National Park Service Compliance with Section 106
Through the partnership established by the National Historic Preservation Program, the National Park Service (NPS) regularly works with Native Americans throughout the United States. NPS Management Policies 2006, section 1.11.1, directs NPS to “maintain a government-to-government relationship with federally recognized tribal governments. This means that NPS officials will work directly with appropriate tribal government officials whenever plans or activities may directly or indirectly affect tribal interests, practices, and/or traditional use areas such as sacred sites.” As a federal land-managing agency with cultural resources stewardship responsibilities, NPS must comply with several provisions of the National Historic Preservation Act (NHPA), most notably Sections 106 and 110. Pursuant to Section 101(d)(6)(B) of the Act, NPS must also consult with Indian tribes* and Native Hawaiian Organizations (NHOs) that attach religious and cultural significance to historic properties off tribal lands and on NPS lands. At each Park Unit, the Superintendent is responsible for carrying out the mandates of Section 106, including consultation with Indian tribes and NHOs for proposed federal undertakings proposed at the Park.
To comply with Section 106 of NHPA and 36 CFR Part 800, the implementing regulations developed by the Advisory Council on Historic Preservation (ACHP), NPS executed a Nationwide Programmatic Agreement (PA) in 2008. This PA replaced an earlier agreement that was executed in 1995. In developing the 2008 PA, NPS conducted a series of “listening sessions” with Indian tribes, requested the input of Native Americans, and held consultation meetings with federally recognized Indian tribes and NHOs on the content of the PA.
The Nationwide PA includes much guidance to Parks on their consultation with Tribal Historic Preservation Officers (THPOs), Indian tribes and NHOs. Included in the PA are the following provisions governing NPS compliance with Section 106:
- Stipulation I.A.5., Superintendents shall develop and maintain relationships with Federally recognized Indian tribal governments, THPOs, and NHOs
- Stipulation I.B.2. requires Superintendents to designate a Park CRM Team which may include Federally recognized Indian tribes or NHOs, as well as NPS Regional staff
- Stipulation II.A., specifies that government-to-government consultation with Federally recognized Indian tribes and NHOs “shall occur at the Superintendent level,” and that “maintaining an on-going consultative relationship with THPOs and/or staff of Federally recognized Indian Tribes and NHOs is essential.” II.A., also provides for a consultation process for either on or off tribal Lands
- Stipulation II.A.3. specifies that “when a park is located partly or wholly within the boundaries of tribal lands, and the tribe has not signed this PA,” the Park must comply with the standard 4-step review process required in 36 CFR Part 800 until the THPO or Indian tribe has signed the PA
- Stipulation II.A.4. encourages the “development of consultation protocols, memoranda of agreement, and programmatic agreements” to facilitate government-to-government consultation with Federally recognized Indian tribes and THPOs, and consultation with NHOs
- Stipulation IV, “Parks are encouraged to use Servicewide automated project planning and tracking systems, such as the NPS Planning, Environment and Public Comment (PEPC) system . . . and to make such automated systems accessible to . . . THPOs, Federally recognized Indian tribes,” and NHOs
- Stipulation VIII.A. requires that every two years, Superintendents shall invite the appropriate THPO, Federally recognized Indian tribes, and NHOs with an interest in that park’s properties to a review and monitoring meeting
Jeffery Durbin, Section 106 Compliance Program Officer, at 202 354-1816 or Jeffery_Durbin@nps.gov