KVIG Informative

Section 106 of the National Historic Preservation Act is the main federal tool Tribal Nations use to speak up when a project could harm a sacred or culturally important place. The BAAJA rewrites it, and the people who have read the text disagree about what the rewrite does.

What Section 106 Does Section 106 requires a federal agency to consider a project’s effects on historic properties before it approves, permits or funds the project. For Tribal Nations, the key piece is consultation: the agency must consult Tribes about properties of religious and cultural importance to them, including places far from any reservation or colony. Tribal Historic Preservation Officers (THPOs) run much of that work for Tribal governments.

What Stays Ben Schifman, in an analysis posted at ifp.org that defends the bill, says the BAAJA does not amend the statutory duty to consult Tribes (54 U.S.C. § 302706(b)), leaves THPO authority and the confidentiality protection for sensitive site information in place, and does not repeal treaties, the trust responsibility, NAGPRA or other laws. He writes that direct physical harm to a Tribal site, on or off a reservation, would still count as an adverse effect that requires consultation.

What the Bill Adds The same analysis says the bill writes Tribes into the Section 106 process itself. Consultation would have to begin no later than the start of environmental review. Agencies would have to take in Tribal information offered within 30 days, and Tribes would review adverse-effect reports. The bill also changes the phrase “religious and cultural” to “religious or cultural” and defines the places covered to include any “identifiable geographic location or feature,” which Schifman reads as reaching natural features. On money, CRS says the bill authorizes $200 million a year for the Historic Preservation Fund for fiscal years 2027 through 2036, and $20 million a year for fiscal years 2027 through 2030 for a new THPO grant program to build confidential databases of Tribal historic records.

What the Bill Narrows Schifman also lists provisions he says reduce Tribal influence. The definition of adverse effect would limit indirect, visual, audible, temporary and cumulative effects. Federally funded projects with no other federal approval would drop out of review. Tribes would have 30 days to respond to requests, and an agency could close consultation within 90 days. Courts could remand a decision to the agency within 180 days but could not vacate it or issue an injunction under this law. The Interior Secretary could suspend THPO grants and take over a THPO’s functions after missed deadlines, with evaluations every two years.

Two Readings Schifman argues that putting Tribal participation in statute makes it harder to reverse than a regulation, and that the alternative is worse because of a proposed rule from the Advisory Council on Historic Preservation (ACHP). Earthjustice managing attorney Gussie Lord reads the same title differently: early consultation would be optional, an agency that finds no adverse effect would not have to consult at all, and the federal government rather than Tribes would have the final say on which sites matter. Sen. Heinrich’s office says the bill does not weaken consultation. Readers can test each claim against the bill’s NHPA title, which is the only way to settle a dispute about what a text says.

The Regulatory Backdrop The ACHP voted 15 to 5, with two abstentions, on July 24, 2026, to advance revisions to its Section 106 rules, according to a joint statement dated Aug. 18 from the National Congress of American Indians, the Association on American Indian Affairs, the National Association of Tribal Historic Preservation Officers and the United South and Eastern Tribes Sovereignty Protection Fund. The statement says the revisions would narrow when Section 106 applies and should not move forward in their current form. Crystal Miller, a Walker River Paiute Tribe citizen and cultural sovereignty director for the Association on American Indian Affairs, said the proposal strips out sovereignty language and could leave sacred landscapes, not just structures, without protection. Heinrich and eight other Energy and Natural Resources Democrats, including Nevada Sen. Catherine Cortez Masto, urged the ACHP on July 21 to start over with Tribes and states.

The BAAJA and the ACHP rule are separate tracks that interact: Congress can write a standard into law, and an agency rule can be rewritten or challenged. Watch which one moves first, and watch whether any amendment to the NHPA title is offered at committee.