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National Historic Preservation Act Section 106 - Tribal Consultation (11-FD-b)

Information current as of 2020
Each lead federal agency (lead agency) must consult with Indian tribes and/or Native Hawaiian Organizations (NHOs) regarding historic properties with attached religious and/or cultural significance located on or off tribal lands that may be affected by a federal undertaking pursuant to Section 106 of the National Historic Preservation Act, 54 U.S.C. §§ 300101-307108 (NHPA). Compliance with NHPA Section 106 consultation requirements with Indian tribes and NHOs may require outreach and communication with one or more of the following entities:
  • Tribal Historic Preservation Officer (THPO);
  • Designated Tribal Representative; and/or
  • State Historic Preservation Officer (SHPO).


Important terms include:

  • A “lead federal agency” is an agency with a high degree of involvement or expertise in a project (e.g. it manages the land where a project takes place, provides a significant amount of financial assistance for a project, or has broad control over how a project may be designed), which may fulfill the NHPA Section 106 consultation requirements on behalf of itself and any other agencies involved in a federal undertaking. 36 C.F.R. §§ 800.2, 800.3(c).
  • A “federal undertaking” means a project, activity, or program funded in whole or in part under the direct or indirect jurisdiction of a federal agency. Federal undertakings include projects that a federal agency carries out, assists, funds, permits, licenses, or approves. 36 C.F.R. § 800.16(y).
  • A “historic property” means any prehistoric or historic district, site, building, structure, or object included in, or eligible for inclusion in the National Register of Historic Places (National Register) maintained by the Secretary of the Department of the Interior (DOI). The term includes any artifacts, records or remains related to or located within historic properties and any properties of traditional religious and cultural important to Indian tribes or NHOs. 36 C.F.R. § 800.16(l)(1).
  • The “State Historic Preservation Officer” (SHPO) is a state official responsible for administering a state historic preservation program, cooperating, advising and assisting agencies, individuals and private organizations regarding NHPA Section 106 compliance and identifying and nominating eligible property to the National Register. National Historic Preservation Act, 54 U.S.C. § 302303(b).
  • The “Tribal Historic Preservation Officer” (THPO) means a tribal official appointed by a tribe’s chief governing authority or designated by a triable ordinance or preservation program who has assumed the responsibilities of an SHPO for purposes of NHPA Section 106 compliance on tribal lands. 36 C.F.R. § 800.16(w).
  • A “Native Hawaiian Organization” (NHO) means any organization which serves and represents the interests of Native Hawaiians (e.g. an individual who is a descendant of the aboriginal people who, prior to 1778, occupied and exercised sovereignty in the State of Hawaii) and has expertise in aspects of historic preservation that are significant to Native Hawaiians. 36 C.F.R. § 800.16(s)(1)-(2).


The Federal Government has a unique legal relationship with Indian tribes. Indian tribes are sovereign nations whose relationship with the lead agency exists on a government-to-government basis. Accordingly, NHPA Section 106 consultation with Indian tribes should be conducted in a sensitive manner respectful of tribal sovereignty. 36 C.F.R. § 800.2(c)(2)(ii)(B); Advisory Council on Historic Preservation – Consultation with Indian Tribes in the Section 106 Review Process Handbook, 19.

The lead agency must ensure that the NHPA Section 106 consultation process provides Indian tribes and/or NHOs a reasonable opportunity to:

  • Identify their concerns about historic properties;
  • Advise on the identification and evaluation of historic properties, including those of traditional religious and cultural importance;
  • Articulate their views on the undertaking’s effects on such properties; and
  • Participate in the resolution of adverse effects. 36 C.F.R. § 800.2(c)(2)(ii)(A).



National Historic Preservation Act Section 106 - Tribal Consultation Process


11-FD-b.1 – Identify the Appropriate Tribal Historic Preservation Officer or Designated Tribal Representative

The lead agency must determine whether an undertaking may occur on or affect historic properties on tribal lands and, if so, whether a Tribal Historic Preservation Officer (THPO) has assumed the duties of a State Historic Preservation Officer (SHPO) on tribal lands. As the tribal counterpart to a SHPO, the THPO may assume some or all of the duties for historic preservation on tribal lands that a SHPO performs on private, state, or federal lands. These responsibilities may include maintaining an inventory of historic properties and assisting lead agencies in the review of undertakings. 36 C.F.R. §§ 800.3(c)(1), 800.16(x) Advisory Council on Historic Preservation – Consultation with Indian Tribes in the Section 106 Review Process Handbook, 6.

If a THPO has assumed the responsibilities of an SHPO, the lead agency must conduct NHPA Section 106 consultation with the THPO in lieu of the SHPO. 36 C.F.R. § 800.3(c). The SHPO may participate as a consulting party if:

  • The THPO requests SHPO participation;
  • The undertaking takes place on tribal lands but affects historic properties located off tribal lands; or
  • A non-tribal member who owns lands within the exterior boundaries of a reservation requests that the SHPO participate. 36 C.F.R. § 800.2(c)(1)(ii).

If an Indian tribe has not assumed the responsibilities of an SHPO (e.g., there is no THPO) and the undertaking occurs on or may affect tribal lands, the lead agency must conduct NHPA Section 106 consultation with a representative designated by the Indian tribe (Designated Tribal Representative) in addition to and on the same basis as consultation with the SHPO. 36 C.F.R. §§ 800.3(c)(1), 800.16(x). Such Indian tribes have the same rights of consultation that THPOs are given. 36 C.F.R. § 800.2(c)(i)(B).

The NHPA recognizes Indian tribe’s sovereign authority regarding undertakings located on or affecting tribal lands. Specifically, NHPA Section 106 requires that lead agencies consult with THPOs and/or Designated Tribal Representatives to:

  • Identify historic properties;
  • Assess and resolve the adverse effects of an undertaking on historic properties;
  • Provide THPOs and/or Designated Tribal Representatives with an opportunity to review, concur with or object to lead agency findings and determinations;
  • Sign a Memorandum of Agreement evidencing the resolution of any adverse effects of an undertaking;
  • Terminate NHPA Section 106 Consultation if the resolution of adverse effects cannot be agreed upon; and
  • Request that the Advisory Council on Historic Property (Council) provide commentary on proposed agency undertakings. The Council is an independent agency which issues regulations, provides guidance and advice, and generally oversees the operation of the NHPA Section 106 consultation and compliance procedures. The Council also consults with and provides comments to agencies on individual undertakings and programs that affect historic properties. National Historic Preservation Act, 54 U.S.C. §§ 304101(a), 304102(a), 306108; 36 C.F.R. § 800.2(b); Advisory Council on Historic Preservation – Consultation with Indian Tribes in the Section 106 Review Process Handbook, 8.

Note: In addition to the THPO, tribal governments may designate a tribal governmental leader as a point of contact for NHPA Section 106 consultation. Accordingly, lead agencies should contact tribal governmental leaders at the same time they contact the THPO to determine all appropriate points of contact. Advisory Council on Historic Preservation – Consultation with Indian Tribes in the Section 106 Review Process Handbook, 6.

11-FD-b.2 to 11-FD-b.3 – May an Undertaking Affect Historic Property with Religious and Cultural Significance to Indian Tribes off Tribal Lands?

The NHPA requires that lead agencies consult with any Indian tribe or Native Hawaiian Organization (NHO) that attaches religious and cultural significance to historic properties that may be affected by an undertaking. This requirement applies regardless of the location of the historic property. 36 C.F.R. § 800.2(c)(2)(ii).

The lead agency must invite the THPO and/or Designated Tribal Representative to participate in NHPA Section 106 consultation as a consulting party. Advisory Council on Historic Preservation – Consultation with Indian Tribes in the Section 106 Review Process Handbook, 7.

Lead agencies should be aware that historic properties with religious and cultural significance to Indian tribes and NHOs are often located on ancestral, aboriginal, or ceded lands of Indian tribes and NHOs. In many cases, Indian tribes may be located far away from historic properties that still hold religious and cultural significance to them. The lead agency is responsible for making a reasonable and good faith effort to identify Indian tribes and NHOs that must be consulted with in the NHPA Section 106 process early in project planning. 36 C.F.R. § 800.2(c)(2)(ii); Advisory Council on Historic Preservation – Consultation with Indian Tribes in the Section 106 Review Process Handbook, 6.

Note: If the undertaking may affect historic properties with religious and cultural significance to Indian tribes and/or NHOs off tribal lands, the primary consulting party is the SHPO. In this case, the THPO and/or Designated Tribal Representative does not supplant the jurisdiction of or have the same rights as the SHPO, but rather may represent his or her tribe as a consulting party. Advisory Council on Historic Preservation – Consultation with Indian Tribes in the Section 106 Review Process Handbook, 7.

11-FD-b.4 – Draft Section 106 Tribal Consultation Agreement (Optional)

The lead agency and Indian tribe may draft a Section 106 Tribal Consultation Agreement that specifies how the lead agency carries out consultation with an Indian tribe pursuant to NHPA Section 106. A Section 106 Tribal Consultation Agreement may cover all potential agency undertakings or apply only to a specific undertaking. The agreement may:

11-FD-b.5 – Provide Section 106 Tribal Consultation Agreement to State Historic Preservation Officer (SHPO) and Advisory Council on History Property (Council)

The lead agency must provide a copy of the Section 106 Tribal Consultation Agreement to the appropriate SHPO as well as the Advisory Council on Historic Property (Council). National Historic Preservation Act, 54 U.S.C. §§ 304101(a), 304102(a), 306108; 36 C.F.R. § 800.2(b).

11-FD-b.6 – Conduct National Historic Preservation Act Section 106 Consultation

The lead agency, THPO and/or Designated Tribal Representative, NHO and other consulting agencies (e.g. the SHPO) conduct NHPA Section 106 consultation to:

  • Identify any historic properties that may be affected by an undertaking, which are listed or eligible for listing in National Register;
  • Assess the adverse effects – if any – of an undertaking on identified historic properties or properties with religious and cultural significance; and
  • Resolve any adverse effects of an undertaking on historic properties or properties with religious and cultural significance. 36 C.F.R. §§ 800.4(a), 800.5(a), 800.6(a).

For more information on the NHPA Section 106 Consultation process see:

National Historic Preservation Act Section 106 Consultation:
11-FD-a


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