Tribal Historic Preservation Law and Federal Review
Tribal historic preservation law governs how federally recognized tribes protect, manage, and assert rights over culturally significant sites, landscapes, and objects within the framework of federal review processes. This body of law intersects the National Historic Preservation Act (NHPA), the National Environmental Policy Act (NEPA), and tribal sovereignty principles to determine when and how federal agencies must consult with tribes before taking actions that may affect historic and cultural properties. The stakes are high: inadequate tribal consultation has prompted federal court challenges, halted infrastructure projects, and produced significant revisions to agency permitting decisions across the United States.
Definition and scope
The National Historic Preservation Act of 1966, codified at 54 U.S.C. §§ 300101 et seq., establishes the core statutory framework for federal historic preservation review. Section 106 of that act — implemented through 36 C.F.R. Part 800 — requires federal agencies to consider the effects of their undertakings on historic properties and to consult with parties holding a demonstrated interest in those properties, including federally recognized tribal nations.
Tribal Historic Preservation Officers (THPOs) are the designated tribal counterparts to State Historic Preservation Officers (SHPOs). A tribe establishes a THPO program under Section 101(d)(2) of NHPA after receiving approval from the National Park Service (NPS). As of the NPS's published list, more than 200 tribal THPO programs are active across the United States (National Park Service, Tribal Historic Preservation Officers). Tribes without approved THPO programs retain consultation rights under Section 106 as non-THPO consulting parties.
The scope of federal protection extends beyond formally verified properties. Under 36 C.F.R. § 800.16(l)(2), "historic properties" include properties of traditional religious and cultural significance to a tribe — a category that can encompass unmarked burial sites, ceremonial landscapes, water sources, and viewsheds that would not otherwise qualify for provider on the National Register of Historic Places.
The relationship between tribal historic preservation law and broader federal Indian law principles is grounded in the trust responsibility doctrine, which obligates federal agencies to act with heightened duty toward tribal nations in all federal undertakings affecting tribal interests.
How it works
The Section 106 review process under 36 C.F.R. Part 800 follows a defined sequence of steps that agencies must complete before approving, funding, or licensing any undertaking with potential effects on historic properties.
- Initiate the process — The federal agency determines whether the undertaking is subject to Section 106 and identifies the appropriate SHPO and any THPOs or tribal consulting parties with interests in the area of potential effects (APE).
- Identify historic properties — The agency defines the APE, conducts or reviews surveys, and seeks information from THPOs and consulting parties about the location and nature of historic and culturally significant properties. Tribes may assert the confidentiality of specific site locations under 36 C.F.R. § 800.11(c).
- Assess adverse effects — If historic properties are identified within the APE, the agency applies the criteria of adverse effect at 36 C.F.R. § 800.5 to determine whether the undertaking would alter the characteristics that qualify those properties for protection.
- Resolve adverse effects — If an adverse effect is found, the agency consults with THPOs, SHPOs, and the Advisory Council on Historic Preservation (ACHP) to develop a Memorandum of Agreement (MOA) or Programmatic Agreement (PA) specifying mitigation measures.
- ACHP participation — The ACHP, an independent federal agency, may enter consultations formally or informally. If the agency proceeds despite unresolved objections, the ACHP may submit binding comments under 36 C.F.R. § 800.7(c).
THPO consultation requirements also intersect with Section 106 consultation under tribal nations and with NEPA tribal consultation requirements, which impose parallel but legally distinct obligations on federal agencies conducting environmental review.
Common scenarios
Energy and infrastructure projects — Pipeline, transmission line, and wind energy projects crossing federal lands or requiring federal permits routinely trigger Section 106 review over hundreds or thousands of linear miles. Agencies must identify all tribes with ancestral connections to affected landscapes, even when no reservation land is directly impacted. The Dakota Access Pipeline litigation demonstrated how inadequate tribal consultation at the Section 106 stage can produce federal court findings of procedural deficiency, though courts apply varying standards of remedy.
Federal land management decisions — The Bureau of Land Management (BLM) and the U.S. Forest Service regularly conduct Section 106 review for grazing permits, timber sales, road construction, and mineral extraction on public lands. Tribal properties of traditional religious and cultural significance under these jurisdictions are not always formally documented, requiring agencies to undertake affirmative outreach under 36 C.F.R. § 800.4(a)(4).
Federal highway and transportation projects — Projects receiving federal funding through the Federal Highway Administration (FHWA) must comply with Section 106. The FHWA's Programmatic Agreement with ACHP and AASHTO establishes an alternative consultation process, but tribal consultation requirements remain enforceable within that framework.
Repatriation-adjacent preservation — While repatriation of human remains and cultural objects is governed separately by the Native American Graves Protection and Repatriation Act (NAGPRA), Section 106 review applies to federal undertakings that may disturb burial sites on federal or tribal land before any repatriation determination occurs. The two statutory regimes run in parallel and can both apply to the same site.
Tribal land-into-trust actions — When the Bureau of Indian Affairs processes applications under the tribal land into trust process, Section 106 review applies to the federal decision itself. Tribes in this context shift roles — from consulting parties to the party whose land is subject to review — a procedural distinction with practical consequences for how consultation is structured.
Decision boundaries
THPO versus non-THPO tribes — A tribe with an approved THPO program assumes the SHPO's responsibilities for properties within its tribal lands under 54 U.S.C. § 302702. A tribe without a THPO program retains consultation rights as an "Indian tribe" under 36 C.F.R. § 800.2(c)(2) but does not assume SHPO functions. This distinction affects the procedural weight given to tribal objections and the degree to which tribes can independently shape MOA terms.
Ancestral territory versus reservation land — Section 106 consultation obligations are not confined to reservation boundaries. Federal agencies must identify tribes with ancestral, cultural, or historical connections to an APE regardless of whether current tribal land is located there. The geographic scope of consultation is determined by the area of potential effects, not by modern reservation boundaries — a distinction that frequently broadens consultation requirements well beyond what agencies initially anticipate.
Adverse effect versus no adverse effect — If an undertaking produces no adverse effect on a historic property of traditional religious or cultural significance, agencies may proceed without resolving formal objections, though tribal consulting parties may challenge the no-adverse-effect finding. If an adverse effect is found and consultation fails to produce an MOA, the ACHP's formal commenting authority under 36 C.F.R. § 800.7 becomes operative, introducing an additional layer of federal oversight.
Section 106 versus Executive Order 13007 — Executive Order 13007 (1996) directs federal agencies to accommodate access to and ceremonial use of Indian sacred sites on federal land and to avoid adversely affecting the physical integrity of those sites. EO 13007 is not a statute and does not carry the same enforcement mechanism as Section 106, but it imposes parallel obligations on federal land managers. When a site qualifies under both frameworks, Section 106's procedural requirements govern the formal review while EO 13007 shapes the substantive policy standard.
Understanding how these frameworks interact within the broader structure of the US legal system is essential for practitioners advising federal agencies, tribal governments, or project proponents on compliance strategy. The triballawauthority.com reference network covers the intersecting legal frameworks governing tribal sovereignty, federal consultation obligations, and historic property protection in depth.