Section 106

Section 106 of the National Historic Preservation Act
Consultation with Indian Tribes for Undertakings off Tribal Lands
Other Opportunities and Consultation Requirements
Section 106 of the National Historic Preservation Act

Introduction

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

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

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.

What ACHP's regulations say about consultation with Indian Tribes

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.

Is consultation with Indian tribes required only when an undertaking will occur on or affect historic properties on tribal lands?

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.

Does a property of traditional cultural and religious importance requiring agency consultation with tribes under Section 101(d)(6) of NHPA have to be determined eligible for the National Register or meet the National Register criteria?

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 there are no federally recognized Indian tribes in the State where the project is located, does the Federal agency still have to consult with any tribes?

The Federal agency has to make a reasonable and good faith effort to identify Indian tribes that may have an interest. The present absence of federally recognized Indian tribes in a State does not absolve the agency of its obligations to make a reasonable and good faith effort to identify Indian tribes that should be consulted. 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.

What is a Federal agency's responsibility to consult with a State-recognized Indian tribe or non-recognized Native American group?

Under ACHP's regulations at Section 800.2(c)(5), the Federal agency may invite such groups to participate in consultation based on a demonstrated interest in the undertaking's effects on historic properties. However, the term "Indian tribe" in NHPA refers only to federally recognized Indian tribes. Accordingly, under NHPA and ACHP's regulations, only a federally recognized Indian tribe has the right to participate in Section 106 consultation.

Where can I find information on Indian tribes?

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.

How does a Federal agency consult with an Indian tribe that does not want to divulge information about a historic property of religious and cultural significance?

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.

Several Indian tribes assert that they have an interest in a historic property. Is the Federal agency obligated to consult with all of them? What if the tribes disagree?

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.

If the Federal agency has not identified an Indian tribe nor invited that tribe to participate, what can the Indian tribe do?

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 Section 106 Review Process

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.

Consultation with Indian Tribes for Undertakings on or Affecting Tribal Lands

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.

I. Initiation of the Section 106 Process

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.

If a tribe has assumed the duties of the SHPO, does the SHPO still participate in consultation for undertakings on tribal lands?

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.

What is the purpose of the provision that allows property owners on tribal lands to request SHPO participation in addition to the THPO?

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.

Does the THPO have the same role and responsibilities in the Section 106 process on tribal lands as the SHPO does off tribal lands?

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.

When there is no THPO, who represents the tribe in consultation for an undertaking on tribal land, including signing an MOA on behalf of the tribe?

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.

When there is no THPO, does the agency also consult with the SHPO?

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.

Does the Federal agency have to consult with other Indian tribes when the undertaking is on tribal lands?

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.

II. Identification of Historic Properties

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.

What are the consultation requirements at this stage of the process?

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.

What happens if there is a disagreement between the SHPO and tribal representative on National Register eligibility?

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.

What happens if there is a disagreement between the THPO and the agency on National Register eligibility?

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.

III. Assessment of Adverse Effects

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.

What are the consultation requirements at this step?

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.

What happens if there is a disagreement between the THPO/tribal representative and the agency on a finding of "no adverse effect"?

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.

IV. Resolution of Adverse Effects

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.

What are the consultation requirements at this step?

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.

What happens if agreement is reached?

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.

What happens if the Federal agency and the THPO/tribal representative fail to agree?

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.

When an undertaking takes place or affects historic properties on tribal lands, can a two-party agreement be concluded between an agency and an Indian tribe when the SHPO opts out of consultation even though the tribal representative is not a THPO?

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.

Consultation with Indian Tribes for Undertakings off Tribal Lands
Other Opportunities and Consultation Requirements