Proposed Section 106 Changes Could Reshape Tribal Consultation and the Protection of Cultural Places

Section 106 of the National Historic Preservation Act (“NHPA”) has long provided an important process for considering how federal projects may affect historic and culturally significant places. For Tribal Nations, Section 106 is particularly important because federal law specifically requires agencies to consult with Indian Tribes and Native Hawaiian organizations that attach religious and cultural significance to properties that may be eligible for the National Register.

Now, both regulatory and legislative proposals could significantly change how that process operates.

The Proposed Changes to 36 C.F.R. Part 800

On July 24, 2026, the Advisory Council on Historic Preservation (“ACHP”) voted to advance proposed revisions to the regulations implementing Section 106 at 36 C.F.R. Part 800. The proposed changes would weaken current protections for cultural places as well as agency requirements to communicate with the public. The proposed rule remains under review by the Office of Information and Regulatory Affairs (“OIRA”) and has not yet been published in the Federal Register. The existing Section 106 regulations therefore remain in effect, and the formal public-comment period on the NPRM has not yet begun.

Why These Changes Matter in Indian Country

The proposed changes could have particular consequences for Tribal cultural resources. Places of religious and cultural significance do not always resemble conventional historic properties. A sacred mountain, waterway, gathering area, ceremonial landscape, or relationship among multiple locations may be culturally significant even when there is no building, archaeological feature, or other visible human improvement.

The National Association of Tribal Historic Preservation Officers (“NATHPO”) has raised concerns that the proposed changes could exclude certain sacred places, ancestral lands, and cultural landscapes from Section 106 consideration. NATHPO has also cautioned that narrowing consideration of indirect, visual, audible, and atmospheric effects could make it more difficult to address impacts to places whose significance depends on setting, privacy, access, water, sound, vegetation, or ceremonial conditions.

Tribal Consultation Could Also Look Different

Tribal consultation is required by Section 106 of NHPA. The changes will not eliminate tribal consultation. However, the proposed changes could impact when and to what degree tribes are able to engage in agency decisions impacting culturally significant places.

Congress Has Now Entered the Section 106 Debate

There has also been an important development since these regulations were first proposed.

On September 30, 2026, Senators Mike Lee, Shelley Moore Capito, Martin Heinrich, and Sheldon Whitehouse introduced the Bipartisan American Affordability and Jobs Act of 2026, a broad federal permitting reform package that would also make statutory changes affecting the NHPA and federal historic-preservation review. This legislation also seeks to evaluate tribal programs every two years. Tribes and Tribal Historic Preservation Officers ("THPOs") not meeting federal standards could lose federal contracts and agreements as well as grant funding distributed through the Historic Preservation Fund. The legislation has been introduced but has not been enacted.

What Comes Next

For now, the existing Section 106 regulations remain in place. The ACHP regulatory proposal remains under OIRA review, while Congress is separately considering legislation that could alter the statutory framework governing historic-preservation review.

For Tribal Nations and THPOs, both processes warrant close attention. The central issue is not simply how quickly federal reviews can be completed, but when and how Tribal governments can identify culturally significant places and meaningfully participate before federal decisions become difficult or impossible to change.

Section 106 does not guarantee preservation or give a consulting Tribe a veto over a federal undertaking. It does, however, create a process through which cultural impacts must be considered before federal action proceeds. For sacred places, ancestral landscapes, burial areas, and other cultural resources that cannot be replaced once lost, changes to that process could have lasting consequences.