Ka Wai Ola - Office of Hawaiian Affairs, Volume 9, Number 9, 1 September 1992 — Mai Wakinekona [ARTICLE+ILLUSTRATION]

Mai Wakinekona

By Paul Alexander Washington, D.C. Counsel for OHA

Native Hawaiians and historic preservation law

Consideration of the issues that have had to be resolved in the effort to enact National Historic

Preservation Act Amendments of 1992 demonstrates the unique and difficult position of Native Hawaiians in protecting their interests without having a recognized Native Hawaiian governing body. For example, how does the Congress protect

Native Hawaiian interests when the available models are only based on existing governments exercising jurisdiction? The answer is the creation of a hybrid, a compromise that will mostly work, until a Native Hawaiian government ean be re-established and take on the governmental responsibilities under statutes such as the National Historic Preservation Act.

ihe Nahonal Historic Preservation Act of 1966 (NHPA) is the basic charter of the naūonal preservation program. lt established a National Register of Historic Places and provides a continuing grant program to states funding State Historic Preservation Officers. Perhaps most important for native people has been the section (106) of the NHPA that provides a review and comment process for proposed federal actions

that might affect such historic properties. It is that Section 106 that comes into play with respect to pro-

jects such as H-3, as well as certain resort developments on federally regulated shorelines. The 1966 Act made no provision for native peoples. Through their own aggressive advocacy, native peoples have utilized the Section 106 process to protect cultural

properties. The Native Hawaiian Historic Preservauon Council in OHA is one of the organizations that aggressively pursued federal as well as state law devices to protect cultural/historic properties and sites. In 1980, the NHPA was amended to include Indian tribes in the list of groups that would be consulted in the national program; grants to Indian tribes were also authorized. It was not until 1990, however, that funds were

actually appropriated. Also in 1990. a study was authorized on the "funding needs for management, research, interpretation, protection, and development of sites of historic signifieanee on lndian lands." In September 1990 a study entitled "Keepers of the Treasures" was completed by the National Park Service. The report concluded that Indian hibes' status as sovereigns — federally recognized

governments — should be a basis for their participation in the NHPA. H.R. 1601 in the U.S. House of Representatives and S.684 in the U.S. Senate have been the legislative vehicles for implemenung the spirit of the recommendations contained in the "Keepers of the Treasures" report.

They created a separate program for Indian, NaUve Hawaiian, and AIaskan Native historic preservation programs, on native lands over whieh eaeh group would have jurisdiction. The bills also provided an enhanced definiUon of historic preservation that recognized traditional religious eultural values.

For Indian tribes Uiis approach was fairly simple. Tribal governments would exercise jurisdiction over reservation or other trust lands. For Native Hawaiians the issues were more complex. The bills provided that NaUve Hawaiian organizaUons would be equivalent to Indian tribes for NHPA purposes and that the "reservation" or land base would be the Hawaiian Home Lands Trust.

The treatment of NaUve Hawaiian orgahizaUons as equivalent to governments generated objecUons from the AdministraUon, already infamous for its objecUons to special programs for NaUve Hawaiians, and raised objecUons from the state of Hawai'i, whieh was concerned with separate and/or competing programs in the state.

OHA, while praising the enhanced status of NaUve Hawaiians under the bills, was concerned over restricUng Native Hawaiian input to the Home Lands Trust lands, when experience has demonstrated that preservation issues occur with respect to lands throughout the state.

With the assistance of the Hawai'i congressional delegation, parUcularly Sen. Inouye's staff, a working resoluUon of issues has been produced that may allow enactment of the 1992 amendments. NaUve Hawaiian organizaUons and the state of Hawai'i are authorized to enter into memoranda of understanding to spell out their respecUve roles within the NHPA. It is anticipated that the Native Hawaiian organizaUons will take over the tradiUonaI religious and cultural asp>ects of the program; this is the role played by the Native Hawaiian

Historic Preservation Council and others in the last decade. Native Hawaiian organizaUons will also be eligible for the consulting roles defined in the NHPA, as well as the grant provisions. Since the State Historic PreservaUon Officer's technieal role is maintained, all lands under the jurisdiction of the state will be subject to the authority of Native Hawaiian organizations pursuant to any authorized memorandum of understanding.