CULTURAL RESOURCES PRESERVATION

CULTURAL RESOURCES PRESERVATION

What is a historic or cultural resource? A place, structure or object that possesses

character and integrity...

Is significant in terms of evoking the development of the National character...

Creates a resonance or recognition within the viewer as to what is symbolic, or that

which it represents

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Chapter OverviewChapter Overview

• National Historic Preservation Act (NHPA)• ACHP Regulations Governing Section 106

Process; – 36 C.F.R. Part 800

• Archeological and Historic Preservation Act (AHPA)

• Archeological Resources Protection Act (ARPA)• Native American Graves Protection and

Repatriation Act (NAGPRA)• American Indian Religious Freedom Act (AIRFA)

• National Historic Preservation Act (NHPA)• ACHP Regulations Governing Section 106

Process; – 36 C.F.R. Part 800

• Archeological and Historic Preservation Act (AHPA)

• Archeological Resources Protection Act (ARPA)• Native American Graves Protection and

Repatriation Act (NAGPRA)• American Indian Religious Freedom Act (AIRFA)

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National Historic Preservation Act (NHPA) National Historic Preservation Act (NHPA)

• Cornerstone of Federal historic and cultural preservation policy– Sets forth Federal agency responsibilities to provide

leadership in historic preservation• Established the National Register of Historic Places

(NRHP), or “National Register,” and National Historic Landmarks (NHL)

• Created the Advisory Council on Historic Preservation (ACHP)

• Governors to appoint State Historic Preservation Officers (SHPOs); Federally Recognized Indian Tribes have Tribal Historic Preservation Officer (THPO)

• Cornerstone of Federal historic and cultural preservation policy– Sets forth Federal agency responsibilities to provide

leadership in historic preservation• Established the National Register of Historic Places

(NRHP), or “National Register,” and National Historic Landmarks (NHL)

• Created the Advisory Council on Historic Preservation (ACHP)

• Governors to appoint State Historic Preservation Officers (SHPOs); Federally Recognized Indian Tribes have Tribal Historic Preservation Officer (THPO)

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NHPA - Congressional PurposeNHPA - Congressional Purpose

• Concern that historic resources were being lost through federal actions– “The preservation of this irreplaceable heritage is in the

public interest so that its vital legacy of cultural, educational, aesthetic, inspirational, economic, and energy benefits will be maintained and enriched for future generations of Americans” (NHPA, 16 U.S.C. 470)

– ”Stewardship is the faithful management of resources as assets which must be turned over to the next generation” (Legacy Resource Management Program LRMP, FY 1991-92 Appropriation Act)

• Concern that historic resources were being lost through federal actions– “The preservation of this irreplaceable heritage is in the

public interest so that its vital legacy of cultural, educational, aesthetic, inspirational, economic, and energy benefits will be maintained and enriched for future generations of Americans” (NHPA, 16 U.S.C. 470)

– ”Stewardship is the faithful management of resources as assets which must be turned over to the next generation” (Legacy Resource Management Program LRMP, FY 1991-92 Appropriation Act)

National Maritime HeritageTortugas Harbor, Fort Jefferson,

Florida

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NHPA Section 106- Consultation processNHPA Section 106- Consultation process

• A detailed consultative process between Agency and other parties with an interest in the effects of an undertaking on historic properties

• Reflects planning and procedural nature of statute; is not a substantive law.

• Imposes an affirmative duty on Federal agency to:– Take into account the effect of an undertaking on any

district, site, building, structure, or object that is included in or eligible for inclusion on the National Register

– Review Federal actions for effects on historic property

• A detailed consultative process between Agency and other parties with an interest in the effects of an undertaking on historic properties

• Reflects planning and procedural nature of statute; is not a substantive law.

• Imposes an affirmative duty on Federal agency to:– Take into account the effect of an undertaking on any

district, site, building, structure, or object that is included in or eligible for inclusion on the National Register

– Review Federal actions for effects on historic property

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• The process of seeking, discussing and considering the the views of other participants, and, where feasible, seeking agreement with them regarding matters that arise under the Section 106 process

• Led by the “Agency Official” who has approval authority for the undertaking and can commit the Federal Agency to take appropriate action for a specific undertaking as a result of Section 106 compliance (36 C.F.R. 800.1)

• The process of seeking, discussing and considering the the views of other participants, and, where feasible, seeking agreement with them regarding matters that arise under the Section 106 process

• Led by the “Agency Official” who has approval authority for the undertaking and can commit the Federal Agency to take appropriate action for a specific undertaking as a result of Section 106 compliance (36 C.F.R. 800.1)

What does “Consultation” mean?What does “Consultation” mean?

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• Advisory Council on Historic Preservation (ACHP)

• Consulting parties: State Historic Preservation Officer (SHPO); Tribal Historic Preservation Officer (THPO), or a representative where no THPO

• Indian Tribes and Native Hawaiian organizations where they attach religious and cultural significance to historic properties that may be affected by the undertaking

• Representatives of local governments and applicants for federal assistance, permits, licenses and other approvals

• (36 C.F.R. 800.2)

• Advisory Council on Historic Preservation (ACHP)

• Consulting parties: State Historic Preservation Officer (SHPO); Tribal Historic Preservation Officer (THPO), or a representative where no THPO

• Indian Tribes and Native Hawaiian organizations where they attach religious and cultural significance to historic properties that may be affected by the undertaking

• Representatives of local governments and applicants for federal assistance, permits, licenses and other approvals

• (36 C.F.R. 800.2)

ACHP and the Consulting Parties for Section 106 Consultation ProcessACHP and the Consulting Parties for Section 106 Consultation Process

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• Additional individuals and organizations may join as consulting parties due to legal or economic relation to the historic property or undertaking, or their concern with the undertaking’s effect on historic properties (36 C.F.R. 800.2 ( c) (6))

• Public involvement is where the Agency seeks and considers the views of the public in a manner that reflects the nature and complexity of the undertaking and its effects (36 C.F.R. 800.2 (d) (1))

• Additional individuals and organizations may join as consulting parties due to legal or economic relation to the historic property or undertaking, or their concern with the undertaking’s effect on historic properties (36 C.F.R. 800.2 ( c) (6))

• Public involvement is where the Agency seeks and considers the views of the public in a manner that reflects the nature and complexity of the undertaking and its effects (36 C.F.R. 800.2 (d) (1))

Additional Consulting Parties, and the PublicAdditional Consulting Parties, and the Public

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• The views of the public are essential to informed Federal decision-making under Section 106 (36 C.F.R 800.2 (d))

• Unless confidentiality at issue, provide information regarding undertaking and effects

• Seek public comment and input• The Agency may use NEPA procedures if they

provide adequate opportunity for public involvement• In consultation with the SHPO/THPO, plan for

notification and appropriate points of contact (36 C.F.R 800.3 (e))

• The views of the public are essential to informed Federal decision-making under Section 106 (36 C.F.R 800.2 (d))

• Unless confidentiality at issue, provide information regarding undertaking and effects

• Seek public comment and input• The Agency may use NEPA procedures if they

provide adequate opportunity for public involvement• In consultation with the SHPO/THPO, plan for

notification and appropriate points of contact (36 C.F.R 800.3 (e))

What is public involvement? What is public involvement?

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National Register of Historic Places (NRHP)National Register of Historic Places (NRHP)• Maintained by the National Park Service (NPS) • Property must meet established criteria for listing:

– Integrity, retains the basic characteristics that give it significance, and has:• Association with historically significant

events or people, • Distinctive characteristics, or• May contain information important to the

study of history or prehistory

• Maintained by the National Park Service (NPS) • Property must meet established criteria for listing:

– Integrity, retains the basic characteristics that give it significance, and has:• Association with historically significant

events or people, • Distinctive characteristics, or• May contain information important to the

study of history or prehistory

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“Eligible for inclusion on the National Register”“Eligible for inclusion on the National Register”

• What is eligible turns upon inherent historical and cultural significance of property

• Eligibility for inclusion is determined by the Agency in consultation with the SHPO/THPO

– Where disagreement, the Keeper of the National Register will decide (National Park Service)

– Includes formally recognized properties and those that meet the criteria• “On the National Register List, or

eligible for the List”

• What is eligible turns upon inherent historical and cultural significance of property

• Eligibility for inclusion is determined by the Agency in consultation with the SHPO/THPO

– Where disagreement, the Keeper of the National Register will decide (National Park Service)

– Includes formally recognized properties and those that meet the criteria• “On the National Register List, or

eligible for the List”

Cold War Missile Silos

Minute man Missile National Historic Site, near the Badlands SD

Delta-01 and Delta-09 were selected for preservation because they were the most typical and least altered from the original 1961 Minuteman missile configuration

Cold War Missile Silos

Minute man Missile National Historic Site, near the Badlands SD

Delta-01 and Delta-09 were selected for preservation because they were the most typical and least altered from the original 1961 Minuteman missile configuration

New Frontiers in Historic Resources

New Frontiers in Historic Resources

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• Historic Property– Any prehistoric or historic district, site, building,

structure, or object included, or eligible for inclusion on the National Register. Term includes artifacts, records and remains that are related to or located in the property

– Includes properties of traditional religious and cultural importance to an Indian tribe or Native Hawaiian organization that meet National Register criteria (36 C.F.R. 800.16 (l)

• Historic Property– Any prehistoric or historic district, site, building,

structure, or object included, or eligible for inclusion on the National Register. Term includes artifacts, records and remains that are related to or located in the property

– Includes properties of traditional religious and cultural importance to an Indian tribe or Native Hawaiian organization that meet National Register criteria (36 C.F.R. 800.16 (l)

Historic property definition Historic property definition

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Undertaking definitionUndertaking definition

• Undertaking– a project, activity or program funded in

whole or in part under the direct or indirect jurisdiction of a Federal agency

– Includes new and continuing projects, programs or elements thereof, not previously considered(36 C.F.R. 800.16(y))

• Undertaking– a project, activity or program funded in

whole or in part under the direct or indirect jurisdiction of a Federal agency

– Includes new and continuing projects, programs or elements thereof, not previously considered(36 C.F.R. 800.16(y))

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Area of Potential EffectArea of Potential Effect

• Area Of Potential Effect (APE) – “The geographic area or area within which an

undertaking may directly or indirectly cause changes in the character or use of historic properties,

– if any such properties exist”

– “The APE is influenced by the scale and nature of an undertaking and may be different for different kinds of effects caused by the undertaking.” (36 C.F.R. 800.16 (d)

• Area Of Potential Effect (APE) – “The geographic area or area within which an

undertaking may directly or indirectly cause changes in the character or use of historic properties,

– if any such properties exist”

– “The APE is influenced by the scale and nature of an undertaking and may be different for different kinds of effects caused by the undertaking.” (36 C.F.R. 800.16 (d)

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• Effect: Means alteration to the characteristics of a historic property qualifying it for inclusion in or eligibility for the National Register (36 C.F.R. 800.16 (i))– Includes: all elements of the undertaking

• all locations where ground may be disturbed• all locations where the undertaking may result in

visible changes• all changes direct, indirect and cumulative to the

property

• Effect: Means alteration to the characteristics of a historic property qualifying it for inclusion in or eligibility for the National Register (36 C.F.R. 800.16 (i))– Includes: all elements of the undertaking

• all locations where ground may be disturbed• all locations where the undertaking may result in

visible changes• all changes direct, indirect and cumulative to the

property

What is “an effect”?What is “an effect”?

Latrobe Gate, Washington Navy YardLatrobe Gate, Washington Navy Yard

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First, establish whether the action is a Federal undertakingFirst, establish whether the action is a Federal undertaking

• The Agency makes the undertaking determination, however, the Council may render advice on the existence of the undertaking

– Is the action an undertaking as defined in 800.16 (y): an action under Federal agency direct or indirect jurisdiction or control?

– If so, is it the type of activity that has the potential to cause effects on historic properties?

– (36 C.F.R. 800.3)

• The Agency makes the undertaking determination, however, the Council may render advice on the existence of the undertaking

– Is the action an undertaking as defined in 800.16 (y): an action under Federal agency direct or indirect jurisdiction or control?

– If so, is it the type of activity that has the potential to cause effects on historic properties?

– (36 C.F.R. 800.3)

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• 1. No, there is no undertaking under 800.16 (y)• 2. Yes, there is an undertaking, but there is no

potential for it to have an effect on a historic property

• If either of the above determinations, then the Agency has completed its Section 106 obligations

• Keep a record of such findings of the “No undertaking/No potential to cause effects” determination

• 1. No, there is no undertaking under 800.16 (y)• 2. Yes, there is an undertaking, but there is no

potential for it to have an effect on a historic property

• If either of the above determinations, then the Agency has completed its Section 106 obligations

• Keep a record of such findings of the “No undertaking/No potential to cause effects” determination

Agency’s undertaking determination can result in two outcomesAgency’s undertaking determination can result in two outcomes

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Undertaking determination outcomes (continued)

• Yes, there is an undertaking that does have the potential to cause effects on historic properties, then:– Agency proceeds to identify properties that might be

affected – Agency identifies consulting parties: SHPO, THPO, Indian

Tribes, Native Hawaiian organizations, local governments, and others at Agency discretion (800.3 ( c) and (f))

– Agency plans to involve the public (800.3 (e ))

• Yes, there is an undertaking that does have the potential to cause effects on historic properties, then:– Agency proceeds to identify properties that might be

affected – Agency identifies consulting parties: SHPO, THPO, Indian

Tribes, Native Hawaiian organizations, local governments, and others at Agency discretion (800.3 ( c) and (f))

– Agency plans to involve the public (800.3 (e ))

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• Determine scope of identification efforts by consultation with SHPO/THPO:– determining and documenting area of potential

effects– reviewing existing information about historic

properties– seeking information from parties likely to have

knowledge of or concerns about the area– gathering information from Indian tribes and native

Hawaiian organizations about properties to which they attach religious and cultural significance (800.4 (a))

• Determine scope of identification efforts by consultation with SHPO/THPO:– determining and documenting area of potential

effects– reviewing existing information about historic

properties– seeking information from parties likely to have

knowledge of or concerns about the area– gathering information from Indian tribes and native

Hawaiian organizations about properties to which they attach religious and cultural significance (800.4 (a))

Undertaking might effect historic properties, proceed with identifying historic properties

Undertaking might effect historic properties, proceed with identifying historic properties

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• Identify historic properties through consultation (800.4 (b) (1-2)) :– Standard is “reasonable and good faith effort” via

research, consultation, oral history, sample field investigation and field surveys

– Regs allow for phased identification – Regs allow for deferred identification where

agreed to by SHPO and THPO or other circumstances warrant final determination

• Identify historic properties through consultation (800.4 (b) (1-2)) :– Standard is “reasonable and good faith effort” via

research, consultation, oral history, sample field investigation and field surveys

– Regs allow for phased identification – Regs allow for deferred identification where

agreed to by SHPO and THPO or other circumstances warrant final determination

Undertaking might effect historic properties, proceed with identifying historic properties

Undertaking might effect historic properties, proceed with identifying historic properties

Iolani Palace, Oahu, HI Iolani Palace, Oahu, HI

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• Applying National Register Criteria to properties identified in the APE using special expertise

• Determinations of eligibility are made in consultation with the SHPO/THPO

• Where SHPO/THPO objection to determination of eligibility, pass to Council to consider referring to Keeper.

• Where Native American objection to determination of eligibility, also may request Council to ask Agency to obtain determination of eligibility

• Applying National Register Criteria to properties identified in the APE using special expertise

• Determinations of eligibility are made in consultation with the SHPO/THPO

• Where SHPO/THPO objection to determination of eligibility, pass to Council to consider referring to Keeper.

• Where Native American objection to determination of eligibility, also may request Council to ask Agency to obtain determination of eligibility

Agency to determine National Register eligibility of properties not previously evaluated for historic significance by:

Agency to determine National Register eligibility of properties not previously evaluated for historic significance by:

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– No historic properties are found, or– No effects on historic properties are found, then

• Agency prepares appropriate documentation• Agency provides documentation to SHPO/THPO and

notifies consulting parties: 30 days to object• Place documentation in public file; provide to public

where requested• Proceed with undertaking, unless SHPO/THPO objects

within the 30 days; Consider Section 106 completed • (800.4(d)(1))

– No historic properties are found, or– No effects on historic properties are found, then

• Agency prepares appropriate documentation• Agency provides documentation to SHPO/THPO and

notifies consulting parties: 30 days to object• Place documentation in public file; provide to public

where requested• Proceed with undertaking, unless SHPO/THPO objects

within the 30 days; Consider Section 106 completed • (800.4(d)(1))

No historic properties affected finding where:No historic properties affected finding where:

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• The Federal agency must proceed to the assessment of adverse effects when it finds that:– historic properties may be affected, or,– SHPO/THPO objects to a “no historic properties

affected” finding

• Agency must notify all consulting parties and invite their views

• (800.4 (d) (2))

• The Federal agency must proceed to the assessment of adverse effects when it finds that:– historic properties may be affected, or,– SHPO/THPO objects to a “no historic properties

affected” finding

• Agency must notify all consulting parties and invite their views

• (800.4 (d) (2))

Historic properties are affectedHistoric properties are affected

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• Adverse Effect is found when an undertaking may alter, directly or indirectly, the characteristics of the property that qualify it for inclusion or eligibility on National Register in a manner that:– would diminish the integrity of the property’s location,

design, setting, workmanship, feeling or association. (36 CFR Sec. 800.5)

• Include the reasonably foreseeable effects occurring later in time, be farther removed in distance, or be cumulative. (36 C.F.R. Sec. 800.(5)(a)(1)

• Adverse Effect is found when an undertaking may alter, directly or indirectly, the characteristics of the property that qualify it for inclusion or eligibility on National Register in a manner that:– would diminish the integrity of the property’s location,

design, setting, workmanship, feeling or association. (36 CFR Sec. 800.5)

• Include the reasonably foreseeable effects occurring later in time, be farther removed in distance, or be cumulative. (36 C.F.R. Sec. 800.(5)(a)(1)

Assess adverse effectsAssess adverse effects

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• Physical damage or destruction to all or part• Neglect of the property which causes its deterioration

(except where such contributes to Native American or Hawaiian organization cultural and religious significance)

• Removal of the property from its historic location• Change in the character, use or physical features within

the property’s setting• Introduction of visual, atmospheric or audible elements• Transfer, sale or lease of the property without adequate

and legally enforceable restrictions to ensure long-term preservation (36 C.F.R. 800.5 (a)(2))

• Physical damage or destruction to all or part• Neglect of the property which causes its deterioration

(except where such contributes to Native American or Hawaiian organization cultural and religious significance)

• Removal of the property from its historic location• Change in the character, use or physical features within

the property’s setting• Introduction of visual, atmospheric or audible elements• Transfer, sale or lease of the property without adequate

and legally enforceable restrictions to ensure long-term preservation (36 C.F.R. 800.5 (a)(2))

An adverse effect can be:An adverse effect can be:

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• Agency may, in consultation with SHPO/THPO, may arrive at no adverse effect determination if criteria not met or by modifying a project or imposing conditions 800.5(b)

• Submit finding to SHPO/THPO for 30 day review • Council will no longer routinely review, but will

should it deem appropriate or is requested to• Council will review if consulting parties disagree

with finding and will offer advisory opinion to Agency (15 day review)

• Agency may, in consultation with SHPO/THPO, may arrive at no adverse effect determination if criteria not met or by modifying a project or imposing conditions 800.5(b)

• Submit finding to SHPO/THPO for 30 day review • Council will no longer routinely review, but will

should it deem appropriate or is requested to• Council will review if consulting parties disagree

with finding and will offer advisory opinion to Agency (15 day review)

No historic properties are adversely effected No historic properties are adversely effected

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• Agency must carry forward undertaking in accordance with the findings shared with all consulting parties

• Agency to retain records of findings of no adverse effect and make them available to public and share with public where requested

• Failure to carry out specified undertaking and consultation agreements means lack of Section 106 compliance

• (36 CFR 800.5(d)(1))

• Agency must carry forward undertaking in accordance with the findings shared with all consulting parties

• Agency to retain records of findings of no adverse effect and make them available to public and share with public where requested

• Failure to carry out specified undertaking and consultation agreements means lack of Section 106 compliance

• (36 CFR 800.5(d)(1))

No historic properties are adversely effected determinationNo historic properties are adversely effected determination

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• Continue full consultation among all consulting parties

• Agency must provide an opportunity for public to express views by meaningful notice and comment

• Agency must notify Council and invite participation

• Council may participate where circumstances in 800.6 (a) (1) (i) (A-C) exist:

• Agency desires participation• Undertaking has an adverse effect on a National Historic

Landmark

• A Programmatic Agreement will be prepared

• Continue full consultation among all consulting parties

• Agency must provide an opportunity for public to express views by meaningful notice and comment

• Agency must notify Council and invite participation

• Council may participate where circumstances in 800.6 (a) (1) (i) (A-C) exist:

• Agency desires participation• Undertaking has an adverse effect on a National Historic

Landmark

• A Programmatic Agreement will be prepared

Historic properties are adversely affected determination (800.5 (d) (2))Historic properties are adversely affected determination (800.5 (d) (2))

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• Resolve adverse effects by developing a Memorandum of Agreement (MOA) with all consulting parties, and Council where they are participating (800.6 (b))

• Signing MOA signifies formal conclusion of Section 106 process

• MOA evidences Agency’s compliance with NHPA, and is therefore obligated to follow it’s terms

• Failure to reach agreement results in Council rendering Advisory Comment to Head of Agency, specific procedures then follow (800.7 (a) (1))

• Resolve adverse effects by developing a Memorandum of Agreement (MOA) with all consulting parties, and Council where they are participating (800.6 (b))

• Signing MOA signifies formal conclusion of Section 106 process

• MOA evidences Agency’s compliance with NHPA, and is therefore obligated to follow it’s terms

• Failure to reach agreement results in Council rendering Advisory Comment to Head of Agency, specific procedures then follow (800.7 (a) (1))

Resolve finding of adverse effects with MOAResolve finding of adverse effects with MOA

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NHPA Section 106: ForeclosureNHPA Section 106: Foreclosure

• Beware of not completing the Section 106 process: – Foreclosure-If Agency takes action on

undertaking prior to completing the Section 106 process, the Council may find that their opportunity to comment on the undertaking has been foreclosed

– Foreclosure means that in the Council’s view, the Agency has violated section 106 by failing to afford the Council an opportunity to comment

– Foreclosure finding leaves the Agency vulnerable to litigation (36 C.F.R. 800.9 (b))

• Beware of not completing the Section 106 process: – Foreclosure-If Agency takes action on

undertaking prior to completing the Section 106 process, the Council may find that their opportunity to comment on the undertaking has been foreclosed

– Foreclosure means that in the Council’s view, the Agency has violated section 106 by failing to afford the Council an opportunity to comment

– Foreclosure finding leaves the Agency vulnerable to litigation (36 C.F.R. 800.9 (b))

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Section 106: Consultation Process AlternativesSection 106: Consultation Process Alternatives

• Alternative Procedures Sec. 800.14– Agency, Advisory Council and SHPO/THPO

and as appropriate others, can negotiate alternative procedures instead of strict Section 106 process

– Programmatic Agreement (PA) provides Section 106 coverage for an entire series of Properties or Undertakings• Navy:Nationwide World War II Buildings PA• Coast Guard: Nationwide protection of cultural

resources during emergency response under National Oil and Hazardous Substances Pollution Contingency Plan PA

• Alternative Procedures Sec. 800.14– Agency, Advisory Council and SHPO/THPO

and as appropriate others, can negotiate alternative procedures instead of strict Section 106 process

– Programmatic Agreement (PA) provides Section 106 coverage for an entire series of Properties or Undertakings• Navy:Nationwide World War II Buildings PA• Coast Guard: Nationwide protection of cultural

resources during emergency response under National Oil and Hazardous Substances Pollution Contingency Plan PA

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NHPA Section 110: Federal Agency ResponsibilitiesNHPA Section 110: Federal Agency Responsibilities• The heads of all Federal agencies shall assume

responsibility for the preservation of historic properties which are owned or controlled by such agency by: – appointing Federal Preservation Officer (FPO)

• locating, conducting inventories and nominating historic properties – making appropriate records of the historic values of

the property prior to substantial alteration or demolition

– using available historic properties before acquiring new ones (adaptive reuse)

• The heads of all Federal agencies shall assume responsibility for the preservation of historic properties which are owned or controlled by such agency by: – appointing Federal Preservation Officer (FPO)

• locating, conducting inventories and nominating historic properties – making appropriate records of the historic values of

the property prior to substantial alteration or demolition

– using available historic properties before acquiring new ones (adaptive reuse)

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NHPA Internal Agency Policy and GuidanceNHPA Internal Agency Policy and Guidance

• DoD: DoDINST 4715.16 (September 18, 2008), Cultural Resources Management

• Navy: OPNAVINST 5090.1C, – Chapter 27 Cultural Resources Management; Chapter 5

Procedures for implementing the National Environmental Policy Act

– SECNAVINST 4000.35A DoN Cultural Res. Program– SECNAVINT 11010.14A, DoN policy for Consultation with

Federally Recognized Indian Tribes• Marines: MCO P5090.2B Chapter 8 Historic and

Archeological Resources Protection • Coast Guard: COMDTINST M16475.1D, (NEPA

instruction but includes NHPA and Section 4(f) of the DOT Act)

• USAF: AFI 32-7065, Cultural Resources Management• Army: AR 200-4, Cultural Resources Management

• DoD: DoDINST 4715.16 (September 18, 2008), Cultural Resources Management

• Navy: OPNAVINST 5090.1C, – Chapter 27 Cultural Resources Management; Chapter 5

Procedures for implementing the National Environmental Policy Act

– SECNAVINST 4000.35A DoN Cultural Res. Program– SECNAVINT 11010.14A, DoN policy for Consultation with

Federally Recognized Indian Tribes• Marines: MCO P5090.2B Chapter 8 Historic and

Archeological Resources Protection • Coast Guard: COMDTINST M16475.1D, (NEPA

instruction but includes NHPA and Section 4(f) of the DOT Act)

• USAF: AFI 32-7065, Cultural Resources Management• Army: AR 200-4, Cultural Resources Management

Successful Mission Management: Consult Early and Cooperatively

Successful Mission Management: Consult Early and Cooperatively

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Archeological and Historic Preservation Act (AHPA)Archeological and Historic Preservation Act (AHPA)

• “Whenever any Federal agency finds or is notified … that its activities in connection with any Federal construction project-federally funded or licensed may cause irreparable loss or destruction of significant scientific, pre-historical, historical, or archeological data, such agency shall notify the Department of the Interior (DOI) in writing, and shall provide (DOI) with appropriate information concerning the project” (AHPA 16 U.S.C. 469)

• “Whenever any Federal agency finds or is notified … that its activities in connection with any Federal construction project-federally funded or licensed may cause irreparable loss or destruction of significant scientific, pre-historical, historical, or archeological data, such agency shall notify the Department of the Interior (DOI) in writing, and shall provide (DOI) with appropriate information concerning the project” (AHPA 16 U.S.C. 469)

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AHPA Federal Agency Requirements AHPA Federal Agency Requirements

– Notify DOI when construction projects may damage archeological sites

– Conduct or assist in the recovery of data from such sites

– Wait for preservation action before resuming project

– Authorizes up to 1% of project funding for preservation activities

– Notify DOI when construction projects may damage archeological sites

– Conduct or assist in the recovery of data from such sites

– Wait for preservation action before resuming project

– Authorizes up to 1% of project funding for preservation activities

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Archeological Resources Protection Act (ARPA)Archeological Resources Protection Act (ARPA)

• Established archeological resources as part of the Nation’s heritage. 16 U.S.C. 470 aa-11

• Protected archeological resources include any material remains of past human life or activities, at least 100 years old, of archeological interest– includes human skeletal remains, surface or

subsurface structures, shipwrecks, pottery, bottles, tools, funerary objects and reliquary.

• Prohibits certain acts

• Established archeological resources as part of the Nation’s heritage. 16 U.S.C. 470 aa-11

• Protected archeological resources include any material remains of past human life or activities, at least 100 years old, of archeological interest– includes human skeletal remains, surface or

subsurface structures, shipwrecks, pottery, bottles, tools, funerary objects and reliquary.

• Prohibits certain acts

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ARPA featuresARPA features

• Prohibited acts include:– the excavation, removal, damaging, alteration, or

defacement of archeological resources on federal property without a permit

– trafficking in artifacts illegally excavated or removed

• Applies to Federally owned and managed land, public lands and all Indian tribal lands

• Contains criminal and civil penalties

• Prohibited acts include:– the excavation, removal, damaging, alteration, or

defacement of archeological resources on federal property without a permit

– trafficking in artifacts illegally excavated or removed

• Applies to Federally owned and managed land, public lands and all Indian tribal lands

• Contains criminal and civil penalties

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ARPA Federal Agency ResponsibilitiesARPA Federal Agency Responsibilities

• Creates Federal Land Manager responsibilities:– develop plans to document and survey land for

archeological resources

– approve and provide permits for archeological work on land to qualified professionals

– identify all Indian tribes having historical or aboriginal ties to land and sites of religious or cultural importance

• Creates Federal Land Manager responsibilities:– develop plans to document and survey land for

archeological resources

– approve and provide permits for archeological work on land to qualified professionals

– identify all Indian tribes having historical or aboriginal ties to land and sites of religious or cultural importance

ARPA prohibits digging without proper permits and trafficking in artifacts

ARPA prohibits digging without proper permits and trafficking in artifacts

LaSalle Shipwreck Project, Matagorda Bay, Texas

LaSalle Shipwreck Project, Matagorda Bay, Texas

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Native American Graves Protection and Repatriation Act (NAGPRA)Native American Graves Protection and Repatriation Act (NAGPRA)

• Federal Agency Responsibilities:– Establishes procedures for the disposition

(return and repatriation) of human remains and cultural objects held in Federal collections, or found on DOD and tribal lands

– Consult with Federally recognized Indian tribes upon discovery of graves, and, cultural and funerary objects already possessed by or under the control of the Agency

• Federal Agency Responsibilities:– Establishes procedures for the disposition

(return and repatriation) of human remains and cultural objects held in Federal collections, or found on DOD and tribal lands

– Consult with Federally recognized Indian tribes upon discovery of graves, and, cultural and funerary objects already possessed by or under the control of the Agency

Norton Burial Mount, MINorton Burial Mount, MI

NAGPRA: Protections extend to graves and cultural items of early inhabitants of

our lands

NAGPRA: Protections extend to graves and cultural items of early inhabitants of

our lands

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NAGPRA Federal Agency ResponsibilitiesNAGPRA Federal Agency Responsibilities

• Act requires that Agencies:– Upon discovery, 30 day activity moratorium imposed

while consultation with Federally recognized Indian Tribe, Native Hawaiian organization, and Eskimo/Aleut lineal descendents occurs

– inventory cultural items in possession of Agency– repatriate remains and cultural items

• Act requires that Agencies:– Upon discovery, 30 day activity moratorium imposed

while consultation with Federally recognized Indian Tribe, Native Hawaiian organization, and Eskimo/Aleut lineal descendents occurs

– inventory cultural items in possession of Agency– repatriate remains and cultural items

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• Cultural Items include:– human remains,

– funerary objects associated with

remains and burial sites,

– sacred objects, and

– objects of “cultural patrimony”, i.e., material remains of “historical, traditional, or cultural importance to the Native American group or culture itself”

• Cultural Items include:– human remains,

– funerary objects associated with

remains and burial sites,

– sacred objects, and

– objects of “cultural patrimony”, i.e., material remains of “historical, traditional, or cultural importance to the Native American group or culture itself”

NAGPRA: Cultural Items DefinitionNAGPRA: Cultural Items Definition

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NAGPRA provides for respectful treatment of Native American remains and cultural items

NAGPRA provides for respectful treatment of Native American remains and cultural items

• Applies common law rule respecting gravesites to Native Americans:– human remains, once decently buried, should not be

disturbed absent “weighty” and “compelling” reasons.

• Extends consultation requirement beyond “Federally recognized Indian Tribes” to include most aboriginal peoples lineal descendents

• Applies common law rule respecting gravesites to Native Americans:– human remains, once decently buried, should not be

disturbed absent “weighty” and “compelling” reasons.

• Extends consultation requirement beyond “Federally recognized Indian Tribes” to include most aboriginal peoples lineal descendents

Re-internment of Aleutian remains previously held in a museum,

Larsen Bay, Alaska

Re-internment of Aleutian remains previously held in a museum,

Larsen Bay, Alaska

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American Indian Religious Freedom Act (AIRFA)American Indian Religious Freedom Act (AIRFA)• Extends First Amendment rights to all Native

Americans: American Indians, Eskimos, Aleuts, and Native Hawaiians

• First Amendment Rights: Freedom of religious beliefs and practices without government interference- “Free Exercise Clause”

• Court interpretation of law requires federal agencies to consult with tribes about the effects of agency actions on the exercise of traditional religions-obtain and consider their views

• Extends First Amendment rights to all Native Americans: American Indians, Eskimos, Aleuts, and Native Hawaiians

• First Amendment Rights: Freedom of religious beliefs and practices without government interference- “Free Exercise Clause”

• Court interpretation of law requires federal agencies to consult with tribes about the effects of agency actions on the exercise of traditional religions-obtain and consider their views

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AIRFA expresses a policy to allow the free exercise of religion for all Native AmericansAIRFA expresses a policy to allow the free exercise of religion for all Native Americans

• Rights include:– freely practice native religion through ceremonial and

traditional rights– have access to sacred sites to use for religious purposes

– use their sacred objects for spiritual and cultural renewal

• However, the Act creates no cause of action in Federal court or judicially enforceable rights. (Lyng v. Northwest Indian Cemetery Protective Association, 485 U.S. 439 (1988))

• Rights include:– freely practice native religion through ceremonial and

traditional rights– have access to sacred sites to use for religious purposes

– use their sacred objects for spiritual and cultural renewal

• However, the Act creates no cause of action in Federal court or judicially enforceable rights. (Lyng v. Northwest Indian Cemetery Protective Association, 485 U.S. 439 (1988))

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Native American Policy DirectivesNative American Policy Directives

• Executive Order 13007 on Access to American Indian Sacred Sites:– Federal Agencies shall accommodate

access to and ceremonial use of sacred sites on Federal lands; and,

– avoid adversely affecting the sacred site and where appropriate, keep the location confidential

• Executive Order 13007 on Access to American Indian Sacred Sites:– Federal Agencies shall accommodate

access to and ceremonial use of sacred sites on Federal lands; and,

– avoid adversely affecting the sacred site and where appropriate, keep the location confidential

Native American Sacred Site: Medicine Wheel, Big Horn Mountains, Wyoming. Tribes gather here to chart

the stars and conduct ceremonies

Native American Sacred Site: Medicine Wheel, Big Horn Mountains, Wyoming. Tribes gather here to chart

the stars and conduct ceremonies

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Native American policy directivesNative American policy directives

• Department of Defense American Indian and Alaska Native Policy, October 1998– Extends only to those Federally-recognized

American Indian and Alaska Native governments

– Addresses:• Trust Responsibilities• Government to Government Relations• Consultation• Natural and Cultural Resources protection

– Affirms existing laws

• Department of Defense American Indian and Alaska Native Policy, October 1998– Extends only to those Federally-recognized

American Indian and Alaska Native governments

– Addresses:• Trust Responsibilities• Government to Government Relations• Consultation• Natural and Cultural Resources protection

– Affirms existing laws

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Other Relevant policy directivesOther Relevant policy directives

• OPNAVINST 11170.2, Navy responsibilities regarding Undocumented Human Burials

• P.L 208-375 Sunken Military Craft Act• 32 C.F.R. 767 Application Guidelines for

Archeological Research Permits on Ships and Aircraft Wrecks Under the Jurisdiction of the DoN

• E.O. 130006 Locating Federal Facilities on Historic Properties in our Nation’s Central Cities

• 36 C.F.R. 79 – Curation of Federally Owned and Administered Archeological Collections

• OPNAVINST 11170.2, Navy responsibilities regarding Undocumented Human Burials

• P.L 208-375 Sunken Military Craft Act• 32 C.F.R. 767 Application Guidelines for

Archeological Research Permits on Ships and Aircraft Wrecks Under the Jurisdiction of the DoN

• E.O. 130006 Locating Federal Facilities on Historic Properties in our Nation’s Central Cities

• 36 C.F.R. 79 – Curation of Federally Owned and Administered Archeological Collections

Follow NHPA effects consultation requirements under Sec. 106 where action may involve protected historic resources

Where Native American interests arise, apply appropriate law and policy

Consider stewardship in all planning activities

Follow NHPA effects consultation requirements under Sec. 106 where action may involve protected historic resources

Where Native American interests arise, apply appropriate law and policy

Consider stewardship in all planning activities

In closing, lesson summary:In closing, lesson summary: