Two efforts in Washington would change how federal agencies weigh damage to historic and sacred places before they approve a pipeline, a transmission line or a construction project on federal land. Tribal historic preservation officers are fighting both. For tribes the federal government does not recognize, such as the Muwekma Ohlone Tribe of the San Francisco Bay Area, the stakes start from a weaker position.
The first is S. 5653, the Bipartisan American Affordability and Jobs Act of 2026, known as BAAJA. Sens. Shelley Moore Capito (R-W.Va.), Mike Lee (R-Utah), Sheldon Whitehouse (D-R.I.) and Martin Heinrich (D-N.M.), the chairs and top Democrats on the Senate’s two energy and environment committees, introduced it on Sept. 30. Its historic preservation title rewrites Section 106 of the National Historic Preservation Act (NHPA), the 1966 law that requires federal agencies to “take into account” the effects of their projects on historic properties.
The second is a rewrite of the regulations that run Section 106. The Advisory Council on Historic Preservation (ACHP) announced on July 24 that its members had voted to move forward with a proposed rule revising those regulations, 36 CFR Part 800. The draft went to the White House Office of Information and Regulatory Affairs for review before it can be published in the Federal Register.
Where unrecognized tribes stand today
Under the NHPA, an “Indian tribe” is one recognized as eligible for federal services because of its members’ status as Indians. Those tribes have a legal right to be consulted. Tribes without recognition do not. The ACHP’s own guide to working with non-federally recognized tribes spells it out: an agency “may invite” such tribes as “additional consulting parties” based on a demonstrated interest, but “the inclusion of non-recognized tribes is completely discretionary and is not done on a government-to-government basis.” If an agency declines, the guide says, those tribes “can still provide views and information to the federal agency as members of the public.”
That invitation is how the Muwekma have taken part. In 2018, NASA’s Ames Research Center wrote to the Tribe about an archaeological data recovery plan for runway and utility work at Moffett Federal Airfield in Mountain View. Its May 14, 2018 letter said that “no Federally Recognized Tribes are associated with this location,” but that the Native American Heritage Commission had indicated the Tribe “may have an interest” in the area. NASA invited the Tribe to become a consulting party. That is the system now: on federal projects in Ohlone country, the people with the deepest ties to the land are often at the table only because an agency chose to ask.
What the Senate bill would change
BAAJA’s bill text writes much of the Section 106 process into statute for the first time, and narrows it. The bill would:
- Define an “undertaking” as a project that requires a federal permit, license or approval and is under “substantial Federal control and responsibility.” It would exclude projects whose only federal involvement is a loan, grant or other financial help, unless the money is for historic preservation.
- Define an “adverse effect” as one that “directly alters the characteristics of a historic property.” Visual, atmospheric and audible effects would not count unless they would “significantly diminish” the property’s eligible characteristics. Neither would temporary alterations or effects on parts of a property other than its “character-defining features.”
- Let the agency set the area a project can affect and identify historic properties itself. While it does, the agency “may consult” with state and tribal historic preservation officers, Indian tribes, Native Hawaiian organizations, local governments and the applicant. Information those parties send would have to arrive within 30 days of the agency’s request.
- Tell courts to give agencies “substantial deference.” When an agency breaks the law, the main remedy would be to send the decision back to it “without vacatur or issuance of an injunction,” to be fixed within 180 days. Lawsuits would have to be filed within 150 days. Where there was a public comment period, a plaintiff would have to have submitted a “substantive and unique comment.”
The parties the bill names are the ones who already have rights under the law. Tribes without federal recognition, and the broader category of “additional consulting parties” they rely on, do not appear in the bill’s consultation provisions. Whether agencies could still invite them would be left to regulations, and those regulations are being rewritten too.
The rules for going to court draw the same line. A plaintiff would have to show “direct harm,” and where there was a public comment period, would have to have filed a “substantive and unique comment” by the deadline, detailed enough to put the agency on notice. The bill excuses state and tribal historic preservation officers, Indian tribes, Native Hawaiian organizations and local governments from the comment requirement if they raised the issue in writing during consultation. It offers no such exception to tribes without federal recognition. Most of these cases would also start in a federal court of appeals rather than a district court.
What the draft rule would change
The ACHP has not published its proposed rule. A draft of the preamble, dated for the council’s July vote and marked not for public distribution, has been posted online by the law firm Cultural Heritage Partners. In it, the council proposes:
- “Making public comment an optional, not mandatory, part of the Section 106 process,” because the statute “provides explicitly for comment by the Council but not for public comment.” Whether to take public comment would be up to the agency official “in his discretion.”
- Redefining “consultation” to make clear that “agreement among the parties is not required,” and ending reviews with an agency “memorandum of decision” in place of a negotiated memorandum of agreement.
- Requiring that any historic property, “including a tribal historic property,” include “tangible human improvements” or have been the location of specific human activities, and be “geographically compact.”
- Removing references to indirect and cumulative effects, and adding cost considerations to decisions about avoiding or mitigating harm.
- Removing “detail on Tribal consultation recommendations that was not necessary to include in regulatory text.”
For tribes without recognition, the optional public comment is the sharpest edge. Under the current regulations, “the views of the public are essential to informed Federal decisionmaking,” and agencies “shall seek and consider” them. Public comment is the fallback the ACHP’s own guide offers to unrecognized tribes when an agency won’t invite them in. The draft preamble does not say what happens to the “additional consulting parties” category. That will not be clear until the rule text is published.
Allies split on the cure
Tribal preservation officers oppose both efforts, but they disagree about whether the Senate bill is a shield against the rule.
The National Association of Tribal Historic Preservation Officers (NATHPO) opposes BAAJA as written. “BAAJA does not ‘streamline’ Section 106,” the group says. “These provisions go beyond streamlining and cannot be fixed.” On Oct. 9, NATHPO, the National Congress of American Indians, the Native American Rights Fund and six other tribal organizations wrote to Senate leaders asking them to “withdraw this language and work in collaboration with Indian Country on a more honorable alternative.” The National Conference of State Historic Preservation Officers is opposed too. “Unfortunately, our Senators took a swing and completely missed,” its executive director, Erik Hein, said in an Oct. 2 statement.
The bill’s sponsors say it protects tribes. Heinrich said in the sponsors’ announcement that it would speed decisions “while protecting important environmental safeguards and protecting the ability of Tribes to formally consult during these processes.” Ben Schifman of the Institute for Progress, a Washington think tank, argues in a policy brief that the bill would lock tribal consultation into law before the ACHP rule takes it apart. According to his reading of the draft rule text, it “expressly provides that ‘mountains, valleys, bodies of water, or landscapes, including ethnographic landscapes, do not qualify’” as historic properties. NATHPO answers that the draft rule “can be challenged and reversed,” while the bill “would be permanent.”
Neither side’s argument is mainly about tribes without recognition. Both proposals are written around the tribes the federal government already lists.
What happens next
The Senate is out until after the election. According to the Senate Press Gallery, the Senate returns Monday, Nov. 9, and at about 5:30 p.m. Eastern will vote on cloture on the motion to proceed to H.R. 2347, the legislative vehicle for the permitting bill. That is the first floor test. A Holland & Knight analysis says amendments, the House’s response and whether the bill rides in a year-end package are the things to watch. NATHPO is urging tribes to contact senators before Nov. 9.
The ACHP rule had not been published as of Oct. 13, according to a NATHPO briefing. The draft calls for a 30-day comment period once it appears in the Federal Register. Tribes, including tribes without federal recognition, and members of the public will be able to file comments then.
In the Bay Area, Section 106 reaches federal land and federal permits from the Presidio and the Golden Gate National Recreation Area to Moffett Field. Muwekma Times will report when the rule is published and when the comment window opens. This is a companion to today’s report on Proposition 45 and California’s environmental review law.
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