The Senate has opened debate on a sweeping federal permitting bill, and with it Title III, the part that would rewrite Section 106 of the National Historic Preservation Act, the law that makes federal agencies weigh what their projects do to historic and sacred places. On Monday, Nov. 9, senators voted 73-25 to cut off debate on taking up the bill, the Bipartisan American Affordability and Jobs Act (BAAJA, S. 5653), according to the Senate roll call. On Tuesday night they voted 62-21 to proceed to it, using a House-passed bill, H.R. 2347, as the vehicle. On Wednesday, Majority Leader John Thune filed cloture on the sponsors’ substitute amendment and on the bill itself, the Senate Daily Press reported, the step that sets up votes to end debate.
California’s senators have moved against Title III. Sen. Alex Padilla voted no both times. Sen. Adam Schiff voted no on Monday and did not vote on Tuesday. On Tuesday afternoon, Schiff introduced an amendment that would strike the bill’s changes to the National Historic Preservation Act, and 22 Democrats have signed on, The Washington Sun reported.
For the Muwekma Ohlone Tribe and other California tribes without federal recognition, the stakes are plain. Today the Advisory Council on Historic Preservation’s rules let agencies invite them into a Section 106 review as consulting parties. Title III would write a new process into law, and that process names only federally recognized tribes. “There would be no formal role in the statute that would allow non-federally recognized Tribes to participate in the process,” Wesley Furlong, a senior staff attorney at the Native American Rights Fund (NARF), told Muwekma Times.
Where the votes stand
The Senate Daily Press listed Padilla among the 21 senators who voted no on Tuesday, along with Sen. Ben Ray Luján of New Mexico and Sen. Maria Cantwell of Washington. Schiff and Sen. Catherine Cortez Masto of Nevada were among the 17 senators who did not vote. On Monday, roll call 257 shows Padilla and Schiff voting no and Cortez Masto voting yes.
Cortez Masto’s yes vote came with a condition. In a statement Monday she said the changes to the National Historic Preservation Act “were made without” the input of tribes in Nevada, and that “these changes violate the federal government’s responsibility to engage in government-to-government Tribal consultation.” She added: “If Title III stays in this bill, I will not vote for final passage,” the Nevada Current reported.
Asked by Muwekma Times when she would offer a strike amendment, her communications director, Lauren Wodarski, said the senator “voted for cloture on the motion to proceed to the bill last night so that she can continue fighting to eliminate Title III from the bill before final passage. She is working with colleagues on an amendment to strike it entirely.” Wodarski said Republicans control the floor, “so I don’t have any timing updates to share right now,” and that “the changes from the weekend did not do enough to address Tribal concerns, including concerns she had heard from Tribes in Nevada and across the country.”
The bill’s backers are pushing back. Sen. Martin Heinrich of New Mexico, the lead Democratic author, told Punchbowl News, “I don’t think we can land the bill with Republicans if we completely strip it out.” A senior White House official told the outlet the administration would not support the bill without the historic preservation changes, Punchbowl reported Wednesday. Heinrich told The Washington Sun, “On the merits I would love to, but this is not a Democrats-have-60-votes situation.”
What the Nov. 7 rewrite changed, and what it didn’t
On Nov. 7 the four lead sponsors, Sens. Mike Lee, Shelley Moore Capito, Heinrich and Sheldon Whitehouse, released a 494-page substitute amendment. Heinrich said the bill would “strengthen Tribal consultation.” Some of the language tribes objected to is gone. The original bill said an agency “may consult” with tribes when it maps a project’s area and identifies historic places. The substitute says the agency “shall seek, discuss, as appropriate, and incorporate, as applicable” their information.
That change does not reach the Muwekma. The parties the substitute names are the same ones as before: state and tribal historic preservation officers, “Indian tribe[s],” Native Hawaiian organizations, local governments and the project applicant. Under the preservation law, “Indian tribe” means a tribe “recognized as eligible for the special programs and services provided by the United States to Indians,” 54 U.S.C. 300309. In other words, it means a federally recognized tribe. The substitute has no counterpart to the regulation that lets agencies invite other groups “with a demonstrated interest” to take part as consulting parties (36 CFR 800.2(c)(5)), and no role for the public.
Furlong said the public “is completely removed,” and that would include tribes without federal recognition. “We would need to wait [for] the ACHP to revise its regulations after (if) BAAJA is passed,” he wrote, “but I would anticipate that updated regulations would remove the ability for non-federally recognized Tribes to participate as additional consulting parties, as the current regulations provide.”
Several other provisions remain in the substitute’s text:
- An agency can end its obligations if it finds that a project’s harm would not make a historic property ineligible for the National Register, or if, “in the sole discretion” of the federal official, “other considerations outweigh the consideration of historic preservation.”
- Information from the named parties counts only if it arrives within 30 days of the agency’s request.
- Visual, atmospheric and audible effects are excluded unless they would “significantly diminish” a property’s eligible characteristics.
- Where a court finds an agency broke the law, “the only remedy the court may order is to remand, without vacatur or issuance of an injunction,” with a narrow exception for preliminary injunctions based on violations of other laws.
- A party that did not sign a programmatic agreement “may not bring a civil action to challenge the implementation” of it.
Furlong said BAAJA “would make it nearly impossible for non-federally recognized Tribes to sue to stop undertakings” that affect their sacred and cultural places. “BAAJA prevents courts from issuing injunctions halting construction and overturning permits, even if the court finds that the agency violated the law,” he wrote. He added: “I also question whether under BAAJA a non-federally recognized Tribe would have standing to sue, since they would not be able to participate in the Section 106 process BAAJA creates.” Where there was a public comment period, the bill also limits lawsuits to parties that filed detailed comments. The exception is for the named parties that raised their objections in writing during consultation, and that exception does not cover the Muwekma.
A case from Ohlone country
The Muwekma know what invited consultation looks like. In 2018 the Federal Transit Administration signed a programmatic agreement for VTA’s BART Silicon Valley Phase II extension through downtown San José. It records that FTA invited Native American groups, “including the Muwekma Ohlone Indian Tribe of the San Francisco Bay Area,” as concurring parties, describes them as groups “who are not federally recognized tribes,” and notes that “no Federally recognized Indian tribes” expressed interest in consulting. The Tribe signed as a concurring party in July 2018. As we reported Oct. 22, the only tribes at the table on one of the largest transit projects in the Muwekma homeland were tribes without federal recognition, and they were there by invitation.
One change in the substitute bears on projects like that one. The bill still says a project whose only federal tie is a grant, loan or other financial assistance is not an undertaking. But the substitute exempts projects that receive more than $10 million from the Department of Transportation from that rule. The FTA committed nearly $5.1 billion to BART Phase II in 2024, KQED reported, so a project like it would still get a review. Projects funded by grants or loans from other agencies would not. And within a review, the invitation that brought the Muwekma to the table would no longer have any basis in the statute. Under the bill, a concurring party, which does not sign an agreement, could not go to court over how an agreement made under the new law is carried out.
The regulators and the tribes
The Advisory Council, which writes the rules that make room for invited tribes today, declined to weigh in. Asked whether it has a position on Title III and whether the bill would force changes to its regulations, ACHP spokesperson Lynne Richmond wrote, “We have no comment on the bill,” and pointed to a recording of the council’s Nov. 10 business meeting. In October, Richmond told Muwekma Times that the council’s own proposed rewrite of its Section 106 rules was under review at the White House Office of Management and Budget. The White House now argues that the bill is the better deal for tribes. “The ask from the tribes was to make sure there was consultation on everything, and we met that,” the senior official told Punchbowl, which reported that the bill’s changes “would also protect against a far more aggressive rollback proposed by the Trump administration via executive action.”
National tribal organizations are not persuaded. In a Nov. 8 joint statement, 11 tribal organizations asked Congress to hold the bill for the next Congress or, at minimum, to remove Title III, Tribal Business News reported. The National Congress of American Indians says the substitute leaves “BAAJA’s core structural harms intact,” including the limits on court remedies and the bar on challenges by non-signatories. “Nobody consulted the Pueblos before this bill was written, and the changes made since don’t fix that,” said Chairman Joey Sanchez of the All Pueblo Council of Governors.
Those groups speak mainly for federally recognized tribes, whose rights the bill would narrow. Tribes like the Muwekma, who have fought for decades to have their federal recognition restored, have fewer rights to lose. What Title III would take from them is the invitation.
What comes next
Thune’s cloture filings set up votes to end debate on the substitute and then on the bill. The Senate Daily Press listed no vote times as of Wednesday afternoon. Punchbowl reported that Thune set up an amendment process Tuesday night; whether Schiff’s amendment will get a vote is not yet clear. If the Senate passes the bill, it goes to the House.
Who we asked
On Nov. 10, Muwekma Times emailed Sen. Padilla’s communications director, Jackie McGuinness; Sen. Schiff’s spokesman, Ian Mariani; Sen. Cortez Masto’s communications director, Lauren Wodarski; Valerie Grussing of the National Association of Tribal Historic Preservation Officers; Wesley Furlong of NARF; Lynne Richmond of the ACHP; and Chairwoman Charlene Nijmeh of the Muwekma Ohlone Tribe. Wodarski, Furlong and Richmond replied, as quoted above. Furlong said he could not answer our question about what a tribe should do now to protect sites in a federal project area. Padilla’s and Schiff’s offices, NATHPO and the Tribe had not responded as of Wednesday afternoon. We will update this story with any responses.
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