Permitting Reform, BAAJA, & Tribal Historic Preservation

Congress is considering major changes to federal permitting laws through the Bipartisan American Affordability and Jobs Act of 2026 (BAAJA), S. 5653, would expedite federal permitting by amending laws including the National Historic Preservation Act (NHPA).

NATHPO supports efficient permitting, responsible infrastructure development, and effective federal decision-making but not at the expense of Tribal sovereignty, consultation, sacred places, or cultural heritage that Section 106 was enacted to protect.

NATHPO opposes BAAJA as written. Its changes would narrow Section 106, expand agency control, shorten consultation timelines, impose new THPO enforcement, and limit judicial review and remedies. NATHPO and other Tribal organizations urge Congress to withdraw the NHPA language and develop an alternative with Indian Country that ensures early, meaningful consultation and protects sovereignty and sacred places.

BAAJA would amend the NHPA, NEPA, Clean Water Act, Endangered Species Act, and other federal laws. Tribal Nations and THPOs should closely review Title III’s NHPA and Section 106 changes.

BAAJA does not “streamline” Section 106. These provisions go beyond streamlining and cannot be fixed. Ask your Senators to REMOVE THE NHPA SECTION. Laws are harder to challenge in court than regulations.

READ THE JOINT TRIBAL ORGANIZATION LETTER

NATHPO BRIEFING ON BAAJA CHANGES TO NHPA SLIDE DECK

NATHPO BRIEFING ON BAAJA CHANGES TO NHPA RECORDING

BEFORE NOVEMBER 9 tell Senators and Congressional Delegates: Do not amend Section 106 without meaningful government-to-government consultation and informed Tribal participation!

Why NATHPO Opposes the Proposed NHPA Changes

1. Fundamental Statutory Rewrite

2. Fewer Projects and Effects Could Receive Section 106 Review

BAAJA would establish statutory definitions addressing concepts that determine the scope and operation of Section 106, including “undertaking,” “adverse effect,” “Area of Potential Effects,” “reasonably foreseeable,” and “traditional religious or cultural property.” NATHPO's briefing emphasizes that these definitions matter because they determine whether review begins, which places are considered, which effects count, where consultation occurs, and what mitigation measures may be considered.

The practical risk is significant: a project or harm may fall outside Section 106 before a Tribe can identify the affected place or explain its significance.

3. Federal Agencies Would Gain Greater Control Over the Process

Tribal Nations hold knowledge necessary to identify and evaluate places of religious and cultural significance. That knowledge is central to effective Section 106 consultation.

Under BAAJA, the federal agency would control key determinations, including:

Whether an undertaking exists
The Area of Potential Effects
Identification and eligibility
Whether adverse effects exist
Which mitigation is prudent and feasible
Whether “other considerations” outweigh preservation

The joint Tribal organization advocacy letter also raises concern that these provisions would reduce Tribal participation in key stages of the process and increase federal agency control over decisions affecting Tribal cultural properties.

4. Consultation on a Statutory Clock

BAAJA would place significant portions of the Section 106 process on statutory timelines.

NATHPO identified the following sequence:

30 days: initial decision, Area of Potential Effects, and identification;
60 days: adverse-effect report;
90 days: agency determination or agreement;
60 additional days: additional consultation;
45 days: ACHP comments; and
30 days: final agency decision.

Most importantly for Tribal Nations and THPOs, if a Tribe or THPO does not respond within 30 days, the agency may proceed and does not have to revisit earlier findings if the party later re-enters the process.

For THPO programs confronting substantial workloads and capacity limitations, these deadlines can have real consequences for whether Tribal knowledge is incorporated before federal decisions move forward.

5. New Federal Oversight of THPO Programs

BAAJA would create new Federal oversight and performance criteria for THPO programs.

NATHPO’s core concern is that chronic underfunding would be answered with oversight, penalties, and potential federal takeover rather than adequate resources.

The joint Tribal organization letter similarly identifies chronic federal underfunding and neglect as central to THPO capacity challenges and objects to responding to those conditions with penalties and federal assumption of THPO functions.

6. Judicial Review and Effective Remedies Would Be Restricted

BAAJA also proposes substantial changes to judicial review relating to NHPA decisions:

Substantial deference to federal agencies
150-day filing deadline
Direct-harm and participation requirements
Most claims beginning in federal courts of appeals
Restricted preliminary injunctions
Remand without vacatur generally favored
Non-signatories barred from challenging implementation of programmatic agreements

The potential consequence is stark: a project could continue even after a court finds that the agency violated the NHPA.

The joint Tribal organization letter explains that litigation may be the remaining avenue for a Tribal Nation seeking to protect its heritage after failures in the federal consultation process, and strongly objects to provisions that would further limit that recourse.

Provisions Presented as Benefits

Supporters of BAAJA have pointed to provisions concerning Tribal consultation, traditional religious or cultural properties, and historic preservation funding, but there are significant limitations associated with those claims.

Supporters of BAAJA are telling Congress that the bill is good for Tribal Nations. The bill text tells a different story.

Indian Country’s Position

The October 9 joint Tribal organization letter calls on Congress to:

“Withdraw this language and work in collaboration with Indian Country on a more honorable alternative.”

The letter calls for meaningful government-to-government consultation, earlier Tribal involvement, and permitting improvements that do not sacrifice sovereignty or sacred places.

NATHPO’s position is that permitting reform does not require a choice between responsible infrastructure development and protection of sacred and culturally significant places.

Early Tribal participation can improve decision-making before harm occurs and before conflicts become entrenched. The current NATHPO briefing emphasizes that early Tribal engagement improves project design, avoids irreversible harm, and produces more durable federal decisions.

What You Can Do: Advocate Now

NATHPO urges Tribal leaders and THPOs to engage now.

BEFORE NOVEMBER 9 tell Senators and Congressional Delegates: Do not amend Section 106 without meaningful government-to-government consultation and informed Tribal participation!

REMOVE THE NHPA SECTION FROM BAAJA!