cultural resources
Ninth Circuit Rejects En Banc Rehearing in Challenge to Oak Flat Environmental Review over 11-Judge Dissent
Here are new materials in Arizona Mining Reform Coalition v. United States Forest Service + associated cases:
Order Denying Rehearing + Dissents
Prior post here.
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]
From the Archives: Cherokee Language Hub offers Hundreds of Recordings and Stories for the next generation of Cherokee speakers
From the Hub:
The Cherokee Language Hub is both a learning resource and an archive of our written and oral language. You will find recordings, lessons, and stories passing on history and cultural memories to the next generation.
Saving the Voices
At over 1100 hours, this extraordinary collection is a lasting record of spoken Cherokee, preserving the language used to describe the world the elders knew. Each of the interviews is transcribed to Cherokee syllabary, translated to English, and brought to life in the Cherokee Language Hub to be carried across generations.
Access the Cherokee Language Hub here.
California Federal Court Dismisses Yurok Ancestral Remains Case After Cher-Ae Heights Rancheria Intervenes
Cert Petition Materials in Perez v. City of San Antonio [Lipan Native American Church]
Happy Labor Day
Photographer David Grant Noble took a series of photos of Mohawk ironworkers in New York City in 1970. The workers were from Kahnawake Reserve. Below is a slideshow of his pictures.
Slideshow – Mohawk Steelworker Series
In 1971, Noble was also invited to accompany Anishinaabeg from the Bad River Reservation in Wisconsin for a day of gathering wild rice. On another occasion, he visited the Nett lake community in Minnesota during their wild rice harvest, where he accompanied Ira Isham and his family. Below is a slideshow of Noble’s photos from the manoomin harvest in both Tribal communities.
David Grant Noble at http://www.davidgrantnoble.com
Click here to see the manoomin harvest slideshow.
From the Archives: An archival oral history collection created to support sacred site litigation in Fools Crow v. Gullet
The Oglala Lakota College has assembled an archive of oral history recordings called “A Song From Sacred Mountain Collection.” This is an excellent resource that includes digitized interviews with Cheyenne and Lakota leaders from the 1980s that were collected by the Oglala Lakota Legal Rights Fund in connection with sacred site litigation related to Bear Butte in Crow v. Gullet, 706 F.2d 856 (8th Cir. 1983). The collection provides a rare body of extensive online recorded interviews that relate to the intersection of land, sacred sites, history, and litigation.
Roadless Rule Update: What the Forest Service’s 29 Tribal Consultations Establish, and What Tribes Still Cannot See
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.
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