulted.
• The Native Hawaiian organization may enter into an agreement with the agency regarding any aspect of its participation in the review process. The agreement may provide the Native Hawaiian organization with additional participation or concurrence in agency decisions under Section 106 provided that no modification may be made in the roles of other parties without their consent.

Participation of Native Hawaiian organizations in consultation

• Section 101(d)(6)(b) of NHPA requires Federal agencies to consult with any Native Hawaiian organization that may attach religious and cultural significance to a historic property that may be affected by an undertaking regardless of its location.
• There may be multiple Native Hawaiian organizations that attach significance to a historic property. The agency is required to consult with any Native Hawaiian organization that may attach religious and cultural significance to a historic property, again, regardless of its location.

Role of Native Hawaiian organizations in initiation of the Section 106 review process (Step I)

• The agency must make a reasonable and good faith effort to identify Native Hawaiian organizations that might attach religious and cultural significance to historic properties in the area of potential effects and invite them to be consulting parties.
• Native Hawaiian organization can request in writing to be a consulting party.
• The agency can collapse multiple steps in the process, but consulting parties, including Native Hawaiian organizations and the public, must still be given an adequate opportunity to express their views.

Role of Native Hawaiian organizations in identification of historic properties (Step II)

• The agency gathers information from Native Hawaiian organizations to assist in identifying historic properties that may be of religious and cultural significance.
• The agency consults with Native Hawaiian organizations to carry out identification.
• The agency consults with Native Hawaiian organizations to evaluate National Register eligibility of identified properties. The agency must acknowledge "special expertise" of Native Hawaiian organizations in assessing eligibility of historic properties of religious and cultural significance to them.
• If a Native Hawaiian organization disagrees with an eligibility determination, it may ask ACHP to request the agency to obtain a determination from the Keeper of the National Register. Concurrence of the Native Hawaiian organization in eligibility determination is not required.
• The agency must notify Native Hawaiian organizations of its finding of either No Historic Properties Affected or Historic Properties Affected. Failure to object within 30 days allows the agency to assume concurrence and proceed.

Role of Native Hawaiian organizations in assessing adverse effects (Step III)

• The agency consults with Native Hawaiian organizations to apply the Criteria of Adverse Effect.
• The agency notifies consulting parties, including Native Hawaiian organizations, of the finding of No Adverse Effect (NAE), and provides documentation. Failure to disagree within 30 days allows the agency to assume concurrence and proceed.
• If the consulting party, including Native Hawaiian organizations, disagrees, it must specify reasons within 30 days. When a timely filing of disagreement is received, the agency must either resolve the disagreement or request ACHP to review the NAE finding. Native Hawaiian organizations can also request ACHP to review Agency finding.
• The agency should seek concurrence of Native Hawaiian organization that attaches religious and cultural significance to the historic property subject to the finding.

Role of Native Hawaiian organizations in resolving adverse effects (Step IV)

• The agency consults with Native Hawaiian organizations to develop and evaluate alternatives to avoid, minimize, or mitigate adverse effects.
• Native Hawaiian organizations may request ACHP to participate in consultation.
• The agency may invite a Native Hawaiian organization to sign or concur with the Memorandum of Agreement (MOA). Refusal to sign or concur does not invalidate the MOA.

Requests from Native Hawaiian organizations for ACHP participation

• Any party, including Native Hawaiian organizations, may request that ACHP review the substance of any agency's finding, determination, or decision or the adequacy of an agency's compliance with the regulation.
• A Native Hawaiian organization 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.
• A Native Hawaiian organization 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 NAGPRA (see Appendix A of the regulations).

Involvement of Native Hawaiian organizations in the development of program alternatives

• The agency must consult with affected Native Hawaiian organizations in the development of program alternatives.
• If a program alternative may affect historic properties of religious and cultural significance to a Native Hawaiian organization, the agency shall identify those organizations and consult with them.
• The agency and ACHP must take into account the views of Native Hawaiian organizations in reaching a final decision.

²Agency: It is the statutory obligation of the Federal agency to fulfill the requirements of Section 106 and to ensure that an Agency Official with jurisdiction over an undertaking takes legal and financial responsibility for Section 106 compliance in accordance with subpart B of the regulations. The Agency Official has approval authority for the undertaking and can commit the Federal agency to take appropriate action for a specific undertaking as a result of Section 106 compliance. For the purposes of subpart C of the regulations, the Agency Official has the authority to commit the Federal agency to any obligation it may assume in the implementation of a program alternative. The Agency Official may be a State, local, or tribal government official who has been delegated legal responsibility for compliance with Section 106 in accordance with Federal law.

Updated April 4, 2003

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