Yesterday’s post on the proposed Head Start rule now has corrected links to two separate resources:
I accidentally replaced the second document while updating the first yesterday. Both correct documents are now available.
This an update to my earlier post on Head Start here.
Comments on ACF’s proposed revision of the Head Start Program Performance Standards are due tomorrow, October 6.
The Tribal consultation record already reveals substantial agreement about the proposal’s principal defects. Tribal leaders and representatives generally support eliminating unnecessary federal paperwork. But they distinguish genuine burden reduction from removing federal standards, transferring authority to states, reducing funding, or weakening the comprehensive services that distinguish Head Start from ordinary child care.
As Cherokee Nation Principal Chief Chuck Hoskin Jr. explained, “Federal deregulation should mean greater tribal self-determination, not greater state authority over tribal programs.”
ACF has posted consultation testimony from the Cherokee Nation, Santee Sioux Nation, Crow Creek Sioux Tribe, Port Gamble S’Klallam Tribe, Pascua Yaqui Tribe, Muckleshoot Indian Tribe, Reno-Sparks Indian Colony, Central Council of the Tlingit and Haida Indian Tribes of Alaska, Santo Domingo Pueblo, Pueblo of Acoma, Oneida Nation, Makah Tribe, Salt River Pima-Maricopa Indian Community, Aleutian Pribilof Islands Association, Kawerak, Fort Belknap Indian Community, and others.
The testimony comes primarily from Alaska, the Pacific Northwest, the Southwest, the Great Plains, Wisconsin, Nevada, and Oklahoma. I didn’t identify testimony from any Tribes in California, the Northeast, the Southeast, or Michigan. Additional comments from those regions could document circumstances not yet reflected in the record.
Across regions, Tribal witnesses repeatedly raised:
The docket also contains approximately 1,918 substantially similar mass-template comments focused on Tribal sovereignty. None appears to have been submitted on behalf of a Tribal government or Tribal organization. Those filings make the scale of public concern visible, but they don’t replace comments documenting the legal, financial, and operational consequences for particular Tribal governments and programs.
The proposal repeatedly refers to state and local licensing, regulatory, and service standards. Tribal leaders warned that these references could create uncertainty about which government’s laws apply and could be read to expand state authority over Tribal programs.
The final rule should:
Port Gamble S’Klallam Chairwoman Amber Caldera recommended “affirmatively recognizing applicable tribal standards as governing tribal Head Start programs where the federal standards defer to state or local laws.”
Callie Parr of Butte, Montana, proposed more specific language:
“In recognition of Tribal authority, any reference to state or local law, regulations, licensing standards or other requirements apply only to the extent these requirements are otherwise legally applicable to the program. In cases where there is a potential conflict with state laws and oversight, final authority rests with the Tribal government.”
Although Parr wasn’t commenting on behalf of an identified Tribe, her language gives Tribal governments something concrete to support, reject, or refine.
The proposed reduction of the administrative cost ceiling from 15% to 5% was one of the most consistent objections during consultation. Fiscal administration, audits, human resources, procurement, technology, facilities, and government oversight are necessary operating functions. Many of these costs remain fixed when enrollment declines. Small and geographically dispersed programs can’t spread them across thousands of children.
The Director of Sicangu Lakota Oyate Head Start and Early Head Start reported approximately $595,530 in administrative and indirect costs, or about 7.9% of the program’s annual budget. A 5% ceiling would leave a gap of approximately $218,451.
Comments can add a program’s actual figures, identify which functions would be left unfunded, and ask ACF to retain the 15% ceiling, recognize negotiated indirect cost rates, or exempt AI/AN programs.
Luisa Machuca of Kawerak reported that gas had risen to $26/gallon in Shungnak, Alaska. Fuel in Nome had reached $7.25/gallon and couldn’t be replenished by barge until the following summer. Other witnesses described air- and water-only transportation, limited housing, small substitute pools, aging facilities, high freight and construction costs, scarce behavioral health providers, and fixed expenses that don’t decline with enrollment.
Comments can document transportation distances, fuel and freight costs, facilities conditions, weather interruptions, limited vendors, provider shortages, and workforce competition. These facts can show why Tribal programs need categorical protections rather than discretionary waivers granted one program at a time.
The consultation record rejects the idea that Native language instruction should depend on a narrow or undefined exception to an English-priority rule.
Central Council of the Tlingit and Haida Indian Tribes of Alaska Vice President Paulette Moreno stated, “Our languages and culture are not optional.”
Machuca also explained that a community member may speak the local language, understand traditional child-rearing practices, know the families, and have years of experience with children even if that expertise isn’t reflected on a college transcript.
A rule can nominally permit Native language instruction while making it impossible to hire the people qualified to provide it. Comments can ask ACF to protect immersion and revitalization affirmatively, recognize Tribal authority over curriculum, and allow competency-based pathways incorporating language fluency, cultural knowledge, mentoring, and community experience.
Tribal witnesses also warned against removing standards supporting developmental screening, disability services, mental health consultation, oral health, nutrition, family support, transportation, and protections against exclusionary discipline.
Fort Belknap summarized the issue as “Saving money should not be a child’s responsibility.”
Comments can explain which services would otherwise be unavailable locally, how Head Start connects families with providers, and how federal standards help programs secure funding and partnerships. They can also ask ACF to confirm that removing a federal requirement doesn’t make the associated service an unallowable use of Head Start funds.
Muckleshoot Policy Council Chairman Wayne Buchanan told ACF, “Meaningful government-to-government consultation must affect the outcome.”
Tribal submissions ask ACF to continue consultation before finalizing the rule, prepare a Tribal impact analysis, allow adequate time for Tribal review, and explain how significant Tribal recommendations were accepted or rejected.
The record already identifies the major defects. What it still needs is more provision-specific evidence from more Tribal governments and regions, including actual costs, applicable Tribal laws, program consequences, and proposed regulatory language.
A useful comment can do four things:
Because public comments and consultation testimony are separate processes, Tribes wishing to ensure consideration in both may submit the same statement through both channels.
Comments and written Tribal consultation testimony are due tomorrow, Oct 6, 2026 by 11:59 PM EDT.
The mass-template filings have made the breadth of public concern visible, and Tribal consultation has established the principal governmental concerns. What the record still needs is broader regional representation and concrete evidence that ACF must consider before finalizing the rule.
The proposed rule would prohibit the collection of data on race, ethnicity, or sexual orientation on the short form decennial questionnaire or any questionnaire used for the enumeration of the population. It would also count only U.S. citizens and lawful permanent residents for congressional apportionment.
§70.2 Restrictions on the inclusion of certain demographic questions.
(a) No question about race, ethnicity, or sexual orientation shall appear on the short form decennial census questionnaire or any questionnaire used for the enumeration of the population.
The preamble to the proposed rule also refers to “[s]ubstantial doubts about the meaning, significance, and impact of attempting to categorize persons by race and ethnicity” that have “been reflected in shifts in the law.” This statement is supplemented by a footnote 11 that states:
11 Questions about tribal membership are not necessarily questions about race and/or ethnicity. See Constitutionality of Race-Based Department of Education Programs, 49 Op. O.L.C. ll(Dec. 2, 2025), available at https://www.justice.gov/olc/media/1421576/dl (‘‘Current equal-protection doctrine recognizes a difference between preferences based on Indian ethnicity and those based on affiliation (often membership or citizenship) in a federally recognized tribe.’’); Morton v. Mancari, 417 U.S. 535, 551–55 (1974) (discussing the ‘‘unique legal status of Indian tribes’’ and explaining how certain preferences for members of Indian tribes are not the same as preferences for discrete racial groups).
The proposed rule doesn’t say whether a tribal affiliation question could survive the proposed §70.2, but it’s worth addressing in comments to the agency.
If adopted, the proposed rule would make Native people less visible in federal data, making redistricting analysis and voting rights enforcement more difficult. It would also cause Tribes to have less reliable demographic data for purposes of federal trust and treaty obligations and self-government, and it would make it more difficult for Tribes to plan for housing, health care, schools, transportation, language services, and emergencies.
Relevant Dates
Virtual Tribal Consultation on October 2, 2026 from 3:00 – 4:30 pm ET. Tribal leaders and representatives can register here. Note: The Bureau only gave two weeks’ notice for this consultation instead of its standard 30 days.
Public Comment Period deadline: October 13, 2026. Comments can be submitted here
Extended Tribal Comment Period deadline: November 2, 2026.
Additional resources
What Proposed 2030 Census Changes Could Mean for Native Communities, NARF, Sept. 29, 2026
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
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
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
ACF Tribal Consultation Report (dated July 15, 2026)
Public Comments, Regulations.gov Docket ACF-2025-0038
EPA and the Army Corps have supplemented their proposed WOTUS rule with alternatives that could sharply reduce federal protection for Tribal waters in a prepublication document shared at the link above.
The agencies are now considering limiting “relatively permanent” waters to those flowing virtually year-round and requiring wetlands to contain perennial surface water continuously connected to another jurisdictional water, a standard they acknowledge would exclude most intermittent streams and a majority of currently jurisdictional adjacent wetlands, with especially significant effects in the arid West.
The proposal would result in significant implications for Tribes, since most eligible Tribes lack TAS authority to administer Clean Water Act programs, many lack resources to build equivalent Tribal programs, and pollution may originate in adjacent jurisdictions. In other words, the federalism premise that another sovereign can simply regulate waters abandoned by the federal government often fails in Indian country. The Tribal regulatory gap would effectively be made more consequential under this proposed substantially narrower federal rule. Tribes may request government-to-government consultation at CWAwotus@epa.gov once the supplemental notice is published in the Federal Register, opening the 30-day comment period.
From the supplemental notice of proposed rulemaking:
The agencies acknowledge that because they generally implement Clean Water Act programs on Tribal lands, a reduced scope of Federal jurisdiction as a result of the Sackett decision will affect Tribes differently than it will affect States. Currently, of the Tribes that are eligible, most have not received treatment in a manner similar to a State (TAS) status to administer Clean Water Act regulatory programs. While some Tribes have established Tribal water programs under Tribal law or have the authority to establish Tribal programs under Tribal law, many Tribes are still building capacity and may lack resources to create a Tribal water program under Tribal law, to administer a program, or to expand programs that currently exist.
Therefore, Tribes may disproportionately rely on the Federal Government for water program implementation and enforcement of water quality violations. Tribes may also be affected by pollution from adjacent jurisdictions. Many Tribes are located in the arid West, where there are fewer waters that may meet the relatively permanent standard. Nonetheless, the proposed rule, as supplemented by this notice, preserves Tribal authority to choose whether to include waters that are not covered under the Clean Water Act under Tribal laws and regulations. Any decision by the Tribes to protect beyond the limits of the Clean Water Act is not compelled by the statute or by this proposed rule, as supplemented.
More than 9,200 comments were submitted on the Administration for Children and Families’ proposed Head Start rewrite by September 6, 2026. 46 of them discussed Tribal programs, Tribal languages, Indigenous children, or other Tribal concerns. But none could be verified from the public record as having been submitted by a Tribe, Tribal organization, or Tribal Head Start provider.
That may soon change. The Office of Head Start has scheduled a virtual Tribal consultation specifically on the proposed rule for September 16, 2026, from 1:00 to 4:00 p.m. ET. Tribal leaders and their representatives may provide testimony regarding the proposed changes and their implications for American Indian and Alaska Native Head Start programs, children, families, and communities. Testimony will be included in the proposed rule’s public comment record unless the Tribe or individual providing it requests otherwise.
A signed letter authorizing a representative to speak for a Tribe is due September 11. Written testimony may be submitted to AIANHeadStart@acf.hhs.gov through October 6. Registration and additional information are available here.
As of September 6, therefore, the publicly visible docket contained other people’s descriptions of Tribal interests, but no identifiable submission from the Tribal governments and providers that operate the affected programs. The September 16 consultation offers an important opportunity to change that record.
The Office of Head Start also conducted its regularly scheduled Tribal Head Start consultation on June 18, 2026 before this proposed rule was published. ACF’s preamble says the proposal reflects feedback received over time from Head Start leadership, “including Tribal leaders,” but it doesn’t identify the Tribal leaders consulted about these particular changes or explain how their views shaped the proposal.
What ACF is Proposing
ACF’s proposed rule, Reducing Federal Burden for Head Start Programs, would replace much of the existing Head Start Program Performance Standards with a substantially shorter set of regulations. Among other changes, the proposal would:
Some provisions recognize Tribal circumstances or preserve existing Tribal flexibility. But the rule as a whole would apply to Tribal Head Start programs, not just the provisions that specifically reference Tribal Head Start. The Tribal language exception and the operation of Tribal Head Start programs in general should be considered together with the 5% administrative cost cap, elimination of federal standards, and changes to health, staffing, eligibility, governance, and home visiting requirements.
The proposal also raises a distinct jurisdictional question. ACF frequently presents deregulation as a choice between federal requirements and state or local control. Tribal Head Start programs don’t always fit that binary. If a federal regulatory standard disappears and particular Tribal Head Start program is not subject to state child care licensing, what becomes the governing minimum? Does Tribal law control? Does the proposed rule consistently recognize Tribal licensing and regulatory authority? Or does it create uncertainty for Tribes where the federal government claims to be creating flexibility?
What Other Commenters are Saying about Tribal Head Start Programs
I reviewed the 9,233 public submissions included in a regulations.gov bulk download that I obtained on September 6. I identified 46 comments that expressly discussed Tribal, American Indian, Alaska Native, Indigenous, reservation, or Tribal-program concerns.
Those comments repeatedly raised several issues:
One unidentified commenter asked how Tribal child care subsidy payments would be included, noting that Tribal subsidy rates were even lower than state rates.
These comments recognize many important problems. What they generally can’t supply is evidence that Tribes possess that establish the scale, operation, and legal significance of these problems.
Tribal interests are not absent from the docket. But as of September 6, identifiable Tribally authored comments, and the financial, governmental, cultural, and operational evidence that Tribes themselves are uniquely positioned to provide, was absent.
What the Record Still Needs
Tribal governments, Tribal organizations, and Tribal Head Start providers are uniquely positioned to tell ACF:
The existing comments frequently address Tribal programs, but the docket still needs evidence from the Tribal governments and providers that operate them.
Comments are due October 6, 2026. The public docket is available here.
A note on method: This review covers the 9,233 public submissions included in a regulations.gov bulk download obtained September 6, 2026, covering comments submitted in response to ACF-2026-0595-0001 and ACF-2026-0595-0002. The bulk download includes a Government Agency Type field that lets a submitter self-identify as a federal, state, local, or Tribal government; none of the 9,233 submissions had this field populated as Tribal, or, in fact, populated at all, for any government type. 46 submissions expressly addressed Tribal, American Indian, Alaska Native, Indigenous, reservation, or Tribal program issues, based on a keyword search of the comment text included in that download. That search could not reach the substance of 4,678 submissions, just over half the docket, whose comment field contains only a placeholder (“See Attached”) pointing to an attachment file not included in the bulk download; those attachments were not separately reviewed. No submission could be verified from the available metadata, comment text, or the Government Agency Type field as filed by a Tribe, Tribal organization, or Tribal Head Start provider, but that finding necessarily reflects only the roughly half of the docket whose substance was available for review. A Tribal government, organization, or provider could be among the submissions whose content appears solely in an unreviewed attachment. This review also predates the Tribal consultation scheduled for September 16; testimony from that consultation will become part of the public comment record unless its inclusion is declined.
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.
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:
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:
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:
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.
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
You must be logged in to post a comment.