On Friday, October 18, 2024, The ACHP approved an Exemption for Indigenous Knowledge-Informed Activities by Native Hawaiian Organizations. The Exemption enables the ACHP to take a key implementation action related to its Policy Statement on Indigenous Knowledge and Historic Preservation. As further described below, this Exemption exempts from Section 106 review certain restoration, rehabilitation, preservation, and reconstruction activities proposed, directed, authorized, or supported by Native Hawaiian organizations.
An exemption is one of five types of Program Alternatives the ACHP can use to create a flexible approach to assure the requirements of Section 106 are achieved. An exemption allows the ACHP to identify certain activities that should be exempt from further review under Section 106. The potential effects from the undertakings must be foreseeable and likely to be minimal or not adverse.
BACKGROUND
For more than three decades, the Advisory Council on Historic Preservation (ACHP) has been working to expand the participation of Native Hawaiian organizations (NHOs) in the historic preservation review process under Section 106 of the National Historic Preservation Act, 54 U.S.C. § 306108, 36 C.F.R. part 800 (Section 106). In 1992, Congress amended the National Historic Preservation Act to clarify that properties of religious and cultural importance to NHOs may be eligible for listing in the National Register of Historic Places and that federal agencies, in carrying out their Section 106 responsibilities, must consult with any NHO that attaches religious and cultural significance to historic properties that may be affected by an undertaking. The ACHP incorporated the provisions in the Section 106 regulations, 36 CFR Part 800, “Protection of Historic Properties.”
The ACHP in 2008 adopted the ACHP Policy Statement on the ACHP’s interaction with Native Hawaiian Organizations. This policy set forth the ACHP’s commitments to ensure that NHOs are fully included and allowed the opportunity to effectively participate in the federal historic preservation program. The policy also set forth the ACHP’s consideration of Native Hawaiian values, such as a deep love and understanding of the land and a respect for the powerful forces of nature, also recognizing the significant contribution Native Hawaiians make toward the enrichment of this nation. In 2010, President Barack Obama announced U.S. support for the United Nations Declaration on the Rights of Indigenous Peoples, and in 2013 the ACHP became the first agency to formally adopt its intent with the ACHP Plan to Support the U.N. Declaration on the Rights of Indigenous Peoples (Declaration). The plan calls for the ACHP to incorporate the principles and aspirations of the Declaration into its work regarding Native Hawaiian historic preservation issues.
The ACHP published the 2021 Traditional Knowledge and the Section 106 Process: Information for Federal Agencies and Other Participants to help inform federal agencies of their obligation to incorporate traditional knowledge in Section 106 decision making and noting the ACHP believes that Native ways of knowing are important to a full understanding of historic properties that must be considered in the Section 106 review process. In 2023, the White House Office of Science and Technology Policy and the Council on Environmental Quality issued government-wide Guidance for Federal Departments and Agencies on Indigenous Knowledge. To further elaborate, advance, and encourage Indigenous Knowledge in the Section 106 process, the ACHP adopted the ACHP Policy Statement on Indigenous Knowledge and Historic Preservation. The policy includes principles that should be applied by federal agencies, state and local governments, and nongovernmental institutions, including private contractors, to advance the integration of Indigenous Knowledge into historic preservation decision making.
Exempted Categories
The Exemption for Indigenous Knowledge-Informed Activities by Native Hawaiian Organizations aims to facilitate NHO led and managed restoration, rehabilitation, preservation, and reconstruction activities that are informed by Indigenous Knowledge and likely to have minimal or non-adverse effects on historic properties. The Exemption also establishes the ability of NHOs to identify the manner in which rehabilitation, preservation, restoration, or reconstruction must be carried out, consistent with the cultural practices of the NHO.
The applicability of this Exemption is limited to activities proposed, directed, authorized, or supported by NHOs, as defined in the National Historic Preservation Act. NHOs seeking to participate in the Exemption would submit a formal statement to the federal agency undertaking the covered activities, attesting that they meet the definition of an NHO, providing a statement of support for the specific activity, and attesting to the activity's relationship to the NHO's cultural practice, among other things.
The Exemption applies to undertakings as defined in the National Historic Preservation Act – that is, federal projects, federally funded projects (such as grants) or federally licensed projects involving NHOs. It also applies to mitigation actions (including emergency response) resulting from the Section 106 consultation process. Covered activities are listed in the Exemption and include landscaping practices, agricultural activities, restoration of water features, restoration of historic pathways, restoration of sacred and traditional sites, installation of interpretive signs, return or incorporation of Indigenous names, and the reconstruction or restoration of traditional Native Hawaiian buildings and structures.
The Exemption applies to all properties with religious or cultural significance to NHOs, as defined by NHOs.
See the press release for the Exemption for Indigenous Knowledge-Informed Activities by Native Hawaiian.