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BREAKING: Department of the Interior Order to “Streamline and Expedite” Section 106 Process Issued without Tribal Consultation

  • 2 hours ago
  • 3 min read

8/25/2026


Historic Indigenous site

WASHINGTON, D.C.  –  On August 20, 2026, Interior Secretary Doug Burgum issued Secretarial Order No. 3452 directing the Department of the Interior to “streamline and expedite” compliance with Section 106 of the National Historic Preservation Act (NHPA).  The Secretarial Order will have significant impacts on Indian tribes, Tribal Historic Preservation Officers, and historic and cultural properties across the United States and was issued without any Tribal Consultation.  


Section 106 of the NHPA requires that federal agencies consider the impacts of their undertakings on historic and cultural properties.  The Section 106 process is set out in the regulations at 36 C.F.R. Part 800.  The Secretarial Order is available here.


Secretarial Order No. 3452 represents the third major attack on the Section 106 review process in less than a year.  On October 29, 2025, the Senate Energy and Natural Resources Committee held a hearing to examine the Section 106 process in which Chairman Mike Lee (Utah) called the Section 106 process “a narrow procedural safeguard that has evolved into a sprawling, unpredictable process.”  And, on July 24, 2026, the Advisory Council on Historic Preservation (ACHP) voted to move forward with a Notice of Proposed Rulemaking that would gut the Section 106 process.  The ACHP is expected to release its proposed rule soon.


Meanwhile, the Secretarial Order is focused on the existing Section 106 regulations and undertakings in or about to enter the review process.  Secretarial Order No. 3452 claims that under the existing regulations, bureaus and agencies “are forced to unnecessarily extend the decision-making process for undertakings, with little or no benefit.”  The Secretarial Order requires Interior officials to:


  • weigh historic preservation values alongside other policy objectives;

  • identify and disseminate lists of categories of undertakings that do not have the potential to impact historic properties; and

  • adhere to 30-day deadlines throughout the Section 106 process.


Even though Secretarial Order No. 3452 has already been issued, under Executive Order No. 13175 Consultation and Coordination with Indian Tribal Governments (November 6, 2000) and Interior’s Policy and Procedures on Consultation with Indian Tribes at 512 DM 4 and 5, the Secretary is required to consult with Tribes on the Order and its impacts.  In addition, the Secretary must consult with Tribes on the “other policy objectives” to be weighed against the requirements of the NHPA, as well as any lists of categories of undertakings that do not impact historic properties.  In an unprecedented move by Interior, none of the required Tribal Consultation took place.


Under the Secretarial Order, Tribes must immediately prepare for Section 106 processes that are rushed and potentially insufficiently scoped, whether already initiated or to come, as a part of the Identification and Evaluation of Historic Properties under 36 C.F.R. § 800.4 and the Assessment of Adverse Effects under 36 C.F.R. § 800.5.  Together, these steps in the Section 106 review process require technical expert analysis on eligibility for the National Register of Historic Places, potential effects of the undertaking, and proper assessment of adverse effects the undertaking may have on the historical, architectural, archaeological, or cultural qualities of those properties.  These measures are in place to avoid or mitigate often permanent and irreversible damages to historic and cultural properties.


Secretarial Order No. 3452 appears to be focused on clearing the slate of federal undertakings currently in the Section 106 review process or ripe to begin the Section 106 review process just on the cusp of the ACHP’s highly anticipated publishing of its Notice of Proposed Rulemaking in the Federal Register in the coming weeks.  Tribes will need to prepare to submit robust comments in response to the ACHP’s proposed rulemaking to protect their interests within the standard 30-day public comment period.  We are here to help.

Skenandore Wilson LLP is dedicated to the representation of Tribal Nations, Tribal entities, and individual Tribal members throughout Indian Country.  Our mission is to support and advance the sovereignty, self-sufficiency, and self-governance of our Tribal clients.  To learn more about how we can assist you, contact us at info@skenandorewilson.com or 608-608-1210.

 
 
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