National Historic Preservation & Antiquities Act

Two federal laws form the backbone of historic and cultural-resource protection in the United States: the National Historic Preservation Act (1966) — codified in Title 54 — and the Antiquities Act (1906) — now codified at 54 U.S.C. §§ 320301-320303. The NHPA established the National Register of Historic Places, created State Historic Preservation Offices (SHPOs) in every state, and most consequentially imposed Section 106 review — a requirement that federal agencies take account of effects on listed or eligible historic properties before proceeding with an undertaking. Section 106 reaches a broad range of federally funded, licensed, or permitted projects, from roads and housing to towers, pipelines, and disaster work. The Historic Tax Credit remains one of the major federal incentives for rehabilitation of income-producing historic buildings. The Antiquities Act gives the President authority to designate national monuments on federal land to protect objects of historic, prehistoric, or scientific interest, making it both a major preservation tool and a recurring source of public-lands controversy.

Current Law (2026)

Legal Authority

• 54 U.S.C. § 300101 — NHPA declaration of policy (the spirit and direction of the nation are founded upon and reflected in its historic heritage; preservation of this irreplaceable heritage is in the public interest; the federal government shall provide leadership in preserving the historic environment)
• 54 U.S.C. § 302102 — National Register of Historic Places (Secretary of the Interior shall expand and maintain the National Register; includes districts, sites, buildings, structures, and objects significant in American history, architecture, archaeology, engineering, and culture)
• 54 U.S.C. § 306108 — Section 106 review (federal agencies must take into account the effect of any federal undertaking on historic properties included in or eligible for the National Register; agencies must afford the Advisory Council on Historic Preservation a reasonable opportunity to comment)
• 54 U.S.C. § 320301 — Antiquities Act (the President may declare national monuments on federal lands containing historic landmarks, historic and prehistoric structures, and other objects of historic or scientific interest; the reservation shall be the smallest area compatible with proper management)

How It Works

The NHPA and the Antiquities Act are the twin pillars of federal historic and cultural preservation — the NHPA creates a comprehensive framework for identifying, evaluating, and protecting historic resources, while the Antiquities Act gives the President unilateral power to designate national monuments on federal lands.

The National Register of Historic Places, maintained by the National Park Service under 54 U.S.C. § 302102, is the official federal list of properties deemed worthy of preservation. Listing by itself generally does not restrict what a private owner can do with property — but it triggers eligibility for preservation incentives and becomes legally significant whenever federal funding, permits, licenses, or land use is involved. That federal involvement activates Section 106 (54 U.S.C. § 306108) — the NHPA's most powerful provision — which requires every federal agency to take into account the effects of its undertakings on listed or eligible historic properties before proceeding. The Section 106 process identifies historic properties in the project area, assesses effects, consults with State Historic Preservation Officers (SHPOs), Tribal Historic Preservation Officers (THPOs), and affected parties, and seeks ways to avoid, minimize, or mitigate adverse effects. Section 106 does not require preservation — it requires consideration; projects routinely proceed after consultation with agreed-upon mitigation measures such as documentation, design modifications, or archaeological data recovery.

The Antiquities Act (1906, 54 U.S.C. § 320301) gives the President sweeping unilateral power to designate national monuments on existing federal lands without new legislation from Congress — authority used to protect everything from small archaeological sites to vast landscapes and marine areas. The Act requires that monuments be "the smallest area compatible with proper management," but proclamations have ranged widely, and whether a later President may reduce or revoke a predecessor's proclamation remains legally contested. The Historic Tax Credit provides a 20% income tax credit for the certified rehabilitation of historic structures listed on the National Register or contributing to a registered historic district, with the credit claimed ratably over 5 years since the Tax Cuts and Jobs Act of 2017. In every state, a State Historic Preservation Officer (SHPO) administers NHPA functions at the state level — managing survey and inventory work, nominating properties to the National Register, reviewing Section 106 projects, and administering Historic Preservation Fund grants; Tribal Historic Preservation Officers (THPOs) serve similar functions on tribal lands.

How It Affects You

State Variations

Implementing Regulations

• 36 CFR Part 60 — National Register of Historic Places regulations, including listing procedures, documentation, and removal

• 36 CFR Part 63 — Determinations of Eligibility for Inclusion in the National Register of Historic Places: the NPS regulations governing how federal agencies request and receive formal DOI determinations that a property meets the National Register criteria, even without actual listing. These "determination of eligibility" findings trigger Section 106 consultation obligations for the federal agency without the property being formally listed — a critical mechanism when property owners object to listing. Key provisions:

  • § 63.2 — Determination of eligibility process: when a federal agency requests a determination of eligibility (typically because a potential NHPA Section 106 undertaking may affect the property), the Department of the Interior must respond within 45 days of receiving a documented request; the request must include the agency's evaluation of the property against the National Register criteria, documentation of the property's historic character, and the results of consultation with the State Historic Preservation Officer (SHPO); the 45-day deadline creates a firm timeline for environmental and project planning
  • § 63.3 — Agreed eligibility: if both the federal agency and the SHPO agree that a property meets the National Register criteria during § 63.2 consultation, the Keeper of the National Register (within NPS) concurs in the determination without further review; the property is then treated as eligible for National Register purposes in NHPA Section 106 consultation — triggering federal agency obligations to consider effects and consult with affected parties — even though it is not formally listed
  • § 63.4 — Other eligible properties: the Keeper may also make determinations of eligibility for properties nominated by federal agencies under Executive Order 11593 priorities (requiring agencies to preserve historic properties under their jurisdiction), for properties where the agency and SHPO disagree on eligibility, and for other properties where formal determination is needed; the Keeper's determination is the authoritative federal finding — binding on the requesting agency
  • § 63.5 — Federal Register publication: in addition to written notice to the requesting agency and the SHPO, all properties determined eligible for the National Register are published in the Federal Register; Federal Register publication creates a public record of the determination and provides notice to property owners, local governments, and interested parties who may not have been involved in the eligibility consultation
  • § 63.6 — Annual review and nomination: the Keeper conducts an annual review of the condition of properties determined eligible for the National Register; if a determined-eligible property continues to meet the criteria and the owner's objection to listing has been resolved, the Keeper may formally nominate the property for listing; determined-eligible status does not expire, but properties that are substantially altered or demolished after a positive determination may lose their eligibility if reevaluated

  The determination of eligibility process in Part 63 fills a gap in the National Register framework: properties that clearly meet listing criteria but whose owners oppose formal listing can still be protected under Section 106 through an eligibility determination. Without this mechanism, property owners could block Section 106 consultation protections by refusing consent to listing. The 45-day DOI response deadline in § 63.2 is designed to fit within federal project planning timelines — NEPA environmental review and Section 106 consultation typically run concurrently, and an indefinite eligibility determination would paralyze project schedules. In practice, determinations of eligibility are common for tribal sacred sites, privately owned historic districts, and underwater archaeological sites where formal National Register listing is contested or impractical.

• 36 CFR Part 67 — Historic Preservation Certifications for the federal historic rehabilitation tax credit

• 36 CFR Part 68 — The Secretary of the Interior's Standards for the Treatment of Historic Properties. These standards govern all proposed grant-in-aid development projects assisted through the National Historic Preservation Fund, and are also used by the NPS and SHPOs to evaluate whether Historic Tax Credit rehabilitation projects qualify for the 20% credit. Key provisions:

  • § 68.1 — Intent: the Part sets forth four distinct sets of standards depending on the type of treatment: preservation, rehabilitation, restoration, and reconstruction; one set applies to each project depending on the property's significance, existing physical condition, available documentation, and interpretive goals
  • § 68.2 — Definitions of the four treatments: (a) Preservation — applying measures to sustain the existing form, integrity, and materials of a historic property while protecting it from future deterioration; (b) Rehabilitation — returning or reconstructing a property to a usable state while preserving the portions or features that convey its historical, cultural, or architectural values; this is the treatment standard for the federal Historic Tax Credit program (the most commonly pursued treatment); (c) Restoration — accurately depicting the form, features, and character of a property as it appeared at a particular and significant period of time; removes evidence of other periods; (d) Reconstruction — accurately depicting non-surviving historic buildings, structures, objects, or landscape features on their historic locations; the most extreme treatment, used when no other option captures the significance
  • § 68.3 — Standards application: only one set of standards applies to a given property undergoing treatment; the standards are applied taking into account economic and technical feasibility; the NPS and SHPOs use these standards to evaluate whether work on grant-funded and tax-credit projects meets the threshold for federal support

  The distinction between the four treatments matters most for the Historic Tax Credit: only "rehabilitation" (returning a property to usable condition while preserving character-defining features) qualifies for the 20% federal HTC — preservation, restoration, and reconstruction work does not. The Standards for Rehabilitation in § 68.2(b) are the benchmark SHPO applies when certifying a rehabilitation project: work must not remove or damage character-defining features (original windows, architectural details, masonry) even if they require repair. Replacing historic windows with modern windows to meet energy codes is the most common disqualifying alteration; NPS frequently requires in-kind replacement or window repair to certify compliance with the rehabilitation standard.

• 36 CFR Part 79 — Curation of federally owned and administered archaeological collections

• 36 CFR Part 800 — Protection of Historic Properties, the core Section 106 consultation rules

• 36 CFR Part 65 — National Historic Landmarks Program: the NPS regulations governing the designation, monitoring, and potential withdrawal of National Historic Landmarks (NHLs) — the approximately 2,500 properties determined to be of exceptional national significance (a higher threshold than the 100,000+ properties on the National Register of Historic Places):

  • § 65.4 — NHL designation criteria: a property must meet at least one of six criteria for national significance: (1) association with an event or pattern of events that made a decisive contribution to the broad national heritage; (2) association with the lives of persons nationally significant in American history; (3) embodiment of the distinctive characteristics of a type, period, or method of construction; (4) possession of high artistic values; (5) yielding or likely to yield information important in understanding prehistory or history; or (6) association with the rise, decline, or change of an important aspect of American life — the criteria parallel the National Register criteria but require that the significance be exceptional at the national level, not merely significant locally or regionally; properties must also retain integrity — the physical characteristics (location, setting, design, materials, workmanship, feeling, association) that convey their significance
  • § 65.5 — Designation process: potential NHLs are identified primarily through theme studies — NPS-commissioned scholarly surveys of specific historic themes (frontier forts, civil rights sites, women's history) that identify the most significant properties; nominations may also come from state officials, federal preservation officers, and researchers; the NHL program uses a thematic approach rather than the individual nominations used for the National Register; nominated properties go through NPS review, public notification, and review by the National Park System Advisory Board before the Secretary of the Interior makes a final designation
  • § 65.2 — Effects of designation: NHL status is primarily a recognition without regulatory restrictions on private property — owners of privately owned NHLs face no automatic restrictions on how they use their property; however, federal agencies must afford "maximum opportunity" for NHL preservation when their projects may adversely affect an NHL (a stronger standard than the Section 106 "take into account" requirement for National Register properties); federal agencies must consult with NPS specifically about NHL-affecting projects; NHL designation enables eligibility for certain federal grants and tax incentives, and provides a national platform for fundraising and recognition
  • § 65.7 — Monitoring: NPS maintains an ongoing relationship with NHL owners through periodic visits and contacts with SHPOs; NHL monitoring evaluates whether landmarks retain their integrity — the characteristics that conveyed their significance at designation; if monitoring finds that an NHL has lost integrity (through demolition, insensitive alteration, neglect, or natural deterioration), it may be considered for withdrawal of designation
  • § 65.9 — Withdrawal of designation: NHL status may be withdrawn if (1) the property no longer meets the criteria for national significance, (2) the property has lost integrity, (3) the designation was based on factual error, or (4) additional information reveals that the property was incorrectly evaluated; withdrawal is rare — as of 2026, fewer than 20 properties have been withdrawn from NHL designation; the withdrawal process requires documentation, notice, and review comparable to the original designation process

  NHLs represent the most prestigious federal historic recognition short of inclusion in the National Park System. Unlike National Register listing (where any government project affecting a listed property triggers Section 106 review), NHL status creates enhanced federal protection obligations but limited private restrictions. The NHL program's thematic approach has historically underrepresented marginalized communities — women, people of color, Indigenous peoples — and NPS has prioritized theme studies to address these gaps. The program's December 2024 announcement of 19 new NHLs reflected the ongoing effort to expand the NHL inventory to reflect a more complete American story.

• 25 CFR Part 262 — Protection of Archaeological Resources on Indian Lands: the Bureau of Indian Affairs (BIA) regulations implementing the Archaeological Resources Protection Act (ARPA, 16 U.S.C. §§ 470aa–470mm) as it applies specifically to Indian lands — trust land held for individual Indians and tribal governments, and land owned by or administered by the BIA. ARPA requires permits for excavation or removal of archaeological resources; Part 262 sets the BIA-specific procedures, distinct from the uniform ARPA regulations at 43 CFR Part 7 (DOI), 36 CFR Part 296 (USFS), and 32 CFR Parts 229/1312 (DOD):

  • § 262.2 — Definitions: "lands of Indian tribes" means land or interest in land held in trust for a tribe, or restricted land owned by a tribe; "Indian individual" means enrolled tribal members, their direct descendants who resided on a reservation on June 1, 1934, or other persons of one-half or more Indian blood of indigenous U.S. tribes; "funerary objects," "sacred objects," and "objects of cultural patrimony" are defined consistent with NAGPRA standards — this definitional overlap with NAGPRA (25 U.S.C. § 3001) is intentional, as many ARPA-protected objects also qualify for NAGPRA repatriation protections
  • § 262.3 — Consultation to determine permit need: any person who proposes to excavate or remove archaeological resources on Indian lands or BIA-administered properties must first consult with the relevant BIA Area Director; before conducting even non-excavation investigations, the researcher must write to each tribal government with jurisdiction and request information on any tribal permit or authorization requirements within 30 days — tribal consent and tribal law take precedence over BIA's permitting authority on tribal land
  • § 262.4 — Activities by Indian tribes or individuals: an Indian tribe may NOT excavate archaeological resources on the land of another tribe without a BIA permit; an individual Indian may not excavate on any Indian lands other than those governed by the law of the tribe of which they are a member; tribal employees conducting excavations within their normal duties are exempt from the permit requirement, as are academic researchers conducting surface surveys that don't involve removal
  • § 262.5 — Permit applications: applicants must meet the professional qualification requirements in 43 CFR § 7.8 (relevant academic training, supervised field experience, publication record); applications must include written permission from the Indian landowner and from the tribe having jurisdiction — the tribal consent requirement is the most significant difference from ARPA permitting on other federal lands, where landowner and government authority overlap; permits may be conditioned, modified, suspended, or revoked by the BIA Area Director
  • § 262.6 — Secretary of Interior consent for individual Indian landowners: when an individual Indian landowner cannot be consulted (minor, non compos mentis, location unknown, deceased with undetermined heirs, or when there are so many owners that consent is impractical), the Secretary or their delegate may consent on behalf of the owner after finding that consent would not result in injury to the land or owner; the tribe with jurisdiction must be notified and given 15 working days to respond before the Secretary acts

  Part 262 implements ARPA's "permit required for excavation" framework specifically for Indian lands, but operates within a dual-permission structure: BIA must issue a permit AND the relevant tribe must consent. This creates stronger tribal control over archaeological resources than exists for non-Indian federal lands. Civil penalties under ARPA (§ 470ee) for unauthorized excavation or trafficking in archaeological resources include fines up to $100,000 for first offenses and up to $250,000 for subsequent offenses, plus criminal penalties. The interaction with NAGPRA (which governs repatriation of human remains and cultural items already in collections) means that archaeologists working on Indian lands must understand both frameworks — ARPA governs what may be excavated, NAGPRA governs what happens to excavated materials if they are human remains or cultural objects. No recent rulemakings — Part 262 was established in 1984 and has not been substantively amended.

• 32 CFR Part 229 — Protection of Archaeological Resources: Uniform Regulations (21 sections): the Department of Defense's implementation of ARPA (16 U.S.C. §§ 470aa–470mm) governing archaeological resources on DoD lands — military installations, training ranges, bases, and other federal lands under DoD jurisdiction. DoD is the largest federal land manager after the Forest Service and BLM, with nearly 30 million acres that include some of the most archaeologically significant lands in the country. Part 229 parallels the uniform ARPA regulations adopted governmentwide at 43 CFR Part 7 (DOI), 36 CFR Part 296 (USFS), and 32 CFR Part 1312 (previously), with DoD-specific adaptations for the military command structure:

  • § 229.2 — Authority: promulgated under Section 10(a) of ARPA, which directed all federal land managers to adopt uniform regulations — the DoD part of the "uniform regulations" alongside DOI, USDA, and Tennessee Valley Authority; the uniform regulations were designed to create consistent ARPA implementation across the 12 federal land-managing agencies
  • §§ 229.5–229.9 — Permit requirements: permits are required for any excavation or removal of archaeological resources from DoD lands; archaeological resources are defined as any material remains of past human life or activities that are at least 100 years old and are of archaeological interest; applications must identify the purpose, location, methodology, and qualifications of the permit holder; DoD installations issue permits through their installation cultural resource managers (ICRMs), typically Environmental Division personnel
  • § 229.10 — Suspension and revocation: the Federal land manager (typically the installation commanding officer or their delegate) may suspend or revoke a permit if the permit holder violates any condition of the permit, violates any provision of ARPA, or undertakes activities that pose a threat to health and safety or cultural resources; suspension can be immediate; revocation requires notice and opportunity to respond
  • § 229.12 — Relationship to Section 106: excavation under an ARPA permit may also require Section 106 consultation under NHPA if the activity constitutes an "undertaking" (federal action) that may affect historic properties; the two processes are complementary — ARPA governs the mechanics of permitted removal, Section 106 governs whether and how the effects on historic properties are addressed
  • § 229.13 — Custody of archaeological resources: all archaeological resources excavated or removed from DoD lands remain the property of the United States government, held in trust for the benefit of the American people; DoD installations must maintain collections or transfer them to approved repositories; collections from tribal lands within military installations are subject to NAGPRA repatriation requirements
  • §§ 229.15–229.16 — Civil penalties: unauthorized excavation or removal of archaeological resources from DoD lands triggers civil penalties — up to $10,000 and/or 1 year imprisonment for a first offense where the resources' commercial or archaeological value is less than $500; up to $100,000 and/or 2 years for more valuable resources or repeat offenses; DoD may also seek restoration costs
  • § 229.18 — Confidentiality: the location of archaeological sites on DoD lands is protected from public disclosure — installation ICRMs routinely withhold site coordinates and location data from survey reports to prevent unauthorized excavation; ARPA's confidentiality provision (§ 470hh) preempts FOIA disclosure requirements for site location information

  DoD's ARPA implementation must balance two competing imperatives: protecting significant cultural resources (often including pre-contact Native American sites and Civil War-era sites on military reservations) while maintaining military readiness and mission capability. Some DoD training activities — artillery ranges, tank maneuver areas, bombing ranges — unavoidably impact archaeological resources, and DoD cultural resource managers must integrate ARPA compliance into military training planning. The Sikes Act (16 U.S.C. § 670a-670o) requires DoD to maintain Integrated Natural Resources Management Plans (INRMPs) that address cultural resource protection alongside wildlife and natural resource management. No major amendments to Part 229 since original promulgation — the uniform ARPA regulations have been stable since the late 1980s.

Pending Legislation (119th Congress)

As of April 8, 2026, no enacted federal law has displaced the core NHPA, Section 106, Historic Preservation Fund, or Antiquities Act framework summarized here. Congress continues to consider site-specific monument, park, preservation-funding, and public-lands bills, but this page should be read against the current Title 54 statutory structure unless Congress enacts a change.

Recent Developments

• December 16, 2024: The Secretary of the Interior announced 19 new National Historic Landmarks and 14 nomination updates, showing that the landmark-designation program remains active even though the NHL inventory changes incrementally.
• FY2025 Historic Preservation Fund report: NPS reported that Congress appropriated $218.9 million from the HPF for historic-preservation work in FY2025, including SHPO, THPO, Certified Local Government, and competitive-grant support.
• As of April 8, 2026: Section 106 remains a central project-planning requirement across infrastructure, housing, energy, and disaster-recovery work because the statutory consultation framework has not materially changed.
• Antiquities Act authority remains contested but intact: Monument creation, management, expansion, and attempted rollback remain recurring public-lands flashpoints, but the President's core proclamation authority under 54 U.S.C. § 320301 remains one of the most powerful unilateral conservation tools in federal law.