In July, California’s Sen. Alex Padilla joined eight colleagues from the Democratic side of the Senate Energy and Natural Resources Committee in a blunt statement about a federal plan to rewrite the rules for protecting historic and sacred places. “Let’s be clear: there is a difference between making the consultation process work better and cutting Tribes out of the process,” the senators said. They called the draft “unacceptable” and told the agency behind it to “go back to the drawing board.”
Now the Senate is about to vote on a bill that would rewrite the same process by statute. It is S. 5653, the Bipartisan American Affordability and Jobs Act, a sweeping permitting bill whose Title III rewrites Section 106 of the National Historic Preservation Act. The bill was referred to the Energy and Natural Resources Committee, where Padilla is a member. When the Senate returns Nov. 9, it is scheduled to vote at about 5:30 p.m. Eastern on cloture on the motion to proceed to H.R. 2347, the House bill being used as the vehicle for the permitting deal, according to the Senate Daily Press schedule, as summarized by TIJ News. Cloture takes 60 votes.
Neither Padilla nor California’s other senator, Adam Schiff, has said how he will vote. The Preservation Action Council of San Jose, which has joined a national coalition urging a no vote, says on its website that the two senators “have not yet announced formal positions on the bill.” Muwekma Times asked both offices on Oct. 20 how they plan to vote and whether they support Title III as written. Neither had responded by publication time.
What the senators have said
Both men are on record against the regulatory version of these changes. Padilla and Schiff are among the senators who had signed a bipartisan, bicameral letter to Travis Voyles, vice chairman of the Advisory Council on Historic Preservation (ACHP), as of Oct. 6, according to the National Conference of State Historic Preservation Officers, which posted the signer list. The letter, still gathering signatures through Oct. 30, objects to provisions in the ACHP’s draft rule that would make public participation discretionary, narrow when adverse effects are considered, limit consideration of a property’s setting, and reduce the role of state and tribal historic preservation officers.
Padilla has spoken about the issue in more personal terms. At an Energy and Natural Resources hearing on Section 106 on Oct. 29, 2025, he noted that California is home to 109 federally recognized tribes, more than any other state, and that over 50 have tribal historic preservation officers. “Tribal consultation is not just a quick call, an email, whether or not it is replied to, simply for the purposes of checking a box,” he said, according to the hearing record. “Meaningful means meaningful.” He praised early consultation as a version of the carpenter’s rule: “Measure twice, cut once.”
Padilla has also backed faster permitting. In February he introduced the bipartisan ePermit Act to digitize federal reviews, saying modernization would “save money and time while preserving strong environmental standards and public input,” his office said. The question for him and for Schiff is which of those commitments governs a vote on a bill that does both.
What Title III would do
Several of the concerns in the senators’ letter to the ACHP line up with provisions in the bill. Under the bill text:
- An “undertaking” would have to require a federal permit, license or approval and be under “substantial Federal control and responsibility.” A project whose only federal involvement is a loan, grant or “other form of financial assistance” would not count, unless the money is for historic preservation.
- An “adverse effect” would have to directly alter a historic property. Visual, atmospheric and audible effects would be excluded unless they “significantly diminish” the property’s eligible characteristics, and so would temporary alterations.
- When the agency sets the area a project could affect and identifies historic properties, it “may consult” with state and tribal historic preservation officers, Indian tribes, Native Hawaiian organizations, local governments and the applicant. Their information would count only if it arrives within 30 days of the agency’s request.
- If the agency finds no adverse effect, it “shall have no further obligations” under Section 106.
Every party the bill names already has rights under the law. Tribes without federal recognition, which today take part in Section 106 only when an agency invites them as “additional consulting parties,” are not mentioned. As we reported on Oct. 19, the bill also limits who can sue to people who filed detailed comments, with exceptions for federally recognized tribes and the other named parties but none for tribes like the Muwekma.
The bill’s sponsors, Sens. Shelley Moore Capito (R-W.Va.), Mike Lee (R-Utah), Sheldon Whitehouse (D-R.I.) and Martin Heinrich (D-N.M.), say it protects tribes. Heinrich, the committee’s top Democrat and the lead author of the July statement Padilla signed, said when the bill was introduced that it would protect “the ability of Tribes to formally consult during these processes.” A claim-by-claim rebuttal posted by the Native American Rights Fund, written by Jessie Barrington of the law firm Cultural Heritage Partners and updated Oct. 16, answers that “where supporters say the bill writes consultation into law, the bill says only that an agency ‘may consult’” tribes when it identifies the places at stake.
A case from Ohlone country
For the Muwekma Ohlone Tribe, Section 106 is not abstract. One of the biggest federal reviews in the South Bay shows how the Tribe takes part now, and how thin that footing is.
In 2018, the Federal Transit Administration and the State Historic Preservation Officer signed a programmatic agreement for VTA’s BART Silicon Valley Phase II extension, the roughly six-mile extension from the Berryessa/North San José station through downtown San José to Santa Clara. The agreement records that FTA consulted the Native American Heritage Commission and Native American groups, “including the Muwekma Ohlone Indian Tribe of the San Francisco Bay Area,” and invited them as concurring parties, describing them as groups “who are not federally recognized tribes.” It adds that “the Amah Mutsun Tribal Band has deferred to the Muwekma Ohlone Indian Tribe” and that “no Federally recognized Indian tribes” expressed an interest in consulting. The Muwekma signed as a concurring party in July 2018, with signatures from then-Chairperson Rosemary Cambra and then-incoming Chairperson Charlene Nijmeh.
In other words, on one of the largest transit projects in the Muwekma homeland, the only tribes that consulted were tribes without federal recognition, and they were there because the agency chose to invite them. Title III would not protect that invitation. The bill also could change whether a project like this gets reviewed at all. The agreement describes FTA’s role as the agency from which VTA “is seeking financial assistance.” Under Title III, a project whose only federal involvement is financial assistance would not be an undertaking. Whether a future project like it would still be reviewed would depend on whether some other federal permit or approval was involved.
Tribal leaders: stop it at cloture
The loudest call to block the bill came this week from California soil. At a news conference Monday at the National Congress of American Indians convention in Palm Springs, NCAI President Mark Macarro, who is also chairman of the Pechanga Band of Indians, told reporters the vote on Nov. 9 is the moment to act. “Cloture needs to not happen. It needs to be denied,” Macarro said, according to audio of the news conference published by Indianz.com. “If significant changes aren’t made to the draft of Section 106 changes right now, it needs to be killed. This bill needs to be killed.”
Macarro said much of tribes’ ancestral land lies off the reservations, pueblos and rancherias they control, and that Section 106 “has been a key part of the safety net of protecting these ancestral lands.” Asked how the changes could affect California, he pointed to housing, transportation, wind and solar development across the Coachella Valley. “We end up with this erasure of our cultural landscapes. And so that’s what’s at stake,” he said, KESQ reported.
NCAI, the National Association of Tribal Historic Preservation Officers (NATHPO), the Native American Rights Fund and six other tribal organizations wrote to Senate leaders on Oct. 9 asking them to withdraw the Section 106 language. NATHPO’s position page says the provisions “go beyond streamlining and cannot be fixed.”
That logic applies with more force to the Muwekma. The organizations leading this fight speak for federally recognized tribes, whose consultation rights the bill would weaken. The Muwekma and dozens of other California tribes without recognition start with no such rights to weaken. For them, what is at stake is the invitation, and the public comment process they fall back on when no invitation comes.
The rule is still coming
The regulatory track has not stopped either. Lynne Richmond, the ACHP’s communications officer, told Muwekma Times on Oct. 20 that the council’s members voted July 24 to move forward with a proposed rule revising 36 CFR Part 800, and that the draft “is now in the interagency review process with the Office of Information and Regulatory Affairs within the Office of Management and Budget and has not been made publicly available yet.” She said Vice Chairman Voyles had announced his intention to review the regulations at the council’s February business meeting, with an interest in “improving and streamlining” them. Asked whether the rule would keep the provision that lets agencies invite additional consulting parties, and whether the ACHP had a position on Title III, she wrote: “The ACHP does not have any additional comments.”
The politics before Nov. 9
The bill has powerful backing. Nineteen former economic and national security officials, including former Treasury secretaries Janet Yellen and Steven Mnuchin, have endorsed it, Axios reported, and third-quarter lobbying disclosures show oil and gas, mining, utility, renewable energy and environmental groups all working on it. Its path is not clear. Democrats want assurances that the administration will stop blocking wind and solar permits, and Whitehouse, a lead sponsor, reacted to the Interior Department’s latest move against an approved offshore wind project by saying, “This is how you blow up a permitting deal,” Axios reported Thursday. Democratic attorneys general from nine states have sent lawmakers a letter expressing “substantial concerns,” according to the same report. Rep. Ro Khanna, whose district includes part of San José, has criticized the bill’s help for data centers.
The Preservation Action Council of San Jose is asking residents to contact Padilla and Schiff before the vote. The NCSHPO letter to the ACHP remains open for congressional signatures through Oct. 30.
Who we asked
On Oct. 20, Muwekma Times emailed the press offices of Sen. Padilla and Sen. Schiff (spokesman Ian Mariani); Valerie Grussing of NATHPO; Wesley Furlong, senior staff attorney at the Native American Rights Fund; Lynne Richmond of the ACHP; Jessie Barrington of Cultural Heritage Partners; and Chairwoman Charlene Nijmeh of the Muwekma Ohlone Tribe. We sent one reminder on Oct. 21. The ACHP replied, as quoted above. Barrington and Furlong sent automatic out-of-office replies; Barrington’s said she was at the NCAI convention through Oct. 23. The others had not responded by publication time. We will update this story with any responses, and we will report how California’s senators vote on Nov. 9.
Readers with information can reach us through our tip page.
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