WASHINGTON, D.C. — The National Congress of American Indians is urging all Senators to vote NO on cloture, withdraw Division B, Title III, and work directly with Tribal Nations as sovereigns on a more honorable alternative. Ahead of Monday’s scheduled Senate cloture vote on the Bipartisan American Affordability and Jobs Act of 2026 (BAAJA, S. 5653), the last minute 494-page Manager’s Amendment (Substitute Amendment to H.R. 2347) fails to resolve Indian Country’s core objections to the legislation.
Tribal Nations support responsible infrastructure development, permitting reform, and building and moving more energy. Under existing federal law, Tribal Nations have consistently partnered with federal agencies in the permitting process with mutually positive results. However, BAAJA forces a false choice between building infrastructure and protecting Tribal sacred places, waters, and ancestral lands. Crafted behind closed doors without a legislative hearing, committee markup, or timely and meaningful consultation with input from Tribal Nations. The 494-page Substitute Amendment falls short in ameliorating the wrongs of BAAJA, specifically the sections which amend the National Historic Preservation Act (NHPA), the National Environmental Policy Act (NEPA), the Clean Water Act (CWA), the Endangered Species Act (ESA), and the Federal Power Act in ways that conflict with federal trust and treaty obligations.
While bill sponsors point to the superficial adjustments in the Manager’s Amendment, such as striking a proposed federal redefinition of Tribal sacred properties and removing a mandate for the Department of the Interior to commandeer Tribal Historic Preservation Offices (THPOs), those edits leave BAAJA’s core structural harms intact and, in critical ways, make Title III worse.
For example, in a classic legislative bait-and-switch, while the committee summary touts removing the provision allowing the Advisory Council on Historic Preservation (ACHP) to consult or sign agreements in lieu of "an Indian tribe," the actual bill text only strikes the words "Indian tribe", while retaining "Tribal Historic Preservation Officer." Federal agencies could still bypass a Tribal Nation’s THPO and execute agreements with the ACHP instead.
An analysis of the Manager’s Amendment confirms that six major threats to Indian Country remain intact:
Unilateral Agency Overrides: The Amendment retains both off-ramps enabling federal agency officials to end Section 106 review if they unilaterally decide – regardless of input or objections from Tribal Nations or THPOs – that harm will not disqualify a site from the National Register or, in their "sole discretion," that undefined "other considerations" outweigh historic preservation.
Box-Checking Consultation and THPO Bypass: The Amendment enforces 30- and 45-day consultation clocks, deems report consultation "fulfilled" once an agency replies in writing, and still allows the ACHP to consult and sign agreements in lieu of a THPO, undermining Tribal sovereignty and self-determination.
Excluded Sacred Landscapes from Protections: The Amendment’s narrowed definitions and exemptions exclude non-federal lands, indirect visual or audible effects, most federal grants and loans, and quarter-mile grid and pipeline corridors from Section 106 review.
THPO Penalties & Weakened Funding Remain: THPOs still face mandatory evaluations and grant suspensions, now with a corrective period. But Sec. 303103’s removal leaves Historic Preservation Fund deposits at the mercy of annual appropriations.
Courthouse Doors are Still Closed: The Amendment maintains BAAJA’s original limited judicial remedies to remand without vacatur or an injunction for Section 106 and NEPA violations, allowing unlawful construction to proceed, and non-signatories remain barred from challenging programmatic agreements.
Broader Rollbacks Intact: The amendment retains heightened burdens under Clean Water Act § 401, § 404 nationwide permit consultation waivers, NEPA cooperating agency limits, state ESA assumption, and Title IV provisions that lock in permits.
“The premise that Tribes, Tribal sovereignty, and Tribal decision-making are impediments to federal permitting is a fallacy. Tribal Nations, when at the table early in the planning and design process, are key to successful project outcomes,” said Mark Macarro, President of NCAI. “Any amendment to S. 5653 merely puts lipstick on a pig. This bill is rotten from the inside, and there is no fixing the rot. An overhaul of this magnitude demands regular order that allows for deliberation and meaningful consultation with Tribal Nations. Instead, the process behind S. 5653 in this lame-duck session is an insulting rush job that diminishes Tribal sovereignty and sells out Tribal Nations.”
Under BAAJA’s narrowed definitions and fragmented review rules, sacred landscapes and cultural places across Indian Country, including Mount Taylor and the Greater Chaco landscape in New Mexico, Bears Ears in Utah, and Bahsahwahbee and Avi Kwa Ame (Spirit Mountain) in Nevada, would remain vulnerable to piecemeal destruction whenever project segments cross non-federal lands or involve indirect impacts.
NCAI calls on the Senate to vote NO on cloture on S. 5653, remove Title III in its entirety, and commit to a transparent, good-faith legislative process in the next Congress that invests in THPO capacity, respects government-to-government consultation, and protects sacred places for future generations.
For more information on Indian Country’s opposition to BAAJA and the Sacred Then. Sacred Now. Sacred Tomorrow. campaign, visit ncai.org/section106.
