By Ruth Callahan
WASHINGTON — A bipartisan Senate deal meant to speed up permits for energy projects, power lines and other infrastructure is running into strong opposition from tribal nations. Their objection is to one part of the bill: changes to the law that requires federal agencies to consult tribes before projects disturb sacred and historic places.
The bill, the Bipartisan American Affordability and Jobs Act of 2026 (S. 5653), would amend the National Historic Preservation Act, the National Environmental Policy Act, the Clean Water Act, the Endangered Species Act and other laws, according to a briefing from the National Association of Tribal Historic Preservation Officers (NATHPO).
The provisions that tribes object to rewrite Section 106 of the preservation act. That section is the review process that gives tribal nations a seat at the table when federal projects threaten burial grounds, ceremonial sites and other cultural places.
‘An assimilation-era approach’
“Tribal Nations support meaningful permitting reform that recognizes our sovereignty and expertise,” Ira Matt (Séliš), NATHPO’s executive director for Indigenous diplomacy and federal relations, said in an Oct. 14 statement.
“Rather than build on those recommendations, Senate negotiators have embraced an assimilation-era approach that takes us backward, dismantling hard-fought protections and undermining decades of progress toward Tribal self-determination,” Mr. Matt said.
NATHPO joined a coalition letter with the Affiliated Tribes of Northwest Indians, the Association on American Indian Affairs, the Midwest Alliance of Sovereign Tribes, the National Congress of American Indians, the Native American Rights Fund, the Rocky Mountain Tribal Leaders Council, Tribal Self-Governance and the United South and Eastern Tribes Sovereignty Protection Fund.
The groups asked Congress to “withdraw this language and work in collaboration with Indian Country on a more honorable alternative.”
“Permitting reform does not involve a binary choice between the pursuit of infrastructure projects and the protection of sacred sites through the Section 106 review process,” the coalition wrote. “When Tribal Nations are brought into federal decision making at its earliest stages, we can help guide project design to avoid irreparable harm and legal violations—allowing for faster and more durable decisions.”
What the bill would change
According to NATHPO’s analysis, the bill would write new statutory definitions for key terms, including “undertaking,” “adverse effect” and “Area of Potential Effects.” Those definitions decide whether a review starts at all and which harms count.
It would also set 30-day deadlines for early steps. If a tribe or its historic preservation office does not respond within 30 days, the agency may move ahead and does not have to revisit its earlier findings.
The bill would also create new federal oversight and performance criteria for Tribal Historic Preservation Offices. Under that provision, the government could penalize an office or take over its work if it is found to fall short. NATHPO says the real problem is chronic underfunding, and that the bill answers it “with oversight, penalties, and potential federal takeover rather than adequate resources.”
According to Punchbowl News, the bill also excludes some “major federal actions” from review, sets a 150-day statute of limitations on lawsuits and limits what courts can order.
State preservation officials have raised similar concerns. The National Conference of State Historic Preservation Officers said in an Oct. 2 analysis that the bill would generally drop federally funded projects that do not need a federal permit or approval from Section 106 review.
Pressure on Heinrich
The dispute puts pressure on Sen. Martin Heinrich of New Mexico, the top Democrat on the Senate Energy and Natural Resources Committee. He negotiated the changes with the committee chairman, Sen. Mike Lee, a Utah Republican, Punchbowl reported. New Mexico has 23 federally recognized tribes.
“For Sen. Heinrich, it’s a very short-sighted approach,” Mr. Matt told Punchbowl. “This isn’t going to bode well back in his home state because tribes see through this.”
Rep. Melanie Stansbury, a New Mexico Democrat, suggested she could oppose the bill over the issue. She said protecting “tribal sovereignty, the rights of our communities, and the environment will always be my line in the sand.”
Supporters of the deal say it protects tribes from a far more aggressive rollback proposed by the Trump administration. They also argue it writes into law consultation rights that now exist only in regulations.
“This was a pretty even compromise – changing around the edges some excesses of the 106 process, but writing into the law for the first time stuff that’s important to tribes,” Ben Schifman, a senior technology fellow at the Institute for Progress, told Punchbowl.
A Democratic source close to the talks told Punchbowl that “renegotiating what is a carefully balanced product would imperil Democratic wins on transmission and other policies.” Mr. Heinrich’s office did not respond to Punchbowl’s request for comment.
What comes next
NATHPO is urging tribal leaders to contact their senators and members of Congress before Nov. 9. Its message: do not amend Section 106 “without meaningful government-to-government consultation and informed Tribal participation.”
The fight comes as the preservation act, signed in 1966, marks its 60th anniversary this month. NATHPO says early tribal involvement improves project design, avoids irreversible harm and produces more durable federal decisions.
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