Setting the Record Straight on COLT and Permitting Reform

Guest Opinion

Every Tribal Nation has the sovereign right to decide for itself whether to support or oppose legislation. COLT respects that right. We also respect the serious concerns many Tribal Nations have raised about the Bipartisan American Affordability and Jobs Act, particularly Title III and its proposed changes to Section 106.

COLT has many of those same concerns.

But it is important to correct a misunderstanding about COLT’s work on this legislation. COLT has not bargained away anyone’s rights. We have not negotiated anyone’s consent. And we have never claimed authority to speak for any Tribal Nation.

From the beginning, COLT’s preferred position was simple: take Title III out of the bill. That view was repeatedly expressed by COLT leadership. It was the consensus first choice coming out of multiple COLT calls, while recognizing that every Tribal Nation remained free to support, oppose, or protest the legislation as it determined appropriate.

Congressional offices, knowing of the repeated opposition from Tribes and organizations, repeatedly told us that removing Title III was a non-starter. In meetings with congressional staff, COLT first asked that Title III be removed and was told, over and over, that it would remain.

That left COLT with a choice. We could repeat an objection Congress had already told us it would not accept, or we could keep objecting while also trying to reduce the damage if the bill moved forward.

COLT chose to work.

That work did take place behind closed doors. On September 30, before the bill language was released, COLT held a call with Senator Martin Heinrich’s staff, COLT leaders, and tribal historic preservation representatives concerning Section 106 and permitting reform. COLT expressed significant concerns during that call. When the bill text was released later that day, COLT distributed it, along with an initial analysis, to its members within minutes.

The discussion continued. COLT convened additional calls and Zoom meetings involving Tribal Leaders, THPOs, and NATHPO participants, specifically focused on permitting reform and Section 106. Over the next three weeks, COLT Tribal Leaders and staff exchanged drafts, comments, redlines, and emails in preparation for the Washington fly-in during the last week of October.

Every COLT Tribe received the fly-in agenda. Multiple COLT Tribes participated. COLT Tribal Leaders met with more than a dozen Democratic and Republican congressional offices concerning permitting reform, tribal consultation, Treaty rights, cultural resources, and tribal energy and infrastructure priorities.

The COLT discussion paper was not written overnight and handed to Congress as a deal. It followed multiple rounds of drafting and input. Its purpose was limited: to identify targeted amendments that could reduce harm if Congress refused to remove Title III. The paper did not endorse the bill, bind any Tribal Nation, or represent a COLT position on passage of the bill.

There is also a substantial written record of information sharing. Since September 30, there have literally been many dozens of COLT emails to the entire membership referencing permitting reform and seeking input. That total shows the scale of the discussion and COLT’s engagement.

COLT’s role throughout was straightforward. We listened to our Member Tribes. We shared information. We identified problems. We asked first for Title III to be removed. When congressional offices said no, we put concrete alternatives on paper—after thorough vetting and editing by Member Tribes—so that tribal concerns could not simply be acknowledged and ignored.

That work produced some results. The manager’s amendment removed the proposed federal takeover of THPO functions, added notice and a corrective-action process before sanctions, extended an objection period from 30 to 45 days, protected sensitive tribal database information from FOIA disclosure, and made other changes responsive to concerns COLT had raised.

Significant problems remain, including the agency “sole discretion” language, narrowed Section 106 coverage, and restrictions on judicial remedies. None of these improvements means every Tribe should support the bill. They do not mean COLT supports the bill. And they certainly do not bind any sovereign Tribal Nation to a position.

It means something much simpler.

When Congress told us the bill was moving and Title III was staying, COLT refused to sit on the sidelines. We continued opposing harmful provisions while doing the hard work of trying to make the legislation better for large land-based Tribes.

There were COLT Tribes that supported the bill, while the majority vehemently opposed it. Any COLT position has to be unanimous, so there is no COLT position on a bill where the Member Tribes disagree. The unanimous COLT position on BAAJA was to work as hard as possible to improve a very bad bill rather than risk getting jammed with the worst of the worst.

As an example, COLT Tribal Leaders talked to congressional staff on both sides of the aisle, often in joint meetings, asking that Title III be removed and providing the fixes identified above. Some stayed in Washington, D.C., for more than two weeks and also attended the Monday rally.

I thank Ute Mountain Ute Tribe Treasurer Conrad Jacket for his extraordinary dedication. I also thank, in particular, the Walker River Paiute Tribe for its engagement with the Nevada senators, communicating its concerns about Title III and its proposed fixes, and asking Senator Catherine Cortez Masto not to support the BAAJA bill if Title III was not removed.

In response, Senator Cortez Masto issued the following statement: “If Title III stays in this bill, I will not vote for final passage.”

There is room in Indian Country for Tribes that say no, Tribes that seek amendments, and Tribes that ultimately reach different conclusions. Respect for tribal sovereignty requires nothing less.

What there should not be room for is the suggestion that Tribal Leaders who show up, study hundreds of pages of legislation, confer with one another, offer amendments, take the time to go to Washington, D.C., to speak truth to power, and fight for improvements have somehow surrendered anyone’s rights.

That is not bargaining away sovereignty. That is exercising it.

COLT stands behind the actions taken by Tribal Leaders and refuses to point fingers at those individuals and organizations that disagree.

OJ Semans, Sr. is a co-foundersof Four Directions, a Native American voter advocacy group, based on the Rosebud Indian Reservation. OJ serves as the executive director of the Coalition of Large Tribes (C.O.L.T.)