The consideration of Native American traditional cultural landscapes in Section 106 reviews has challenged federal agencies, Indian tribes, and Native Hawaiian organizations for some time. There has been confusion regarding what makes a place a traditional cultural landscape, whether they can be considered historic properties, and whether the size of such places influences their consideration under the National Historic Preservation Act.

Since 1992, when Congress amended the National Historic Preservation Act to clarify that historic properties of religious and cultural significance to Indian tribes and Native Hawaiian organizations (NHOs) may be eligible for the National Register of Historic Places (National Register), the ACHP has seen a steady increase in the number of Section 106 reviews involving such historic properties. Improvements in federal agency consultation with Indian tribes and NHOs and greater recognition of their expertise in identifying historic properties of significance to them have likely contributed to this increase. It is equally likely that there have also been increasing development pressures in places not previously developed. An early 2011 Tribal Summit co-hosted by the ACHP in Palm Springs, California, underscored the fact that the nation’s renewed emphasis on the development and transmission of renewable energy, as well as the continued focus on conventional energy, is placing additional pressures on landscapes throughout the country, and particularly in the west.

Introduction Consultation is the heart of the Section 106 process. Federal agencies are required to identify and engage a variety of consulting parties during the steps they follow to meet their legal obligations. Principal among these consulting parties are State Historic Preservation Officers (SHPOs) and Tribal Historic Preservation Officers (THPOs). Federal agencies also have special consultation responsibilities with respect to Indian tribes and Native Hawaiian organizations (NHOs).

A federal agency is allowed, in some circumstances, to delegate to its applicants the responsibility to initiate consultation pursuant to the regulations that implement Section 106 of the National Historic Preservation Act (NHPA), “Protection of Historic Properties” (36 CFR Part 800). The provision in Section 800.2(c)(4) of the regulations has been used frequently by federal agencies such as the Federal Communications Commission, the Surface Transportation Board, and the Department of Health and Human Services.

The 1992 amendments to the National Historic Preservation Act (NHPA) included provisions for Indian tribes to assume the responsibilities of the State Historic Preservation Officer (SHPO) on tribal lands, and establish the position of a Tribal Historic Preservation Officer (THPO).1 The regulations implementing Section 106 of the NHPA use the term “THPO” to mean the Tribal Historic Preservation Officer under Section 101(d)(2) of the NHPA.

This guidance has been updated. Please see Guidance on Assistance to Consulting Parties in the Section 106 Review Process.

The Advisory Council on Historic Preservation (ACHP) adopted a plan to support the U.N. Declaration on the Rights of Indigenous Peoples (Declaration) on March 1, 2013. In the plan, the ACHP commits to raising awareness about the Declaration in the historic preservation community and incorporating the principles and aspirations of the Declaration into ACHP initiatives and programs. As part of the effort to raise awareness, the ACHP also committed to developing guidance on the intersection of the Section 106 process and the Declaration.

Section 213 of the National Historic Preservation Act (NHPA) [54 USC §304110] directs the Secretary of the Interior (Secretary), if requested by the Chairman of the Advisory Council on Historic Preservation (ACHP) to provide a report to assist the ACHP in discharging its responsibilities under the Act. Specifically, Section 213 states:

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. This Action Plan on ACHP Native American Initiatives has been 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.      

ACHP PLAN TO SUPPORT THE UNITED NATIONS DECLARATION ON THE RIGHTS OF INDIGENOUS PEOPLES