When Consultation Becomes a Formality: The Rushed Rewrite of Section 106 and What It Means for Indigenous Sovereignty
On July 17, 2026, members of the Advisory Council on Historic Preservation got an email instructing them to vote by July 24 on new regulations governing Section 106 of the National Historic Preservation Act. The regulations were drafted outside the Council's ordinary process, without public review, and, according to the past ACHP chair, drafted to "weaken consultation with tribal nations."12
The Clock Is Ticking
ACHP Vice Chair Travis Voyles gave Council members one week to approve a full rewrite of 36 CFR Part 800, the regulations that implement Section 106 of the National Historic Preservation Act, by mail ballot, in what the Council itself called an "unassembled meeting."12 If Council members approve the proposal, it moves to the Office of Management and Budget and eventually to the Federal Register for after-the-fact public comment.1
No public deliberation. No open Council meeting. No draft in the Federal Register. No opportunity, so far, for the 574 federally recognized Tribal Nations whose sacred sites, ancestral homelands, and treaty-protected interests depend on Section 106 to read the proposal, let alone respond to it.
According to The Atlantic, the proposal would give federal agencies broader discretion, prioritize mitigation over avoidance, narrow the categories of historic properties eligible for protection, and, most consequentially for Indian Country, "weaken consultation with tribal nations."1 The law's most transformative amendments, in 1992, wrote Tribes into the federal preservation system as sovereign participants. That phrase is not a minor edit. It rewrites the government-to-government relationship in the language of paperwork.
What Section 106 Actually Does
The National Historic Preservation Act of 1966, codified at 54 U.S.C. § 300101 et seq., is the backbone of federal historic preservation law. Section 106 (54 U.S.C. § 306108) requires that before any federal agency approves an "undertaking," meaning a project, permit, license, or grant, the agency must "take into account the effect of the undertaking on any historic property" and give the ACHP a reasonable opportunity to comment.3
That process is implemented through 36 CFR Part 800, the regulations the ACHP is now being asked to rewrite. The regulations describe a four-step process. Initiation asks whether this is an undertaking. Identification defines the Area of Potential Effects and identifies consulting parties, including SHPOs, THPOs, Tribes, and Native Hawaiian Organizations. Assessment asks whether there is an adverse effect. Resolution means consulting to avoid, minimize, or mitigate, in that order of priority.4
The 1992 amendments to the NHPA made two changes that matter deeply here. First, Congress authorized Tribes to assume the functions of a Tribal Historic Preservation Officer (THPO) on tribal lands under Section 101(d)(2). Second, Congress required agencies to consult with any Tribe that attaches religious and cultural significance to a property, regardless of whether the property sits on tribal land.45 That second provision gives Tribes a legal seat at the table for federal projects on ancestral lands that Congress and courts long ago stripped from tribal ownership. Pipelines through the Great Plains. Transmission corridors across the Southwest. Monuments carved out of the Bears Ears region. Arches proposed for the National Mall.
Section 106 is, in practical terms, the single most consequential federal consultation right that Tribes exercise outside of treaty rights themselves.
Current regulations at 36 CFR § 800.6 require consulting parties to develop and evaluate alternatives or modifications that could avoid, minimize, or mitigate adverse effects, in that sequence. According to The Atlantic, the proposed rule would flip that priority, letting agencies skip to mitigation without seriously considering avoidance or alternative sites and designs.
For sacred sites, ancestral remains, and cultural landscapes, this is not a technical reordering. Mitigation cannot restore what avoidance would have protected. Deregulatory advocates have cited a "boardwalk fitness lane" and a "podcast" as real examples of inappropriate mitigation. Neither substitutes for a landscape left intact.
What Is Happening Right Now
The rewrite was not developed by the ACHP's professional staff or through the Council's ordinary deliberative process. According to The Atlantic's reporting, the drafted Notice of Proposed Rulemaking describes current interpretations of the law as producing "uncertainties, delays, and regulatory burdens." That is language typical of outside counsel and industry petitioners, not the Council's own preservation experts.1 The American Cultural Resources Association's July 18 public notice confirmed the "unassembled meeting" procedure and the July 24 email-vote deadline.2
Sara Bronin, the immediate past chair of the ACHP, told The Atlantic that the proposal would:
"…narrow the types of historic properties protected… weaken consultation with tribal nations… dramatically curtail public participation… and exempt large categories of federally backed state and local projects from Section 106 altogether. If adopted, these regulations will be challenged in court, and I doubt they will survive judicial scrutiny." Sara Bronin, former ACHP Chair, The Atlantic, July 19, 20261
The Society for American Archaeology, the American Cultural Resources Association, and the National Trust for Historic Preservation are preparing to respond once the text is published. The National Trust has already called the initial exclusion of six historic-preservation groups from the process an "abuse of discretion."1
Timeline at a Glance
| Date | Event |
|---|---|
| 1966 | NHPA enacted; Section 106 established (54 U.S.C. § 306108).3 |
| 1992 | NHPA amended to create THPOs and require Tribal consultation on properties of religious and cultural significance.4 |
| Feb 2026 | ACHP Vice Chair Travis Voyles announces timeline for revising 36 CFR Part 800.6 |
| July 13, 2026 | Presidential proclamations reduce Bears Ears (91%) and Grand Staircase-Escalante (90%). Bears Ears Commission terminated.7 |
| July 15, 2026 | NCAI and NATHPO issue joint statement condemning the monument cuts as an attack on "Tribal sovereignty, sacred places, cultural resources."7 |
| July 17, 2026 | ACHP members receive draft rule and instructions to vote by email.1 |
| July 18, 2026 | ACRA publishes public notice of the "unassembled meeting."2 |
| July 24, 2026 | Deadline for ACHP mail-ballot vote.2 |
Voices at the Table, and Voices Kept from It
Indigenous Nations and Advocates. The rulemaking arrives eleven days after presidential proclamations dramatically reduced Bears Ears and Grand Staircase-Escalante National Monuments. Tribal leaders and legal advocates describe the two events as a single pattern. Federal action affecting Indigenous sacred landscapes, taken without meaningful government-to-government consultation.
The National Congress of American Indians (NCAI) and the National Association of Tribal Historic Preservation Officers (NATHPO), in their joint statement of July 15, 2026, said the monument reductions "directly attack Tribal sovereignty, sacred places, cultural resources, and hard-won advances in Tribal-federal collaboration," and demanded that "any federal undertaking affecting lands removed from monument protection must fully comply with the National Historic Preservation Act and other applicable laws, including requirements to meaningfully consult with affected Tribal Nations and their Tribal Historic Preservation Officers."7
"We are deeply disappointed that this decision was made without the meaningful government-to-government consultation the federal government had promised, particularly after the Tribal Nations spent years working collaboratively and in good faith with federal agencies." Mikah Kewanimptewa, Vice Chairman, Hopi Tribe. Bears Ears Commission member.8
"Today's action is a direct strike against the federal government's duty to consult with Tribes. It also profoundly disrespects our intergenerational Traditional Knowledge by destroying a framework for Tribal co-stewardship over our ancestral lands in which we invested years of effort." Autumn Gillard (Southern Paiute), Coordinator, Grand Staircase-Escalante Inter-Tribal Coalition9
"Many assume that cultural sites have been abandoned, or refer to them as 'ruins.' These places are not abandoned, nor are they ruined. These are living landscapes for which Tribes are the original stewards, and we are the living descendants of the ancestors that left their footprints and writings on these landscapes." Georgie Pongyesva, Hopi Tribal Leader10
"From a Navajo perspective, Bears Ears is not simply a piece of federal public land. This is a living cultural site that holds our histories, our ceremonies, our traditional foods and medicines and our ancestors' footprints." Davina Smith-Idjesa (Navajo Nation), Co-Chair, Bears Ears Inter-Tribal Coalition11
Archaeologists and Preservation Professionals. The professional preservation community is drawing a straight line from what happened at Bears Ears to what a weakened Section 106 could enable everywhere else. Sara Bronin's warning about judicial scrutiny reflects a widely held view among preservation lawyers. The proposal, as described, would collide with the NHPA's statutory text, particularly the 1992 amendments that made Tribal consultation a statutory, not merely regulatory, obligation.14 Betsy Merritt of the National Trust for Historic Preservation has criticized related agency behavior as failing to "specify and commit to what the alternatives and what the mitigation would be." That is the very step a weakened Section 106 process would render optional.1
Federal and Policy Perspectives. The ACHP has publicly framed its February 2026 announcement of the rulemaking timeline as an effort to modernize Section 106 in response to concerns about permitting delays.6 Deregulatory policy analysts have advocated for changes that would limit "adverse effect" analysis to direct and proximate impacts, exclude cumulative effects, and impose statutory deadlines on each phase of consultation.12 Whatever one thinks of those substantive proposals, the current process is a departure from how the ACHP has historically approached rulemaking. What is different now is not the direction of reform but the procedural shortcut.
Legal and Procedural Concerns. Federal courts have made clear that the ACHP's own regulations must comply with the Administrative Procedure Act. In Oregon-California Trails Ass'n v. Hogan, a March 2026 case still moving through federal court, petitioners argue that ACHP guidance implementing a related executive order violated the APA "by altering substantive law without observing required" notice-and-comment procedures.13 Section 106 consultation is also intertwined with Executive Order 13175 (Consultation and Coordination With Indian Tribal Governments) and Executive Order 13007 (Indian Sacred Sites). Those are the same authorities cited by the Utu Utu Gwaitu Paiute Tribe in its June 2026 wild horse case and by the Crow Creek Sioux Tribe in its June 2026 challenge to a Forest Service project that allegedly moved forward without "meaningful, mutual, and legally required government-to-government consultation."1415
The Sovereignty and Ethics Argument
To describe the July 24 vote as a procedural problem is to describe a broken treaty as a paperwork error.
Tribal sovereignty is a legal and political fact. Federally recognized Tribal Nations are sovereign governments with a unique nation-to-nation relationship to the United States. That relationship is affirmed in treaties, in the Constitution, in Supreme Court doctrine going back to Worcester v. Georgia (1832), and, for preservation purposes, in the 1992 amendments to the NHPA. Federal consultation is not a courtesy owed to a stakeholder group. It is a legal and moral obligation owed by one sovereign to another.
When federal agencies bypass consultation, they do three things at once.
First, they treat the sovereign as a stakeholder. The government-to-government relationship collapses into a mailing list. This is what Autumn Gillard means when she calls the Bears Ears rollback "a direct strike against the federal government's duty to consult."9 Consultation is not information-gathering. It is a sovereign act between governments, reflected in NCAI Resolution SEA-25-002's call for free, prior, and informed consent, borrowing the standard set by the UN Declaration on the Rights of Indigenous Peoples, Article 19.716
Second, they encode extractive precedent into federal practice. Sixty days after the Bears Ears proclamation, the 1.24 million acres removed from monument protection become open to mineral leasing, mining claims, and public land dispositions.17 A parallel weakening of Section 106, the very statute that would otherwise require agencies to consult Tribes about historic properties on those newly opened lands, is not a coincidence of timing. It is a compounding mechanism. Shrink the monument, then shrink the consultation requirement that would slow the extraction.
Third, they violate the ethical obligations that professional archaeology has spent forty years codifying. The Society for American Archaeology's Principles of Archaeological Ethics, Principle 2 (Accountability) and Principle 5 (Intellectual Property) in particular, require consultation and collaboration with affected descendant communities as a precondition of ethical practice.18 The American Anthropological Association's Statement on Ethics requires primary responsibility to research participants, which, in a domestic-federal context, includes affected Tribal Nations.19
If Section 106 consultation becomes a formality, the ethical obligations of the profession do not disappear. They are simply stripped of the regulatory scaffolding that once required agencies to honor them. Archaeologists will be asked, more often, to conduct work on projects where Tribal input has been sidelined at the federal level, and to decide, individually, whether to participate. That is a professional and ethical burden the field is not prepared to carry at scale.
The sovereignty argument and the ethics argument are the same argument, seen from two sides. Consent is the connective tissue between them.
TRIBAL SOVEREIGNTY
(Treaty · Constitutional · International)
│
┌──────────────────┼──────────────────┐
│ │ │
NHPA § 106 EO 13175 & 13007 NAGPRA
(54 U.S.C. (Consultation + (43 CFR Pt. 10)
§ 306108) Sacred Sites)
│ │ │
└──────────────────┼──────────────────┘
│
MEANINGFUL GOVERNMENT-TO-GOVERNMENT
CONSULTATION
┌──────────────────┼──────────────────┐
│ │ │
THPO / SHPO Free, Prior, Avoid → Minimize
participation Informed Consent → Mitigate
(UNDRIP Art. 19)
│
┌──────────────────┼──────────────────┐
│ │ │
Sacred Ancestral Cultural landscapes
sites remains & living heritage
The proposed rewrite of 36 CFR Part 800 targets the middle layer, meaningful consultation, while leaving the sovereignty foundation formally intact. This is why Tribal advocates describe it as a procedural attack on a substantive right.
What Comes Next
Between now and July 24: The ACHP vote proceeds by email. Council members appointed by the President, the majority of the 24-member body, are being asked to approve the proposal without a public meeting.2
If the Council approves: The proposal moves to the Office of Management and Budget for review, then to the Federal Register as a Notice of Proposed Rulemaking. A public comment period will open, usually 60 days, though the exact length depends on the notice.1
- Watch the Federal Register. The proposal is not yet public. When it appears at federalregister.gov, read the actual text, not summaries, and submit substantive comments during the comment period. Comments that cite specific regulatory text and legal authority carry the most weight.
- Support Tribal consultation directly. Contact THPOs and inter-tribal coalitions in the regions where you live, work, or study, and ask what specific comment language would be useful to them. NATHPO and the Bears Ears Inter-Tribal Coalition are two starting points.
- Contact Congress. The 1992 statutory consultation requirements sit in the NHPA itself, not in the ACHP regulations. Congress can reaffirm those requirements. Personalized calls to Senate and House Natural Resources committee members carry more weight than form letters.7
- Track the litigation. Hopi Tribe v. Trump (D.D.C., pending) and Garfield County v. Biden (remanded to D. Utah, June 2026) will shape the legal terrain that any Section 106 revision must survive.17 Earthjustice, NARF, and the Association on American Indian Affairs have all indicated they will litigate.
- For archaeologists and CRM professionals. Watch for SAA, ACRA, and NATHPO joint statements once the rule text is published. Consider what your firm's or institution's policy will be if consultation obligations are weakened. The regulatory floor may drop. The ethical floor cannot.
Closing: What This Publication Stands For
Section 106 is a procedural statute. But procedure, in federal Indian law, is where sovereignty either lives or is quietly dismantled. Every consultation meeting held is a treaty renewed in miniature. Every consultation meeting skipped is a treaty broken in miniature.
Sanchez.Global and The Sovereign Brief were built to hold space for the ethical and sovereign dimensions of archaeology, cultural heritage, and Indigenous rights that are so often treated as afterthoughts in federal policy. We will continue to cover this rulemaking through the July 24 vote, through the Federal Register publication, through the comment period, and through the litigation that is almost certain to follow.
Our commitment is straightforward. Indigenous nations are sovereign. Consultation is a right, not a courtesy. Sacred sites are living, not archaeological. And the profession of archaeology has an ethical obligation to name procedural erosion for what it is: a substantive attack on Indigenous rights, dressed as regulatory reform.
We are watching. So are the Tribal Nations whose ancestors have already survived every prior version of this argument.