Data Centers in Indian Country

Wenona Singel

As some Tribes reject hyperscale data centers in Indian Country, others are embracing it. Others are imposing moratoria on data centers to allow for further studies and policy development. Below is a snapshot of what Tribes are doing. It illustrates the diversity of Tribes in the US, and it shows Tribes acting as governments, regulators, landowners, utility operators, infrastructure owners, investors, economic development actors, and political communities as they decide what technological development should look like on their lands.

  • Cherokee Nation of Oklahoma: Released a Data Center Task Force report on August 5, 2026 and is now banning hyperscale data centers on tribally owned and trust lands.

  • Seminole Nation of Oklahoma: On March 7, 2026, the Tribal Council unanimously voted for a moratorium on generative-AI and hyperscale data center development within its jurisdiction. The resolution also bars “any inquiries, discussions and/or developments concerning any entity seeking to develop a data center of any size within the Seminole Nation during the moratorium period.”

  • Sault Ste. Marie Tribe of Chippewa Indians: Supports a moratorium. The Tribe adopted a resolution on May 19, 2026 supporting the state of Michigan establishing a temporary moratorium on large-scale data centers and cryptocurrency mining until a Tribal consultation process is established, including comprehensive environmental and cultural impact assessments on any legislation involving large-scale data centers and cryptocurrency mining.

  • Muscogee (Creek) Nation: Rejected. In November 2025, the National Council rejected a measure that would have developed a data center at Looped Square Ranch, where land is being used for Tribal food sovereignty.

  • Hoopa Valley Tribe: Supports, under Tribal ownership. Hoopa opened a new data center on July 17, 2026, but it’s not a hyperscale data center. It’s a tribally-owned facility serving as the operational hub of Hoopa’s fiber-to-home broadband network and Acorn Connected, its Tribal internet service provider.

  • Forest County Potawatomi Community: Yes, and has been doing it for years. Its enterprise Data Holdings operates a commercial data center in Milwaukee on trust land and is 100% Tribally owned. It opened in 2013 as a $33 million wholesale data center and now provides colocation/private cloud services and hosts the Milwaukee Internet Exchange.

  • Navajo Nation: Yes. Navajo Tribal Utility Authority operates a data center in Shiprock on the Navajo Nation offering colocation, virtualization and high-speed optical backhaul to off-reservation points-of-presence in Albuquerque and Phoenix. NTUA is a Navajo Nation enterprise, and the facility serves both Navajo and outside government and business customers.
  • Colusa Indian Community: Actively pursuing AI infrastructure. The Community’s Colusa Indian Energy announced a partnership in March 2026 with Strata Expanse to develop an AI and energy infrastructure campus on the land of the Cachil Dehe Band of Wintun Indians of the Colusa Indian Community in Northern California. Plans include expanding on-site energy generation capacity to more than 100 MW over the next 18 months.
  • Osage Nation: Debating a data center approved in February 2026 by the City of Sand Springs on the Osage reservation. The proposed data center would be operated by Google, and construction is planned to begin in 2027. The developers are seeking support from the Osage Minerals Council, which controls the nation’s 1.47 million acre oil and gas subsurface.

Additional Resources

Tribal Nations and Data Centers: Emerging Issues and Resources, USET

AI Data Centers and Tribes: Emerging Federal and Policy State Trends and Tribal Governance Options, Tana Fitzpatrick, Director, Native Nations Center for Tribal Policy Research

Honor the Earth Data Center Tracker (interactive crowd-sourced map)

Indigenous Peoples Push Back as Data Centers Expand Across North America, John Ahni Schertow in Intercontinental Cry Magazine

The Cloud is Drying our Rivers: Water Usage of AI Data Centers, Charlotte Jennings, EthicalGeo

Honor the Earth DataCenterTracker; Earthstar Geographics; U.S. Census Bureau

Worth Reading: Fired Officers in Washington State Disproportionately Land at Tribal Police Departments

Wenona Singel

July 20 article by Melanie Henshaw, published by InvestigateWest. Link to article is here. The article isn’t a polemical attack on tribes; it identifies a number of structural reasons for this phenomenon.

State Rep. Chris Stearns, D-Auburn, a citizen of the Navajo Nation and sponsor of the state bill on pension access for tribes, says that in his experience working closely with tribes, there’s a strong desire to hire qualified candidates that will best protect the needs, culture, and interests of tribal citizens, elders, and children. 

Native Americans face the highest risk of deadly police violence of any race, and 2026 research from the University of Washington shows Native Americans on and near reservations face a disproportionate risk of being killed by police, with the report stating that a “coordinated public health response to police violence is urgently needed in Indian Country.”

“They should have an interest in hiring the best people,” Stearns said. “You don’t want your elders to get roughed up by someone, that goes against our values.”

Inter-Tribal Council of Michigan Reports Loss of More than $23 Million in EPA Funding for Tribal Programs

Wenona Singel

The Inter-Tribal Council of Michigan (ITCMI) released its FY2025 Annual Report on August 10, 2026, and it reported that the federal government revoked more than $23 million in EPA grant funding, creating “substantial obstacles” for Tribal communities and programs across Michigan.

$20 million of the lost funding was part of an EPA Community Change Grant awarded to ITCMI in partnership with the Grand Traverse Band of Ottawa and Chippewa Indians for “Making Michigan Tribal Homes & Buildings Efficient, Healthy, and Resilient.” The project planned to work with six Michigan Tribes to retrofit and electrify at least 300 Tribal homes and convert twelve Tribal government buildings into community resilience hubs. Funding would also have supported roof and electrical repairs, insulation and ventilation improvements, electric appliances, indoor-air-quality equipment, and Tribal staff responsible for overseeing the work.

Another $3 million of the lost funding was part of an EPA Community Change Grant awarded to ITCMI in partnership with the Bay Mills Indian Community for “Michigan Tribal and State Manoomin/Mnoomin/Mnomen Stewardship.” Developed with Michigan’s twelve federally recognized Tribes, ITCMI, the State of Michigan EGLE, and the University of Michigan Water Center, the project would have supported implementation of the Tribal-State Manoomin Stewardship Plan. It specifically contemplated participation by Tribal elders, traditional ricers, and knowledge keepers in the Michigan Wild Rice Initiative and supported their participation in stewardship and decision-making.

Together, these two awards account for $23 million, although ITCMI’s reference to more than $23 million in its Annual Report indicates that its total revoked EPA funding may extend beyond these two grants.

ITCMI Lawsuit Update

ITCMI is now one of the plaintiffs challenging EPA’s termination of the Environmental and Climate Justice Block Grant program in Appalachian Voices v. EPA. In court filings, ITCMI warned that the experience could deepen distrust of the federal government and make Tribes more hesitant to partner with ITCMI in future federally funded projects.

The litigation remains active. A federal district court dismissed the case in August 2025, but on July 21, 2026, the D.C. Circuit vacated that dismissal and returned the case to the district court. The case therefore continues while Michigan Tribal communities remain without funding that had been awarded for housing and manoomin stewardship.

Appalachian Voices v. EPA

Complaint

Plaintiffs’ Memo in Support of Motion for Prelim Injunction

District Court Opinion

Appeal

Appellants’ Opening Brief

Decision of the Court of Appeals for the D.C. Circuit

D.C. Federal Court Order Denying Injunction to Stop Border Wall Construction

Matthew L.M. Fletcher

Here is the order in Tohono O’Odham Nation v. Mullin (D.D.C.):

DCT Order.pdfDownload

Prior post here.

NHPA Section 106 Update: Tribes and Others Can Request Meetings with the OMB’s OIRA Now

Wenona Singel

Last Friday we posted on the Advisory Council on Historic Preservation’s move to weaken Section 106’s consultation requirements. We emphasized that the proposed rule, which hasn’t yet been published in the Federal Register, may include a short window of 30 days for submission of comments.

Likely Problems with an Anticipated Short 30-Day Comment Window

Thirty days is notably short, not consistent with best practices identified by EO 13563(2)(b) and EO 12866(6)(a)(1), and unlikely to afford sufficient opportunity for meaningful Tribal participation. Once the NPRM is published, Tribes will need to share the draft with their THPOs, legal counsel, natural resources and cultural staff, executive leadership, and Tribal Council before submitting their comments. The process for Tribal government preparation of comments is profoundly different than national industry associations and corporations, which have dedicated regulatory counsel whose jobs are dedicated to monitoring and immediately responding to federal rulemaking. If ACHP publishes the notice of proposed rulemaking with only 30 days for comments, Tribes and their advocates could consider immediately requesting an extension to at least 60 or even 90 days. The argument would be that given the breadth of the proposed revisions and the consultation and internal review required for affected Tribes, a longer period is necessary to provide a meaningful opportunity for informed comment.

Tribes Can Request a Meeting with OIRA within OMB to Address Changes to Section 106 Now

Tribes and other interested parties don’t have to wait for the comment period to engage. They can weigh in now by requesting a meeting with the Office of Information and Regulatory Affairs (OIRA) within OMB. OIRA review isn’t just an internal federal process conducted behind closed doors. Interested parties, including Tribes, can request meetings while regulatory actions are under review. Regulated industries routinely use these opportunities, and Tribes should know that the same opportunity is available to them. All Tribes should know that they don’t have to wait until the proposed rule is published in the Federal Register to make their concerns known.

The link to request a meeting is here. To request a meeting, you’ll need to provide the Regulatory Identification Number (RIN) for OIRA’s current review of amendments to the Implementing Regulations for Section 106. The RIN is 3010-AA10. OIRA’s role in the rulemaking process is described in EO 12866.

There are no OIRA meetings currently scheduled with Tribes or Tribal organizations regarding its consideration of changes to Section 106 regulations, although the National Association of Tribal Historic Preservation Officers (NATHPO) reports that they submitted a request for a meeting on August 11. So far, OIRA met with Edison Electric Institute on August 13, and it has meetings scheduled for the Society for American Archaeology, the Wisconsin SHPO, the WA Dept of Archaeology and Historic Preservation, Agora Consulting LLC on behalf of the American Cultural Resources Association, and the National Conference of State Historic Preservation Officers.

A How To Guide for EO 12866 meetings (Meetings on a Regulatory Action under Review with the Office of Information and Regulatory Affairs) is available on the OIRA website here.

Mark Cruz Takes Over IHS as Funding and Censorship Questions Remain

Wenona Singel

The Senate confirmed Mark Cruz (Klamath Tribes) to serve as Director of the Indian Health Service on August 7 by a 51-47 vote. His confirmation ended more than 18 months without a Senate-confirmed IHS Director following the departure of former Director Roselyn Tso in January 2025.

At his June 24 confirmation hearing before the Senate Committee on Indian Affairs, Cruz stated that he intends to advocate “ferociously” for improved health outcomes in Indian Country. The Committee’s hearing page, including Cruz’s testimony, is available here.

Cruz takes over an agency facing enormous unmet needs. Congress appropriated just over $8 billion for IHS for FY2026. By contrast, the National Indian Health Board has estimated that IHS needs approximately $76 billion to fully fund the agency and meet current needs.

Cruz will also retain his position as Senior Advisor on Tribal Health to HHS Secretary RFK, Jr. while serving as IHS Director. Holding both positions simultaneously is unusual given the size and operational responsibilities of IHS, which provides health services to about 2.8 million American Indians and Alaska Natives.

Cruz’ dual role may be particularly important to watch in light of recent changes in IHS public health communications under Secretary Kennedy. ProPublica reported last fall that IHS officials had begun flagging terms including “vaccines” and “immunizations” as risky “buzzwords” requiring additional review by agency public information officers before their use in social media updates, pamphlets, and presentations. Current and former IHS clinicians told ProPublica that the restrictions interfered with their ability to communicate effectively with patients, and one IHS doctor said that the restrictions led to her decision to leave the agency.

The ProPublica report takes on added significance in light of internal CDC emails recently made public by Sen. Bernie Sanders. The emails released in late June of this year don’t concern IHS or Cruz directly, but they document centralized HHS oversight of the CDC’s vaccine communications, including HHS direction about vaccine-related material that had been removed from CDC websites and what content would be put back online. The emails don’t establish that HHS directed the IHS restrictions reported by ProPublica, but they provide important context for Cruz’s unusual dual role, since he was already serving as Secretary Kennedy’s Senior Advisor on Tribal Health before becoming IHS Director and will now serve simultaneously in the Secretary’s office and at the head of IHS. Whether Cruz uses his new position to protect IHS clinicians’ ability to communicate evidence-based public health information is worth watching.

Tribal Governance News: Sault Tribe Citizens to Vote on New Constitution Establishing 3-Branch Government

Wenona Singel

Citizens of the Sault Ste. Marie Tribe of Chippewa Indians, Michigan’s largest federally recognized Tribe with more than 50,000 citizens, will vote on a proposed new Constitution that would significantly restructure its Tribal government.

The Tribe’s current Constitution, adopted in 1975, vests governing authority in a Board of Directors and provides for a Chairperson to be elected by the voters of the Tribe who then serves as a member of the Board. The proposed Constitution would establish three co-equal branches, including a 12-member Tribal Council, an executive branch led by an independently elected Tribal Ogemaa, and a constitutionally established judiciary consisting of a Trial Court called the Court of Gweyakwaadziwin (Honesty) and a Supreme Court called the Court of Nbwaakawin (Wisdom). It also expressly provides that the Tribal citizens are the source of governmental authority and that powers not granted to the government are reserved to the citizenship.

The proposal also includes a detailed Bill of Rights protecting, among other things, religious and cultural beliefs; speech and press; privacy against unreasonable searches and seizures; criminal process rights; equal protection, application, and opportunity under the law; whistleblower protection; the right to own, bear, and use arms; and property rights. It also expressly addresses sovereign immunity and waivers of immunity, suits against elected officials and employees acting in their official capacity or within the scope of their authority, and the right of citizens to bring Tribal Court actions to enforce constitutional rights.

Anishinaabe language and law are reflected throughout the proposed Constitution. The Preamble invokes Anishinaabe Bimaadziwin (the Anishinaabe way of life) and the Seven Grandfather Teachings, and Tribal courts would have jurisdiction over matters arising under Tribal customs as well as the Tribe’s Constitution, treaties, and laws.

The proposal also constitutionalizes the Mackinac Band as a seventh historical band for citizenship purposes, resolving a longstanding difference between the existing Constitution which does not include the Mackinac Band, and the Tribe’s Membership Ordinance, which does.

The Board unanimously voted May 19 to move the proposal to a federally administered Secretarial Election. The Tribe’s updated election information is available on its Secretarial Election page.

ACHP Moving to Dramatically Weaken Section 106 Tribal Consultation

Wenona Singel

The Advisory Council on Historic Preservation voted 16–5 on July 24 to advance a Notice of Proposed Rulemaking that would substantially rewrite 36 C.F.R. Part 800, which implements Section 106 of the National Historic Preservation Act. Section 106 is a cornerstone provision of NHPA that gives Tribes a formal role in ensuring that federal agencies consider impacts to sacred places, ancestral landscapes, and other historic properties of religious and cultural significance before making decisions that may affect them.

The proposal isn’t yet published in the Federal Register since it’s under OMB/OIRA review, so the formal comment period hasn’t opened. A 30-day comment period is anticipated once the NPRM is published. But a draft redline is available on the War Room page of Cultural Heritage Partners, a law firm that specializes in historic and cultural heritage protection.

The National Association of Tribal Historic Preservation Officers has identified the following areas of preliminary concern on its page dedicated to the planned revisions to Section 106:

Narrowing what qualifies as an undertaking. The proposal would exclude certain state, Tribal, and local actions carried out under delegated federal authority. Other provisions would provide additional grounds for agencies to conclude that federal funding, approval, assistance, or involvement does not trigger Section 106 review. When an activity is treated as outside the definition of an undertaking, the agency generally has no obligation under Section 106 to identify historic properties, consult with affected Tribal Nations, assess effects, or consider ways to avoid or address harm.

Excluding certain natural and cultural places from the definition of historic property. The proposal would generally require a place to be geographically compact and connected to tangible human improvements or specific human activities. It further states that “noncompact, unimproved natural features such as mountains, valleys, bodies of water, or landscapes, including ethnographic landscapes, do not qualify as property” for Section 106 purposes. This could exclude places whose significance arises from continuing religious and cultural practice, subsistence, oral tradition, place names, cultural responsibility, ceremony, and enduring relationships among Tribal people, ancestors, land, water, plants, and animals.

Not every Tribal cultural place can be reduced to a tightly bounded parcel or identified through buildings, archaeological deposits, or other visible physical remains. Some places are understood through relationships among multiple locations, waterways, mountains, gathering areas, travel routes, viewsheds, and ceremonial settings. The absence of tangible human improvements does not make those places less sacred, less culturally significant, or less deserving of consideration.

Reducing Tribal and THPO participation. The draft removes provisions that give Tribes a reasonable opportunity to identify concerns, advise agencies on the identification and evaluation of historic properties, explain how an undertaking may affect those properties, and participate in resolving adverse effects. It also reduces THPO involvement at several stages, shifts more findings and decisions to the agency official, and moves the role of consulting parties toward commenting on an agency-prepared report.

Consultation is not meaningful when a Tribe is presented with a substantially completed agency analysis and given only a limited opportunity to respond. It must begin early enough for Tribal knowledge, concerns, and recommendations to influence identification, evaluation, effects analysis, project alternatives, and the resolution of harm.

Removing recognition of Tribal expertise and legal context. The draft deletes language recognizing the special expertise of Indian Tribes in assessing the eligibility of properties of religious and cultural significance. It also removes express references to the government-to-government relationship, Tribal sovereignty, treaty rights, and the fact that culturally significant places are often located on ancestral, aboriginal, or ceded lands.

Tribal Nations are sovereign governments, not members of the general public or sources of supplemental cultural information. General assurances that the regulations do not alter Tribal sovereignty or treaty rights do not resolve the concern if the operative provisions reduce Tribal involvement or disregard Tribal expertise.

Narrowing the effects considered. The proposal would remove references to indirect and cumulative effects and limit adverse effects to “only those reasonably foreseeable effects that have a reasonably close causal relationship to the undertaking.” It would also remove specific recognition of changes to a property’s use or setting and the introduction of visual, atmospheric, or audible elements as potential adverse effects.

These changes are especially significant for sacred places and cultural landscapes. A place may be harmed through changes to access, setting, privacy, sound, visibility, water, vegetation, ceremonial conditions, or the ability of Tribal citizens to continue religious and cultural practices. Those effects can be profound even when a project does not excavate, demolish, or physically alter the place itself.

Expanding agency control over the process. The draft provides that an agency official “may alter any deadline in this part, to be shorter or longer.” Agencies would also have greater control over the area of potential effects, the scope of identification, agency findings, and the consideration of comments from consulting parties.

The proposal would allow an agency to prepare a consolidated Section 106 report containing its identification, effects analysis, and proposed response before circulating that analysis for comment. This risks transforming consultation from a collaborative planning process into an opportunity to react to conclusions the agency has largely developed on its own.

The draft would also allow an agency official to treat matters addressed only briefly or left unaddressed as intentionally omitted because the agency considered them “comparatively unimportant or frivolous.” That is especially concerning where an agency does not understand or gives insufficient weight to Tribal knowledge, cultural values, or effects identified by a Tribe.

Replacing negotiated outcomes with agency decisions. The proposal would move away from memoranda of agreement and toward agency-issued memoranda of decision. The agency could determine how it will address effects or conclude that “other considerations outweigh” historic preservation concerns. This would allow the agency to consult, decline to secure agreement on how adverse effects will be addressed, and document its own decision to proceed.

Expanding exemptions and procedural off-ramps. The proposal encourages broader use of exemptions and other mechanisms through which categories of undertakings or programs could avoid full Section 106 review. The accompanying notice describes an intent to create additional “on- and off-ramps” and make Section 106 exemptions function more like categorical exclusions under the National Environmental Policy Act.

Section 106 and NEPA serve different statutory purposes. A determination that an activity has no significant environmental effect under NEPA does not establish that it cannot affect a historic property or a place of religious and cultural significance to a Tribal Nation.

Making public participation discretionary. The proposal characterizes public comment as “optional, not mandatory” and would largely leave the decision whether to seek public input to the agency official. This would reduce opportunities for affected communities, local governments, preservation organizations, and members of the public to identify properties, raise concerns, and inform agency decisions.

For further reaction and analysis: Earthjustice’s statement calls the proposal a “federal attack” on one of the few laws requiring the government to consult tribes before approving projects; Holland & Knight’s summary walks through the regulatory mechanics and what happens next.

Ward Churchill Dies

Matthew L.M. Fletcher

NYTs

I never had the chance to meet Ward Churchill. I first read him in the early 90s at Michigan in a Native Studies class taught by Estevan Rael-Galvez. Estevan assigned this book, one the featured Ward heavily:

I liked it enough to keep buying books by the leading authors in this collection, including Ward. I was reading Howard Zinn, Noam Chomsky, Vine Deloria, John Trudell, Edward Said, Winona LaDuke, Paula Gunn Allen, Emma Goldman, etc. back in those days. They were mainstays of a radical publishing industry.

Eventually, I would hear negative comments about Prof. Churchill, that he threatened people, that he wasn’t really Indigenous, that he was a plagiarist. Hearing those things doesn’t necessarily make it so, especially when some of the people saying those things to me were themselves a bit unreliable. Other people I trust advised me that Ward was a true champion of academic freedom.

In the mid to late 2000s, D.C. Fed Bar asked me to join Ward and Sam Deloria on a panel about Indian citizenship and identity in their fall event one year. I even put together some materials in a packet I facetiously called “Who is an Indian? Ask the Government.” Being a baby law prof, I had no interest in arguing with either Sam or Ward, which I imagine could be quite bruising, but I did want to meet the man I had read for so long. Sadly, I did not get to see Sam and Ward interact on the same stage because Ward cancelled (or so I was told) and was replaced by a Congressional staffer. I can only imagine, given the controversies over Ward’s ancestry, that the panel might have been enlightening — or a debacle.

In Native circles in the public record, Ward first appears as an artist in the 1970s. That was news to me. He even showed in Paris in the mid-1970s.

Rapid City Journal, 1975
Rapid City Journal, 1976
Back inside cover of Shantiih, Summer-Fall 1979
An early bio from the same issue of Shantiih.

I confess that I found myself annoyed/jealous that Ward came up in a field that had so many gaps that one person could be so many things, artist, poet, activist, academic, institutional leader, etc. It’s very impressive that he was all these things without a PhD, JD, MFA, MBA, etc., academic credentials that Native people now struggle to attain — and usually must — just to be one of the things that Ward was known for. It was certainly a different time, with the few Native people that were able to make it through the higher education system that any person who did it was instantly a unicorn.

It was also a time of violence (Wounded Knee, treaty fishing, etc.), which seems to me to have contributed to the ugly academic discourse of that generation, in which Ward definitely partook. Whatever one’s views about Ward, his writings identified so many issues I had never heard about as a young man utterly uneducated about Native issues in the 1990s. For that, I say thanks to Ward and that entire generation of activist-academics.

Like I said, I never met him, but a few years back I did meet his delightful spouse, Natsu Saito, who is truly lovely. In my brief interaction with Prof. Saito, I noticed that her characterization of Ward was much different than what I had heard and read about him. My thoughts go out to her.

Army Corps Approves Line 5 Tunnel Permit Beneath Straits of Mackinac Despite Tribal Opposition

Wenona Singel

Yesterday, on August 12, USACE granted Enbridge a Clean Water Act section 404 permit for the proposed four-mile tunnel to house Line 5 under the Straits of Mackinac. The Record of Decision is here. The Corps stated its review satisfied NEPA, the ESA, NHPA §106, and federal tribal trust responsibilities and concluded the project would not impermissibly impair treaty rights. The timing is remarkable because the Sault Ste. Marie Tribe of Chippewa Indians’ government-to-government consultation with the Corps occurred only two days earlier, although the Corps’ ROD states that they engaged with consulting parties, including 20 Tribes, over approximately six years through approximately 60 monthly or ad hoc Section 106 consultation meetings and government-to-government consultation with tribes.

In a statement released by NARF, Managing Attorney David Gover stated that, “Our federal government has a solemn obligation to uphold and protect Treaty rights and is supposed to protect American waters and sacred spaces . . . Instead, the U.S. Army Corps just rubber-stamped a Canadian oil project that desecrates a Tribal sacred space and threatens to pollute the Great Lakes.” Bay Mills Indian Community President Whitney Gravelle stated, “Our treaties are solemn promises that carry the highest legal and moral obligation, yet the Corps cast that aside. They disregarded our treaty rights, ignored the information we provided through consultation, and pushed past cultural resource obligations under the manufactured excuse of an ‘energy emergency.’ Instead of honoring the commitments embedded in the 1836 Treaty of Washington, they chose to treat Tribal Nations as an obstacle rather than as sovereigns whose rights must be honored – all to advance Enbridge’s interests at the expense of our homelands, our waters, and the Great Lakes. This is a profound breach of the United States’ trust responsibility, and it is shameful.”

In March 2025, seven Michigan Tribes, including the Bay Mills Indian Community, the Sault Ste. Marie Tribe, the Little Traverse Bay Bands of Odawa Indians, the Little River Band of Ottawa Indians, the Grand Traverse Band of Ottawa and Chippewa Indians, the Match-E-Be-Nash-She-Wish Band of Pottawatomi, and the Nottawaseppi Huron Band of the Potawatomi voiced their opposition to the President’s fast-tracking of the USACE permit review process by his issuance of an Executive Order declaring an energy emergency. The Tribes declared that they were withdrawing their participation as Cooperating Agencies in the USACE EIS process, contending that the Corps designed a constrained, Enbridge-friendly EIS, marginalized Tribal expertise, treaty rights, and cultural resources, substituted procedural participation for genuine consultation, and then moved toward emergency approval, making Cooperating Agency participation by the Tribes a facade that offered legitimacy for the Corps’ process rather than influencing it. Importantly, the Tribes did not withdraw from all federal consultation. They continued to engage in government-to-government consultation and participated as consulting Tribes in the NHPA Section 106 process.

The USACE Permit Doesn’t Mean Enbridge Can Start Building the Line 5 Tunnel

Regardless of the USACE permit decision, Enbridge still lacks a valid Michigan Public Service Commission authorization. On July 31, 2026, the Michigan Supreme Court vacated the MPSC approval and ordered it to redo critical portions of its environmental/public trust doctrine analysis. The Court’s decision is here. The Court’s overview of the facts of the case noted that “[a]s the many Indian Tribes involved in the litigation point out, the Great Lakes and the Straits of Mackinac have nourished life in the region for thousands of years.” It held that the MPSC failed to adequately consider whether the tunnel would prolong Line 5’s operation, improperly compared the environmental impacts of alternatives, and failed to account for the public trust doctrine under MEPA, the Michigan Environmental Policy Act.

In addition, Earthjustice, which represents the Bay Mills Indian Community, plans to appeal the tunnel project permit recently granted by EGLE, Michigan’s Environment, Great Lakes, and Energy agency. The EGLE permit, issued July 15, 2026, is available here. The DNR issued a permit under Part 365 of the Natural Resources and Protection Act for the tunnel project on the same day. The EGLE permit acknowledges the grave seriousness of the tunnel’s cultural resource impacts. EGLE found that the tunnel project “will have adverse effects on known historic and cultural resources, including their destruction and/or removal,” and that those resources are “unique and highly significant to the Anishinaabek communities.” Yet EGLE issued the permit anyway, before approving a final Cultural Resources Mitigation and Monitoring Plan. Enbridge now has until December 31 to submit a plan addressing concerns and identified deficiencies raised by Michigan’s Tribes.