What Is Tribal Consultation? Section 106 Explained for Project Developers

Bobby Gonzalez

Oct 23

3 min read

If your project touches federal permitting — a pipeline crossing federal land, a transmission line with a federal nexus, a mine with federal approvals — you will hear the phrase "tribal consultation." Many developers first encounter it as a line item on a permitting checklist. That framing is exactly how projects lose months.

Here is what tribal consultation actually is, where it sits in the process, and how experienced developers handle it.

Consultation is a government-to-government obligation — not public comment

Tribal consultation is not the same as public outreach. It is a government-to-government relationship: the federal agency with jurisdiction over your project is obligated to consult directly with federally recognized Tribal Nations. This obligation flows from treaties, statutes, executive orders, and the federal trust responsibility — and in the permitting context, it most often runs through Section 106 of the National Historic Preservation Act (NHPA).

Under 36 CFR Part 800, the federal agency must consider how its undertakings affect historic properties — and that includes properties of traditional religious and cultural significance to Tribal Nations. Tribes participate as consulting parties with a standing role in identifying properties, assessing effects, and resolving adverse effects. That is a fundamentally different posture than a commenter in a public hearing.

The practical point: your project cannot "do consultation" on behalf of the agency. But the developer who understands the process, prepares the right materials early, and treats tribal representatives as partners rather than obstacles moves through it far faster.

Where consultation sits in your timeline

Section 106 review runs alongside NEPA — not after it. The identification of historic properties and assessment of effects should begin in the earliest project planning, while routes and footprints are still flexible. Agencies are supposed to coordinate the two processes, and the developers who get this right feed cultural-resource information into their NEPA documents from the start rather than bolting it on at the end.

The most common schedule-killer we see is late engagement. By the time a developer contacts a tribe after the agency has already shaped its approach, positions have hardened, the design is locked, and the only remaining moves are expensive: reroutes, redesigns, or memoranda of agreement negotiated under time pressure. Tribal engagement belongs at the route-selection and scoping stage, when there is still room to avoid adverse effects altogether — which is always cheaper than resolving them.

What developers most often get wrong

1. Treating consultation as a box to check. Agencies and courts can tell the difference between notification and consultation. A letter mailed the week before a decision is not consultation, and projects have been remanded for exactly that.

2. Confusing tribal monitors with consultation. Tribal monitors — tribal members on site during ground-disturbing work — are an important part of protecting cultural resources during construction, particularly on pipeline and linear infrastructure projects. But monitors are a construction-phase safeguard, not a substitute for government-to-government consultation during permitting. You need both, at different times, for different reasons.

3. One protocol does not fit all. Every Tribal Nation has its own government structure, cultural protocols, and internal review processes. There is no universal template. Engagement plans that work for one nation may miss the mark entirely for another. This is where a team that works within tribal government — not just adjacent to it — makes a material difference.

4. Underestimating the front end. The fieldwork, archival research, and tribal input that identify properties early look like cost and schedule before the shovel hits the ground. They are. They are also the cheapest insurance a project can buy against stop-work orders, inadvertent discoveries mid-construction, and NAGPRA issues — any one of which costs orders of magnitude more than the upfront work.

What good looks like

The projects that move cleanly through Section 106 share a pattern: the developer designates a consistent point of contact for tribal engagement; cultural-resource surveys begin before the route is final; tribal input is sought while avoidance is still possible; and the Section 106 and NEPA processes are coordinated rather than sequenced. None of this is exotic. It is simply early, respectful, and documented.

How TER helps

Tribal Energy Resource is a Native-owned consulting firm that bridges Tribal Nations, federal agencies, and project developers. Our work spans tribal engagement strategy, cultural resource monitoring, and regulatory and compliance coordination across NEPA, NHPA Section 106, and NAGPRA — for pipelines, mining, and federal infrastructure projects (see our experience). We are led by Bobby Gonzalez, Chairman of the Caddo Nation of Oklahoma and Tribal Co-Chair of the DOE Indian Country Energy & Infrastructure Working Group — tribal government leadership applied to project delivery.