Turtle Talk

Worth a Read: Tribal Water Rights Under Interior’s New Colorado River Rules

September 3, 2026September 2, 2026Wenona Singel

What the new rules for a shrinking Colorado River mean for tribal nations by Alastair Lee Bitsóí for High Country News (Aug 28, 2026)

This article offers a helpful discussion on the differences between quantified and unquantified rights, “paper water” and usable water, and the different positions of the Navajo Nation, Ute Mountain Ute Tribe, and Colorado River Indian Tribes.

For deeper background

Matthew McKinney, Jay Weiner & Daryl Vigil, First in Time: The Place of Tribes in Governing the Colorado River System, 63 Natural Resources Law Journal 153 (2023)

Eric Kuhn, Katherine H. Tara & John Fleck, Unfinished Business: Twenty-First Century Questions Posed by Ambiguities in the Upper Colorado River Basin Compact and the Law of the River, 55 New Mexico Law Review 417 (2025)

Additional Resources

Record of Decision: 2027–2036 Decision Framework
2027–2028 Operating Guidelines
CRIT’s August 21 response to the decision

International Human Rights Update: Canada Reports on Five Years of Implementing the UN Declaration

September 3, 2026August 31, 2026Wenona Singel

On August 28, Canada’s Justice Department released the fifth annual progress report under its statute called the United Nations Declaration on the Rights of Indigenous Peoples Act. The statute requires the federal government, in consultation and cooperation with Indigenous peoples, to take measures necessary to make Canadian laws consistent with UNDRIP. The report covers implementation of a 181-measure Action Plan and includes an Indigenous-led Action Plan Advisory Committee.

The report is interesting because it shows how five years after Canada made UNDRIP implementation a matter of federal law, it exposes what legal implementation actually requires, and where it breaks down.

Canada’s Fifth Annual UN Declaration Act Progress Report

International Human Rights Update: UN Racial Discrimination Committee Issues New Findings on Indigenous Peoples’ Rights

September 3, 2026August 29, 2026Wenona Singel

The UN Committee on the Elimination of Racial Discrimination (CERD) released new findings on August 25 following its review of Finland, Honduras (only released in Spanish), India, and Kuwait.

The findings raise significant concerns related to Indigenous Peoples, including land and resource rights; discrimination; displacement; participation in decision-making; and free, prior and informed consent. In Finland, the report addresses the impacts of mining, wind-energy development, and other projects on Sámi traditional lands and resources.

Ninja Terror by Suohpanterror, an anonymous Sámi artivist (art-activist) collective based in Sápmi

Roadless Rule Update: What the Forest Service’s 29 Tribal Consultations Establish, and What Tribes Still Cannot See

September 2, 2026September 2, 2026Wenona Singel

The Forest Service has provided me with useful clarification about the Tribal consultations underlying USDA’s proposed rescission of the 2001 Roadless Rule. But its response also sharpens the fact that as Tribes prepare comments due September 21, USDA’s proposed rule, DEIS, and Tribal Impact Statement rely on information obtained through consultation while the underlying consultation record remains inaccessible for review.

In an August 31 response to my request for consultation records, the Forest Service confirmed that:

The reported 29 consultations were formal government-to-government consultations with federally recognized Tribes;
The number excludes consultations with Alaska Native Corporations, which the agency categorizes as government-to-corporation consultation; and
The August 5, 2025 Tribal Forum was not formal consultation and was not included among the 29 consultations.

Those answers clarify what the number 29 represents. But they don’t disclose which Tribes participated, when the consultations occurred, who attended, what information or recommendations were presented, what materials were exchanged, or how the Forest Service responded.

I requested a consultation log and the associated correspondence, agendas, notes, recordings, transcripts, presentations, and other exchanged materials. The Office of Tribal Relations referred that portion of the request to the Forest Service’s FOIA program.

USDA proposed rule and DEIS relies on the consultation information

This isn’t a situation in which consultation occurred alongside the rulemaking but played no role in USDA’s analysis.

The proposed rule expressly states that its Tribal summary “includes the input received to date through the consultation process.” It uses that information to characterize the overall Tribal response, identify asserted effects of rescission, and describe alternatives proposed by Tribal governments. USDA reports that “the majority sentiment among Tribal governments consulted is opposition” and identifies concerns involving sacred sites, traditional gathering areas, water quality, subsistence resources, governmental capacity, and the transfer of decision-making to future forest-level and project-level processes. The rule also describes consultation-derived proposals for retaining or strengthening roadless protections, establishing a Traditional Homelands Conservation Rule, incorporating Indigenous Knowledge, expanding co-stewardship, and requiring Tribal consent. Special Areas; Roadless Area Conservation, 91 Fed. Reg. 53,827, 53,831–32 (Aug. 20, 2026).

The Draft EIS relies on Tribal feedback and consultation documentation more substantively. Its Tribal Rights and Interests analysis uses consultation information to identify affected interests and to evaluate the alternatives through three indicators: access, resource usability, and disturbance. Applying that framework, USDA concludes that full rescission presents the greatest potential for adverse effects on Tribal rights and interests. The Draft EIS also identifies Tribal-proposed management and co-stewardship approaches and then declines to develop them as national rule alternatives, concluding that they are “better addressed through local land management planning or site-specific project level planning than through National Rulemaking.” Draft EIS at 29 and 197-203.

The Tribal Summary Impact Statement is even more explicit. It states that its summary “includes the input received to date through the consultation process” and uses that input to describe Tribal positions, impacts, proposed alternatives, and the matters to which the Forest Service gives an “Agency Response.” Tribal Summary Impact Statement at 2–6.

The economic analysis presents a more limited case. It cross-references the Draft EIS’s treatment of fisheries, wildlife, subsistence, and other ecosystem services, but it doesn’t disclose whether or how consultation information affected its economic assumptions or quantified results. Cost Benefit Analysis at 19-20, 28. That omission may itself be important because the consultation summary identifies Tribal costs that don’t appear in the analysis’s principal quantified categories, including effects on subsistence resources, cultural landscapes, sacred places, treaty resources, and Tribal governmental capacity.

Why access matters legally

Government-to-government consultation is distinct from public notice and comment. Some consultation communications may appropriately remain confidential, particularly where they contain sensitive cultural information, locations of sacred sites, or information a Tribe provided with an expectation of confidentiality. But that doesn’t resolve the public docket issue.

Notice-and-comment doctrine generally requires an agency to disclose the critical factual material on which a proposed rule relies in sufficient detail to permit meaningful comment. The relevant question isn’t whether every consultation communication must be published. It’s whether USDA has disclosed enough of the nonconfidential consultation record to allow commenters to identify omissions, test the agency’s characterization, and respond with contrary or supplementary evidence.

Here, USDA has made its own account of the consultations part of the proposed rule’s public justification, the DEIS’s effects analysis, and the Tribal Summary Impact Statement. Yet commenters cannot determine from the public docket:

which Tribal governments supplied the information being summarized;
whether a stated position was expressed by one Tribe, several Tribes, or a broad cross-section;
whether materially different positions or qualifications were omitted;
whether USDA accurately described the alternatives Tribes proposed;
whether the agency’s response addresses the recommendations actually presented; or
whether information supplied by one Tribe has been generalized to Tribes with different treaties, governments, homelands, resources, and legal interests.

The Forest Service’s own consultation directive underscores that consultation ordinarily generates a broader documentary record. Departmental Regulation 1350-002 calls for documentation that may include invitations and supporting materials, participant information, agendas, minutes or notes, follow-up correspondence, and an explanation of how Tribal input was considered. DR 1350-002 at 11. The existence of legitimate confidentiality concerns doesn’t explain the absence of a basic consultation log or other nonconfidential records.

Executive Order 13175 also requires meaningful and timely Tribal input when federal policies have Tribal implications. It doesn’t itself create a general public access right to every consultation record. But USDA’s reliance on an undisclosed record raises a practical question about whether consultation can be meaningfully evaluated and whether Tribes can correct USDA’s account before the agency acts.

Why access matters practically for Tribes

The Forest Service emphasizes that government-to-government consultation will remain available after the September 21 public comment deadline. That distinction is real, but continued access to a separate consultation process doesn’t replace the present opportunity to comment on the proposed rule and Draft EIS.

A Tribe preparing comments may need the consultation record to determine whether USDA:

accurately represented that Tribe’s statements;
attributed another entity’s position too broadly;
omitted a proposed alternative, condition, or legal objection;
treated opposition to wholesale rescission as opposition to active forest management;
adequately incorporated Tribe-specific evidence into the DEIS;
addressed cumulative burdens on Tribal governments and Tribal Historic Preservation Offices; or
responded to requests for consent, co-management, co-stewardship, or protection at the national or traditional-homelands scale.

Without a consultation log and releasable supporting records, each Tribe can speak for itself, but it can’t readily evaluate USDA’s broader claims about what “Tribal governments consulted” collectively said or what the consultation process established.

The Forest Service’s August 31 response therefore establishes an important but limited fact: 29 formal consultations occurred with federally recognized Tribes. It doesn’t establish which Tribes participated, what they told the agency, how representative USDA’s synthesis is, or how their information and recommendations affected the proposed rescission.

Because USDA has incorporated its characterization of the consultations into the proposed rule, DEIS, and Tribal Summary Impact Statement, access to the underlying nonconfidential record isn’t merely a request for additional background. It bears directly on whether Tribes and other commenters can evaluate the agency’s analysis and respond meaningfully before the September 21 deadline.

Elizabeth Reese on Judicial Review in Tribal Courts

September 2, 2026September 3, 2026Matthew L.M. Fletcher

Elizabeth Reese has published “Native Marburys: Judicial Review in Tribal Courts” in the University of Chicago Law Review. PDF

Highly recommended!!

Here is the abstract:

Not all of America’s courts have judicial review. This Article is the first to discuss a body of judicial review case law in which this extraordinary judicial power has been rejected, is a recent development, or is not yet a settled question—judicial review cases from tribal courts. In a time when skepticism about the power that judicial review gives to the federal courts is at an all-time high, it is that much more important that we look to other examples of government systems wrestling with whether to give their courts the power of judicial review—to other courts that are wrestling with the scope of their own power and how to wield it.

This Article is a thorough review of approximately fifty tribal court opinions on judicial review from twenty-six different tribal nations. It makes four contributions. First, it provides insights about the institution of judicial review and its relationship to governance, namely that judicial review is a choice that must be made with careful attention to the law on the source and scope of judicial power, and to public opinion. Second, it helps us understand what tribal courts are and how they fit into their tribal government systems. Third, it demonstrates how this better understanding of tribal courts is essential to the rights questions that preoccupy mainstream discussion of and lawmaking about tribal courts. Policymakers and judges have argued that because some tribal courts have different structural power, they are unable to protect rights or prevent other tribal government actors from abusing their power. This Article demonstrates that making assumptions about tribal court power or capacity can lead federal policymakers and judges to misdiagnose problems or devise solutions that are ineffectual. The final, and perhaps most important, contribution of this Article is what it evidences about the complexity of legal discourse in tribal courts. As I have written about previously, the delegitimization of tribal law has played an important role in justifying American colonialism. This Article is yet another data point in a growing body of tribal law scholarship proving that tribal laws and tribal courts are not primitive, underdeveloped, or somehow unworthy of wielding legal power in the United States. Tribal courts are, instead, doing exactly what we want them to be doing: thinking deeply about the law and the way that the law structures their governments and can limit or protect the rights of their citizens.

Tribal courts are not infallible, but they are—I challenge anyone to defy after reading this Article—courts, real courts. With their own Marbury v. Madisons.

Worth a Listen: Michigan Public Radio’s Aug. 27 Stateside episode

September 2, 2026August 31, 2026Wenona Singel

From the Stateside website:

Today on Stateside, we talked to a reporter about how Michigan became a battleground in the development of large scale data centers.

Then, we heard about how researchers from Michigan State University have teamed up with tribal nations in the Great Lakes to find out what trees can tell us about historical land management techniques used by Anishinaabe people.

And a historic preservation officer from the Little Traverse Bay Band of Odawa Indians discussed how dendrochronology findings affect her work, and shared information about proposed changes from the Trump administration could affect tribal input on historic preservation projects.

GUEST ON TODAY’S SHOW:

Dustin Walsh, Crain’s Detroit Business senior reporter

Patrick Shea, reporter

Mae Wright, tribal historic preservation officer and NAGPRA representative for the Little Traverse Bay Band of Odawa Indians

Listen here.

Worth a read: Gas costs $26 per gallon in Alaska village of Shungnak

September 2, 2026August 29, 2026Wenona Singel

Article by James Brooks for Alaska Beacon, August 24, 2026

And for context: Alaska’s Energy Paradox, by Lois Parshley for Alaska Beacon, July 29, 2026

Glenda Douglas of Shungnak, in the Northwest Arctic Borough, shared this photo on social media of a gasoline purchase she made on Friday, Aug. 21, 2026. (Glenda Douglas photo)

Tribal Nations and Students File Amended Complaint against BIE, DoED

September 1, 2026Matthew Campbell

Three Tribal Nations (Pueblo of Isleta, Prairie Band Potawatomi Nation, and Cheyenne Arapaho Tribes) along with Native students amended challenges against the United States Department of the Interior, the Bureau of Indian Education, and the United States Department of Education for unlawfully failing to consult with Tribal Nations on two sets of key agency actions directly impacting the education of Native American students.

You can see previous posts on this case here.