Native American Participation in Federal Programs under the National Historic Preservation Act

Article excerpt

ABSTRACT

Recent legislative trends culminating in the passage of the 1992 amendments to the National Historic Preservation Act promote opportunities for Native American involvement in the federal preservation program. Where properties of value to Native Americans may be affected by federal undertakings, or where Native Americans wish to exercise greater sovereignty over historic properties situated on Indian lands, legal mechanisms are now in place which empower them to influence the management of such properties. The Advisory Council on Historic Preservation welcomes these changes, and views them as an opportunity for archaeologists and Native Americans to pursue more productive partnerships that attain mutual goals.

Keywords: National Historic Preservation Act; 1992 amendment, traditional cultural property; Advisory Council on Historic Preservation

The 1992 amendments to the National Historic Preservation Act (NHPA) include several changes designed to ensure that Indian tribes are provided a meaningful role in the federal preservation program. The opportunity for Indian tribes to participate in federal decisions under Section 106 of the act has always been available, but the amendments; clarify, reinforce, and in some places, enhance their role and the responsibilities of federal agencies to consider and accommodate their participation and concerns.

THE LEGAL ARENA

In brief, the changes in Section 101 of the NHPA provide more assistance from the federal government to Indian tribes for promoting the preservation of their cultural heritage and significant historic and prehistoric resources. Such assistance is provided in the form of grants, the establishment of assistance and training programs through the Secretary of Interior, and the empowerment of tribes to assume functions and responsibilities of State Historic Preservation Officers with respect to tribal lands. The changes also authorize the Advisory Council on Historic Preservation to enter into agreements with tribes for the review of undertakings under tribal regulations in place of the Council's regulations for compliance with Section 106 of the NBPA.

The changes also impose greater responsibilities on federal agencies with respect to consulting with Indian tribes. Under Section 110, agencies must establish preservation programs which, among other things, ensure that their preservation-related activities are carried out in consultation with Indian tribes. Section 304 authorizes agencies to withhold sensitive information about historic properties if disclosure could cause an invasion of privacy, risk harm to the resource, or impede its use for traditional religious practices.

These changes exemplify the trend toward greater access for Indian tribes to federal decision making. Such changes are consistent with the changes witnessed in the passage of the Native American Graves Protection and Repatriation Act (16 U.S.C. 3001), and the publication of Guidelines for Evaluating and Documenting Traditional Cultural Properties, National Register Bulletin 38 (Parker and King 1990). This legislative trend in the United States is not a revolutionary alteration of how we do business under the federal preservation program, but an evolutionary one. The 1992 amendments are not fundamental changes in the ways that federal agencies should go about carrying out their responsibilities under the act with regard to Indian tribes, but they make it more difficult for agencies to ignore their responsibilities. For example, a widely held perception is that consideration of traditional cultural properties under Section 101(d)(6) of the NHPA and under National Register Bulletin 38 represents an expansion of the National Register to include a new property type. This perception reflects a misunderstanding of federal agency responsibilities for identification of historic properties. Traditional cultural properties (TCPs) have always been subject to evaluation for the National Register, but until the 1992 amendments which reinforced these responsibilities, and particularly Bulletin 38, the historic values of these properties were largely ignored. …