FOR IMMEDIATE RELEASE  |  November 7, 2026

NATIONAL TRIBAL AND PRESERVATION ASSOCIATIONS:

PERMITTING BILL MANAGERS’ AMENDMENT IS “LIPSTICK ON A PIG”—PUBLIC STILL EXCLUDED FROM HISTORIC PRESERVATION REVIEW; TRIBAL SOVEREIGNTY STILL ATTACKED 

Revised BAAJA Title III still guts public comment, eviscerates protections for historic places, and allows agencies to simply disregard harms to sites

WASHINGTON, D.C. — The 106 Strong coalition of 1,200 organizations, the National Congress of American Indians (NCAI), the National Association of Tribal Historic Preservation Officers (NATHPO), and the Association on American Indian Affairs (the Association) say the newly released managers’ amendment to the Bipartisan American Affordability and Jobs Act (BAAJA) leaves the central defects of its historic preservation provisions fully intact. The substitute would still gut the ability of Tribal Nations and the American public to identify and protect historic and cultural places threatened by federally connected projects—including data centers, strip mines, and other major developments.

The managers’ amendment withdraws a few patently unconstitutional provisions, like allowing federal agencies to commandeer State and Tribal Historic Preservation Offices if they weren’t following orders. But the revised text fundamentally undermines Tribal Nations’ ability to protect their history and culture. And more: it now doubles down on excluding the public from having their voice heard. Excluding the public was not a drafting oversight that the amendment has corrected—it is a policy choice the managers have retained and strengthened.

Five fatal flaws remain, which necessitate full removal of Title III-Historic Preservation:

1. Tribal consultation is made meaningless. Whereas the current law requires government-to-government consultation, nothing in this bill or amendment maintains that requirement: it does not require federal officials to sit down with Tribal leaders to seek to resolve harms to their historic, cultural, or sacred sites.

2. The public is fully shut out. Incredibly, the bill still eliminates public participation. Americans will lose their opportunity to know about and voice their concerns before a federally connected data center, strip mine, or other project damages a place central to their community’s history.

3. The bill still cuts out any consideration of many projects and harms. The amendment’s revisions to the definitions of what constitutes an “undertaking” and “adverse effect” will exclude most projects and many harms from any consideration whatsoever. 

4. Agencies can completely ignore the harms they admit will occur. The revised bill expressly permits federal officials, in their sole discretion, to reject feasible measures to avoid, minimize, or mitigate harm because undefined “other considerations” outweigh historic preservation.

5. Effective court remedies are still eliminated. The substitute retains restrictions on judicial relief for historic preservation violations. A court’s ability to protect an irreplaceable site must not disappear precisely when unlawful damage is imminent.

“This is lipstick on a pig,” the organizations said in a prepared joint statement. “The sponsors spent 13 months drafting this legislation behind closed doors, without meaningful consultation with Tribal Nations, preservation experts, or the American public. Of course they are not going to fix the terrible flaws in a few days. The irony is unmistakable: a bill written without meaningful consultation now seeks to strip meaningful consultation from federal law. The process that produced this legislation is itself one of the strongest arguments against it.”

This bill takes a consultation process that is currently a collaborative, conflict-resolving exercise in federalism among the states, Tribal Nations, local governments, and communities and transforms it into a top-down process that puts vast power into the hands of the federal government with no checks on that power.  

The organizations urge Congress to engage Tribal Nations, affected communities, and preservation experts in a good faith legislative process to address the real bottlenecks in permitting reviews in the next Congress. They emphasize that tweaking a few blatantly unconstitutional provisions is not the same as preserving the protections Americans have relied on for 60 years.

The organizations stated: “We do not preserve history because we want to live in the past; we do it because our cultural heritage is essential to securing a better future for all.” 

106Strong is hosting a rally at the Capitol on Monday, November 9, 12:30 - 2:30 PM.

Media contact: Greg Werkheiser | (703) 408-2002 | greg@culturalheritagepartners.com