Section 106 Consultation Requirements and Tribal Nations

Section 106 of the National Historic Preservation Act (NHPA, 54 U.S.C. § 306108) establishes one of the most consequential procedural obligations in federal historic preservation law — requiring federal agencies to account for effects on historic properties before authorizing, funding, or undertaking any undertaking. For tribal nations, this statutory process is a primary mechanism through which governments protect ancestral lands, sacred sites, and culturally significant properties from federally connected development. The consulting framework, governed by 36 C.F.R. Part 800, intersects directly with the federal government's trust responsibility and the government-to-government relationship that structures federal-tribal engagement across the US legal system — a relationship examined in the broader overview of how the US legal system works.

Definition and scope

Section 106 applies to any "federal undertaking" — defined under 36 C.F.R. § 800.16(y) as a project, activity, or program funded in whole or in part under the direct or indirect jurisdiction of a federal agency, including those requiring federal permits, licenses, or approvals. The provision does not operate as an absolute prohibition on project approval; rather, it mandates a structured process of identification, consultation, and effect determination before final agency decision.

Tribal nations enter the Section 106 framework through two distinct legal channels:

1. As consulting parties — Any federally recognized tribe that attaches religious or cultural significance to a property in the area of potential effects (APE), regardless of whether the property sits within that tribe's current territory, must be invited to consult (36 C.F.R. § 800.2(c)(2)(ii)).
2. As State Historic Preservation Officer (SHPO) counterparts — Tribes that have established a Tribal Historic Preservation Officer (THPO) under the NHPA may assume SHPO functions within their tribal lands, giving them formal regulatory standing rather than mere advisory status.

The Advisory Council on Historic Preservation (ACHP), an independent federal agency, administers the Section 106 regulations and may participate directly in consultations when significant historic properties or policy issues are at stake.

The scope of Section 106 is geographic and categorical: it covers historic properties, defined as districts, sites, buildings, structures, and objects included in or eligible for the National Register of Historic Places (NRHP). Traditional cultural properties (TCPs) — locations of cultural and religious significance to living communities — fall within this coverage under National Register Bulletin 38, which was formally issued by the National Park Service.

How it works

The Section 106 process follows a sequential, phase-based framework established at 36 C.F.R. Part 800. Federal agencies bear primary responsibility for initiating and completing each phase.

1. Initiate the process — The lead federal agency determines whether the undertaking is subject to Section 106, identifies the scope of the APE, and identifies all consulting parties, including potentially affected tribes. Notification to tribes must occur early enough to allow meaningful participation (36 C.F.R. § 800.2(c)(2)(ii)(A)).
2. Identify historic properties — The agency, in coordination with the SHPO/THPO and consulting parties, carries out or directs background research and field survey to identify properties within the APE that may be eligible for the NRHP. Tribes may identify TCPs or other culturally significant locations during this phase.
3. Assess adverse effects — The agency applies the Criteria of Adverse Effect (36 C.F.R. § 800.5) to determine whether the undertaking may alter characteristics that qualify a property for the NRHP. For tribal properties, adverse effects frequently involve physical destruction, visual intrusion, noise, vibration, or the introduction of incompatible elements into sacred landscapes.
4. Resolve adverse effects — If an adverse effect is found, the agency opens formal consultation aimed at a Memorandum of Agreement (MOA) or, for more complex undertakings, a Programmatic Agreement (PA). These binding documents specify mitigation, monitoring, and data recovery measures. Tribes may sign MOAs as concurring parties or, in some circumstances, as signatories.
5. ACHP involvement — The ACHP must be notified of adverse effect findings and may participate in or comment on consultation. If agreement cannot be reached, the ACHP issues formal comments that the agency must consider — though not necessarily follow — before proceeding.

The trust responsibility doctrine reinforces the consultation obligation: courts and the ACHP have held that perfunctory or pro forma outreach does not satisfy the "reasonable and good faith" standard required under 36 C.F.R. § 800.2(c)(2)(ii)(A).

Common scenarios

Section 106 consultation with tribal nations arises across a wide range of federal agency contexts. Four scenarios illustrate the most frequently encountered configurations:

Infrastructure and energy development — Pipeline permits, transmission line rights-of-way, and highway projects approved by agencies including the Federal Highway Administration, the Bureau of Land Management (BLM), or the Army Corps of Engineers regularly trigger Section 106. The Standing Rock Sioux Tribe's challenge to the Dakota Access Pipeline (DAPL) drew national attention to the adequacy of Section 106 consultation — federal district courts found in 2016 that the Army Corps had not fully considered the tribe's concerns before issuing permits (Standing Rock Sioux Tribe v. U.S. Army Corps of Engineers, 205 F. Supp. 3d 4 (D.D.C. 2016)).

Federal lands management — Forest Service and BLM decisions involving timber sales, grazing permits, mining claims, and recreation facilities on lands with ancestral or sacred significance require Section 106 review. Tribes with territory historically spanning federal land boundaries frequently consult with multiple agency offices across state lines. The tribal historic preservation law framework structures how THPOs engage in these processes.

Housing and community development — The Department of Housing and Urban Development (HUD) applies Section 106 through its regulations at 24 C.F.R. Part 58 for community development projects using federal funds, including those administered by tribal governments under tribal HOME and CDBG-DR programs.

Federal undertakings on or near tribal lands — When the APE overlaps with reservation boundaries or aboriginal territory, the lead agency coordinates directly with the relevant THPO rather than the state SHPO. Where no THPO exists, the tribe may still participate as a consulting party under 36 C.F.R. § 800.2(c)(2).

Decision boundaries

Section 106 consultation is not uniform in its requirements or outcomes. Several structural distinctions determine which framework applies and what obligations attach.

THPO jurisdiction versus consulting party status — A tribe with a THPO designation under 54 U.S.C. § 302702 exercises regulatory authority equivalent to a SHPO within its tribal lands. Outside those lands, the same tribe participates as a consulting party with advisory — not decisional — standing. This distinction determines the weight the agency must give tribal input and whether the SHPO retains authority.

MOA versus Programmatic Agreement — An MOA governs a single undertaking with identified adverse effects. A PA is used when effects are not fully known at the time of consultation (as in phased undertakings or land management plans affecting multiple future projects). PAs offer tribes an opportunity to embed long-term consultation protocols into recurring federal agency activities.

Section 106 versus Section 110 — Section 110 of the NHPA imposes affirmative duties on federal agencies to identify, evaluate, and protect historic properties under their jurisdiction or control — as distinct from the reactive consultation triggered by a specific undertaking under Section 106. Agencies managing federal lands with tribal historic or cultural significance must maintain both obligations simultaneously.

NHPA consultation versus NEPA consultation — Section 106 and the National Environmental Policy Act (NEPA) impose parallel but non-identical tribal consultation duties. NEPA requires analysis of cultural resource impacts in environmental impact statements and environmental assessments, but does not itself mandate government-to-government consultation. The ACHP and the Council on Environmental Quality have issued joint guidance encouraging agencies to integrate both processes; the NEPA tribal consultation requirements framework addresses this integration in detail.

Formal objection and ACHP comment authority — A tribe that is a consulting party may formally object to an agency's effect determination or proposed resolution. If consultation reaches an impasse, the ACHP may issue binding comments under 36 C.F.R. § 800.7. The agency must take those comments into account but retains final decision authority. Tribes that are signatories to an MOA or PA hold stronger legal standing to challenge non-compliance in federal court.

The tribal land into trust process intersects with Section 106 when the Bureau of Indian Affairs (BIA) evaluates trust acquisition applications — a federal undertaking that requires historic property identification and consultation with neighboring tribes and SHPOs before land status is changed. For researchers and professionals mapping the structural architecture of federal Indian law applicable to these processes, the tribal law and sovereignty overview on this site's home reference index provides the organizing jurisdictional framework.