Section 106 Review: The Cultural Resources Step Inside Tribal Casino Approvals
Alongside NEPA and IGRA's land rules, a lesser-discussed federal review asks what a proposed project could do to historic and culturally significant places.
When a tribe seeks to have land taken into trust for a casino, public attention usually goes to the Indian Gaming Regulatory Act, the governor's role or the National Environmental Policy Act. A parallel federal requirement gets far less coverage: Section 106 of the National Historic Preservation Act. It asks a deceptively simple question, what could this federal action do to historic properties, and it can influence the schedule and design of a project well before ground is broken.
What Section 106 requires
The National Historic Preservation Act of 1966 requires federal agencies to take into account the effects of their undertakings on historic properties and to give the Advisory Council on Historic Preservation a reasonable opportunity to comment. Section 106 is a process requirement, not a veto. It does not dictate an outcome. It requires an agency to identify historic properties in the area of potential effects, assess whether the undertaking would affect them, consult with interested parties, and seek ways to avoid, minimize or mitigate adverse effects.
The statute and its implementing regulations give particular weight to consultation with Indian tribes. Properties of religious and cultural significance to a tribe may qualify as historic properties, and a tribe is entitled to be consulted about them regardless of whether the property lies on that tribe's current land. In practice, that means a casino project can implicate two sets of tribal interests: those of the applicant tribe and those of other tribes whose ancestral territories overlap the proposed site. State Historic Preservation Officers and Tribal Historic Preservation Officers are among the usual consulting parties.
How it connects to fee-to-trust and casino approvals
Taking land into trust is a federal action. The Bureau of Indian Affairs must comply with NEPA and, because the acquisition is an undertaking, with Section 106. In practice the agency often coordinates the two reviews, using the environmental document to carry the cultural resources analysis, though they are legally distinct. For a general overview of how the environmental piece works, see our explainer on NEPA review in fee-to-trust casino cases, and for the full sequence of approvals, our guide to how a new tribal casino gets approved.
The cultural resources work typically begins with defining the area of potential effects, which can include not only the footprint of the casino but also access roads, utilities and any off-site improvements the project would require. Archaeological surveys and records searches follow, along with outreach to tribes and historic preservation officers. If the surveys identify eligible properties, the agency evaluates whether the project would adversely affect them and, if so, negotiates measures to resolve that effect, sometimes documented in a memorandum of agreement.
Why it can shape timelines and design
Because Section 106 depends on survey fieldwork and consultation, it is sensitive to seasons, access and the responsiveness of consulting parties. Fieldwork can be limited by weather and vegetation, and consultation periods can extend when a property is complex or contested. These are the kinds of factors that contribute to the lengthy reviews described in our analysis of fee-to-trust processing timelines. It would be inaccurate to attribute any particular project's delay to Section 106 without project-specific facts, but it is a recognized component of the federal review schedule.
The process can also influence design. Avoidance is the preferred outcome under the regulations, so a finding that part of a parcel contains sensitive resources can lead to shifting buildings, parking or utilities away from those areas. Where avoidance is not feasible, mitigation may include data recovery, monitoring during construction or protocols for unanticipated discoveries. The same logic applies to construction after trust acquisition. Because tribes frequently have their own cultural resources expertise, many build monitoring and inadvertent discovery plans into their projects as a matter of governance, independent of any federal requirement.
A step often confused with other reviews
Section 106 is frequently conflated with other requirements, so it is worth separating them. NEPA addresses environmental effects broadly, including air, water, traffic and socioeconomic impacts. IGRA's land provisions determine whether gaming is eligible on the parcel at all. Section 106 focuses specifically on historic properties and consultation about them. A project can satisfy one and still face questions on another, and the Interior Department's decision documents generally address each in turn.
There is also a distinction between compliance and controversy. Many Section 106 reviews conclude without objection, particularly where a parcel is previously disturbed or where consulting tribes agree on the approach. Disputes tend to arise when there is disagreement over whether a place is a historic property, whether the survey was adequate, or whether a proposed mitigation is sufficient. Such disputes can be resolved in consultation or, in some cases, raised in litigation challenging the agency's decision.
For readers following a specific project, the most useful documents are the draft and final environmental reviews and any agreement documents resulting from Section 106 consultation, which agencies generally make available. Facility-level information on existing properties is available through our directory. Understanding this review will not predict a project's outcome, but it explains why a casino approval involves more than gaming law alone.