Happy Michigan Indian Day: A Snapshot of Michigan Tribes Exercising Sovereignty

Today is Michigan Indian Day, designated by Michigan law as the fourth Friday of every September.

In honor of the day, I’m offering a snapshot of what Tribal sovereignty looks like in Michigan. It includes:

Land Back • Treaty Rights • Citizenship • Education • Child Welfare • Health Care • Policing • Courts • Utilities • Economic Regulation • Manoomin • Culturally Grounded Governance

Below are 12 recent examples, one drawn from each Michigan Tribe.

It looks like bringing ancestral land home, and deciding what happens next. At the end of 2024, 188 acres along West Grand Traverse Bay were returned to the Grand Traverse Band of Ottawa and Chippewa Indians. GTB named the land Mashkiigaki, “place of the medicines,” reflecting its significance for hunting, fishing, gathering, medicines, wetlands, and coastal habitat. Since then, GTB has begun reconnecting Tribal citizens with the land and laying the groundwork for ecocultural restoration. The Tribe has surveyed citizens about their memories and aspirations for Mashkiigaki, initiated bird and invasive species surveys, planned a study of creek and wetland hydrology, and begun mapping sensitive habitat and possible public access routes. In 2026, GTB received approximately $1.3 million from NOAA, part of the federal grant approved in 2024, to support restoration and community engagement at Mashkiigaki. The planning remains Tribal-led, with elders, citizens, and government staff helping determine the land’s future. GTB’s announcement on the return of Mashkiigaki

It looks like leading a fight to protect treaty-protected waters. Bay Mills Indian Community has been a central leader in the Tribal campaign against both the existing Line 5 dual pipelines and Enbridge’s proposed tunnel beneath the Straits of Mackinac. Its opposition is grounded in the 1836 Treaty of Washington, treaty-protected fishing and gathering rights, and the Tribe’s sovereign responsibility to protect Michilimackinac, a sacred place at the heart of Anishinaabe creation traditions. Bay Mills formally called for Line 5’s decommissioning in March 2015, supported Michigan’s 2020 revocation and termination of Enbridge’s 1953 easement, and in 2021 formally banished Line 5 from Tribal lands, including the Straits. The Tribe also helped bring the dispute before the U.N. Permanent Forum on Indigenous Issues, which in 2023 recommended that the United States and Canada decommission Line 5. In litigation over the existing crossing, Bay Mills filed amicus briefs supporting the State’s efforts to keep its shutdown cases in state court, including a 2023 Sixth Circuit brief in Nessel v. Enbridge on behalf of a coalition that NARF describes as more than 60 Tribal Nations and First Nations.

Bay Mills has simultaneously challenged the proposed tunnel before the Michigan Public Service Commission, EGLE, the Michigan courts, and the U.S. Army Corps of Engineers. It intervened in the MPSC proceeding and introduced Tribal and expert testimony on treaty rights, fisheries, climate impacts, alternatives, and tunnel explosion risks. It also challenged EGLE’s 2021 wetlands permit and participated in the Army Corps’ federal review as a cooperating agency. In March 2025, Bay Mills and other Tribes withdrew as cooperating agencies after the Corps moved to fast-track approval under the asserted national “energy emergency.” The MPSC approved the tunnel in December 2023, and the Court of Appeals affirmed in February 2025. In July 2026, the Michigan Supreme Court vacated the MPSC’s approval. It remanded for a new analysis of the project’s environmental effects, feasible alternatives, and impacts on public trust resources (In re Application of Enbridge Energy to Replace & Relocate Line 5, No. 168335 (Mich. July 31, 2026)). EGLE had approved wetlands and bottomlands permits for the tunnel two weeks earlier. The Army Corps issued its record of decision in August notwithstanding the ruling, and Bay Mills condemned the federal decision as a breach of treaty and trust responsibilities. In September 2026, after Governor Whitmer announced that EGLE would re-review its permits, Bay Mills and three other Tribal Nations petitioned for a contested case hearing to overturn them. Bay Mills’ Line 5 information portal Michigan Supreme Court decision

It looks like deciding who belongs to the political community. In March 2026, Hannahville Indian Community amended its Tribal Enrollment Ordinance, governing membership applications, the Enrollment Committee, appeals, records, relinquishment, and loss of membership. Few exercises of governmental authority are more foundational than determining the citizenship of the political community. Hannahville’s 2026 Tribal Enrollment Ordinance

It looks like reshaping a regional education system. Keweenaw Bay Indian Community is leading a five-year Promise Neighborhood covering the L’Anse Reservation and surrounding Baraga County. The cradle-to-career initiative links local schools with early childhood, family, college, and career supports; KBIC cultural advocates and Ojibwe language instructors also work with area schools to bring Ojibwe language, history, and culture into classrooms. KBIC Promise Neighborhoods U.S. Department of Education project profile

It looks like exercising responsibility for Tribal children under Tribal law. The Saginaw Chippewa Indian Tribe governs child protection through its own Children’s Code and institutions. Tribal law provides for Children’s Court jurisdiction, child protection proceedings, foster care and child care regulation, adoption, and other matters affecting Tribal children, while Anishnaabeg Child and Family Services carries out child and family services within that Tribal governmental and legal framework. Saginaw Chippewa Children’s Code Anishnaabeg Child and Family Services

It looks like building a health system across the Upper Peninsula. The Sault Ste. Marie Tribe of Chippewa Indians operates nine health clinics or centers across its 7-county service area, providing varying combinations of medical, dental, behavioral health, pharmacy, and other services. Earlier this week, the Tribe broke ground on a major expansion and renovation of its Sault Health Center, designed to improve patient care while maintaining connections to Anishinaabe spiritual and cultural beliefs. Sault Tribe Health Division September 22 groundbreaking announcement

It looks like making jurisdiction work across borders. In October 2025, the City of Petoskey formally swore in Little Traverse Bay Bands of Odawa Indians Tribal Police under a cross-deputization arrangement allowing LTBB officers to assist within city jurisdiction. Petoskey officers, in turn, were to be sworn in by LTBB so they could respond where the Tribe has primary jurisdiction. The arrangement is especially striking given that shortly after LTBB’s federal reaffirmation, local officials once accused its officers of “impersonating police officers.” Today, Tribal and local governments extend law enforcement authority to one another. Petoskey Department of Public Safety 2025 Annual Report Frank Ettawageshik recounts LTBB’s earlier cross-deputization history

It looks like a Tribal court telling another branch of Tribal government what the Constitution requires. In Romanelli v. Tribal Council, the Little River Band of Ottawa Indians Tribal Court ruled in May that the Ogema’s proposed FY2026 budget had become the Tribal budget by operation of the Constitution and issued a writ of mandamus requiring the Tribal Council to appropriate the funds. That’s Tribal constitutional law in action, with a Tribal judiciary resolving a separation of powers dispute within Tribal government. Romanelli v. Tribal Council order

It looks like making sure the drinking water is safe and the sewer system works. In March, the Match-E-Be-Nash-She-Wish Band of Pottawatomi Indians (Gun Lake Tribe) enacted a new Water and Sewer Act. The law creates a Tribal regulatory system covering utility connections, permits, inspections, industrial discharges, water use restrictions, enforcement, fines, and Tribal Court proceedings. Sometimes sovereignty looks like constitutional litigation, and sometimes it looks like the sewer code. Gun Lake Tribe Water and Sewer Act

It looks like regulating a new market, and mobilizing government to protect citizens. In 2025, the Lac Vieux Desert Band of Lake Superior Chippewa Indians entered a Tribal-State cannabis compact allowing a Tribally regulated cannabis business to participate in Michigan’s regulated market. Then, in January, amid concerns about ICE activity affecting Native people, the Tribal Council issued formal guidance to citizens, waived fees for replacement Tribal IDs, and directed citizens to Tribal enrollment, law enforcement, leadership, and legal offices for assistance. LVD–Michigan cannabis agreement LVD Tribal Council statement regarding ICE activity

It looks like making law for a relative rather than merely regulating a commodity. In September 2025, the Nottawaseppi Huron Band of the Potawatomi enacted a Mnomen (Wild Rice) Code. The law recognizes Mnomen as the Tribe’s official grain and a protected Tribal resource, creates a Mnomen Wgema composed of Tribal citizens, regulates harvesting and transplantation, authorizes enforcement by Tribal conservation officers, and provides penalties for violations. The Code also recognizes Mnomen as a living spirit, medicine, and part of the Tribe’s migration story. Environmental regulation, cultural responsibility, and Indigenous law operate here in the same legal framework. NHBP Mnomen (Wild Rice) Code

It looks like designing governmental institutions on Indigenous terms. Under the Pokagon Band of Potawatomi Indians’ Elders Council Code, the Elders Council is a governmental instrumentality that provides guidance to the membership and to the Band’s legislative, executive, and judicial institutions on matters of history, traditions, and culture. Pokagon law also permits one of the seven Tribal Council seats to be held by an Elders Council representative, who carries all the rights and responsibilities of a Tribal Councilperson. Pokagon Elders Council Code, current through May 2026

Every day across the state, each of Michigan’s 12 Tribes exercises governmental authority over lands, resources, institutions, services, and citizens.

D.C. Circuit Briefs in Tohono O’Odham Nation v. Mullin [Border Wall Challenge]

Here:

Prior post here.

Eighth Circuit Briefs in Challenge to Mille Lacs Band Ojibwe Trust Land Acquisition

Here are the materials in Morrison County v. Dept. of the Interior:

Lower court materials here [to be updated].

Aubol v. Andeavor Logistics LP Cert Petition [allotment trespass]

Here:

Question presented:

Whether individual Indian allottees with a current right of possession conferred by federal law have a federal common-law cause of action for trespass on their allotments.

Lower court materials here.

As Bryan Newland has been preaching lately (see his Strickland lecture), the federal courts have been treating tribal and Indian property rights as fungible because of their status as tribes and Indians, which is simply wrong. I’m glad Indian country is pushing back.

Job Postings 9/24/26

Indian Law Fellowship 

Berkey Williams, Davis, California

The Fellowship offers competitive benefits, training, and the opportunity to work with experienced attorneys in a firm serving Indian Nations and organizations exclusively.  Salary for the 2027-2028 Fellow will be $110,250.  The Fellow will be located in Davis and, over the course of the year, will work with each of the Firm’s partners in as many of our practice areas as possible.  Fellows have contact with clients and typically engage in legal research and writing, historical research, litigation, and legislative advocacy, depending on client needs and the Fellow’s interests.

Applications are encouraged from recent law school graduates with a demonstrated commitment to Indian law.  We give preference to candidates with personal or professional experience with Indian communities.  We seek Fellows who bring a variety of experiences to the firm’s clients. High academic achievements are considered and weighed with other equally significant factors:  personal accomplishments and experience, resourcefulness, creativity, commitment to promoting Indian sovereignty, and capacity to work conscientiously and independently.  Membership in the California Bar, or willingness to obtain California Bar membership, is preferred.

Salary: $110,250 Open until 10/2/26 www.berkeywilliams.com

https://turtletalk.blog/wp-content/uploads/2026/09/2027-fellowship-announcement.pdf

Director – Partnerships, Policy, & Practice

Casey Family Programs; Indian Child & Family Well-Being Program ; Denver, CO

The Director– Partnerships, Policy, & Practice, Indian Child & Family Well-being (ICFWP) is a nationally recognized expert in the field of Indian Child & Family Well-being and provides support and consultation to Tribal Nations, local, state and federal governments, and national and regional Native American organizational partners, on issues impacting Tribal families. The Director works to uphold Tribal sovereignty and advance Casey’s values, mission, vision and goals. The Director identifies and promotes Tribal child well-being best practices, culturally tailored services, and collaboration across organizations to support American Indian/Alaska Native children and families. Responsibilities include working in collaboration across Casey Family Programs, with Tribes, and external partners to provide technical assistance which support positive outcomes for Native American families and children. The Director provides direct support, project oversight and/or coordination in accordance with Casey’s strategic objectives, and adheres to legal, financial and other organizational mandates. “

• A Master’s degree in a relevant field of study (i.e. public policy, child welfare policy, project management, Indian or Tribal child welfare administration or related fields) with at least 7 years relevant experience required. Juris Doctorate preferred.

• Knowledge and experience with the Indian Child Welfare Act, Tribal Child Welfare practices, funding resources, and other laws or best practices which are relevant to the well-being of Indian children and families is required.

• Knowledge of and responsible experience with collaborations, agreements, and partnerships, (especially among government agencies and Tribes) including the ability to develop and maintain strong relationships with the leadership and staff of those is needed.

• Demonstratable knowledge about, competence in, and familiarity with the infrastructures of state and Tribal child welfare systems required. 

The typical hiring range for this position in Denver, CO is $116,280 to $136,800. The full salary range for the role is $116,280 to $157,320. Open until filled https://recruiting.ultipro.com/CAS1011/JobBoard/659dd67f-852c-42eb-a345-5815b76c83fa/OpportunityDetail?opportunityId=3d25e4b3-930a-411c-b0a7-eebbbce863bf

Staff Attorney – Tribal Benefits

Legal Action of Wisconsin, Inc.; Wausau, WI (preferred); Green Bay, WI; Oshkosh, WI

The Tribal Benefit Specialist Program Attorney assists both the Tribal Elder Benefits Specialist (EBS) and Tribal Disability benefits Specialist (DBS), who are lay advocates embedded in tribal agencies and Tribal ADRCs. The Staff Attorney must be familiar with and train others in advocacy for tribal elders and tribal members, 18 – 59 years of age, with disabilities. This position will support others who help tribal members with Social Security Retirement and Survivor benefits, Social Security Disability Income (SSDI), Supplemental Security Income (SSI), Medicare, Medical Assistance – Health Insurance, Food Share, Utility Assistance, low-income housing, Veteran Benefits, and other public benefit programs Between these traditional and non-traditional responsibilities, staff attorneys are expected to work a minimum of 40 hours per week.

Required Qualifications: 

• Juris Doctor.

• Admission to Wisconsin Bar or within the next year. 

• strong oral and written communication and advocacy skills.

• Experience working with low-income clients and/or victims of violence.

• Ability to interact professionally and work cooperatively with staff, clients, and the public.

• Ability to use basic computer systems, including email, word processing software, and internet-based applications.

• Willingness and ability to learn job-specific procedures and systems during the probationary period.

• Ability to manage multiple tasks and maintain accuracy in a busy office environment.

 Preferred Qualifications:

• Prior experience in a role working with elders, people with disabilities, those living in poverty, or individuals with a minority status or affiliation.

• Experience teaching lay advocates or others. 

• Experience with client advocacy in a court setting.

• Experience working in a nonprofit, client-facing environment or legal services.

• Knowledge of Indian Law, experience working with tribes or tribal members

Salary: $65,000 – $129, 227 Closes 9/29/2026

Please apply via our ATS system by clicking on this link: https://secure2.entertimeonline.com/ta/7988.careers?ApplyToJob=889326619&full_apply=&jobid=889326619

Please include: Cover Letter, Resume, 3 professional references, Writing Sample, Law School Transcripts (if graduated after 2023)

Legislative Counsel

Independent contractor providing as-needed professional legal services Ability to travel to and throughout the Choctaw Nation Reservation; Remote

1. Draft and revise legislation. Prepare bills, ordinances, resolutions, code amendments, regulations, policies, Council rules, charters, and emergency measures. Translate Council policy direction, committee recommendations, proposals, and community concerns into clear, enforceable legal text. Include findings, definitions, authority, enforcement and penalty provisions, appeal rights, severability, effective dates, sunsets, transition rules, codification instructions, and repeal language as needed.

2. Review legal sufficiency. Evaluate proposals under the Choctaw Nation Constitution, Tribal Code, Council rules, applicable federal law, and governmental procedures. Identify conflicts, gaps, unclear definitions, inconsistent terminology, cross-reference errors, delegation concerns, due process issues, and implementation risks.

3. Prepare drafting options and legal analysis. Produce clean drafts, redlines, amendments, alternatives, section-by-section explanations, and summaries of legal and policy effects. Research tribal law, federal Indian law, constitutional and administrative law, statutes, regulations, case law, funding requirements, and intergovernmental issues. Prepare memoranda, issue briefs, risk assessments, and decision papers; revise work in response to Council direction.

4. Advise on legislative authority and procedure. Address separation of powers, quorum, voting, delegation, conflicts of law, parliamentary procedure, public notice, hearings, emergency measures, effective dates, legislative records, publication, and codification. Identify sovereignty, sovereign immunity, civil and regulatory jurisdiction, member and nonmember, trust and fee land, and intergovernmental issues and effects on existing rights, obligations, programs, and enterprises.

5. Support Council and committee proceedings. Attend meetings, work sessions, hearings, and briefings when requested. Explain legal issues in plain language, answer questions within the assignment, and prepare revisions during or after proceedings. Provide advice to the Speaker, all Council members, and Council committees in their official work.

6. Maintain and modernize the Tribal Code. Review outdated, duplicative, inconsistent, or obsolete provisions and identify gaps. Support code updates, legislative history files, drafting templates, numbering conventions, cross-references, codification, and recordkeeping standards.

7. Support legislative implementation. Prepare checklists, transition provisions, forms, notices, procedures, and staff guidance. Consult affected offices before finalization to identify practical impacts. Work with the Nation’s legal department, special counsel, courts, departments, boards, commissions, enterprises, and subject-matter staff as directed for Council work.

8. Protect confidential information and records. Safeguard attorney-client communications, attorney work product, sensitive governmental records, personnel information, and tribal data. Use secure storage, transmission, retention, and return practices consistent with applicable law and the agreement.

Minimum Education Skills and Experience

• Juris Doctor degree from an accredited law school.

• Active license to practice law in at least one United States jurisdiction and current good standing with all applicable licensing authorities.

• Ability to draft clear ordinances, resolutions, code amendments, legal memoranda, and related legislative materials.

• Knowledge of tribal sovereignty, self-governance, separation of powers, sovereign immunity, jurisdiction, due process, confidentiality, and government recordkeeping principles.

• Ability to explain complex legal issues clearly to elected officials, staff, committees, and community audiences when requested.

• Strong legal research, writing, editing, issue-spotting, organization, and time-management skills.

• Ability to work independently, respond to time-sensitive requests, manage competing assignments, and maintain professional judgment under deadlines.

• No conflict of interest that would impair representation of the Tribal Council. Disclose actual or potential conflicts before contract approval and throughout the engagement.

• Ability to comply with applicable professional conduct rules, Tribal law, procurement requirements, confidentiality obligations, and the professional services agreement.

Preferred Qualifications

• Experience representing tribal governments, tribal councils, departments, courts, intertribal organizations, or other sovereign governmental entities.

• Experience drafting or revising tribal codes, ordinances, Council rules, administrative regulations, policies, charters, intergovernmental agreements, or government procedures.

• Familiarity with tribal constitutions, legislative processes, codification, parliamentary procedure, public meeting requirements, and governmental decision-making structures.

• Experience working with elected officials and translating policy direction into neutral, legally sound legislative language.

• Experience in legislative drafting, statutory interpretation, government law, tribal law, federal Indian law, administrative law, or related public-sector legal work.

• Ability to attend in-person meetings on reasonable notice when requested by the Council.

Salary: Based on Qualifications and Experience Closes October 6, 2026

Submit the following materials:

• Cover letter describing relevant experience and a resume or curriculum vitae.

• At least one legal writing sample, preferably involving legislation, statutory analysis, tribal law, or government law.

• Proof of current bar membership and good standing, and professional references.

• Proposed hourly rate or fee schedule, and disclosure of actual or potential conflicts of interest.

Submit to: renley@dennislawok.com

Staff Attorney – Indian Child Welfare

Lummi Indian Business Council; Bellingham, WA

1. Represent the Lummi Nation in tribal, federal, and state forums on matters relating to Lummi 

children and youth, including juvenile dependency and guardianship cases.  

2. Participate as team member and attend meetings regarding dependency, guardianship, delinquency, 

youth at risk, and truancy cases as needed. 

3. Represent the Nation in Tribal Court, state court and appeals courts on child welfare matters, family 

wellness court matters, criminal offenses, traffic, environmental and natural resources violations, 

and civil forfeiture and exclusion proceedings as periodically requested. ” “• Graduate of an accredited law school and member in good standing of the Washington State Bar Association. 

• Member of the Lummi Nation Tribal Court Bar or able to obtain admission within 30 days.  

• One year of experience as an attorney, preferred. 

• Courtroom experience, preferred. 

• Knowledge of Indian Child Welfare Act, preferred. 

• Lummi/Native American/Veteran preference policy applies. 

• Must possess a valid Washington State driver’s license and meet eligible requirements for tribal insurance. 

Salary $40.14-$45.20/hr DOE First Review 10/07/26 https://www.lummi-nsn.gov/widgets/JobDocument.php?id=5404

Law Clerk

Zwillinger Wulkan; Phoenix, Arizona

Our Indian Law Practice Group is seeking a part-time Law Clerk to assist attorneys with legal research, analysis, drafting, and case preparation. This position offers an opportunity to gain meaningful experience working on matters involving federal Indian law, tribal law, and tribal courts.

• Current law student in good academic standing.

• Strong legal research, analytical, and writing skills.

• Careful attention to detail and the ability to manage assignments and deadlines.

• Ability to maintain strict confidentiality.

• Interest in federal Indian law, tribal law, or representing tribal governments and entities is preferred.

Closes 11.1.26

Applicants may send their resume to sophia.rivera@zwfirm.com

’27-’28 Indian Law Fellowship

An Indian Law Fellowship for the ’27-’28 year has been posted with Berkey Williams. The turnaround time for applications is short so it needed it’s own post. See the flyer below.

The House Natural Resources Committee Advances Tribal Buffalo Bill as Interior Restricts Bison Grazing

The House Natural Resources Committee is moving to support Tribal buffalo restoration while the BLM is proposing a grazing rule that could make some bison restoration projects harder to sustain on federal land.

On September 15, the House Natural Resources Committee advanced the Don Young Doug LaMalfa Indian Buffalo Management Act. H.R. 7954 would support Tribal buffalo programs, authorize Interior to transfer surplus buffalo from federal land to Indian land, and require Interior’s buffalo management policy for Indian land to follow Tribal laws and Tribally approved plans. Interior has testified in support of the bill.

In May, BLM revoked American Prairie’s permits to graze bison on federal land in Montana, saying the Taylor Grazing Act permits grazing only for livestock managed primarily for production. BLM has also proposed applying a “production-oriented livestock” requirement to BLM grazing permits outside Alaska and eliminating the separate permit provision for indigenous animals. The comment period closed July 13; the rule hasn’t been finalized.

American Prairie’s herd has supplied bison to other herds for food sovereignty, cultural restoration, and hunting. On September 4, a federal judge granted a preliminary injunction for the three allotments where its bison already graze, finding American Prairie likely to succeed on its claims. The judge expressly considered the effects of BLM’s decision on American Prairie’s Tribal partners.

The proposed rule would also reach Tribal herds directly. BLM said its American Prairie decision did not affect Tribal grazing authorizations or Tribal bison herds, but the proposed rule contains no Tribal exclusion. When BLM first applied the production-oriented test to American Prairie in January, the Coalition of Large Tribes protested that it would make it unlikely any Tribal herd could qualify for BLM leases, including those the Fort Bidwell Indian Community and Pit River Tribe are seeking for their buffalo. The proposed rule would apply that test to BLM grazing permits outside Alaska, and COLT has objected that it was published without prior Tribal consultation.

The bill wouldn’t decide American Prairie’s case or govern BLM grazing permits. But the case shows why the proposed rule matters to Tribal restoration, since buffalo raised on federal land can be part of bringing buffalo back to Tribal communities.

Related Resources

H.R. 7954

House Natural Resources Committee, September 15 markup announcement

Bureau of Land Management, May 8 permit decision announcement

September 4 preliminary injunction order, American Prairie Foundation v. U.S. Department of the Interior

Coalition of Large Tribes protest letter, January 30, 2026

Disappearing Bison by Starr Hardridge (Muscogee Creek Nation)

Congress Required Assessment of State ICWA Compliance. It Didn’t Tie Shortfalls to Corrective Plans or Funding Consequences

In my earlier post today, I wrote that neither S. 4976 nor S. 4638 would require HHS to evaluate each state’s compliance with ICWA. That’s true of the bills, but it leaves out an important piece of existing law.

Congress has already required federal assessment and reporting. 42 U.S.C. § 628d directed HHS to develop an ICWA technical assistance plan by October 1, 2025. The plan must use data sufficient to assess state performance on identifying Indian children, notifying Tribes, transferring cases to Tribal court, and complying with ICWA’s requirements for placements and termination of parental rights. Every two years, HHS must report to Congress on state compliance and federal efforts to improve it.

That framework isn’t fully operating, however. In a report dated July 15, 2026, ACF described the plan as still under development. As of September 23, I couldn’t locate a published plan or an announcement that it had been completed.

Existing federal data is limited. States currently report only four categories of ICWA-related information through AFCARS, and ACF has identified serious reliability problems. A 2024 rule will substantially expand that collection, but states won’t begin collecting the new data until October 1, 2028. The first files containing the new data aren’t due to ACF until May 15, 2029. That leaves the central gap identified by the Commission on Native Children. The Commission didn’t only ask for better information. Recommendation 2 called for improvement plans when states fall short and for progress toward ICWA benchmarks to matter for federal child welfare funding.

Current law doesn’t create that system. States must describe their ICWA measures in their Title IV-B plans, and HHS has general authority to enforce compliance with approved plans. In its 2024 AFCARS rule, however, ACF stated that it has no jurisdiction to impose consequences on states under ICWA, and the Bureau of Indian Affairs has told ACF that it has no role in enforcing state compliance either. The law establishes no substantive ICWA performance benchmarks and doesn’t require ICWA-specific corrective plans or funding consequences when a state falls short.

That doesn’t mean any funding penalty would improve compliance. Justice Anne McKeig of the Minnesota Supreme Court told ACF in a 2025 comment that Minnesota law allows the state to reduce federal funding to counties it finds didn’t fully comply with ICWA in the preceding year, sometimes because of a technicality outside the county’s control. She warned that the penalty can deprive a struggling county of the money it needs to provide active efforts. The Commission proposed a more calibrated approach that includes improvement plans with benchmarks, with progress tied either to continued federal funding or to additional incentive funds.

ACF’s consultation report records Tribal recommendations for annual state reporting and actionable improvement plans. It also records a recommendation that states failing to consult with Tribes not receive administrative costs. ACF didn’t commit to those measures.

Ultimately, neither S. 4976 nor S. 4638 closes this gap. Congress has required the federal government to identify where states are falling short, but it hasn’t created the improvement and accountability system the Commission recommended.

An immediate opportunity

ACF is accepting written comments from Tribes for its 2026 Annual Tribal Consultation until 5:00 p.m. ET this Friday, September 25. Comments can be sent to tribalaffairs@acf.hhs.gov with the subject line “ACF Tribal Consultation Testimony.”

Tribal Nations could ask ACF to publish the § 628d plan, state whether and when it was completed, and explain how it will assess and respond to state noncompliance before the expanded AFCARS data become available.

Resources

The Way Forward: Report of the Commission on Native Children

42 U.S.C. § 628d

ACF Tribal Consultation Report (dated July 15, 2026)

Public Comments, Regulations.gov Docket ACF-2025-0038

ACF’s 2024 AFCARS Final Rule

ACF Annual Tribal Consultation Notice

US PTO Rejects Tribal Immunity in Cigarette Trademark Dispute

Here are the materials in Philip Morris Inc. v. IP Services International Inc. and Sycuan
Tribal Development Corporation:

Briefs: