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Home Working with Section 106 ACHP Native American Program: Guidance for Federal Agencies ACHP Policy Statement Regarding ACHP's Relationships with Indian Tribes
ACHP Policy Statement Regarding the
ACHP's Relationships with Indian Tribes
Adopted by the Advisory Council on Historic Preservation
The ACHP’s policy pertains to Indian tribes as defined in the National Historic Preservation Act of 1966:
Indian tribe means an Indian tribe, band, nation, or other organized group or community, including a Native village, Regional Corporation or Village Corporation, as those terms are defined in section 3 of the Alaska Native Claims Settlement Act (43 U.S.C. 1602), which is recognized as eligible for the special programs and services provided by the United States to Indians because of their status as Indians (16 U.S.C. 470w).
The basis for the ACHP’s policy regarding its role, responsibilities,
and relationships with individual Indian tribes derives from the Constitution,
treaties, statutes, executive orders, regulations, and court decisions.
It specifically ensures the ACHP’s compliance with and recognition of
its tribal consultation responsibilities under certain authorities, including:
This policy establishes the framework by which the ACHP integrates the concepts of tribal sovereignty, government-to-government relations, trust responsibilities, tribal consultation, and respect for tribal religious and cultural values into its administration of the Section 106 process and its other activities. The policy sets forth general principles that will guide the ACHP’s interaction with Indian tribes as it carries out its responsibilities under the Act. It also provides guidance to the ACHP and its staff and serves as the foundation for ACHP policies and procedures regarding specific Indian tribal issues. Upon adoption of the policy, the ACHP will develop an implementation plan to assist members and staff with integrating principles of respect for tribal sovereignty, government-to-government consultation, the ACHP’s trust responsibilities, and tribal values into the conduct of ACHP business.
The ACHP will consult with tribal leaders, and, as appropriate, their representatives including Tribal Historic Preservation Officers, in its consideration and development of policies, procedures, or programs that might affect the rights, cultural resources, or lands of federally recognized Indian tribes. The ACHP will pursue consultation in good faith and use methods and protocols that are best suited to meet the goals of this policy and the proposed action. In doing so, the ACHP will recognize and maintain direct government-to-government consultation with tribes in lieu of consortiums, unless so requested by said tribes.
In fulfilling its mission and responsibilities, the ACHP will endeavor to develop strong partnerships with federally recognized Indian tribes. To achieve this objective, the ACHP, in its implementation plan, will develop strategies for better understanding and considering the views of Indian tribes in the work of the ACHP. The ACHP will also develop means for ensuring that Indian tribes are provided the opportunity to understand their rights and roles in the Section 106 process and in any ACHP actions which might affect them. When decisions involve resources on tribal land, the ACHP, exercising its trust responsibility, will attempt to give deference to tribal resource values, policies, preferences, and resource conservation and management plans.
The ACHP fully supports the participation of federally recognized Indian tribes in the national historic preservation program and acknowledges the significant contributions of tribes in our understanding and protection of our nation’s heritage resources. The ACHP also recognizes the important role of Tribal Historic Preservation Officers that have assumed the role of the State Historic Preservation Officers on tribal lands. The ACHP will work with Indian tribes to enhance tribal participation in historic preservation and to further the development of tribal preservation programs.
The principle of sympathetic construction is a consequence of the disadvantages Indian tribes faced in negotiating treaties with the United States. Treaties were negotiated and written in English often under threats of force, and dealt with concepts such as land ownership which were unfamiliar to Indian tribes. Accordingly, the Supreme Court has ruled that treaties must be interpreted as tribes would have understood the terms and to the benefit of the tribes.
The Supreme Court has also ruled that statutes passed for the benefit of tribes are to be interpreted in favor of tribes. While the application of this rule to statutes that address Indian tribes but that was not necessarily passed for their benefit has not been consistent, the ACHP acknowledges the importance of this principle to tribes. Accordingly, the ACHP, in carrying out its charges under the Act, will liberally interpret those provisions that address Indian tribes.
The ACHP recognizes and respects that certain historic properties retain religious and cultural significance to federally recognized Indian tribes and that preservation of such properties may be imperative for the continuing survival of traditional tribal values and culture. Therefore, the ACHP shall develop and implement its programs in a manner that respects these traditional tribal values and customs and strives to recognize that certain historic properties may be essential elements of actual living cultures and communities.
Furthermore, the ACHP recognizes and respects that certain information about religious or sacred places can be highly sensitive and that in certain situations, traditional tribal laws prohibit disclosure about actual function, use, religious affiliation to a specific society or group, or even precise location. Accordingly, the ACHP is, to the maximum extent feasible under existing law, committed to withholding from public disclosure such information that may be revealed in the course of a Section 106 review. The ACHP will carry out its responsibilities in a manner that respects those restrictions imposed by cultural beliefs or traditional tribal laws. In doing so, the ACHP will interpret and use the Section 106 review process in a flexible manner.
Implementing the policy is the responsibility of the ACHP leadership, membership, and staff. The implementation plan will provide the necessary guidance to ensure satisfactory adherence to the policy by staff and members.
Within the Executive Office, the Native American Program was formed to:
The Native American Program will take steps to ensure that staff understands tribal issues and is aware of protocols. The Native American Program Coordinator will be available to assist ACHP staff in the ACHP’s review of projects and programs that affect Indian tribes. The Native American Program and its staff will provide technical assistance with the Section 106 process to Indian tribes. Technical assistance includes guidance materials, workshops, and communication through direct mail and email, as appropriate. It also includes responding to specific requests to provide assistance to tribes who are working with Section 106.
The Native American Program will also establish appropriate systems for communicating with the tribal representatives identified by each tribe’s leadership to ensure the widest possible distribution of information on Section 106 and ACHP initiatives. In doing so, the ACHP and its Native American Program will recognize and maintain direct government-to-government consultation with tribes.