S. 5653 · Title III · Section 106
Title III of S. 5653 would rewrite Section 106 of the National Historic Preservation Act, the law that requires federal agencies to consult with Tribal Nations before projects harm places of religious and cultural importance. The Senate's first vote is November 9.
At the ACHP
The proposed Part 800 rewrite is in White House review, with a review meeting November 10. NCAI PSC-26-016 asks the ACHP to withdraw it and consult first.
ACHP advocacy toolsAt Interior
August 20, 2026: directs bureaus to streamline Section 106 reviews, propose exemptions within 60 days, and impose fixed deadlines on THPOs. NCAI PSC-26-016 asks Interior to rescind it to the extent it limits Tribal consultation.
Interior secretarial orders (opens in new tab)These are distinct fronts: legislation in Congress, regulatory changes at the ACHP, and direction to Interior bureaus. Neither the bill nor the proposed ACHP rule has replaced the current Section 106 process. Bad regulations can be revised or rescinded through future rulemaking. Bad statutory language is far harder to unwind.
Four ways in
The bill
S. 5653 § 2301(c), proposed 54 U.S.C. § 306108(c)(2)(B)
Before setting the review area and identifying historic properties, agencies must ask Tribal Nations for information, but they "may consult" rather than must. They use what Tribes share only "as appropriate." Required consultation begins only after the agency has issued its own report.
Adapted from: Coalition for Tribal Sovereignty Section 106 Toolkit v1.1 (opens in new tab)
Proposed 54 U.S.C. § 306108(a)(7)
An "undertaking" would require a federal permit or approval plus "substantial Federal control and responsibility." Projects whose only federal involvement is a grant, loan, or loan guarantee would be excluded, and so would project segments outside federal control.
Adapted from: Coalition for Tribal Sovereignty Section 106 Toolkit v1.1 (opens in new tab)
Proposed 54 U.S.C. § 306108(a)(1), (a)(4)
Harm would count only if a project "directly alters" a historic property. Indirect effects would be excluded, cumulative effects sharply limited, and visual, audible, and atmospheric effects would count only in narrow cases. The bill's list of integrity characteristics also drops "feeling."
Adapted from: Coalition for Tribal Sovereignty Section 106 Toolkit v1.1 (opens in new tab)
Proposed 54 U.S.C. § 302706(a)(1)
A property of traditional religious or cultural importance would need an "identifiable geographic location or feature" where an "event of continuing religious or cultural significance to a living community occurred." Places whose significance comes from ongoing ceremony, gathering, or relationships among natural features may not qualify.
Adapted from: Coalition for Tribal Sovereignty Section 106 Toolkit v1.1 (opens in new tab)
Proposed 54 U.S.C. § 306108(c)(2)(D), (c)(3)(A)
A "no adverse effect" finding would end the agency's obligations, without the objection and ACHP review available today. Agencies could also decide, "in the sole discretion of the Federal agency," that other considerations outweigh historic preservation.
Adapted from: Coalition for Tribal Sovereignty Section 106 Toolkit v1.1 (opens in new tab)
Proposed 54 U.S.C. § 306108(c)(3), (c)(5)(C)
Tribal Nations would have 30 days to respond to agency reports. If a Tribe re-enters after a deadline, the agency does not have to reconsider earlier findings.
Adapted from: Coalition for Tribal Sovereignty Section 106 Toolkit v1.1 (opens in new tab)
Full analysis: Coalition for Tribal Sovereignty Section 106 Toolkit v1.1 (opens in new tab)
Section 106 works
Without federal funding triggering Section 106, our community would not even be made aware of the unearthing of our ancestors.
“Our Tribal Council did not stop the highway reconstruction project when at least 5 individual ancestors were unearthed.”
What Title III would change: Projects whose only federal tie is a grant drop out of review.
At Kolomoki Mounds, a proposed cell tower was moved outside the mounds’ viewshed.
“leading to no adverse effect.”
What Title III would change: Visual effects excluded unless they ‘significantly diminish’ a property.
The Tribe’s Cultural Resources Department
“provides timely comments on over 3,000 projects a year.”
What Title III would change: THPO performance penalties and federal takeover.
“Native Hawaiians have no reservations, no Tribal Historic Preservation Officers, and no Tribal lands on which to exercise their own preservation authority, so their reliance on Section 106 is even greater.”
What Title III would change: Optional consultation at identification.
Section 106 rarely stops projects. Of more than 120,000 federal undertakings reviewed each year, about eight result in litigation. 106 Strong letter (October 15, 2026)
Step by step
The agency identifies the THPO or Tribal Nation and other consulting parties.
Where Tribes are: Consulted
The agency defines the review area and identifies properties in consultation with Tribal Nations, including places not in existing records.
Where Tribes are: Consulted
Deadline: 30 days to object
Done in consultation, with direct, indirect, and cumulative effects considered. Consulting parties have 30 days to object to a no-adverse-effect finding, and disputes can go to the ACHP.
Where Tribes are: Consulted
Through consultation, to avoid, minimize, or mitigate.
Where Tribes are: Consulted
For projects that require NEPA review, consultation must start when NEPA starts and finish when the NEPA document is complete. Extensions are allowed only in extraordinary circumstances.
Adapted from the Coalition for Tribal Sovereignty Section 106 Toolkit v1.1 (opens in new tab)
Myth vs. reality
Supporters say
"BAAJA protects Tribes because it writes consultation into law."
Supporters say
"Tribes get a seat from the start through every major decision."
Supporters say
"It only adds reasonable deadlines."
Supporters say
"It just focuses review on the project's actual footprint."
Supporters say
"Tribes can still sue, and violations are just paperwork mistakes."
Supporters say
"$200 million a year for Tribal historic preservation."
Adapted from the Coalition for Tribal Sovereignty Section 106 Myth Buster (opens in new tab)
Five minutes
U.S. Capitol switchboard
(202) 224-3121Ask for your Senator's office. Senate contact list (opens in new tab)
My name is [Name], and I serve as [Title] of [Tribal Nation] in [State]. I am calling on behalf of my Nation to urge Senator [Name] to vote NO on cloture on the motion to proceed to H.R. 2347, the vehicle for the package including S. 5653, the Bipartisan American Affordability and Jobs Act, on November 9. Title III of this bill rewrites Section 106 of the National Historic Preservation Act. It would let federal agencies make key decisions about our sacred places and cultural sites before they consult with us. It would narrow what counts as harm, and even if a court found the agency broke the law, the court could not stop the project. And it would allow the federal government to take over our Tribal Historic Preservation Office. Tribal Nations are not against permitting reform. We are against being written out of it. Small changes are not enough. We ask the Senator to vote NO unless Title III is removed, and to commit to government-to-government consultation on any changes to Section 106. Can you tell me where the Senator stands?
Who is asking for this: The ask to vote no on cloture if Title III remains comes from Tribal Nations and organizations including Muscogee (Creek) Nation, Chilkat Indian Village, Southeast Alaska Tribal Nations, Office of Hawaiian Affairs, 106 Strong Coalition. NCAI Resolution PSC-26-075 calls on Congress to withdraw Title III.
This is [Name], [Title] of [Tribal Nation]. I'm calling to urge Senator [Name] to vote NO on cloture on the motion to proceed to H.R. 2347, the vehicle for the package including S. 5653 on November 9 unless Title III, the Section 106 rewrite, is removed. This bill would weaken Tribal consultation on our sacred places. Please call me back at [phone].
Write
Fill in your details and the letter updates as you type. Highlighted brackets still need your words.
When to use this: Before November 9. Send by email to the Senator's Tribal affairs or energy staffer, and attach it on Tribal letterhead.
Timeline
Sept. 30, 2026
S. 5653 introduced.
Source: Bill text (opens in new tab)
Oct. 9
ITC of the Five Civilized Tribes adopts Resolution 26-27; nine Tribal organizations send the joint letter asking Senate leaders to withdraw Title III.
Source: Joint letter (opens in new tab)
Oct. 15
NHPA’s 60th anniversary; 106 Strong letter.
Oct. 18–22
NCAI 2026 Annual Convention, Palm Springs. Seven resolutions become PSC-26-016 and PSC-26-075.
Oct. 21
All Pueblo Council of Governors unanimously opposes S. 5653 as introduced.
Source: HillHeat (opens in new tab)
Oct. 22
Alaska Federation of Natives adopts Resolution 26-49.
Oct. 26–31
Alaska Tribal Nations write to Sen. Murkowski.
Oct. 28
OHA and NHLC write to Senators Hirono and Schatz.
Nov. 9, about 5:30 p.m. ET
Senate procedural vote on the motion to proceed to H.R. 2347, the vehicle for the permitting package.
After Nov. 9
Amendment period, if cloture succeeds.
Nov. 10, 9:00–11:30 a.m. ET
ACHP fall business meeting (public, livestreamed).
Source: ACHP meeting (opens in new tab)
Nov. 10, 11:00 a.m.
OIRA review meeting on the ACHP’s proposed Section 106 rule (RIN 3010-AA10).
January 2027
New Congress begins. Bills not passed must be reintroduced.
Optional
Tell us what you heard, so we can coordinate follow-up.
