After years of failed attempts to reform the nation’s cumbersome permitting laws, Congress is preparing to vote on a sweeping bipartisan proposal during the lame-duck session. The Bipartisan American Affordability and Jobs Act, or BAAJA, would remove longstanding barriers to building major energy and infrastructure projects.
But as lawmakers begin to debate the legislation this week, concerns about how the bill will affect Native American tribes have emerged as a key obstacle to securing enough Democratic support. Not all tribal leaders see the legislation as a threat to their sovereignty. Some see it as an opportunity to strengthen it.
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“We’re limited on the permitting side, we’re limited on the financial side, on the tax side,” Daniel Cardenas, chairman of the National Tribal Energy Association, told me. “There’s a lot of shackles that we deal with and have been dealing with for decades.” For tribes seeking to develop energy resources, BAAJA could remove some of those shackles.
Cardenas says one problem is the widespread perception that tribes are opposed to development. His organization recently spoke with venture capital firms about critical-mineral exploration in Indian Country. “All summer we’ve been talking to VCs, and every VC says, ‘Hey, wait a minute, I thought tribes don’t like mining,’” he said. While he acknowledges that some tribes do oppose mining and energy development on tribal lands, many others—including the Crow, Navajo, Southern Ute, and Mandan, Hidatsa, and Arikara nations—have long pursued it.
“We want jobs too, right? We want opportunity, and development goes hand in hand with that,” Cardenas said.
Much of the recent media coverage of BAAJA has focused on tribal opposition to the bill. The National Congress of American Indians has called for removing the bill’s proposed changes to the National Historic Preservation Act. House Minority Leader Hakeem Jeffries warned last week that the legislation “falls short in several areas,” including its “failure to adequately protect tribal sovereignty.”
But many tribes have long struggled with the same regulatory obstacles that frustrate energy and infrastructure projects beyond reservations. Paternalistic federal policies that restrict tribes’ authority over their own resources and development decisions have added to those obstacles.
Cardenas and other tribal leaders argue that BAAJA’s reforms would strengthen tribal sovereignty, not undermine it. In a letter last week to Senate leaders, the National Tribal Energy Association said that the bill “takes meaningful steps to honor our Tribal sovereignty and self-determination” by removing obstacles to tribal energy development.
Specifically, BAAJA would allow tribes to approve rights-of-way across their own lands without needing separate approval from the Interior Department. The bill would also let federal agencies accept for other purposes environmental reviews conducted under tribal law, reducing the need for duplicative reviews.
Another provision would restrict lawsuits filed under the National Environmental Policy Act (NEPA) by outside groups challenging federal approvals for projects on tribal lands. “For too long, outside interests and third-party organizations have weaponized NEPA litigation to stall or block critical infrastructure and job-creating developments on Tribal lands,” the association’s letter states.
These regulatory hurdles can make tribal projects harder to finance. “Capital thinks that Indian Country is risky,” said Cardenas, who is also a member of the Pit River Tribe in California. Investors want certainty about how long approvals will take and whether a project can move forward once it meets the legal requirements. BAAJA would help “de-risk” those projects and attract more capital to tribal lands.
Other tribal leaders have voiced support for permitting reform. The Apsáalooke nation, or Crow tribe, submitted its own letter last week urging Congress to advance BAAJA. The Coalition of Large Tribes (COLT), whose member tribes collectively hold over 95 percent of tribal lands and encompass roughly half the Native American population, wrote last month that it accepted BAAJA’s expedited permitting framework while seeking targeted revisions to protect tribal sovereignty. “COLT tribes have many on-reservation projects that would benefit from permitting reform,” OJ Semans, Sr., the coalition’s executive director and a member of the Rosebud Sioux tribe, told Punchbowl News.
The federal government’s paternalistic approach to Indian affairs dates back nearly two centuries. In an 1831 Supreme Court opinion, Chief Justice John Marshall described tribes as “domestic dependent nations” whose relationship to Washington resembled “that of a ward to his guardian.” Even today, most tribal land is held in trust by the federal government. That means tribes need approval from the Bureau of Indian Affairs and other federal agencies for basic land-use decisions that other property owners can make on their own.
These restrictions create substantial economic costs for tribes. Obtaining a permit to drill an oil or gas well on tribal lands can require navigating seven federal agencies and more than 100 regulatory steps, compared to as few as four outside of reservations. Renewable-energy development can be just as difficult. A 2024 study found that, despite abundant wind and solar resources, reservation lands have far fewer renewable-energy projects than comparable adjacent lands due in part to “regulatory complexity and uncertainty.”
Much of the disagreement over BAAJA centers on Section 106 of the National Historic Preservation Act, which requires federal agencies to consider how projects might affect historic and culturally significant sites and consult with tribes. BAAJA would codify certain tribal-consultation requirements while streamlining the approval process and narrowing the scope of reviews. Opponents say the changes would weaken tribes’ ability to protect sacred sites and influence projects beyond their reservation boundaries.
Cardenas acknowledges those concerns but argues that critics have largely overlooked provisions that would give tribes greater authority over their own development decisions. “We can’t miss this opportunity,” he said. In his view, the ability to exercise sovereignty “in a positive way, to actually do projects” outweighs the potential limitations on tribes’ ability to challenge projects elsewhere. Tribes would still be able to challenge projects off their reservations, he said, but the process would work differently.
Congressional negotiators have responded to some of the other tribes’ concerns. On Saturday, the bill’s sponsors released a manager’s amendment that made several changes to its historic-preservation provisions, including adjustments to tribal consultation requirements. The Coalition of Large Tribes said it welcomed “many positive changes,” though the National Congress of American Indians has said the revisions don’t adequately address their objections.
For Cardenas, the stakes go beyond energy development. “It’s not just about energy, but infrastructure that tribes have not been getting done: water projects, broadband, housing,” he said. “As soon as there’s clarity in the permitting process, I think it’s going to attract more capital.”
Cardenas also worries that the controversy reinforces a misleading picture of what tribes want. Tribes fighting high-profile development projects tend to garner the headlines, he said, feeding the perception that all tribes oppose these efforts. “That makes some people sleep well at night, that, ‘hey, you know, we’re helping them,’” he said. “All they’re helping us stay is poor.”
The result, Cardenas says, is fewer choices for tribes trying to build an economic future. “That misconception, or misperception, of us not wanting to develop just keeps us poor. Then what are our options? Our reservations then become like zoos or parks, where you can come and look at us,” he said. “If we don’t have industry, we’re poor. If we don’t have industry, we move, our kids move to the city and never come back.”
Ultimately, Cardenas contends that sovereignty should mean the power to pursue development, not just the ability to oppose it. “Some of those choices are hard,” he said. “But having those choices, that’s sovereignty. That’s really the issue—the ability to make choices.”