Turtle Talk

Ward Churchill Dies

August 13, 2026Matthew L.M. Fletcher

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.

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

August 13, 2026Wenona 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.

Peggy Flanagan Wins Minnesota Democratic Party Senate Primary

August 12, 2026Matthew L.M. Fletcher

Here.

UDub 39th Annual Indian Law Conference Agenda + Registration Link

August 11, 2026Matthew L.M. Fletcher

UW Law’s Indian Law Symposium, an annual tradition for 39 years, will focus on the theme:

Time Immemorial: The United States at 250

The program will be held in person at William H. Gates Hall, and available via Zoom.

Registration here.

Agenda here:

September 10, 20268:30 AM PT

Red Road Warriors

8:30 AM-8:45 AM8:45 AM PT

Welcome and Overview

8:45 AM-9:00 AM

Eric Eberhard

Associate Director, Native American Law Center & Professor from Practice

UW School of Law

Monte Mills

Director of the Native American Law Center & Charles I. Stone Professor of Law

UW School of Law 9:00 AM PT

Pages: 1 2

Alaska SCT Decides “Race to the Courthouse” in Favor of First-Filed Tribal Court Matter

August 10, 2026Matthew L.M. Fletcher

Here is the opinion in Mallette v. Adams:

Opinion.pdf Download

Katherine Florey on Indian Law Countercanons

August 10, 2026Matthew L.M. Fletcher

Katherine Florey has posted “Indian Law Countercanons,” forthcoming in the Michigan Law Review, on SSRN.

Here is the abstract:

On the second or third day of class, Federal Indian Law students learn that courts apply field-specific canons, originally derived from Chief Justice Marshall’s 1832 opinion in Worcester v. Georgia, to determine the degree to which tribal nations retain sovereign powers and treaty-protected rights in the face of arguably conflicting law. Although the canons are formulated in different ways, they are animated by the shared goal of establishing structural recognition and protections for tribes. Nonetheless, scholars and tribal advocates have lamented that, even as courts continue to apply the canons, in recent years they have failed to do so consistently.

This Article posits, however, that the issue goes deeper. The Supreme Court, especially in recent decades, has done more than simply ignore the canons when it chooses to. Rather, in keeping with Karl N. Llewellyn’s famous observation that, where statutory interpretation in general is concerned, “there are two opposing canons on almost every point,” the Court has developed a series of what might be called the Indian law countercanons. Although not precisely opposite to the traditional Indian law canons in all respects, the countercanons reflect a set of values wholly inconsistent with the protections for tribal sovereignty that the traditional canons embody, instead evincing an overwhelming preoccupation with safeguarding the non-Native status quo.

The countercanons have strongly influenced outcomes in a variety of cases over the past few decades. Yet the Court has not identified them as canons, nor has it explained their source, role, or scope of application. To fill this gap, this Article attempts to map the evolution of the countercanons and to explore the significant role they have played in a variety of situations. The Article also adds a new element to the abundant critiques of the Court’s recent federal Indian law jurisprudence by analyzing the countercanons specifically as canons – that is, by connecting them to the larger literature on the role of canons in legal interpretation more generally. Reviewing two areas of canon scholarship – standards for assessing canons’ validity and considerations of when it is appropriate for canons to change – the Article concludes that, in contrast to the traditional canons, the countercanons lack legitimacy. On this basis, the Article critiques both the countercanons themselves and the process by which they have come to partially supplant the traditional canons.