Overview:
Tribal organizations and historic preservation advocates are raising alarms over proposed revisions to the Advisory Council on Historic Preservation’s regulations governing the Section 106 review process, warning the changes would weaken Tribal consultation, reduce protections for sacred places, and exceed the authority granted to the agency by Congress.
Tribal Nations and preservation advocates are voicing strong opposition to proposed revisions by the Advisory Council on Historic Preservation (ACHP) to the regulations implementing Section 106 of the National Historic Preservation Act, arguing the changes would significantly weaken protections for sacred sites and diminish the federal government’s obligation to consult with Tribal Nations before approving development projects.
The proposed revisions would alter the regulations that guide how federal agencies identify and consider the effects of federally funded, licensed, or permitted projects on historic properties. Since the National Historic Preservation Act became law in 1966, Section 106 has served as one of the primary legal mechanisms requiring federal agencies to consult with Tribal Nations when projects may affect places of religious, cultural, or historical significance.
Critics contend the proposed changes would fundamentally shift that process in favor of project developers while limiting meaningful Tribal participation.
Among the chief concerns is that the proposal would reduce consultation requirements that many tribes say are essential to protecting culturally significant places. Tribal governments maintain a government-to-government relationship with the United States, and meaningful consultation has long been recognized as part of the federal trust responsibility.
The proposed revisions would also shorten review timelines, raising concerns that Tribal Historic Preservation Offices and tribal cultural resource staff—many of whom already operate with limited personnel and funding—would have less time to review project documents, consult with elders, conduct cultural research, and identify sites that may be affected.
Another major point of contention is what opponents describe as an increased emphasis on built historic structures over broader cultural landscapes.
For many Tribal Nations, places of cultural significance extend well beyond buildings or archaeological sites. Sacred mountains, rivers, traditional gathering areas, ceremonial landscapes, burial grounds, and ancestral homelands often carry profound spiritual and cultural importance even when there are no visible structures on the landscape.
Preservation advocates argue the proposed regulations risk overlooking these living cultural landscapes by narrowing how historic properties are evaluated during the federal review process.
The proposal also expands agency discretion in several areas of the review process. Opponents argue that giving federal agencies greater authority to determine when consultation or additional review is necessary could reduce opportunities for tribes to influence decisions before projects move forward.
Section 106 reviews are required whenever a federal agency undertakes, funds, licenses, or permits a project that may affect historic properties. The process applies to a wide range of activities, including highway construction, energy development, mining projects, transmission lines, dams, water infrastructure, and other federally authorized developments.
The Association on American Indian Affairs (AAIA) is opposed to the proposed revisions.
“Section 106 has never been exclusively about preserving historic buildings or archaeological sites. For Native Nations, it is one of the few laws that operationalizes the federal trust responsibility by requiring meaningful government-to-government consultation before federal actions may irreversibly affect sacred places, traditional cultural properties, and other places of religious and cultural significance,” AAIA said in a statement.
For many Tribal Nations, the Section 106 process provides one of the few formal opportunities to identify sacred sites, ancestral villages, traditional cultural properties, and burial grounds before construction begins.
Supporters of the proposed revisions argue the changes are intended to modernize the review process, reduce unnecessary delays, improve permitting efficiency, and provide greater certainty for infrastructure and energy projects.
Tribal leaders and preservation organizations, however, warn that streamlining federal reviews should not come at the expense of meaningful Tribal consultation or the protection of irreplaceable Indigenous cultural resources.
If adopted, the revisions could reshape how federal agencies engage with Tribal Nations on thousands of projects nationwide, making the outcome of the rulemaking process one of the most significant historic preservation issues facing Indian Country in recent years.
The ACHP is accepting public comments on the proposed rule before issuing a final regulation.
