On November 22, 2013, the Advisory Council on Historic Preservation (ACHP) issued the attached guidance document on the intersection of the United Nations Declaration on the Rights of Indigenous Peoples (Declaration) and the review process under section 106 of the National Historic Preservation Act (NHPA). On March 1, 2013, the ACHP adopted a plan to support the Declaration, and the new guidance document is a step in carrying out that plan. In the plan, the ACHP committed itself to raising awareness about the Declaration in the historic preservation community and incorporating the principles and aspirations of the Declaration into ACHP initiatives and programs. The new guidance document, the plan, the Declaration, and related documents are all available on the ACHP website at: http://www.achp.gov/UNdeclaration.html.
Section 106 of the NHPA requires federal agencies to take into account the effects of their undertakings on historic properties, and afford the ACHP an opportunity to comment. The Declaration contains 46 Articles. The ACHP has identified nine Articles that intersect with the mission and work of the ACHP and with the section 106 process: Articles 8, 11, 12, 15, 16, 18, 25, 31, and 38. The new guidance document addresses the relationship between Article 18 and the requirements of the section 106 process for consultation with Indian tribes and Native Hawaiian organizations (NHOs). The ACHP plans to address the other Articles in future guidance documents. Article 18 provides:
Indigenous peoples have the right to participate in decision-making in matters which would affect their rights, through representatives chosen by themselves in accordance with their own procedures, as well as to maintain and develop their own indigenous decision-making institutions.
Section 101(d)(6) of the NHPA and the regulations implementing the section 106 process require federal agencies to consult with any tribe or NHO that attaches religious and cultural significance to a historic property that would be affected by a proposed federal undertaking. The guidance document notes that the scope of the section 106 process is in one sense narrower – it is limited to the impacts of proposed federal undertakings on historic properties – and in another sense broader than Article 18 – the consultation requirement applies regardless of whether a tribe or NHO holds any rights in such properties. Regardless of this difference in scope, the guidance document states that section 106 is consistent with the thrust of Article 18. In addition, unlike the Declaration, the section 106 process has the force of law.
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