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The Cloture Vote Is Not the Finish Line: What BAAJA Means for Indian Country

Writer: Jack Starzyk
Jack Starzyk
12 minutes ago
6 min read

Nov 10, 2026


On Monday evening, November 9, the Senate voted 73-25 to invoke cloture on the motion to proceed to the Bipartisan American Affordability and Jobs Act (BAAJA, S. 5653). Twenty-two Democrats voted yes. It was a strong tally, and it was also only a first step.

Cloture on a motion to proceed does not pass anything. It lets the Senate begin debate. The Senate is using a House-passed tax bill, H.R. 2347, as the vehicle for the permitting text, and the substitute and the bill can each face their own cloture votes before final passage. The fight now moves to amendments, and that is where Indian Country still has real leverage.

The 25 no votes were 24 Democrats plus Sen. Mike Rounds (R-SD). New Mexico's Sen. Ben Ray Luján was among them. Sen. Martin Heinrich, also of New Mexico, is one of the bill's four authors.


What BAAJA does, and why Title III is the fight

BAAJA is the "four corners" permitting deal from Sens. Shelley Moore Capito (R-WV), Mike Lee (R-UT), Sheldon Whitehouse (D-RI) and Martin Heinrich (D-NM), introduced September 30. It pairs transmission and grid reforms with a broad rewrite of NEPA, the Clean Water Act, the Endangered Species Act and the National Historic Preservation Act (Center for Progressive Reform). It never went through committee markup.

Division B, Title III is the part that matters most to tribes. It rewrites Section 106 of the NHPA, the provision that requires federal agencies to consider how their projects affect historic and sacred places and to consult tribes before decisions become final. According to analyses from NARF, NATHPO and NCAI, Title III would:

  • Narrow which projects and which effects trigger Section 106 review at all

  • Put consultation on statutory deadlines and give agencies room to end reviews without tribal agreement

  • Let agencies decide that "other considerations" outweigh preservation

  • Impose new federal oversight on Tribal Historic Preservation Officers

  • Limit tribes' access to court and the remedies a court can order

Much of this would write into statute pieces of the Advisory Council on Historic Preservation's proposed Part 800 rewrite, which tribes have already strongly opposed.

The bill's NEPA changes compound the problem. Critics point out that the bill would make remand without vacatur or injunction the only remedy for a NEPA violation, so the permit stays in effect while the agency fixes a defective review (Center for Progressive Reform). Put plainly: by the time the paperwork is corrected, the ground may already be disturbed.


106 Strong on the West Lawn

Hours before the vote, the 106 Strong coalition brought its rally for history, culture and sovereignty to the Capitol's West Lawn. Starzyk and Associates was a part of a team of Tribal Lobbying firms working alongside the All Pueblos Council of Governors to rally and speak at the 106 Strong rally. Organizers estimated close to 1,000 people turned out, including representatives of more than 100 tribal nations (The Art Newspaper). The coalition, led by Cultural Heritage Partners, now counts roughly 1,200 member organizations.

The All Pueblo Council of Governors was on the speakers' list. Pueblo of Laguna Gov. Harry Antonio Jr. explained that sacred places are living places of prayer, and that tribal responsibility for them does not stop at the reservation line. Section 106, he said, is how tribal governments get those concerns into federal decisions.

Rep. Adelita Grijalva (D-AZ) framed the fight as one of sovereignty and self-determination, not just preservation. Rep. Melanie Stansbury (D-NM) called the bill a "dirty deal." Incoming House Natural Resources Comittee Chairman Jared Huffman (D-CA) noted that roughly 500 pages of new text landed about 48 hours before the vote.

The day before, 11 tribal organizations, including APCG, NCAI, NATHPO, the Association on American Indian Affairs and the Great Plains Tribal Chairman's Association, released a joint statement opposing the manager's amendment (Buffalo's Fire). Their ask: hold the bill for the next Congress, or at minimum strip Title III entirely.

What this means for Indian Country

The core problem is simple: consultation is a process right, not a veto. A tribe can be consulted at every step and still lose a sacred site. BAAJA speeds approvals while weakening the tools tribes use to stop harmful projects, and that trade falls hardest on tribal nations.

The weekend's manager's amendment made real changes. According to NCAI, it struck a proposed federal redefinition of tribal sacred properties and dropped a mandate for Interior to take over Tribal Historic Preservation Offices. It also shields records tribes share with governments from FOIA (Heatmap). Sen. Heinrich deserves credit for that work. But the structure that harms tribes is still in place.

Here is what that looks like on the ground:

  • Sacred places beyond the reservation line. Most ancestral sites sit on federal, state or private land, not trust land. Section 106 is often the only federal tool that brings a tribe to the table there. Narrowing its triggers means some projects never get reviewed at all. New Mexico advocates have warned that landscapes like Greater Chaco could fall outside protection.

  • Less time, less leverage. Statutory consultation clocks squeeze tribal governments and THPOs that already run on thin staff and budgets. When the clock runs out, the agency can move on.

  • Weaker remedies in court. If a review is defective, courts may be limited to sending it back while the permit stays in force. A bulldozer does not wait for a corrected document.

  • More projects, faster. The bill is built to speed transmission lines, pipelines, mines and data centers across the West. Many of those corridors cross ancestral homelands.

  • Trust and treaty obligations. NCAI argues the bill's changes to the NHPA, NEPA, the Clean Water Act and the ESA conflict with the federal trust responsibility. And none of it was developed through government-to-government consultation.


The amendment fight and the executive-discretion problem

The best near-term opening is an amendment to strike Title III.

The political ground also shifted Monday. Hours after the White House endorsed the bill, President Trump said from the podium that he will not approve wind turbines and that the bill hasn't been fully negotiated. Sen. Angus King (I-ME) said the remark undermined his confidence in the administration's good faith and would influence his vote.

That point applies directly to tribes. Senators worried that an administration will use its discretion to block renewables should see the other side of the same coin: that discretion also lets an administration fast-track projects that threaten tribal sites. A bill that hands agencies more room to end reviews and limits court remedies makes that discretion harder to check.

The 22 Democrats who voted yes are not a fixed bloc. Many said they want a real amendment process. They need to hear directly from tribal leaders about what Title III does before they vote on it.


What comes next

The Senate can spend up to 30 more hours on the motion to proceed, and the substitute and the bill can each face their own cloture votes. That leaves days, not weeks, to move votes. Our position, shared with the Pueblo nations we represent, is straightforward:

  1. Strike Title III. Support any amendment, including one from Sen. Schiff, that removes the Section 106 rewrite in full.

  2. If Title III stays, vote no on final passage and take up permitting reform in the new Congress, with real government-to-government consultation.

Tribal leaders can make the difference in the next few days. Call your senators, especially the 22 Democrats who voted yes and Republicans who have not heard from tribes directly. Ask them to back the amendment to strike Title III. Tell them which places in your homelands Section 106 has protected, and what would happen without it.

Permitting reform can be done well. Faster approvals and protected sacred places are not a trade-off, if tribes are at the table from the start. This bill does not get there yet.

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