Earthjustice Responds to Federal Attack on National Historic Preservation Act

Washinton, DC – The Advisory Council on Historic Preservation on Friday voted to advance a notice of proposed rulemaking that would defang Section 106 of the National Historic Preservation Act (NHPA), one of the few laws that requires the federal government to consult with Tribal Nations before approving federally funded or permitted projects. New rules proposed by the ACHP would make Tribal consultation and public participation largely optional, and would drastically limit the law’s scope to historic properties that are geographically compact, excluding rivers, mountains and other Traditional Cultural Landscapes that are core to the history and identity of many Indigenous people. The proposed changes require further review and a 30-day public comment period before becoming final. Congress is also currently considering significant rollbacks to Section 106 as part of a planned “permitting reform” push.

Gussie Lord, Managing Attorney for Tribal Partnerships at Earthjustice, said: “For sixty years, the federal government has had a legal responsibility under the NHPA to listen to Tribal Nations before disturbing burial grounds and other sacred places. Good consultation has not slowed the pace of new roads and power plants in this country, but it has given Tribes a seat at the table and preserved irreplaceable Indigenous sites from destruction. What happens when entire landscapes are bulldozed without a thought to their cultural and historic importance? No one should support cutting Tribes out of the decision-making process for projects that impact their rights and sacred places.”

Section 106 does not mandate any outcome or give states or Tribal Nations veto authority over projects. When done correctly, government-to-government consultation under Section 106 allows projects to avoid or mitigate harmful impacts to historically important places, including many that are critical to Tribal lifeways, cultural practices, and religious practices. Early and meaningful engagement with Tribes and states also reduces risk, cost, and unnecessary delays to projects.  For years, Tribes have urged Congress to improve the implementation of Section 106 by requiring earlier and more robust tribal consultation, boosting appropriations for State and Tribal Historic Preservation Officers, and strengthening capacity and authority for conducting outreach to Tribal Nations.

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