The new year brings a news political reality to Washington, D.C. The most significant political change from last year is the Republican takeover of the U.S. House of Representatives. While the Republican majority is narrow, it gives Speaker Kevin McCarthy (R-CA) the authority to decide which bills receive votes in the chamber. Likewise, the new Republican chairs of the House committees will determine which bills get hearings and votes in committee.

House Republican leaders have pledged to use their leadership roles to convene hearings to examine the Biden administration’s record and to build support for their legislative proposals. Expect to see the House Republicans sharply question Department of Interior officials on Biden administration energy policies during televised hearings.

Speaker McCarthy will likely pass many bills that are doomed in the Democratic-controlled Senate. These “messaging bills” are opportunities for House Republicans to demonstrate their policy priorities and signal to their voters what they value. However, it is widely understood that Senate Majority Leader Schumer will not bring many of these largely partisan bills up for a vote in the Senate, so such legislation has no viable path to enactment. To have a real chance of passage, a bill must get significant buy-in from House Republicans, Senate Democrats, and secure 60 votes in the Senate.

One possibility for bipartisan agreement is a bill to streamline the federal permitting process. Despite substantial interest in the issue, Senator Manchin’s (D-WV) efforts to pass a bill failed twice in the Senate last year. He’s still committed to the goal, however. He and Rep. Bruce Westerman (R-AR), the new chairman of the House Natural Resources Committee, have met to negotiate the details of a federal permitting bill.

Federal permitting reform remains a hot topic because of the recent massive investments in American infrastructure. All that investment will generate lots of cultural resources management work. As funding from the 2022 Inflation Reduction Act, in addition to the 2021 Infrastructure Investment and Jobs Act, flows to communities across the country, there will be high demand to secure permits for new projects. This demand may keep public and Congressional attention focused on how to improve the federal permitting process.

House Republican leaders reportedly plan to unveil a major bill promoting greater energy production by promoting energy development on public lands, easing mining regulations, and streamlining the federal permitting process. We’ll be on the lookout for any provisions that could threaten historic resources by narrowing the scope of impacts that are considered, reducing public involvement, or imposing unrealistic deadlines for environmental reviews.

We’ll also be mobilizing support for a bill to reauthorize the Historic Preservation Fund (HPF), which funds the work of State and Tribal Historic Preservation Offices, competitive grant programs, and the National Register of Historic Places. At present, Congressional authorization for this important program is set to expire on September 30, 2023. We will work with key members of Congress to support a bill that extends the authorization of the HPF and increases the total authorization level, which has remained unchanged since 1977.

As part of our efforts to secure funds for the national historic preservation program, we’ll be advocating for full funding of the new African American Burial Grounds Preservation Program, which was authorized in the omnibus spending bill last December. Coalition for American Heritage members have advocated for this program over the past five years, and we will continue working to ensure its success.

In addition to monitoring legislative activity, we will continue working with the administration to develop regulations that enhance America’s historic preservation program. The administration’s plans for 2023 include revisions to several regulations that will directly impact historical archaeology: the rules governing the Native American Graves Protection and Repatriation Act (NAGPRA), Traditional Cultural Properties, and the U.S. Army Corps of Engineers (USACE) proposal to end its use of Appendix C. Each one of these proposals includes an opportunity for the public to weigh in on the changes under consideration.

The Coalition for American Heritage submitted a letter supporting many of the administration’s proposed changes to NAGPRA. We applauded efforts to ensure timely completion of the repatriation process, inclusion of indigenous knowledge, and a greater focus on enforcement. However, we also recognized that NAGPRA consultations involve significant amounts of work for tribes and urged the administration to identify sources of funding to help tribes complete the process. As the administration works to develop and stand up this new program, we will help keep Coalition members and other stakeholders informed about each step of the process.

In the upcoming months, we’ll be submitting comments on the National Register Revised Bulletin 38: Guidelines for Evaluating and Documenting Traditional Cultural Properties. At present, the National Park Service is conducting consultation and outreach on the upcoming revisions. The deadline for comments is April 30, 2023, so Coalition members have time to evaluate the proposed changes and raise any concerns they may have. We look forward to incorporating your feedback into a thoughtful, substantive comment letter this spring.

Finally, we are very pleased to see the USACE decision to rescind Appendix C, something that the Coalition has been urging the Army to do for several years. Appendix C procedures were never approved as a counterpart regulation by the Advisory Council on Historic Preservation (ACHP). The procedures have been problematic in several ways and have left the USACE vulnerable to litigation. Furthermore, the Appendix C procedures have been applied inconsistently across the country and have limited the USACE’s ability to be a good steward of America’s cultural heritage. According the new proposal, USACE would instead rely on ACHP’s regulations and joint USACE/ACHP guidance for implementation of Section 106.

The changed political landscape this year increases the likelihood of a highly politicized hearings and a robust debate on energy development. Prospects for enactment of any significant new legislation are low, however, given the power split in Washington and the compromises that would be required. We will continue working to support a strong historic preservation program through legislative lobbying and participation in the regulatory notice and comment process.

The Society for Historical Archaeology (SHA) thanks the bipartisan group of lawmakers who secured inclusion of the African American Burial Grounds Preservation Act in the omnibus appropriations bill. This bill is expected to be signed into law by President Biden at the end of this week. Five years in the making, the effort in Congress was led by Sen. Sherrod Brown (D-OH), Sen. Mitt Romney (R-UT), Rep. Alma Adams (D-NC), Rep. Brian Fitzpatrick (R-PA), and the late Rep. Donald McEachin (D-VA).

The African American Burial Grounds Preservation Program will help identify burial grounds ahead of infrastructure projects and commercial development, thereby minimizing construction delays and avoiding unnecessary community heartache. It will assist descendants and communities in honoring and remembering their shared past by providing grant monies to identify, interpret, and preserve historic cemeteries. These sacred sites, and the stories they tell, are an integral part of our American heritage.

Julie Schablitsky, president of the SHA said, “Society for Historical Archaeology members have advocated for federal leadership to protect and preserve these sacred places. The African American Burial Grounds Preservation Program will support descendant communities and their allies in saving our history, while simultaneously informing development decisions and community planning.”

For five years, members of SHA have lobbied Congress to pass legislation that to protect and preserve historic African American cemeteries. As professional archaeologists and advocates for the legislation, SHA members shared stories of the burial grounds they helped to locate. They spoke about the frustration of being called in to identify burial plots that had already been disturbed by development, and discussed the need to proactively identify sacred spaces.

SHA members highlighted ways for Congress to help communities identify and preserve important historic and cultural landmarks. Several years ago, SHA members visited Rep. Alma Adams and Rep. Donald McEachin on Capitol Hill, who were already familiar with groups in their communities who were preserving historic cemeteries. We offered our assistance to develop legislation, and we are deeply grateful for their leadership.

“We are so thankful to the more than 150 organizations who joined with SHA, the American Anthropological Association and the Coalition for American Heritage to advocate for making preservation of historic African-American cemeteries a federal priority,” said Kelly Lizarraga, Advocacy Director at the law firm Cultural Heritage Partners, which provided government affairs support to the effort.

These cemeteries are sacred places, but their existence often goes unrecognized. Indeed, historic cemeteries are emblematic of the unequal treatment African Americans endured in life and in death. Many African American burial grounds suffered from decades of official neglect and government policies that ignored and devalued their very existence. Families of the deceased were often unable to maintain the gravesites because they were enslaved, lacked ownership of the land, or had no record of where their ancestors were buried. Pre-emancipation genealogical and burial records are especially difficult for African American families to obtain. Burial grounds were frequently segregated by race and unmarked. In many states, local governments have funded the maintenance of Confederate cemeteries but not African American burial grounds.

Many communities across the country are working to reclaim these cemeteries and honor their history. Members of SHA, the American Anthropological Association, and the Coalition for American Heritage are frequently involved in this endeavor. Stakeholder organizations across America joined together to support this effort. We have been joined in our advocacy efforts by the National Parks Conservation Association and the National Trust for Historic Preservation African American Cultural Heritage Action Fund. Together with more than 150 groups across the country, we supported this important legislation and advocated for its passage.

Details of the legislation begin on page 2,954 of the fiscal year 2023 omnibus appropriations bill.

For more information, contact:

Kelly Lizarraga, Advocacy Director
Cultural Heritage Partners, PLLC
KellyL@culturalheritagepartners.com
(703) 913-4818

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The U.S. Department of the Interior is proposing revisions to improve the implementation of the Native American Graves Protection and Repatriation Act (NAGPRA). The proposed changes are designed to reduce ambiguity and improve efficiency while emphasizing consultation and deference to the knowledge and traditions of Indian Tribes and Native Hawaiian organizations. Comments on the proposal will be accepted until January 17, 2023.

For guidance on how best to take advantage of regulatory comment opportunities like this one, watch our webinar.

At the White House Tribal Nations Summit, President Biden announced a new memorandum establishing uniform standards be implemented across all federal agencies on how tribal consultations are conducted.

Establishing clear, consistent tribal consultation policies across the federal government will honor the role of tribal governments, reduce conflict and improve permitting decisions.

The President’s memorandum is an excellent step toward achieving these goals. For additional details on the President’s announcements at the White House Tribal Nations Summit, click here.

Last week, Sen. Manchin (D-WV) was unsuccessful in his attempt to pass permitting reform legislation as part of a continuing resolution to fund the federal government. He couldn’t get the requisite 60 votes in the Senate. Nonetheless, Washington gossip immediately turned to a possible second try for Sen. Manchin in the lame duck session this December.

Could a permitting bill pass in 2022? It’s unlikely. Here’s why:

1. Sen. Manchin just lost his best opportunity. He had the support of the President, the Senate Majority Leader, and the Speaker. His bill was attached to must-pass legislation, providing cover for members to vote for the bill in the name of avoiding a federal government shutdown. It’s hard to imagine a scenario that could be more favorable to his cause. But he still couldn’t get the votes.
2. Permitting bill supporters would like to see the legislation attached to another must-pass piece of legislation, like the National Defense Authorization Act (NDAA). However, there’s increasing frustration in Congress with turning the NDAA into a Christmas tree, a bill that contains lots of unrelated amendments and provides a little something for everyone. For example, Sen. Joni Ernst (R-IA), a member of the Armed Services Committee, has already been publicly saying that she doesn’t want non-germane amendments added to the bill.
3. The elections in November could lessen the likelihood of immediate action. If Republicans win the majority in either chamber of Congress, they may opt to wait to consider permitting reform legislation. Why compromise with Democrats in a lame duck session rather than bring up their own version of the bill in a Republican-controlled chamber in 2023?
4. It’s very difficult to pass legislation in a closely divided Congress. Any changes Sen. Manchin makes to the bill will inevitably cause him to lose support from one side or another. If he drops the requirement to approve the Mountain Valley Pipeline, he may win the support of some Democrats, like Virginia Sen. Tim Kaine (D-VA), who opposed the provision. But it could cost of him the support of Republicans, like Sen. Shelley Moore Capito (R-WV), who is a big proponent of the pipeline. It’s very hard to see how he can get 60 votes.
5. The environmental justice movement strongly opposed the bill. Were the bill to be revived in the lame duck session, it would reenergize the movement. On top of that, 77 House Democrats and 5 Senate Democrats signed letters opposing the plan to attach the permitting bill to the continuing resolution. This political dynamic complicates prospects for the bill in the lame duck.

Many members of Congress want to change the federal permitting process. After the continuing resolution passed, some senators reiterated their interest in moving a bill to improve federal permitting before 2022 ends. Election year politics, ongoing disputes over the Mountain Valley Pipeline, and the opposition of environmental justice movement will make it very difficult to secure the 60 votes needed in the Senate for the bill to be enacted. Despite the chatter about taking another swing at the bill, it is unlikely we’ll see Congress pass permitting reform this year.