[Federal Register Volume 65, Number 246 (Thursday, December 21, 2000)]
[Notices]
[Pages 80412-80414]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 00-32577]


 ========================================================================
 Notices
                                                 Federal Register
 ________________________________________________________________________
 
 This section of the FEDERAL REGISTER contains documents other than rules 
 or proposed rules that are applicable to the public. Notices of hearings 
 and investigations, committee meetings, agency decisions and rulings, 
 delegations of authority, filing of petitions and applications and agency 
 statements of organization and functions are examples of documents 
 appearing in this section.
 
 ========================================================================
 

  Federal Register / Vol. 65, No. 246 / Thursday, December 21, 2000 / 
Notices  

[[Page 80412]]



ADVISORY COUNCIL ON HISTORIC PRESERVATION


Agreement Between the Advisory Council on Historic Preservation 
and the Narragansett Indian Tribe for the Assumption by the 
Narragansett Tribe of Certain Responsibilities Pursuant to the National 
Historic Preservation Act

AGENCY: Advisory Council on Historic Preservation.

ACTION: Notice of execution of agreement with the Narragansett Indian 
Tribe.

-----------------------------------------------------------------------

    Authority: 16 U.S.C. 470a(d)(5).

SUMMARY: The Advisory Council on Historic Preservation is publishing 
the agreement executed with the Narragansett Indian Tribe through which 
the Tribe assumes certain responsibilities pursuant to the National 
Historic Preservation Act, including the review of federal undertakings 
under their own, tribal historic preservation regulations instead of 
under the regulations promulgated by the Advisory Council.

DATES: The agreement became effective on November 27, 2000.

FOR FURTHER INFORMATION CONTACT: If you have questions about the 
agreement, please contact Valerie Hauser, Native American Program 
Coordinator, Advisory Council on Historic Preservation, 1100 
Pennsylvania Avenue, NW., Suite 809, Washington, DC 20004. (202) 606-
8505. The agreement and tribal procedures will be posted on our web 
site at http://www.achp.gov.

SUPPLEMENTARY INFORMATION: Section 101(d)(5) of the National Historic 
Preservation Act of 1966, as amended, provides that the Advisory 
Council

may enter into an agreement with an Indian tribe to permit 
undertakings on tribal land to be reviewed under tribal historic 
preservation regulations in place of review under regulations 
promulgated by the Council to govern compliance with section 106, if 
the Council, after consultation with the tribe and appropriate State 
Historic Preservation Officers, determines that the tribal 
preservation regulations will afford historic properties 
consideration equivalent to those afforded by the Council's 
regulations.

16 U.S.C. 470a(d)(5). Section 106 requires Federal agencies to take 
into account the effect of their undertakings on properties included in 
or eligible for inclusion in the National Register of Historic Places 
and to afford the Council a reasonable opportunity to comment on such 
undertakings.
    In accordance with the provisions of section 101(d)(5), the 
Advisory Council and the Narragansett Indian Tribe entered into the 
agreement titled ``Agreement between the Advisory Council on Historic 
Preservation and the Narragansett Indian Tribe Pursuant to section 
101(d)(5) of the National Historic Preservation Act'' (``Agreement''). 
Through it, the Narragansett Indian Tribe takes charge of the section 
106 historic preservation review of federal undertakings that affect 
historic properties located on their tribal land, and subjects such 
review to the provisions of the Narragansett Indian Tribe's Procedures 
and Rules for the Registration and Protection of Tribal Properties, 
January 7, 1999 (``tribal regulations'').
    After negotiating and developing a draft agreement, on January 27, 
1999 the Advisory Council published in the Federal Register a notice of 
intent to execute the Agreement with the Narragansett Indian Tribe for 
the Tribe to assume certain responsibilities pursuant to the National 
Historic Preservation Act (64 FR 4067). The notice invited public 
comment on the agreement and tribal historic preservation regulations 
by February 26, 1999. The Council also directly mailed a copy of the 
notice, along with the agreement and tribal regulations, to all Federal 
Preservation Officers and the State Historic Preservation Officers of 
Rhode Island, Connecticut and Massachusetts. The Council received 
approximately 12 comments on the proposed agreement and tribal 
regulations.
    Generally, commenters supported the overall objective of the 
agreement for the Tribe's assumption of section 106 review 
responsibilities on their tribal lands. However, strong objections were 
raised regarding a provision for the application, by mutual consent of 
the Tribe, the State Historic Preservation Officer and the Federal 
agency, of the agreement and tribal historic preservation regulations 
to Federal undertakings off tribal lands but within the Tribe's 
ancestral homelands. It was argued that the statute limited the 
substitution to tribal lands. Other comments also expressed concerns 
regarding overlapping ancestral lands of different tribes.
    Additionally, concerns were raised regarding the absence of a role 
for the Keeper of the National Register when there is a dispute about a 
property's eligibility for listing in the National Register of Historic 
Places. Finally, concerns were raised over the use and definition of 
the term ``tribal lands.''
    In response to these concerns, the Council and the Narragansett 
Indian Tribe revised the agreement and deleted the provision for 
substitution of the tribal historic preservation regulations for the 
Council's regulations off tribal lands. A role for the Keeper of the 
National Register was added to the agreement when there is a dispute 
regarding eligibility of a property for listing in the National 
Register of Historic Places.
    However, the term ``tribal lands'' and its statutory definition 
were retained in the agreement. The National Historic Preservation Act 
authorizes the Council to enter into such agreements for substitution 
of the Council's regulations on tribal lands. Tribal lands are defined 
in the National Historic Preservation Act as ``all lands within the 
exterior boundaries of any Indian reservation and all dependent Indian 
communities.'' 16 U.S.C. 470w(14). The Council is bound by statute to 
apply this term and its definition. Further clarification of the 
boundaries of an Indian reservation or of the meaning of ``tribal 
lands'' may be sought from the Department of Interior, Bureau of Indian 
Affairs.
    The Advisory Council and Narragansett Indian Tribe also added 
clarifications to the Agreement including statements that (1) this is 
an agreement between two sovereign governments; (2) the reservation has 
been surveyed for historic properties; (3) the provisions of Section 
101(d)(2) of the National Historic Preservation Act apply; (4) the 
Tribe agrees to provide

[[Page 80413]]

equivalent consideration to historic properties that are not of 
importance in Tribal history; and, (5) that Federal agencies have an 
affirmative responsibility to involve other consulting parties in the 
review process. The agreement also clarifies that a consulting party 
that raises an objection has the option of pursuing tribal 
administrative and judicial remedies, but that Federal agencies must 
also seek the Advisory Council's comments when there is a failure to 
agree.
    At its business meeting on November 17, 2000, the Advisory Council 
approved the Agreement by a unanimous vote of 18 to 0, with two 
abstentions. The Agreement was thereafter signed by the Tribal Historic 
Preservation Officer of the Narragansett Indian Tribe on November 24, 
2000, and by the Executive Director of the Advisory Council on November 
27, 2000.
    The Advisory Council has sent copies of the Agreement and tribal 
regulations to all Federal Preservation Officers, and the Rhode Island 
State Historic Preservation Officer.
    The Agreement is reproduced below. You may obtain copies of the 
tribal regulations by contacting Valerie Hauser, Native American 
Program Coordinator, Advisory Council on Historic Preservation, 1100 
Pennsylvania Avenue, Suite 809, Washington, DC 20004. (202) 606-8503.

Agreement Between the Advisory Council on Historic Preservation and 
the Narragansett Indian Tribe Pursuant to Section 101(d)(5) of the 
National Historic Preservation Act (16 U.S.C. 470)

    Whereas, the Narragansett Indian Tribe is a sovereign nation 
recognized and acknowledged under treaties and laws of the United 
States; and,
    Whereas, this agreement is executed between two sovereign 
governments, the government of the Narragansett Indian Tribe, acting by 
and through the Narragansett Indian Tribal Historic Preservation 
Office, and the United States, acting by and through the Advisory 
Council on Historic Preservation; and,
    Whereas, the Narragansett Indian Tribe is uniquely suited to insure 
the integrity of historic properties on their tribal lands; and,
    Whereas, enhancing the role of Indian Tribes in the national 
historic preservation partnership will result in a stronger and better 
national effort to identify and protect historic and cultural resources 
for future generations; and,
    Whereas, Section 101(d)(5) of the NHPA provides that the Advisory 
Council on Historic Preservation (hereinafter the Council or Council) 
may enter into agreement with an Indian Tribe to permit undertakings on 
tribal lands to be reviewed under tribal historic preservation 
regulations in place of review under regulations promulgated by the 
Council, ``Protection of Historic Properties'' (36 CFR Part 800); and,
    Whereas, for the purposes of this Assumption of Responsibilities 
Agreement (hereinafter Agreement), tribal lands, as defined by section 
301(14) of the NHPA, means all lands within the exterior boundaries of 
the Narragansett Indian Reservation and all dependent Indian 
communities; and,
    Whereas, the Narragansett Indian Tribe has assumed those functions 
of the State Historic Preservation Officer (hereinafter SHPO) with 
respect to its tribal lands under section 101(d)(2) of the NHPA; and,
    Whereas, in accordance with section 101(d)(2)(B) of the NHPA, the 
Narragansett Indian Tribe has designated a tribal preservation official 
to serve as Tribal Historic Preservation Officer (hereinafter THPO) and 
to administer the tribal historic preservation program; and,
    Whereas, in accordance with section 101(d)(2)(C) of the NHPA, the 
Tribe has provided to the Secretary of the Interior the Narragansett 
Indian Tribe's plan that describes how the tribal preservation 
official's function will be carried out; and,
    Whereas, Narragansett tribal lands have been surveyed and historic 
properties have been identified and evaluated pursuant to the Tribal 
and National Registers; and,
    Whereas, the Council has the unique responsibility under section 
101(d)(5) of the NHPA to review proposed substitute regulations and to 
ensure that they afford historic properties equivalent consideration to 
that provided under the Council's regulations; and,
    Whereas, the Council has consulted with the Rhode Island SHPO in 
the development of this agreement as required by section 101(d)(5) of 
the NHPA; and,
    Whereas, the Council has determined that the Narragansett Indian 
Tribe's Procedures and Rules for the Registration and Protection of 
Tribal Properties, January 7, 1999 (hereinafter Tribal Historic 
Preservation Regulations), along with the Stipulations of this 
Agreement, will afford historic properties consideration equivalent to 
those afforded by the Council's regulations; and
    Whereas, the Council urges the Narragansett THPO, the applicable 
SHPOs and Federal agencies to work in partnership to identify and 
protect historic properties of significance to the Narragansett Indian 
Tribes that are not located on tribal lands, and that they do so in a 
manner respectful of Narragansett traditional cultural practices and 
their special knowledge of their history; now, therefore,

The Advisory Council on Historic Preservation and the Narragansett 
Indian Tribe Do Hereby Agree as Follows:

    1. The Narragansett Indian Tribe assumes responsibility pursuant to 
section 101(d)(5) of the NHPA for reviewing undertakings on 
Narragansett tribal lands, as defined by section 301(14) of the NHPA, 
under its Tribal Historic Preservation Regulations in place of review 
under regulations promulgated by the Council to govern compliance with 
section 106 of the NHPA (36 CFR Part 800).
    2. The provisions of section 101(d)(2)(D)(iii) of the NHPA apply.
    3. Nothing in this agreement is meant to abridge the rights and 
authority afforded the Narragansett Indian Tribe under other 
authorities.
    4. If, after exhausting the Tribal Historic Preservation 
Regulations, there remains a dispute among consulting parties as to the 
National Register eligibility of a historic property, the Federal 
agency shall seek a determination of eligibility from the Keeper of the 
National Register.
    5. The Narragansett Indian Tribe agrees to afford equivalent review 
and consideration to historic properties on tribal lands that are 
eligible for the National Historic Register whether they are or are not 
of significance to the Tribe. The Narragansett Indian Tribe may turn to 
other parties, including the relevant SHPO to assist in reviewing and 
protecting properties of no significance to the Tribe.
    6. In carrying out the requirements of the Tribal Historic 
Preservation Regulations, Federal Agencies shall involve consulting 
parties, as defined in 36 CFR Part 800, in findings and determinations 
and, where appropriate, provide notification to the public.
    7. In the event that questions are raised by a consulting party 
regarding the interpretation of the Tribal Historic Preservation 
Regulations, the consulting party raising the objection shall exhaust 
all tribal administrative and judicial remedies. If, after pursuing a 
resolution through tribal administrative and judicial procedures the 
matter cannot be resolved, the matter may be brought for

[[Page 80414]]

de novo review before the Federal district court.
    8. In the event that consultation between the Federal agency and 
the THPO ends in a failure to agree, the Federal agency shall, in 
addition to meeting any other the obligations arising from its 
government-to-government relationship with the Tribe, seek the comments 
of the Council pursuant to section 800.7 of the Council's regulations.
    9. The Narragansett Indian Tribe, acting by and through the THPO, 
may terminate this Agreement for any reason by providing the Council 
sixty days written notice of such termination. The Council may 
terminate this Agreement upon determining that the Narragansett Indian 
Tribe has not carried out its responsibilities in accordance with the 
Agreement, the NHPA, or any other applicable federal statute or 
regulation. Upon termination, Federal agencies shall again follow the 
Council's regulations governing compliance with section 106 of the 
NHPA, as codified at 36 CFR Part 800, for undertakings carried out on 
the tribal lands of the Narragansett Indian Tribe.
    10. This Agreement may be amended by the mutual consent of the 
Narragansett Indian Tribe, acting by and through the THPO, and the 
Council.
    11. This Agreement shall become effective upon signature by the 
Executive Director of the Council or his designee, whose signature 
shall not occur until after the THPO of the Narragansett Indian Tribe 
has signed the Agreement. (Signature lines and dates of the Agreement 
are omitted.)

    Dated: December 18, 2000.
John M. Fowler,
Executive Director.
[FR Doc. 00-32577 Filed 12-20-00; 8:45 am]
BILLING CODE 4310-10-P