Federal agencies have been required to consult with Indian tribes and Native Hawaiian organizations under several key pieces of Federal legislation regarding human remains and grave goods, cultural resources, and historic properties. Yet many agencies have struggled to meet these responsibilities. In some cases, agencies have instituted effective Section 106 consultation efforts and internal education programs that build on existing program-delivery relationships and a clear understanding of their responsibilities. However, the results have not yet been uniformly realized nationwide. In other cases, agencies may be confused about protocols regarding how to consult, with whom to consult, and when to consult. In still other cases, agencies and other consulting parties may simply be unaware of requirements to consult in the Section 106 review process.
The problem has led to confusion and anger on all sides, even where Federal agencies have attempted to engage in good faith consultation. It has culminated in misunderstandings, recriminations, increasing litigation and, more recently, in nationwide attention on the shortfalls of existing consultation efforts. This nationwide attention has taken the form of media coverage, public discussions, policy meetings, and congressional hearings. In effect, a national dialogue has begun with the ACHP as a participant.
From its earliest days, the ACHP addressed Native American historic preservation issues in Section 106 reviews and has, over time, recognized and increased the role of Indian tribes and Native Hawaiians in its implementation of the Section 106 review process. Many would, undoubtedly, view this progress as slow and arduous; admittedly, it is a reflection of the times and society in which it has functioned.
The involvement of Native peoples in historic preservation has happened largely as a result of the work of many dedicated Native individuals to ensure that their culture, history, and ancestors are both protected and respected. The Federal Government was much slower to respond but there was a growing awareness of Native perspectives and important places, particularly in the western United States.
The ACHP first formally acknowledged the role of Native peoples in 1986 when provisions were added to Section 106 regulations for consultation with Indian tribes and traditional leaders. Again, the response by Federal agencies and other parties in the process was slow and mostly a western phenomenon.
Gradually, however, the practice of consulting with Native peoples was becoming more routine, at the same time that Native peoples were actively seeking additional Federal protections and legislation as well as becoming more aware of the opportunities that Federal laws presented.
In 1992, Congress sought stronger support for tribal and Native Hawaiian participation by amending the National Historic Preservation Act to:
1) recognize that historic properties of religious and cultural significance to Indian tribes or Native Hawaiians may be eligible for the National Register of Historic Places;
2) require that Federal agencies consult with any Indian tribe or Native Hawaiian organization that attaches significance to such sites; and
3) provide for the replacement of Tribal Historic Preservation Officers (THPOs) for State Historic Preservation Officers (SHPOs) on tribal lands.
In response to the NHPA amendments, the ACHP began a six-year process of revising its regulations. The consultation with Native peoples carried out during this revision effort not only greatly enhanced the regulations but also began an ongoing process of education and enlightenment for the ACHP. Relationships were forged, albeit rocky at times, with some tribes and Native Hawaiian and intertribal organizations.
This increased understanding, these developing relationships, and the upcoming publication of revised regulations each contributed to the establishment of a Native American program within the ACHP in 1998. Equally important, these catalysts led to the development and adoption by the full Council in November 2000 of a Policy Statement Regarding the Council’s Relationships with Indian Tribes (Appendix A). The policy addressed tribal sovereignty, government-to-government consultation, trust responsibilities, tribal participation in historic preservation, sympathetic construction, and respect for tribal religious and cultural values.