Part of a series of articles titled NPS Archeology Guide: Cultural Resources and Wilderness.
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Legal and Policy Mandates
The Wilderness Act was passed in 1964. Since then, several important cultural resource laws have been enacted that must be taken into consideration when managing cultural resources in wilderness. This section of Archeological and Other Cultural Resources and Wilderness provides information to help ensure that wilderness planning and projects comply with Federal laws and regulations, Executive Orders, and policies that pertain to cultural resources and the people who value these resources.
Federal laws and regulations, Executive Orders, and DOI and NPS policies that post-date the Wilderness Act guide the consideration of cultural resources and the people who value them in planning and management of wilderness areas. In addition, the National Park Service Organic Act (1916), and laws protecting cultural resources that pre-date the Wilderness Act remain vital to the preservation of cultural resources.
All of these legal mandates must be considered in managing archeological resources on Federal lands, including lands managed as wilderness. In addition, NHPA contains provisions for recognizing and protecting valued cultural resources that are eligible for listing or are listed on the National Register of Historic Places. NHPA Section 110 requires Federal agencies to establish a preservation program for the identification, evaluation, and nomination of historic properties to the National Register; and to protect historic properties under its jurisdiction.
Complying with Legal and Policy Mandates
The park superintendent ensures that planning documents and project implementation comply with all Federal laws and regulations, policies, and Executive Orders affecting cultural resources and human connections. Documentation demonstrates that State Historic Preservation Officers (SHPOs), Tribal Historic Preservation Officers (THPOs), Indian tribes, Native Hawaiian Organizations (NHOs), traditionally associated groups, and the public were given opportunities to comment and that their comments were taken into consideration before implementation of projects and activities.
The National Historic Preservation Act and National Environmental Policy Act
The National Environmental Policy Act (NEPA) (1970) mandates that Federal agencies consider the effects of their proposed actions (undertakings) on the environment, including effects on the human environment. A Federal undertaking is a project, activity, or program funded in whole or in part under the direct or indirect jurisdiction of a Federal agency, including those carried out by or on behalf of a Federal agency; those carried out with Federal financial assistance; and those requiring a Federal permit, license, or approval.
The National Historic Preservation Act (NHPA) (1966) requires consideration of archeological and other cultural resources in Federal land management. NHPA Section 110 requires Federal agencies to inventory archeological and other cultural resources on Federal lands and evaluate them for listing on the National Register of Historic Places. NHPA Section 106 provides a process for considering resources that may be affected by Federal undertakings. Archeological and other cultural resources over 50 years of age located on all Federal lands are considered through the National Historic Preservation Act.
A well-crafted wilderness stewardship plan will eliminate repetition in NEPA and NHPA consultation and review. NHPA Section 106 and NEPA consultation can be coordinated to prevent a duplication of effort. NHPA Section 106 activities may be documented through the NEPA process, and the wilderness manager may use NEPA documents such as an Environmental Impact Statement or Environmental Assessment to convey decisions arrived at through the Section 106 process.
Information about coordinating NEPA and NHPA can be found in the Advisory Council for Historic Preservation publication NEPA and NHPA, A Handbook for Integrating NEPA and Section 106 (2013).
When wilderness management planning identifies cultural resources that do not support the character of an individual wilderness, the NHPA Section 106 process provides procedures for documentation and consultation with the public to develop appropriate treatments and mitigation steps. Like NEPA, NHPA does not mandate a particular outcome but does require that the Section 106 process be followed when a Federal undertaking has the potential to affect cultural resources. Even historic properties listed on the National Register may, potentially, be removed after the Section 106 procedures have been properly carried out.
Guidance for implementing NHPA regulations is available from the Advisory Council on Historic Preservation.
More information about the Section 106 process may found in A Citizen's Guide to Section 106 Review. This excellent short guide provides much useful information for Federal managers.
The Antiquities Act and Archaeological Resources Protection Act (ARPA)
The Antiquities Act (1906) was the first Federal law to provide nationwide protection for a cultural resource. The main focus of the Archaeological Resources Protection Act (ARPA) (1979) is regulation of legitimate archeological investigation on public lands and the enforcement of penalties against those who loot or vandalize archeological resources. Its anti-trafficking provision also makes it an effective tool for discouraging illegal excavation or removal of archeological resources. Archeological resources over 100 years of age are protected by the Archaeological Resources Protection Act (ARPA).
Archeological investigations comply with ARPA and NHPA Section 106. Archeological investigations in wilderness that are not under the direct supervision of NPS staff are required to obtain a Permit for Archeological Investigations.
Technical guidance on issuing Permits pursuant to the Antiquities Act and ARPA is available in the NPS Archeology Guide.
The American Indian Religious Freedom Act (1978) and Executive Order 1300-Indian Sacred Sites
The American Indian Religious Freedom Act (AIRFA) and Executive Order 13007 - Indian Sacred Sites direct Federal land managing agencies to accommodate access to and ceremonial use of sacred sites by Indian religious practitioners and to avoid adversely affecting the physical integrity of those sites, including those in wilderness areas.
Executive Order 13175 and DOI Policy on Consultation with Indian Tribes
Executive Order 13175- Consultation and Coordination with Indian Tribal Governments and the DOI Policy on Consultation with Indian Tribes requires that Federal agencies conduct government-to-government consultations with federally-recognized Indian tribes when undertaking Federal actions that may have a direct impact on tribes or tribal lands. Tribes may have concerns about natural and cultural resources that may not necessarily be addressed during the NHPA Section 106 process. The Executive Order and DOI policy provide procedures for separate consultations when initiating Federal undertakings.
DOI Policy on Consultation with Alaska Native Claims Settlement Act (ANCSA) Corporations
Department of the Interior Policy on Consultation with Alaska Native Claims Settlement Act (ANCSA) Corporations requires consultation with ANCSA Corporations when park units, including units with wilderness, initiate undertakings that have a substantial direct effect on Alaska Natives, including any activity that may substantially affect corporation land, water areas, or resources; or any activity that may impact the ability of an ANCSA Corporation to participate in Departmental programs for which it qualifies.
The Native American Graves Protection and Repatriation Act (NAGPRA)
NAGPRA was enacted to address the rights of lineal descendants, Indian tribes, and Native Hawaiian organizations to human remains, funerary objects, sacred objects, and objects of cultural patrimony that originated in their community. NAGPRA regulations (43 CFR 10.4) provide a process for resolving situations in which NAGPRA-related items are inadvertently discovered on Federal land, including wilderness areas.
More information and guidance about NAGPRA may be found on the National NAGPRA program website.
NPS Management Policies
NPS management policies direct park managers to include cultural resources in wilderness planning and management, and acknowledge that cultural resources may be integral to wilderness character. NPS Management Policies (2006) Chapter 6. Wilderness Preservation and Management Section 6.3.8 specifically addresses cultural resources for planning and management purposes. Additional guidance on cultural resources is found in Section 6.2.1.2 - Additional Considerations in Determining Eligibility; 6.2.2 Wilderness Studies; 6.3.4.2 Wilderness Management Planning; 6.3.4.3 Environmental Compliance; 6.3.9 Fire Management; 6.3.10 Management Facilities; and 6.3.12 American Indian Access and Associated Sites.
DO 41 - Wilderness and Resource Manual (RM) #41
DO #41: Wilderness Stewardship, revised on May 15, 2013, provides clarity on wilderness preservation and management policies in NPS Management Policies (2006), Chapter 6. The 2013 DO recognizes that all areas now designated as wilderness have had some level of prior human use. It also requires that "cultural resources specialists must fully participate in the development of a park's Wilderness Stewardship Plan." Consideration of cultural resources in planning and management is strengthened.
The revised Resource Manual (RM) #41 provides practical guidance, examples, and templates that supplement the contents of DO #41.
DO #41 and RM #41 for Wilderness Stewardship are available on the NPS Office of Policy's website.
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Last updated: August 31, 2021