CHAPTER 10 THE PROTECTION OF HISTORIC AND CULTURAL RESOURCES IN INDIAN COUNTRY
| Jurisdiction | United States |
(May 1999)
THE PROTECTION OF HISTORIC AND CULTURAL RESOURCES IN INDIAN COUNTRY
Navajo Nation Historic Preservation Department
Window Rock, Arizona
INTRODUCTION
The American Indian Religious Freedom Act (AIRFA), the Archaeological Resources Protection Act (ARPA), the Native American Graves Protection and Repatriation Act (NAGPRA), and the National Historic Preservation Act provide some degree of protection to places of traditional religious and cultural significance to Indian tribes. While the United States Supreme Court has held that the AIRFA does obligate Federal agencies to consult with Indian tribes regarding the protection of their sacred places, no Federal agency has figured out a consistent way to do that. No agency has authority to write regulations implementing AIRFA, and the Supreme Court declined to suggest a means by which agencies could satisfy the consultation requirement. ARPA protects archaeological sites by prohibiting excavation or removal of "archaeological resources" from federal or Indian lands except under the authority of an ARPA permit. Federal agencies are required to consult with tribes anytime they propose to issue such a permit and they have reason to suspect that the archaeological site in question may be a tribal sacred place. Federal agencies are not obligated to withhold or to condition permits based on tribal responses. The vast majority of tribal sacred places are not archaeological sites. So ARPA provides only limited protection for traditional religious and cultural places. NAGPRA is even more limited in that it provides protection to Native American graves, which are also rarely sacred places. The most important of law in terms of protecting tribal religious and cultural places is the National Historic Preservation Act (NHPA). Section 106 of NHPA establishes a process that provides protection to the Nation's patrimony. Section 106 is implemented by the Advisory Council on Historic Preservation's regulations, Protection of Historic Properties, 36 CFR Part 800.
Section 106 was part of NHPA when it first became law in 1966. Although NHPA has been amended many times, three times substantially, section 106 has not changed in substance since 1966. The Advisory Council's regulations have changed little since they were first adopted in 1976. But in response to the Clinton Administration's re-engineering government initiative and amendments to NHPA passed in 1992, the Advisory Council is completing its seven year long effort to substantially revise 36 CFR Part 800. The revised regulations are about to be published in the Federal Register.
The Advisory Council intended and the Advisory Council staff assert that the revisions to 36 CFR Part 800 (hereafter Part 800) represent a substantial, if not exactly revolutionary, change in the way the section 106 process will work. While I think the changes are not so great as the Advisory Council staff does, I still think it is fair to say that we are entering a new era. Complicating the writing of this paper is the fact that even the regulations approved by the Advisory Council will not technically public until after I have sent the manuscript to the printer.
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Although several organizations did publish that version approve by the Advisory Council on their WEB sites, I have not been able to obtain a copy of the draft that is currently awaiting publication. I see little besides historical perspective to be gained by a detailed review of thecurrent regulatory environment. Accordingly, I will examine the new regulations and what they mean in practical both to those trying to protect sacred places and to those trying to promote rational, responsible development in Indian country.1
For those needing an introduction to the current regulations, and excellent review of § 106 case law, I recommend Kanefield's Federal Preservation Case Law, 1966-1996.2 It does not focus much on the situation in Indian country, but it does cover the section 106 process in detail and ties it directly to the existing case law, and it assumes no substantial foreknowledge of the section 106 process.
Since Kanefield is comprehensive on § 106 case law through 1996 and because we may be entering a completely new regulatory environment, I do not focus on the case law very much. I will discuss case law with major implications to Indian country, and I will briefly examine the ways in which I think the current state of case law will inform court action under the revised regs. I will also discuss some of the more common practical problems that arise with the current process as these have not changes as a result of any of the proposed revisions to the regulationss. The proposed revisions, in fact appear to provide additional opportunities for making these mistakes, which almost invariably lead to poor resource management decisions, while at the same time, almost always result in delays in project implementation.
THE SECTION 106 PROCESS
THE PURPOSE
The purpose of the section 106 process is "to accommodate historic preservation concerns with the needs of Federal undertakings through consultation among the Agency Official and other parties with an interest in the effects of the undertaking on historic properties,
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commencing at the early stages of project planning. The goal of consultation is to identify historic properties potentially affected by the undertaking, assess its effects and seek ways to avoid, minimize or mitigate any adverse effects on historic properties."3
The consultation process is intended to surface issues, and to provide the Agency Official with essential information on historic properties and on the effect(s) the undertaking may reasonably be expected to have on them. Consultation equips the Agency Official to make an educated decision on whether or not to approve the undertaking, having full knowledge of both the public benefits of the undertaking and the public benefits of preserving the Nation's patrimony.
THE PARTICIPANTS
Section 106 requires agencies to "take into account" the effects of their undertakings on historic properties, and to provide the Advisory Council an "opportunity" to comment on such effects.4 The Advisory Council has established the process by which federal agency officials do these two things in its regulations. Part 800 establishes roles for a number of parties.
Participants by Law
Advisory Council on Historic Preservation. The Advisory Council is a 20 member board appointed by the President, its membership comprises a chairman appointed by the President from the general public, the Secretary of the Interior, the Architect of the Capitol, the Secretary of Agriculture, one governor, one mayor, the President of the National Conference of State Historic Preservation Officers, the Chairman of the National Trust,5 four experts in the field of historic preservation, three at-large members from the general public, one member of an Indian
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tribe or Native Hawaiian organization.6 It advises the President, Congress, federal and other agencies on historic preservation issues. It oversees section 106 process, which is created by the regulations it promulgates. The membership meets three times a year. Deals with policy matters and the occasional § 106 compliance situation that can not be resolved by the staff.
Most of the work, including most of the activity under Part 800 is carried out by Advisory Council staff. Of the approximately 250,000 undertakings that undergo reviews pursuant to § 106, less than 3,000 actually are reviewed by Advisory Council staff. In most years, fewer than 10 undertakings can not be resolved by staff and go the Advisory Council membership for comment.
Agency Official. Part 800 refers to the Federal official with decision making authority over and responsibility for an undertaking as the Agency Official. Depending on the nature and scope of the undertaking and the way an agency is organized, the Agency Official may be anyone from a fair low level line manager working in a local or area office, to a very high level executive working at the headquarters level.
Consulting Parties
The Agency Official and the Advisory Council are required participants under the law, all others who have a role either because Part 800 defines a specific role for them are referred to as Consulting Parties.
State Historic Preservation Officer (SHPO). The SHPO is the state official responsible for historic preservation matters in his or her state. The SHPO engages in a wide variety of preservation activities, but the SHPO's most visible (and most important to us) activity is participation in all aspects of the Part 800 process.7 The SHPO is a source of local preservation expertise, particularly about the nature, location, sensitivity and importance of historic properties within each state. The SHPO's involvement in the section 106 process is derived from Part 800.
Tribal Historic Preservation Officer (THPO). NHPA allows tribes to assume the responsibilities of the SHPO on tribal lands, if they so choose. The tribal official who takes responsibility for running a tribal program which has assumed some or all of the responsibilities
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of the SHPO is the Tribal Historic Preservation Officer (THPO). NHPA allows tribes to select, which, if any, of the SHPO functions a tribe will take on. Currently 17 tribes have assumed THPO status.8 To date, all THPOs have assumed § 106 responsibilities but they need no do so.
Tribal Official. Agency Officials are required to consult with tribal governments for all undertakings that occur on tribal lands or that may affect historic properties on tribal lands. When a tribe has not assumed THPO status or if the THPO has not assured § 106 functions, the Agency Official must consult with the official designated...
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