Proposed Section 106 Rewrite Raises Concerns for Tribal Consultation and Cultural Resources

by | Sep 3, 2026

Moose Cross the Tundra – Alexis Bonogofsky USFWS

A proposed rewrite of the federal regulations implementing Section 106 of the National Historic Preservation Act could change how federal agencies identify and address harm to places of historic, religious, and cultural importance to Tribal Nations.

The National Congress of American Indians recently hosted a webinar explaining the proposed revisions and their potential consequences for Tribal sovereignty, government-to-government consultation, and cultural-resource protection.

What is Section 106?

Section 106 applies when a federal agency carries out, funds, licenses, permits, or approves a project that may affect a historic property.

The process requires federal agencies to consider those effects before making a final decision. It can involve Tribal Nations, Tribal Historic Preservation Officers, State Historic Preservation Officers, local governments, project applicants, and members of the public.

For Tribal Nations, Section 106 provides an important process for identifying and addressing potential harm to sacred places, ancestral lands, burial places, traditional cultural properties, archaeological sites, and cultural landscapes.

Section 106 does not give a Tribe or another consulting party automatic authority to stop a project. It creates a process for identifying historic properties, evaluating potential effects, considering alternatives, and avoiding, minimizing, or mitigating harm before decisions become irreversible.

What is being proposed?

On July 24, 2026, the Advisory Council on Historic Preservation voted 15–5, with two abstentions, to advance proposed revisions to the regulations at 36 C.F.R. Part 800. The proposal is described as the first major rewrite of the regulations in more than two decades.

The draft is currently undergoing review by the Office of Information and Regulatory Affairs. It has not yet been published in the Federal Register, and the formal public-comment period has not opened.

Concerns raised by Tribal organizations

The National Congress of American Indians, Association on American Indian Affairs, National Association of Tribal Historic Preservation Officers, and United South and Eastern Tribes Sovereignty Protection Fund have issued a joint statement opposing the proposal in its current form.

Based on their analysis of the draft, the revisions could:

  • Give federal agencies more discretion over whether and how consultation with Tribal Nations occurs.
  • Remove language recognizing the unique legal and political relationship between Tribal Nations and the federal government.
  • Narrow which federal actions qualify as undertakings subject to Section 106.
  • Narrow which culturally important places qualify as historic properties.
  • Exclude some mountains, valleys, waters, and broader cultural landscapes if they lack tangible human improvements or are not considered geographically compact.
  • Reduce consideration of indirect, cumulative, visual, atmospheric, and audible effects.
  • Limit Tribal participation in developing measures to avoid or mitigate harm.
  • Shorten important review periods.
  • Give project applicants and other non-federal parties a greater role in functions that Tribal organizations maintain are federal responsibilities.
  • Replace portions of the negotiated agreement process with an agency-prepared “Section 106 Report.”

Under the current process, federal agencies and consulting parties may develop a memorandum of agreement describing how adverse effects will be addressed. The national Tribal organizations warn that replacing meaningful involvement in that process with an opportunity to comment on an agency-prepared report could reduce Tribal influence over mitigation decisions.

Why this is important in Alaska

Section 106 is especially important in Alaska, where federal funding, permits, licenses, approvals, and land-management decisions are involved in many mining, road, pipeline, energy, transportation, and infrastructure projects.

Places of importance to Alaska Native communities do not always fit neatly within modern property boundaries. A cultural landscape may include connected rivers, mountains, trails, hunting areas, gathering places, archaeological sites, travel corridors, and oral-history locations.

Narrowing what qualifies for review could make it harder for Tribal Nations to ensure that these relationships and places are considered before a project is approved. Changes that limit recognition of effects beyond Tribal lands could also be significant because many culturally important places are located on federal, state, private, or other lands outside a Tribe’s present-day jurisdiction.

Early and meaningful consultation can help agencies and project proponents identify concerns before project plans and financial commitments are finalized. When cultural-resource issues are not addressed until later, the result may be greater conflict, delay, expense, and irreversible harm.

Webinar and educational materials

The National Congress of American Indians’ webinar, Section 106 Update: Navigating the Proposed Rules in Indian Country, provides a detailed explanation of:

  • The existing Section 106 process
  • The proposed changes to consultation
  • Proposed definitions of “undertaking” and “historic property”
  • Treatment of traditional cultural places and landscapes
  • The proposed Section 106 Report
  • Potential legal concerns
  • Steps Tribal leaders and Tribal Historic Preservation Officers can take before the formal comment period

The webinar featured representatives from the National Congress of American Indians, Association on American Indian Affairs, National Association of Tribal Historic Preservation Officers, Native American Rights Fund, and United South and Eastern Tribes Sovereignty Protection Fund.

What happens next?

The proposed rule is identified as RIN 3010-AA10. It is currently being reviewed by the Office of Information and Regulatory Affairs before possible publication in the Federal Register.

Tribal Nations may request a meeting with the Office of Information and Regulatory Affairs before publication. These meetings allow participants to present information about a proposed regulation, but they are not a substitute for formal government-to-government consultation. Meeting participants and submitted materials are generally made public.

Once the proposed rule is published, a formal public-comment period is expected. Tribal governments, Tribal Historic Preservation Officers, cultural-resource professionals, organizations, and members of the public will then be able to review the published language and submit comments.

The Northern Alaska Environmental Center will continue watching this rulemaking and will share information when the proposed rule and public-comment deadline are announced.

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