The Section 106 Rewrite: Why the ACHP's Proposal Puts Native Sacred Places at Risk — and What Comes Next

On July 24, 2026, the Advisory Council on Historic Preservation (ACHP) voted to advance a Notice of Proposed Rulemaking that would rewrite 36 C.F.R. Part 800 — the regulations that have governed the Section 106 review process since their last comprehensive revision in 2000. The vote was 16 in favor, 5 opposed, and 2 abstentions. It is the most consequential change to the historic preservation review process in more than two decades, and for Tribal Nations it is not a technical adjustment. It reaches directly into how — and whether — sacred places, ancestral lands, burial sites, and cultural landscapes are considered before federal agencies act.

Notably, the National Association of Tribal Historic Preservation Officers (NATHPO), a voting member of the Council, cast a NO vote, citing serious concerns about both the process and the substance of the proposal. For the tribal nations and Native-serving organizations we represent, this is a moment that demands attention, preparation, and — when the comment window opens — a strong, well-documented voice.

What Section 106 Does, and Why It Matters to Indian Country

Section 106 of the National Historic Preservation Act requires federal agencies to take into account the effects of their undertakings on historic properties, and to give the ACHP a reasonable opportunity to comment before proceeding. In practice, it is one of the primary tools Tribal Nations and Tribal Historic Preservation Officers (THPOs) use to ensure that sacred places, ancestral lands, burial places, and cultural landscapes are considered before agencies fund, permit, license, or approve projects that could affect them.

Section 106 does not prohibit federal projects. It requires informed decisions before agencies proceed. Tribal Nations and THPOs routinely use the process to advance infrastructure, energy, housing, transportation, broadband, and conservation projects while protecting places that cannot be replaced. The value of the process is that it begins early enough for tribal knowledge and concerns to actually shape a project — not simply to react after the fact.

How the Proposal Puts Native Nations at Risk

Based on the ACHP's stated rationale and the detailed analysis published by NATHPO and preservation partners, the proposal would weaken tribal participation across nearly every stage of the review. The principal concerns for Indian Country include:

• Narrowing what counts as a "historic property." The proposal would generally require a place to be geographically compact and tied to tangible human improvements — expressly stating that mountains, valleys, bodies of water, and landscapes, including ethnographic landscapes, do not qualify. This could exclude places whose significance arises from continuing religious and cultural practice, oral tradition, ceremony, and enduring relationships among people, ancestors, land, and water.

• Narrowing which effects are considered. References to indirect and cumulative effects would be removed, and adverse effects limited to those with a reasonably close causal relationship to the undertaking. Changes to a property's setting, and the introduction of visual, atmospheric, or audible elements, would lose specific recognition — even though sacred places are often harmed through changes to access, setting, sound, sightlines, water, or the ability to continue ceremony.

• Reducing tribal and THPO participation. The draft removes provisions giving Tribes a meaningful early opportunity to identify concerns, advise on identification and evaluation, and help resolve adverse effects. It shifts more findings to the agency official and moves consulting parties toward simply commenting on an agency-prepared report.

• Removing recognition of tribal expertise and legal context. Language recognizing the special expertise of Tribes in evaluating properties of religious and cultural significance would be deleted — as would express references to the government-to-government relationship, tribal sovereignty, treaty rights, and the fact that culturally significant places are often on ancestral, aboriginal, or ceded lands.

• Expanding unilateral agency control. Agencies would gain authority to alter deadlines, control the scope of identification, and prepare a consolidated report of their own conclusions before consultation. Negotiated memoranda of agreement would give way to agency-issued memoranda of decision, allowing an agency to conclude that other considerations outweigh preservation concerns and proceed.

• Making public participation discretionary. Public comment would become optional rather than mandatory, at the agency's discretion — reducing the ability of tribal communities and the broader public to raise concerns and inform decisions.

• Expanding exemptions and off-ramps. The proposal encourages broader categorical exemptions modeled on NEPA-style exclusions — but a finding of no significant environmental effect under NEPA does not establish that a project cannot harm a place of religious and cultural significance to a Tribe.

Taken together, these changes risk transforming Section 106 from a collaborative planning process into an agency-directed review, followed only by an opportunity for others to comment. As NATHPO Executive Director Ira Matt put it, a proposal that diminishes the tribal voice over sacred places implicates the federal government's trust and treaty responsibilities.

Where the Process Stands

The July 24 vote does not adopt a final rule. It moves the proposal forward as a Notice of Proposed Rulemaking. From here, the NPRM proceeds to review by the Office of Information and Regulatory Affairs (OIRA), then to publication in the Federal Register, where it is expected to open for a public comment period. After comments, the ACHP would develop a final rule, subject to a second OIRA review before any final regulation is published and takes effect.

Two points bear watching. First, as of this posting the formal public comment period had not yet opened — meaning the most important window for tribal input is still ahead. Second, the compressed timeline that produced this proposal drew sharp criticism, including from NATHPO, because it departed from the deliberative schedule the Council itself approved in June. The exact comment period length and deadlines should be confirmed against the Federal Register notice once published before any client relies on them.

What Our Firm Is Doing for Clients

Starzyk & Associates is treating this proposal as an active priority for every client whose homelands, sacred sites, or infrastructure priorities intersect with the federal review process. Our approach follows the readiness steps that NATHPO and preservation partners have urged Tribal Nations to take, tailored to each client's specific stake:

• Brief tribal leadership and staff. We are preparing plain-language briefings for tribal leadership, legal counsel, and cultural resource staff so decision-makers understand how the proposal could change consultation rights, government-to-government engagement, and THPO authorities.

• Map each client's exposure. We are working with clients to identify the sacred places, burial sites, cultural landscapes, treaty-protected rights, and continuing practices that could be placed at greater risk under the narrowed definitions — and to flag current or upcoming undertakings that could be affected.

• Build the evidentiary record. We are helping clients document concrete examples where early, meaningful consultation improved a federal decision or avoided harm — and, conversely, where late or inadequate consultation caused harm, delay, or conflict. This documentation is the backbone of an effective comment.

• Coordinate the coalition. We are aligning with intertribal organizations, legal counsel, and preservation partners — including NATHPO's tribal forums and legal-office discussions — so our clients' voices are amplified rather than isolated.

• Engage Congress and agencies. We are prepared to help clients contact the relevant congressional offices and agency officials to explain, in specific terms, how the proposal would affect their nations.

• Prepare formal comments. When the Federal Register notice publishes and the comment period opens, we will draft and file substantive, client-specific comments — and support tribal leadership in submitting their own — well inside the deadline.

The Bottom Line

This is a defining moment for the federal preservation system and for the role Tribal Nations play within it. The proposal is not final, and the record built during the comment period will matter. Our job is to ensure that every client we serve is briefed, prepared, and positioned to make their voice heard before the process closes — so that speed is not achieved at the expense of tribal sovereignty or the places that Native peoples have carried forward since time immemorial.

Does Your Nation Have a Stake? Let's Talk.

If your tribe or organization has sacred sites, cultural landscapes, treaty rights, or active federal undertakings that could be affected by the Section 106 rewrite, we can help you assess your exposure, build your record, and prepare to engage before the comment window closes. Reach out to discuss your priorities: starzykassociatesllc.com — we represent tribal nations before Congress and the federal agencies that matter most to Indian Country.

This post reflects reporting as of early August 2026 and does not constitute legal advice. The rulemaking process is moving quickly; the Federal Register notice, comment period length, and deadlines should be verified before acting. Prepared consistent with applicable disclosure practices.