NARF warns Senate permitting bill could weaken Tribal consultation

The Native American Rights Fund (NARF) is urging Tribal Nations to share their views with U.S. senators by October 23 on a bipartisan permitting bill that the organization says would weaken consultation and historic-preservation protections.

Senate Bill 5653, the Bipartisan American Affordability and Jobs Act of 2026, was introduced September 30 by Republican Senator Shelley Moore Capito of West Virginia, with Republican Mike Lee of Utah and Democrats Sheldon Whitehouse of Rhode Island and Martin Heinrich of New Mexico as co-sponsors, according to the introduced bill published by the Government Publishing Office. It was referred to the Senate Energy and Natural Resources Committee.

The proposal covers several laws governing environmental and infrastructure approvals. Division B, Title III would revise the National Historic Preservation Act's Section 106 process for reviewing how federal actions affect historic properties, including places of religious or cultural importance to Tribal Nations.

Under the bill text, a federal agency's responsibilities "shall be limited to historic properties within the area of potential effects identified by the Federal agency." The federal official establishes that area and identifies the historic properties within it, and "may consult" with Tribal Historic Preservation Officers and Indian tribes in doing so. The official must seek and incorporate information from them, but only if it is communicated within 30 days of the request.

If a Tribal Historic Preservation Officer or Indian tribe "fails to respond within 30 days of receipt of a request for review of any report or finding," the federal official "shall proceed" to a determination, and a party that re-enters the process later cannot require the official to reconsider any previous report or finding, the bill says. A new section would have the Interior Secretary evaluate each Tribal historic-preservation program at least every two years; a program found inconsistent with the law would be disapproved, with contracts, cooperative agreements and Historic Preservation Fund grants suspended in whole or in part, and if it is not brought into line within two years the Secretary "shall assume all or part of the functions" of the Tribal Historic Preservation Officer.

The bill also limits judicial review. Courts "shall afford substantial deference to the agency," and if an agency action is found not to comply, "the only remedy the court may order is to remand, without vacatur or issuance of an injunction," with a deadline for the agency of no more than 180 days. A preliminary injunction remains possible where there is a substantial likelihood that the action violates a federal law other than the historic-preservation division or the National Environmental Policy Act, and claims must be filed within 150 days.

NARF says the bill "severely weakens Tribal opportunities to engage as sovereign governments," "curtails Tribal consultation requirements" and "restricts access to legal recourse in court." NARF is one of nine Tribal organizations, including the National Congress of American Indians and the National Association of Tribal Historic Preservation Officers, that signed an October 9 letter asking Senate leaders to withdraw the Section 106 title.

The four senators say their legislation would reduce project delays and support energy affordability and economic development, and their release says it protects "the ability of Tribes to formally consult during these processes." The bill would also authorize $200 million a year for the Historic Preservation Fund from fiscal 2027 to 2036 and create a competitive grant program for Tribal Historic Preservation Officers to build online records databases.

NARF writes that "a Senate vote is not scheduled until November 9" and that it understands "input must be received by October 23." The date is addressed to Tribal Nations wishing to share views with their senators; it is not a federal public-comment period. IND has not independently confirmed a floor date; the GPO record of the introduced bill shows only its September 30 referral to committee.