public comments

Roadless Rule Update: NCAI and The Wilderness Society to host webinar on Thursday, September 10

Wenona Singel

On Thursday, September 10 from 2:00 – 3:30 pm ET, NCAI and the The Wilderness Society will host a webinar examining USDA’s proposed rule to rescind the 2001 Roadless Area Conservation Rule. The webinar will address the proposed rule’s implications for Tribes and Tribal perspectives, and it will offer guidance on submitting comments by the Sept. 21 deadline.

The webinar is designed for Tribal leaders, advocates, and community members.

Link to register is here.

Earlier posts on the Roadless Rule are here.

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

Wenona 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.

More Roadless Rule Resources: Monte Mills & Martin Nie on the Tribal Implications of Rescission

Wenona Singel

I’m adding two valuable memos by Monte Mills and Martin Nie to the Roadless Rule resources posted yesterday. Mills is the Charles I. Stone Professor of Law and Director of the Native American Law Center at the University of Washington, where his work focuses on Federal Indian law, Tribal sovereignty, and natural resources. Nie is Professor of Natural Resources Policy and Director of the Bolle Center for People & Forests at the University of Montana, with particular expertise in federal public lands governance.

Their September 2025 memo provides historical and legal background on Tribal interests in the original Roadless Rule and later Idaho, Colorado, and Tongass rulemakings. Their new August 28, 2026 memo focuses on USDA’s proposed rule and Draft EIS, including what they describe as a “shell game” of shifting protection from a national rule to forest- and project-level processes while some of those protections are themselves being weakened. They also report that 108 of 126 current forest plans, about 86%, provide no substantive recognition or meaningful protection of Tribal rights or interests.

These pair well with the ILPC papers that I created and posted yesterday, which approach the rulemaking from a different direction. One analyzes what Tribes actually placed in the 2025 administrative record and USDA’s response to those concerns, while the other addresses strategic considerations for Tribal Nations before the September 21 comment deadline, including relevant legal doctrines and other hooks for building and preserving the administrative record.

Attachments

Update on Proposed Rescission of Roadless Rule: pdfs of all 2025 Tribal comments are available in Vol. III of the EIS

Wenona Singel

Here.

USDA Proposes Rescinding Roadless Rule; What Tribes Told the Agency Last Fall, and What a Comment Can Still Do About It By the Sept. 21 Deadline

Wenona Singel

On August 20, 2026, USDA published a proposed rule to rescind the 2001 Roadless Area Conservation Rule, which has restricted road construction, road reconstruction, and timber harvesting across approximately 44.7 million acres of National Forest System lands for the past quarter century. The proposal would replace the existing rule’s nationwide layer of protection and return more decisions about roadless areas to individual forest plans and project-level review.

Alongside the proposed rule, USDA released a 333-page Draft Environmental Impact Statement, a cost-benefit and regulatory-flexibility analysis, and a Tribal Summary Impact Statement. (Links to these documents are below.)

Comments on the proposed rule are due September 21, 2026. The docket is FS-2025-0001.

This isn’t the first time Tribes have weighed in. USDA’s August 2025 Notice of Intent opened a scoping comment period that drew more than 220,000 comments, with about 99% opposed to the rescission. Based on the ILPC’s analysis, the comments included 42 written submissions from 38 distinct Tribal governments and organizations. Scoping comments, however, only shape what an agency studies, and a court asked to review the eventual final rule will look at the record as it stands when the agency acts. As a result, the current 30-day comment period is fundamentally different from the one in 2025, since it’s the last opportunity to place Tribe-specific evidence, legal argument, and disagreement with USDA’s reasoning into the administrative record before the rule is finalized.

The ILPC is sharing four documents to help Tribes and their staff and counsel use that opportunity

a. The first document is a list of tribal comments submitted during the fall 2025 window and found by the ILPC in response to the Notice of Intent. The document includes links to each tribe or tribal organization’s comments.

b. The second document, The Tribal Administrative Record on the Roadless Rule, is an ILPC independent empirical review of the 38 distinct Tribal comments filed in 2025. Rather than starting from USDA’s own categories, the ILPC coded the submissions and measured how often fourteen recurring themes appear, from near-universal concerns about ecological resources (94.7%), and cultural and religious interests (94.7%), to concerns raised by roughly half of commenters about consultation adequacy and enhanced Tribal governmental authority beyond ordinary consultation. It then compares that record against USDA’s 2026 Draft EIS line by line. Our finding: USDA’s Draft EIS rhetorically recognizes Tribal sovereignty, treaty rights, and trust obligations. It also concludes that full rescission, the alternative it proposes, would create the greatest potential for adverse effects on Tribal rights and interests of any alternative it studied. The gap this record exposes isn’t whether USDA heard Tribes. It’s what the agency did about what it heard.

b. The third document, Strategic Considerations for Tribal Nations in the 2001 Roadless Rule Rescission Comment Period, moves to strategy. It walks through the administrative law tools a comment filed now can use, including arbitrary and capricious review, record preservation and issue exhaustion doctrine, NEPA’s alternatives requirement, NHPA Section 106, and treaty rights claims where they apply, and explains why the strongest comments this round will do more than restate 2025 positions. The most impactful comments submitted now will name an impact, identify USDA’s specific response in the documents it published in the docket on August 20, and explain concretely why that response does or doesn’t hold up. The memo also addresses the administration’s simultaneous move to weaken the protections of NHPA Section 106 through a proposed rule that is expected to be published soon. If NHPA 106 protections are administratively weakened, Tribes will face a multiplication of interventions as decision-making is returned to the land management planning process at the individual national forest level, on top of diminished leverage under a weakened 106 regime.

The strategic considerations memo also flags a separate problem ILPC ran into directly. USDA’s Tribal Summary Impact Statement rests heavily on 29 completed (and 34 scheduled) government-to-government consultations (out of 64 Tribal requests for consultation), but the underlying consultation records aren’t in the public docket, and ILPC couldn’t locate any posted log of them. After an August 28 letter to the Forest Service’s Office of Tribal Relations went unanswered, ILPC filed a formal FOIA request the same day. Because of FOIA’s ordinary processing timeline, that request may not be resolved before the comment period closes. As it stands, Tribes and the public are being asked to evaluate USDA’s account of what it heard in consultation without being able to see the records that account is based on. That timing problem is itself worth putting directly into a comment.

Below is a full set of links to the docket, including the proposed rule, the complete Draft EIS, the Tribal Summary Impact Statement, the economic analysis, and the ILPC-generated documents referred to above.

Additional Resources

Link to the Docket for the 2001 Roadless Rule Rescission

  • USDA proposed rule
  • The Draft EIS (Vol. I – III) (Vol. II includes maps of all roadless rule affected areas organized by state; Vol. III includes copies of all Tribal comments submitted in response to the NOI in fall 2025)
  • The Tribal Summary Impact Statement for Proposed Rule to Rescind the 2001 Roadless Area Conservation Rule
  • The Economic Analysis for the 2004 Roadless Rule Rescission

List of Tribes with Comments Submitted Fall 2025 (with links) UPDATE: pdfs of all Tribal comments are included in Vol. III of the EIS.

ILPC Memo: The Tribal Administrative Record on the Roadless Rule

ILPC Graphic: Chart of Tribal Comments Grouped by Theme

ILPC Memo: Strategic Considerations for Tribal Nations in the 2001 Roadless Rule Rescission Comment Period

ILPC Email to FS OTR for Consultation Records

ILPC FOIA Request to FS OTR for Consultation Records

NCAI Resolution Opposing the Legislative Repeal of the 2001 Roadless Area Conservation Rule and Supporting its Retention

Roadless Rule Tribal Hub : “The Tribal Hub is an informational platform created to support Tribal leaders, staff, and community members in responding to the proposed rescission of the 2001 Roadless Rule. Our goal is to ensure that Tribes have timely access to resources, information, and tools to protect sovereignty, treaty and reserved rights, and cultural lifeways throughout this federal rulemaking process.”

The CFTC’s Prediction Market Rule Has United an Unlikely Coalition Against It

Wenona Singel

Tribes aren’t alone in warning that the Commodity Futures Trading Commission is exceeding its authority with its proposed rule. Criticism of the rule is also raised in comments submitted by former Senator Chris Dodd, co-author of Dodd-Frank, the legislation that amended the Commodities Exchange Act provisions at the heart of CFTC’s proposed rule; Timothy Massad, a former CFTC chair; 44 state attorneys general; and leading gaming and derivatives interests.

This is the third and final post in a series (first post; second post) on the CFTC’s proposed rule governing prediction market “event contracts.”

Former Sen. Chris Dodd, co-author of Dodd-Frank, says Congress did not authorize this

Former Senator Christopher Dodd submitted a comment stating:

The proposed regulatory amendments contradict the language and intent of the Dodd-Frank Act and promote public policies opposing what Congress clearly intended.


These amendments could well endanger consumers and promote speculation. These proposed amendments undermine the traditional police powers of states and also functionally amend the Indian Gaming Regulatory Act (IGRA), which could diminish tribal sovereignty.

Chris Dodd CFTC commentDownload

A former CFTC chair says the agency has “lost its way”

Former CFTC Chair Timothy Massad opened his comment with an unusually direct statement:

“The Commodity Futures Trading Commission has lost its way . . . . Although I have not submitted comments on any rule proposal since leaving the agency, I feel it is important to do so here because the agency has lost sight of its mission and the limits of its own authority.”

Timothy Massad CFTC commentDownload

Forty-four state attorneys general raise objections

A bipartisan coalition of 44 state attorneys general, led by Ohio Attorney General Andy Wilson, likewise argues:

“The CFTC in the Proposed Rule goes well beyond its statutory authority. . . . it violates both the major-questions doctrine and the federalism canon . . . . [and] clashes with the CEA’s plain text, structure, and purpose.”

44 State AGs comment on CFTC proposed ruleDownload

Comments from the American Gaming Association and CME Group

The American Gaming Association, whose members include commercial and Tribal gaming operators, states in its comments:

The proposed rule concedes that sports event contracts involve gaming, yet creates a permissive framework designed to allow them. That approach conflicts with congressional intent, 15 years of regulatory precedent, state and federal law, and the CFTC’s own regulations. It would also displace state and tribal authority while exposing consumers and sports competitions to wagering activity without comparable licensing, geolocation, responsible gaming, integrity monitoring, or enforcement safeguards.


The CFTC is a financial markets regulator, not a national gaming commission. It lacks both the expertise and resources to replace the more than 8,400 state and tribal regulators who oversee legal gaming today. The Commission should withdraw the proposed revisions to Rule 40.11, enforce the existing prohibition on gaming event contracts, respect tribal sovereignty and states’ rights, and put an end to the unlawful nationwide expansion of sports wagering through prediction markets.

CME Group, one of the world’s largest derivatives market operators, also submitted comments, stating that “the Commission’s authority on this score is ambiguous at best, [and] deferring to Congress would be advisable.”

Each of these comments challenge the CFTC’s authority to create a nationwide market for products that function as sports betting while bypassing the federal, Tribal, and state laws that otherwise govern gaming.

The Oklahoma Indian Gaming Association’s Wins Award for Longest Comment

A final note: OIGA’s comment was the most detailed submission to the CFTC, totaling 50 pages and including 291 footnotes.

What Tribal Comments Are Telling the CFTC About Prediction Markets

Wenona Singel

This is a follow-up to my earlier post on prediction markets and Indian gaming. A subsequent post on key comments submitted by non-Tribal persons and organizations is available here.

Below is a summary that provides a snapshot of the concerns raised by Tribes in their comments submitted in response to the CFTC’s proposed rule.

Taken together, the comments consistently emphasize that the CFTC is considering a federal workaround that could allow companies to offer nationwide sports betting while bypassing the legal framework Congress created for gaming in Indian country.

Recurring concerns raised in Tribal comments include:

  • IGRA already governs gaming on Indian lands. The CEA should not be interpreted to override, impliedly repeal, or create a workaround around the federal Indian gaming framework Congress established in IGRA.
  • The CFTC failed to conduct meaningful government-to-government Tribal consultation. Notice-and-comment rulemaking is not a substitute for consultation when a federal action substantially affects Tribal sovereignty, gaming regulation, and Tribal governmental economies.
  • Sports event contracts are gaming regardless of what they are called. Many commenters argue that the legal analysis should turn on the transaction’s economic function, which is a wager for value on an uncertain sporting outcome and not the label “event contract.”
  • The proposed definition of when an event contract “involves” gaming is too narrow. Tribal commenters reject an interpretation limited to what determines settlement of the contract and argue that Congress’s language also reaches contracts that functionally relate to or facilitate wagering on gaming activity.
  • The rule threatens Tribal sovereignty and regulatory jurisdiction. Nationwide mobile sports event wagering could reach Indian lands without Tribal authorization and bypass Tribal gaming regulators.
  • Prediction markets could undermine Tribal-State compacts. Commenters warn that federally regulated sports event contracts could circumvent bargained-for gaming exclusivity and revenue sharing provisions.
  • The CFTC should not become a national sports betting regulator. Tribal commenters argue that the CEA regulates derivatives markets, not ordinary sports wagering, and point to the CFTC’s own prior statements that it is not a gaming regulator.
  • The proposal creates regulatory arbitrage. Functionally equivalent sports wagering could receive substantially lighter federal regulation when offered through a CFTC-regulated exchange, bypassing Tribal and state licensing, taxation, responsible-gaming, and consumer-protection requirements.
  • The CFTC should prohibit gaming contracts before they reach the market rather than rely on case-by-case review. Commenters object to allowing exchanges to self-certify contracts that may begin trading before the Commission determines whether they are permissible.
  • Tribal governmental revenues are at stake. Competition from prediction markets could reduce gaming revenues used by Tribal governments for health care, education, housing, public safety, and other governmental services.
  • Some commenters question whether sports wagers belong within the CEA at all. They argue that sports event wagers lack the hedging or risk management function associated with derivatives and may fail threshold statutory requirements for swaps.
  • The proposal raises federal trust responsibility and Indian law canon issues. Where federal statutes are ambiguous, commenters argue that the CEA should not be interpreted to silently displace Tribal sovereign, regulatory, or negotiated compact rights.
  • The rule may be vulnerable under the Administrative Procedure Act. Several comments preserve arguments that the CFTC is reversing prior understandings without adequately addressing congressional intent, Indian gaming law, Tribal sovereignty, and the regulatory consequences of its new approach.
  • Many Tribal commenters want the proposal withdrawn, not merely improved. The dominant requested remedy is for the CFTC to withdraw the proposed rule or preserve a categorical prohibition on gaming event contracts.

Tribal Submissions

CFTC List of Commenting Tribes with URL links for TTDownload

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.

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.

BIE to Hold Tribal Consultations this Friday on Executive Order requiring Interior to Prepare a Plan for use of Federal BIE Funds for Schools of Choice

Wenona Singel

EO 14191, titled “Expanding Educational Freedom and Opportunity for Families” and signed on January 29, 2025, includes a section that seeks the implementation of schools of choice using federal BIE funds for families with children eligible to attend BIE schools.

Section 7 of the Order provides:

Helping Children Eligible for Bureau of Indian Education (BIE) Schools. Within 90 days of the date of this order, the Secretary of the Interior shall review any available mechanisms under which families of students eligible to attend BIE schools may use their Federal funding for educational options of their choice, including private, faith-based, or public charter schools, and submit a plan to the President describing such mechanisms and the steps that would be necessary to implement them for the 2025-26 school year. The Secretary shall report on the current performance of BIE schools and identify educational options in nearby areas.

On February 28, 2025, the BIE issued a Dear Tribal Leader Letter announcing two expedited tribal consultation webinars for Tribal leaders and the public scheduled for this Friday, March 14, 2025. The links to register for either of Friday’s consultations are in the letter. Written comments can also be submitted by email to consultationcomments@bie.edu.

The National Indian Education Association (NIEA) has shared its concerns about BIE School Choice here.

https://www.bie.edu/news-article/bie-students-prepared-digital-workforce