November 6, 2026
US First Nations organizations are urging Congress to remove proposed historic preservation provisions from a bipartisan Senate bill, warning that changes to federal consultation, environmental review and judicial protections could affect Tribal Nations' ability to protect ancestral lands and cultural resources.
A bipartisan federal permitting reform bill introduced in the U.S. Senate is drawing opposition from the National Congress of American Indians (NCAI), the National Association of Tribal Historic Preservation Officers (NATHPO) and other Native organizations over proposed changes to federal historic preservation laws.
The legislation, known as the Bipartisan American Affordability and Jobs Act of 2026 (BAAJA), Senate Bill 5653, was introduced September 30 by Sen. Shelley Moore Capito (R-West Virginia), with cosponsors Sens. Mike Lee (R-Utah), Sheldon Whitehouse (D-Rhode Island) and Martin Heinrich (D-New Mexico).
The bill proposes changes to federal permitting procedures for energy, infrastructure and other development projects. Among its provisions are amendments to the National Historic Preservation Act that could change how federal agencies identify historic properties, consult with Tribal Nations and address potential impacts on culturally significant places.
NCAI and other Native organizations are asking Congress to remove Division B, Title III, which addresses historic preservation.
Their concerns involve proposed changes to the identification of cultural properties, consultation requirements, project review procedures and the ability to challenge federal decisions in court.
As of November 6, S. 5653 has been introduced and referred to the Senate Committee on Energy and Natural Resources. It has not passed Congress or become law.
What is Congress considering?
The legislation is a comprehensive permitting reform package addressing several major federal laws and regulatory processes.
Its stated objectives include reducing delays in federal project approvals, improving certainty for infrastructure developers and facilitating energy development.
The bill addresses:
- National Environmental Policy Act (NEPA).
- Clean Water Act.
- Endangered Species Act.
- Federal project permitting and review.
- Electric transmission.
- Energy permitting.
- National Historic Preservation Act.
Supporters argue that federal permitting processes can take years, delaying energy infrastructure, electricity transmission and other development projects. They contend that clearer requirements and more predictable review schedules could benefit communities and the national economy.
However, Native organizations question whether the proposed changes would reduce opportunities for Tribal Nations to participate in decisions affecting their ancestral territories and cultural resources.
The Congressional Research Service published a detailed analysis of the legislation on November 5, outlining the provisions as introduced and explaining how they would amend existing federal laws if enacted.
Why Section 106 matters to Tribal Nations.
One of the central issues involves Section 106 of the National Historic Preservation Act of 1966.
Section 106 requires federal agencies to consider the effects of federally funded licensed or approved projects on historic properties before proceeding with those projects.
The process provides opportunities for Tribal Nations, State Historic Preservation Officers, Tribal Historic Preservation Officers and other consulting parties to identify historic properties and discuss potential impacts.
Historic properties are not limited to buildings, archaeological sites or places listed on the National Register of Historic Places. They can include ancestral burial grounds, sacred and ceremonial places, traditional cultural properties, historic villages and cultural landscapes.
These places may have religious, cultural, historical or spiritual significance even when they are not readily identifiable through conventional archaeological surveys.
Section 106 does not give Tribal Nations an automatic veto over federal projects. It establishes a process requiring federal agencies to consider potential effects and consult with appropriate parties.
Importantly, consultation is not the same as tribal consent. However, it provides an opportunity for Tribal Nations to identify cultural resources and raise concerns before federal decisions are finalized. The consultation responsibility can also apply to properties outside reservation boundaries when they are significant to a Tribe.
Proposed changes could redefine which cultural properties receive consideration.
Section 2301 would change the statutory wording concerning properties of traditional religious and cultural importance to a Tribe and establish a definition based on an identifiable geographic location or feature where an event of continuing religious or cultural significance to a living community occurred.
The definition includes prehistoric and historic districts, sites, buildings, structures, objects and associated artifacts or material remains.
The Congressional Research Service notes that the effect of this definition is uncertain. Depending on how federal agencies, future regulations and courts interpret the language, it could narrow or expand which properties qualify for consideration.
This raises questions for Tribal Nations whose cultural knowledge, traditional practices and connections to ancestral landscapes may not always fit conventional approaches to documenting historic properties.
For example, a culturally significant landscape may extend across a broad area rather than being confined to a single archaeological site or identifiable structure.
The concern is whether the proposed definition would adequately recognize the full range of places Tribal Nations consider culturally and spiritually important.
Changes to federal project reviews and consultation.
Section 2301 would also change which projects qualify as federal undertakings subject to Section 106 review.
Under the proposed definition, a federal undertaking generally would require both a federal permit, license or approval and substantial federal control and responsibility.
The bill identifies categories of exclusions, including certain projects receiving federal financial assistance when historic preservation is not the primary purpose of that assistance.
These changes could affect which federally connected transportation, housing, energy and infrastructure projects receive historic preservation review.
The legislation would also establish new consultation procedures and deadlines.
Among the proposed changes:
- Agencies would request information from Tribal Historic Preservation Officers and other parties, with a 30-day response period at an early stage of review.
- At the stage of identifying historic properties and determining the area of potential effects, agencies could consult with relevant parties rather than being required to consult at that particular stage.
- The legislation would change documentation and notification requirements when agencies determine that no historic properties or adverse effects are present.
- Certain Section 106 responsibilities would be tied to deadlines established under the proposed environmental review procedures.
US First Nations organizations are concerned that shorter timelines and reduced consultation requirements could make it more difficult for Tribal Nations to provide cultural information, identify ancestral sites and raise concerns before decisions are made.
Tribal governments may need time to consult elders, cultural practitioners and community members who possess knowledge about affected places.
Proposed limits on legal challenges could affect tribal remedies.
Another significant concern involves proposed changes to the ability of Tribal Nations and other parties to challenge federal historic preservation decisions in court.
Under existing law, courts have several potential remedies when federal agencies violate the National Historic Preservation Act. These can include setting aside an agency decision or issuing an injunction.
Section 2301 would substantially change those remedies.
According to the Congressional Research Service, the legislation would generally limit remedies for NHPA violations to remanding the matter to the federal agency without vacating the underlying approval.
This means a federal project could potentially continue while the agency addresses legal deficiencies identified by a court.
The bill would also:
- Establish a 150-day filing deadline for certain legal challenges.
- Restrict certain opportunities to obtain preliminary injunctions.
- Impose additional requirements concerning participation in public comments and consultation.
- Restrict certain challenges involving programmatic agreements.
For Tribal Nations, these provisions raise concerns about whether judicial remedies would remain meaningful when federal historic preservation requirements have not been followed.
The distinction is particularly important when a project could permanently affect a sacred site or ancestral burial ground.
Proposed funding for Tribal Historic Preservation Officers.
The legislation also contains provisions that could provide additional resources for tribal historic preservation programs.
Section 2302 would authorize:
- $200 million annually for the Historic Preservation Fund for fiscal years 2027 through 2036.
- $20 million annually for a competitive Tribal Historic Preservation Officer grant program for fiscal years 2027 through 2030.
The proposed grants would support online databases documenting preservation agreements, determinations, findings and supporting records, as well as comprehensive inventories of properties of religious or cultural importance to individual Tribal Nations.
An additional provision would protect information concerning the locations, character and ownership of properties in these databases from required public disclosure.
The funding could help Tribal Historic Preservation Offices document and protect culturally significant places. However, the proposed funding does not resolve the objections raised about the changes to Section 106.
The $200 million authorization is not a guarantee that the full amount will automatically be deposited and distributed. These are proposed funding authorizations that would take effect only if the legislation is enacted.
Why this legislation matters to Great Lakes Tribal Nations.
Although the national debate includes concerns involving Western Tribal Nations, the proposed changes could have implications for Tribal Nations throughout the Great Lakes region.
The Sault Tribe of Chippewa Indians and other Great Lakes Tribal Nations have longstanding cultural, historical and treaty connections to lands and waters extending beyond present-day reservation boundaries.
Several issues are particularly relevant.
Enbridge Line 5 and pipeline development.
The ongoing Line 5 controversy illustrates the importance of federal and state decisions involving pipeline infrastructure, water resources and tribal treaty interests.
BAAJA does not specifically authorize Line 5 or eliminate existing treaty rights. However, changes to federal environmental and historic preservation reviews could affect procedures applied to future projects requiring federal approvals.
Great Lakes water protection.
Federal permits involving wetlands, waterways, construction and energy infrastructure can affect resources important to Tribal Nations.
Proposed changes to the Clean Water Act and environmental review procedures are relevant to Great Lakes communities concerned about water quality and the protection of treaty resources.
Ancestral burial grounds and cultural places.
Federal projects involving ancestral territories could raise questions about how cultural resources are identified and considered before development begins, particularly when important places are outside current reservation boundaries.
Treaty-protected resources.
Treaty rights are established through treaties and other applicable legal authorities. They are not automatically eliminated by changes to Section 106.
However, environmental reviews and consultation provide opportunities for Tribal Nations to identify potential effects on treaty-protected resources and communicate their concerns before federal decisions are finalized.
For Great Lakes Tribal Nations, the issue involves maintaining meaningful participation in decisions affecting treaty territories, cultural heritage and natural resources.
What Tribal Nations and US First Nations organizations are asking Congress to do.
NCAI and NATHPO have called on Congress to remove the historic preservation provisions in Division B, Title III.
Their objections focus on preserving meaningful tribal participation, maintaining the ability to identify culturally significant properties, protecting consultation opportunities and retaining effective legal remedies when federal agencies fail to meet their obligations.
NATHPO has published additional materials explaining the proposed changes and urging Tribal Nations and Tribal Historic Preservation Officers to review the legislation.
The organizations argue that permitting reform should not come at the expense of federal responsibilities to recognize and consult with Tribal Nations.
Supporters of permitting reform maintain that federal review processes need clearer timelines and greater efficiency to facilitate infrastructure and energy development.
The debate concerns how those objectives can be balanced with historic preservation responsibilities, tribal sovereignty and protection of cultural resources.
What happens next in Congress?
As of November 6, 2026, S. 5653 remains an introduced bill referred to the Senate Committee on Energy and Natural Resources.
The Senate is scheduled to return November 9. A scheduled cloture vote on a motion to proceed to H.R. 2347 is a procedural step associated with the permitting reform effort. It is not a final vote approving S. 5653 or enacting its proposed provisions.
Senators supporting the permitting agreement have indicated that they intend to pursue legislation during the post-election congressional session.
The proposal could still be amended during the legislative process. Any legislation would need to complete the applicable congressional process before becoming federal law.
What Tribal citizens should understand.
The proposed legislation raises important questions about how federal permitting reform could affect the protection of cultural resources and the participation of Tribal Nations in federal decisions.
The proposed changes would affect which projects receive historic preservation review, how culturally significant properties are defined, consultation procedures, review deadlines and opportunities for judicial remedies.
NCAI, NATHPO and other Native organizations are asking Congress to remove these provisions because they believe the changes could diminish Tribal Nations' ability to protect sacred places and participate in decisions affecting their ancestral homelands.
For Tribal Nations, the outcome could influence how future federal projects are reviewed and how effectively cultural and historic resources are considered before development proceeds.
The legislation has not become law. The congressional debate, however, has significant implications for Tribal Nations seeking to protect treaty territories, sacred places, ancestral burial grounds and cultural resources for future generations.
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