Advancing Tribal Decision-Making and Reducing Section 106 Burdens on Tribal Lands

NATHPO has developed a proposal with the Bureau of Indian Affairs (BIA) to address longstanding challenges in how Section 106 of the National Historic Preservation Act (NHPA) is applied on Tribal lands. NATHPO is now advancing this effort with BIA and preservation partners to develop practical recommendations and a draft/template alternative under 36 CFR § 800.14.

The goal is straightforward: improve consistency, reduce unnecessary regulatory burden on Tribes and Tribal citizens, and center Tribal decision-making in the federal preservation process.

Why This Matters. Tribal governments and Tribal citizens often face Section 106 review for routine actions on trust lands because BIA approval may create a federal nexus. Comparable actions on non-Tribal fee land often would not trigger Section 106 unless federal funding, licensing, permitting, or approval is involved.

This creates a practical double standard. Trust status was intended to protect Tribal lands and support self-determination. It should not become the basis for additional cost, delay, or federal procedural control over Tribal land use.

Why Partner with BIA. BIA is the necessary federal partner because its approvals, interpretations, and regional practices often determine whether routine actions on Tribal lands are treated as undertakings. BIA also has a trust responsibility to administer federal law in a manner that supports Tribal sovereignty, protects Tribal lands and cultural resources, and avoids unnecessary barriers to Tribal governance and community development.

The Efficiency Gap on Tribal Lands. Federal agencies and ACHP have developed many Section 106 streamlining tools for agency programs, infrastructure, energy, transportation, communications, housing, broadband, and other recurring federal actions. Comparable attention has not been directed toward the recurring burdens created by BIA’s administrative role on Tribal lands.

On Tribal lands, efficiency should not mean reducing Tribal participation. It should mean deferring to Tribal expertise, relying on Tribal preservation systems, clarifying when BIA involvement creates an undertaking, and creating predictable procedures for routine actions.

Key Issues to Address. This effort is focused on practical issues that have limited efficiency, consistency, and Tribal decision-making on Tribal lands, including:

• Inconsistent BIA interpretation of what does and does not constitute an undertaking.
• Routine trust land actions being treated as automatic Section 106 triggers.
• Lack of clear distinction between BIA administrative approval and substantive federal control.
• Tribal citizens bearing survey, review, and delay costs that similarly situated non-Tribal landowners would not face.
• Federal and state review processes treating Tribal expertise as advisory input rather than authoritative evidence.
• Overreliance on archaeology-centered review where Tribal cultural landscapes, sacred places, traditional use areas, burial places, historic communities, and other properties of religious and cultural significance require broader methods.
• Redundant federal review where Tribes already have THPOs, cultural committees, preservation boards, ordinances, land departments, or other internal review procedures.
• Lack of predictable categories for routine actions that should require no further review or only limited review.
• SHPO participation being treated as primary or determinative where Tribal governments and THPOs should guide review.
• Underuse of Tribal program alternative authorities, including NHPA Section 101(d)(5).
• Lack of consistent national direction to BIA regions and agency offices.

Project Approach. NATHPO has proposed working with BIA, Tribal Nations, THPOs, ACHP, and other preservation partners to develop recommendations, draft language, and a draft/template alternative for recurring BIA undertakings on Tribal lands.

The draft/template alternative could help BIA and individual Tribal governments clarify review expectations, identify actions requiring no further review or limited review, establish timelines, and create a more predictable process that can be adapted to Tribal law, Tribal capacity, local conditions, and BIA agency-office practice.

Priorities for the Draft/Template Alternative. The project will focus on recommendations and model language that may:

• Clarify when BIA administrative action does or does not create a Section 106 undertaking.
• Establish categories of routine actions requiring no further review or streamlined review.
• Defer to Tribal decision-making, Indigenous Knowledge, Tribal cultural expertise, and Tribal review standards.
• Recognize THPOs, Tribal preservation staff, cultural committees, preservation boards, elder advisory bodies, and other Tribal authorities.
• Clarify that SHPO consultation is in addition to, not a substitute for, Tribal consultation where Tribes have not assumed THPO functions.
• Support Tribal capacity, self-governance, and, where appropriate, assumption or compacting of cultural resource and preservation functions.
• Provide training and technical assistance for BIA personnel, Tribes, THPOs, and preservation partners.

NATHPO’s Role. NATHPO is well positioned to support this effort because it is the only national organization dedicated to serving Tribal Historic Preservation Officers and serves as a voting member of the Advisory Council on Historic Preservation.

NATHPO can assist BIA by coordinating Tribal and THPO engagement, convening listening sessions, developing draft recommendations and model language, preparing a consolidated report of Tribal input, and identifying implementation issues and recommended solutions.

Anticipated Products. Products will be forthcoming as the project advances and additional Tribal and BIA input is received. Potential products include:

• Consolidated Tribal input and recommendations report.
• Draft model language and a draft/template alternative for BIA and Tribal consideration.
• Recommended categories of actions requiring no further or limited Section 106 review.
• Implementation, training, monitoring, and reporting recommendations.

Project Timeline

• Late 2025: NATHPO submitted draft proposal to BIA.
• 2026: Project approved and moved into active engagement.
• May 7, 2026: NATHPO hosted a policy forum with Tribes to solicit initial input and feedback on the project.
• May 14, 2026: Meeting with Assistant Secretary for Indian Affairs Billy Kirkland.
• May 20, 2026: Meeting with BIA regional archaeologists.

Current Status. NATHPO has developed the concept, proposal materials, and draft framework and is now advancing the project through engagement with BIA, ACHP, THPOs, Tribal leaders, and preservation partners. Initial Tribal input has been solicited, and additional meetings with BIA leadership and regional staff are scheduled to help refine the project scope, priorities, and forthcoming products.

What Tribes and THPOs Can Do Now. Tribes and THPOs can help shape this work by identifying BIA approvals or land actions that create unnecessary Section 106 burden, categories of routine actions that should require no further review, examples where Tribal determinations were delayed or not given proper deference, and Tribal review standards or cultural protocols that should be recognized.

Contact. For questions or to share input, please contact:

Ira L. Matt
Executive Director, Indigenous Diplomacy and Federal Relations
National Association of Tribal Historic Preservation Officers
Ira@nathpo.org