Through its work in cultural resource review as well as its policy activities, the ACHP has become a strong advocate for protecting the heritage of indigenous peoples, including Indian tribes, Native Hawaiian organizations, and Alaska Natives. As with other aspects of its work, the interplay between specific projects that are the subject of Section 106 consultation, and public policy as well as more programmatic strategies, have each informed the other. In addition, some basic legislative and legal milestones have paved the way for more effective attention to these issues and to assisting native peoples in protecting their own cultural heritage.
Long-established law, treaty rights, and legal precedent recognize tribal sovereignty and the special government-to-government relationship between the federal government and federally-recognized Indian tribes. Legislation in 1971 clarified the status and land interests of Alaska Natives, and the definition of “Indian tribe” in amendments to the National Historic Preservation Act (NHPA) in 1980 provided further clarity. In 1992 amendments also recognized the role of Native Hawaiian Organizations as participants with interests in protecting Native Hawaiian culture. The 1992 amendments also recognized tribal preservation programs and that traditional cultural properties could meet the criteria for listing in the National Register of Historic Places. For the first time, a member of an Indian tribe or a Native Hawaiian organization was designated to serve as a presidential appointee on the Advisory Council on Historic Preservation.
In 1990, Congress passed the Native American Graves Protection and Repatriation Act that protected human remains and funerary objects on federal and tribal lands and provided for repatriation of such remains from public collections. This important legislation allowed many tribal authorities to focus on other issues of preservation and consultation important to tribes, and may have enhanced some tribal representatives’ interest in Section 106 as a useful tool. That same year, the ACHP worked with the National Park Service on guidelines for identifying and evaluating traditional cultural properties through the National Register of Historic Places. The concept was codified in 1992 amendments to the NHPA.
Numerous Section 106 project consultations involving Indian tribe and Native Hawaiian interests over the years have contributed to the ACHP’s perspectives on these issues. To name just a few, cases over the years have included the:
A number of prominent Section 106 cases have also been the subject of litigation in the federal courts.
In 2000, the Advisory Council on Historic Preservation (ACHP) adopted a Policy Statement Regarding the Council’s Relationships with Indian Tribes that included a commitment to develop a plan for translating policy into action. A 2003 Action Plan on ACHP Native American Initiatives was prepared in response to that obligation as well as the ACHP Chairman’s commitment to take steps to improve the ACHP’s and other Federal agencies’ interaction and communication with Native peoples. The Action Plan was based on many years of interaction by the ACHP with Indian tribes and Native Hawaiians. The goal of this plan was to assist Federal agencies in meeting their requirements to consult with Indian tribes and Native Hawaiian organizations under the National Historic Preservation Act (NHPA). (A complementary policy on interaction with Native Hawaiian Organizations was adopted in 2008.)
In December 2012, the Departments of Defense, Interior, Agriculture and Energy and the ACHP (signatories) entered into a memorandum of understanding (MOU) regarding interagency coordination and collaboration for the protection of Indian sacred sites. Most recently, in 2016 the Departments of the Interior and Justice and the Army Corps of Engineers (Corps) hosted a series of tribal meetings in response to concerns regarding construction of the Dakota Access Pipeline in North Dakota. The ACHP participated in these meetings. In May 2017, following the agencies’ report, the ACHP issued its own report on “Improving Tribal Consultation in Infrastructure Projects.” The report focused on issues raised by the commenting tribes, particularly Section 106 consultation, federal accountability, and sacred sites.
An Office of Native American Affairs was established on the ACHP staff in 1998, and a Native American advisory group to the Chairman was created in 2003. In 2015 an ACHP member standing committee on Native American Affairs was also created. The ACHP had staff involvement on the White House Council on Native American Affairs beginning in 2013, and also in 2013 adopted a plan to support a 2007 U.N. Declaration on the Rights of Indigenous Peoples. At the end of 2016 an additional amendment to the NHPA advanced by the ACHP made the Chairman of the National Association of Tribal Historic Preservation Officers a voting member of the ACHP. (Until then, it had been a non-voting observer.)
(Note: In 1981, in response to proposed termination of U.S. Trusteeship of the Islands of Micronesia in the Pacific that had been in effect since World War II, the ACHP prepared a special report to the President and Congress on recommended measures to ensure consideration for Micronesia’s cultural patrimony after the end of U.S. jurisdiction. See “National Policy” elsewhere on this website.)