Section 106

This guidance is a clarification of the requirements for Federal agencies to consult with Indian tribes in the Advisory Council on Historic Preservation's (ACHP's) regulations, "Protection of Historic Properties" (36 CFR Part 800), implementing Section 106 of the National Historic Preservation Act (NHPA). Accordingly, it outlines when Federal agencies must consult with Indian tribes and what the consultation must address. It is not meant to be a comprehensive guide on consultation and, thus, does not address how Federal agencies conduct consultation or which Indian tribes to contact regarding specific projects.

The National Historic Preservation Act, amended in 1992, is the basis for the tribal consultation provisions in ACHP's regulations. The two amended sections of NHPA that have a direct bearing on the Section 106 review process are Section 101(d)(6)(A), which clarifies that historic properties of religious and cultural significance to Indian tribes may be eligible for listing in the National Register, and Section 101(d)(6)(B), which requires Federal agencies, in carrying out their Section 106 responsibilities, to consult with any Indian tribe¹ that attaches religious and cultural significance to historic properties that may be affected by an undertaking. ACHP's regulations incorporate these provisions and reflect other directives about tribal consultation from Executive orders, Presidential memoranda, and other authorities.

Section 106 of NHPA requires Federal agencies to consider the effects of their actions on historic properties and to seek comments from ACHP. The purpose of Section 106 is to avoid unnecessary harm to historic properties from Federal actions. Commonly known as Section 106 review, the procedure for meeting Section 106 requirements is defined in ACHP's regulations, "Protection of Historic Properties" (36 CFR Part 800). The regulations include both general direction regarding consultation and specific requirements at each stage of the review process.

Section 800.2(c)(2) of the regulations outlines important principles and general directions to Federal agencies regarding consultation:

The regulations remind Federal agencies that historic properties of religious and cultural significance to an Indian tribe may be located on ancestral, aboriginal, or ceded lands of that tribe. Accordingly, agencies must make a reasonable and good faith effort to identify Indian tribes that attach such significance but may now live at great distances from the undertaking's area of potential effect. Federal agencies should be respectful of tribal sovereignty in conducting consultation and must recognize the government-to-government relationship that exists between the Federal Government and federally recognized Indian tribes. The regulations also provide for an Indian tribe to enter into an agreement with a Federal agency regarding any aspect of tribal participation in the review process. The agreement may provide the Indian tribe with additional participation or concurrence in agency decisions under Section 106 provided that no modification is made to the roles of other parties without their consent.

No, NHPA and ACHP's regulations require Federal agencies to consult with Indian tribes when they attach religious and cultural significance to a historic property regardless of the location of that property. The circumstances of history may have resulted in an Indian tribe now being located a great distance from its ancestral homelands and places of importance. It is also important to note that while an Indian tribe may not have visited a historic property in the recent past, its importance to the tribe or its significance as a historic property of religious and cultural significance may not have diminished for purposes of Section 106.

Yes. NHPA only requires consultation with Indian tribes and Native Hawaiian organizations regarding those properties of traditional religious and cultural importance that are listed in or eligible for the National Register. However, agencies should be aware that Sections 800.4(a) and (b) require them to consult with Indian tribes and Native Hawaiian organizations that might attach religious and cultural significance to a property when the agency carries out the identification and National Register evaluation of potential historic properties. Likewise, Executive Order 13007, the American Indian Religious Freedom Act, or other authorities may impose obligations, independent of Section 106 and NHPA, with regard to Indian sacred sites that do not meet the National Register criteria. Agencies should review their own internal policies in that regard.

If a relevant Indian tribe disagrees with a finding of no adverse effect, it must specify in writing the reasons within the 30-day review period. When a timely filing of disagreement is received, the Federal agency must either resolve the disagreement or request ACHP to review the "no adverse effect" finding. Relevant Indian tribes can also request ACHP to review an agency's finding. The agency should seek the concurrence of Indian tribes that attach religious and cultural significance to the historic property subject to the finding. This means that the agency is encouraged, but not legally required, to obtain such concurrence. If the relevant Indian tribe does not concur and disagrees with the proposed finding, it can refer the matter directly to ACHP for resolution.

Any party, including Indian tribes, may request that ACHP review the substance of any agency's finding, determination, or decision on the adequacy of an agency's compliance with the regulation. An Indian tribe may request that ACHP enter the Section 106 review process because of concerns about the identification of, evaluation of, or assessment of effects on, historic properties. An Indian tribe may request ACHP involvement in the resolution of adverse effects or where there are questions about policy, interpretation, or precedent under Section 106 or its relation to other authorities such as the Native American Graves Protection and Repatriation Act (see Appendix A of the regulations).

The Federal agency must conduct government-to-government consultation with affected THPOs or tribal representatives, and relevant Indian tribes in the development of program alternatives.

If a program alternative includes undertakings that would affect historic properties on tribal lands, the agency must identify and consult with the Indian tribes having jurisdiction over such lands. A Programmatic Agreement only takes effect on tribal lands when the THPO, Indian tribe, or designated tribal representative is a signatory to the agreement.

If a program alternative may affect historic properties of religious and cultural significance to an Indian tribe located off tribal lands, the agency must identify those Indian tribes and consult with them.

When the proposed program alternative has nationwide applicability, the agency must develop and implement appropriate government-to-government consultation with Indian tribes in accordance with existing Executive orders, Presidential memoranda, and applicable laws.

In all cases, the agency and ACHP must take into account the views of Indian tribes in reaching a final decision.

¹NHPA defines "Indian tribe" as "an Indian tribe, band, nation, or other organized group or community, including a Native village, Regional Corporation or Village Corporation, as those terms are defined in section 3 of the Alaska Native Claims Settlement Act (43 U.S.C. 1602), which is recognized as eligible for the special programs and services provided by the United States to Indians because of their status as Indians" (16 U.S.C. 470w).

²The 1992 amendments included provisions for Indian tribes to assume the responsibility of the SHPO on tribal lands. The regulations use the term "THPO" to mean the Tribal Historic Preservation Officer under Section 101(d)(2).

Updated August 22, 2005