NATIONAL HISTORIC PRESERVATION ACT of 1966 as amended Garry J. Cantley Regional Archeologist Bureau of Indian Affairs

Indian Law

National Historic Preservation Act of 1966, amended The Congress finds and declares that The spirit and direction of the Nation are founded upon and reflected in its historic heritage The spirit and direction of the Nation are founded upon and reflected in its historic heritage Our historical and cultural foundations should be preserved as a living part of our lives to give a sense of orientation to the American people Our historical and cultural foundations should be preserved as a living part of our lives to give a sense of orientation to the American people Historic properties significant to the nation’s heritage are being lost or substantially altered, often inadvertently, with increasing frequency Historic properties significant to the nation’s heritage are being lost or substantially altered, often inadvertently, with increasing frequency The preservation of this irreplaceable heritage is in the public interest, so that it will be maintained and enriched for future generations The preservation of this irreplaceable heritage is in the public interest, so that it will be maintained and enriched for future generations

Requires Federal agencies to take into account the effects of their undertakings on historic properties. Section 106 of the Act defines how Federal agencies shall meet their statutory responsibilities. NHPA

36 CFR 800 The Section 106 Consultation Process

STEPS 1) To identify historic properties potentially affected by the undertaking; 2) Assess the effects; 3) Seek ways to avoid, minimize, or mitigate any adverse effects.

SOME TERMS: Agency Official SHPO-State Historic Preservation Officer THPO-Tribal Historic Preservation Officer Consulting Parties APE-Area of Potential Effects Eligibility Historic Property National Register of Historic Places Traditional Cultural Property (TCP)

UNDERTAKING 36 CFR (y) Undertaking means 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 assistance; those requiring a Federal permit, license or approval; and those subject to state or local regulation administered pursuant to a delegation or approval by a Federal agency. Undertaking means 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 assistance; those requiring a Federal permit, license or approval; and those subject to state or local regulation administered pursuant to a delegation or approval by a Federal agency.

Initiate Section 106 Consultation Process Establish undertaking Identify appropriate SHPO/THPO Plan to involve the public Identify other consulting parties Has potential to affect historic property

Identify Historic Properties Determine scope of efforts Identify historic properties May include background research, consultation, oral history interviews, and field survey

National Register criteria for evaluation National Register criteria for evaluation 36 CFR 60.4 The quality of significance in American history, architecture, archeology, engineering, and culture is present in districts, sites, buildings, structures, and objects that possess integrity or location, design, setting, materials, workmanship, feeling, and association and

(a)that are associated with events that have made a significant contribution to the broad patters of our history; or (b)that are associated with the lives of persons significant in our past; or (c) that embody the distinctive characteristics of a type, period, or method of construction…high artistic values…significant and distinguished entity…; or (d)that have yielded, or may be likely to yield, information important in prehistory or history.

Assess Adverse Effect 800.5(a)(1) An adverse effect is found when conditions may directly or indirectly alter characteristics of historic property that qualify it for the National Register that diminishes integrity of location, design, setting, materials, workmanship, feeling, or association Historic Property Is Affected

Examples Physical destruction Physical destruction Alteration of property Alteration of property Relocation Relocation Change in use Change in use Visual/audible elements Visual/audible elements Neglect Neglect Transfer Transfer

PHYSICAL DESTRUCTION

ALTERATION OF PROPERTY

VISUAL/AUDIBLE ELEMENTS

Resolve Adverse Effect Continue consultation to resolve, lessen, minimize, or mitigate effect. Continue consultation to resolve, lessen, minimize, or mitigate effect.

Memorandum of Agreement (MOA)

ARCHEOLOGICAL RESOURCES PROTECTION ACT (ARPA) NATIVE AMERICAN GRAVES PROTECTION AND REPATRIATION ACT (NAGPRA)

ARPA Prohibited Acts “No Person may excavate, remove, damage, alter or deface or attempt to…” “No Person may excavate, remove, damage, alter or deface or attempt to…” “…sell, purchase, exchange, transport, receive, or offer to…” “…sell, purchase, exchange, transport, receive, or offer to…” “remove archeological resources in violation of State or local law and move them in interstate or foreign commerce” “remove archeological resources in violation of State or local law and move them in interstate or foreign commerce” “…hire, counsel, or procure another to violate the law.” “…hire, counsel, or procure another to violate the law.”

NO Stealing Artifacts You Will Be Prosecuted!

NAGPRA Elements a) “Whoever knowingly sells, purchases, uses for profit, or transports for sale or profit, the human remains of a Native American without the right of possession as provided by NAGPRA shall be fined $100,000 or 1 year in jail or both. On a second or subsequent violation, the fine will be $250,000 or 5 years in jail, or both.”