This program comment provides the U.S. Department of Veterans Affairs (VA) with an alternative way to comply with its responsibilities under Section 106 of the National Historic Preservation Act (NHPA), 54 U.S.C. 306108, and its implementing regulations at 36 CFR part 800 (Section 106), regarding vacant and underutilized properties.

Burial sites, human remains, and funerary objects have intentionally and unintentionally been damaged, destroyed, or desecrated by public and private developments. This policy statement, intended to be incorporated into Section 106 reviews and state and local guidance, emphasizes not disturbing sites when possible, consultation and deference to descendant communities, and continued educational efforts on these issues.

The Advisory Council on Historic Preservation (ACHP) has seen an increasing number of Section 106 reviews involving large scale historic properties of religious and cultural significance to Indian tribes or Native Hawaiian organizations (NHOs). 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. These large scale properties are often comprised of multiple, linked features that form a cohesive “landscape.” The recognition, understanding, and treatment of such places can be a struggle for the nontribal or non-Native Hawaiian participants in the Section 106 process, partly due to the lack of experience in addressing such places and partly due to the lack of guidance regarding these traditional cultural landscapes.

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.

A Program Comment that can be used by federal agencies who must comply with the requirements of Section 106 when deploying communications activities throughout the country.

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.

The ACHP developed this toolkit to provide information and guidance on the Section 106 process to parties who are the recipients of, or are applying for federal licenses, permits, assistance, or approvals.

These questions and answers have been prepared by ACHP to provide users of the Section 106 process with further guidance on interpreting the provisions of the new regulations.

Title: Memorandum of Agreement Among the National Cemetery Administration of the U.S. Department of Veterans Affairs, the Hawaii State Historic Preservation Officer, the Advisory Council on Historic Preservation, the State of Hawaii Department of Defense, Office of Veterans Services and the County of Maui regarding a Grant to Support Improvements to the Maui Veterans Cemetery, Makawao, Maui, Hawaii Executed: June 19, 2019 Expires: September 30, 2023