Seeking Tribal Government Comments on Proposed NEPA Rules

Recently, the White House Council on Environmental Quality released new proposed rules for the National Environmental Policy Act. The proposed rules would significantly change the environmental permitting process and gut the review process, impacting tribal interests throughout Indian Country.

Comments are now open. Anyone, individuals or tribal governments, may submit comments on these rules. Importantly, comments and collecting evidence of negative impacts are very important at this stage in the process to preserve future legal claims. Tribal governments are strongly encouraged to submit comments. Comments are open until March 10, 2020.

Currently, the MSU Indian Law Clinic is collaborating with Earthjustice to create a general comment letter to submit regarding how the proposed rules impact tribal interests. Additionally, Earthjustice is seeking to support and assist tribes who would like to submit a comment letter. Please contact Stefanie Tsosie (Senior Associate Attorney at Earthjustice) here if you have questions or would like further assistance drafting a comment letter.

For more information on the proposed NEPA rules, please see this NEPA Factsheet and this article in NPR about the impacts of these rules.

AFCARS Comments Due June 18

Here are the previous posts on the Adoption and Foster Care Analysis and Reporting System.

These comments are to tell the federal government (AGAIN) to start collecting basic data on state ICWA cases. While we would like the original rule to stand (and say so in the model tribal comments), there is also an opportunity to request very specific data elements that are less complicated or confusing than the ones currently offered.

If you would like information on this issue or model tribal comments, please email Jack Trope (information handouts), Delia Sharpe (model comments), or me (both/either). If you are a law professor interested in signing on to excellent comments, email Seth Davis at Berkeley.


Adoption and Foster Care Analysis and Reporting System (AFCARS) Notice of Proposed Rule Making. Again.


We cannot currently track on a national level in any way how ICWA works, where children who are involved in ICWA cases are placed, what their outcomes are, or how many cases are transferred to tribal court, as examples. There is barely statewide data available, and most of it is on a county-by-county level. As just one example, Michigan is in a federal lawsuit over its data collection system.

I am deeply tired of hearing that tracking this information is simply too burdensome for the states that are putting children in care, and then getting hit in lawsuit after lawsuit with claims that are not supported by any data, but also cannot be refuted by data we refuse to collect.

If your tribe wants to submit comments, there will be model comments available before the deadline of June 18.

Comments Needed for Pro Hac Vice Rule Change in Wisconsin (ICWA)

Rule here.

Letter regarding the rule: 18-04-Ltr to Interested Persons.

Comments due by November 29.

Any comment to the rule petition should be filed by November 29, 2018, with the Clerk of Supreme Court, Attention: Deputy Clerk-Rules, P.O. Box 1688, Madison, WI 53701-1688. If possible, email a Microsoft Word version of your response to See comment guidelines at the court’s website at

Provide Comments on WI Pro Hac Vice for ICWA Attorneys Pending Rule

Well, since I did the California post yesterday on this, multiple people from Wisconsin reminded me that we all need to submit supportive comments there. Many thanks to NL for spelling it out in an email so I can just cut and paste it here (ie making it easy for me):

Over in Wisconsin, we have a pending ICWA pro hoc vice rule petition that could use some more supporting comments, especially from adjacent states!  You can find the petition here (

The process for submitting a comment is as follows:

To submit a comment:

I. Submitting a comment to a rules petition
A comment to a pending rule petition shall be submitted in hard copy (include one original and nine copies). The paper copies shall be mailed to the Clerk of the Supreme Court, P.O. Box 1688, Madison, WI 53701.

A person submitting a comment shall e-mail an electronic copy of the comment in MS Word format MS Word to the Office of the Clerk of the Supreme Court at and

II. Contents of comment
The comment shall identify the rule petition to which it relates.

III. Service of comment on petitioner
A copy of the comment shall be forwarded to the petitioner in a timely manner. See the rule petition for the name and contact information of petitioner.


Dear Tribal Leader Letter Regarding Alaska Land into Trust Consultations

Here. The letter is dated July 2–sorry for the delay in posting.

Public Meeting
Wednesday, August 1, 2018
1 :00 p.m. -3:00 p.m.
Juneau, AK

Tribal Consultation
Friday, August 3, 2018
1 :00 p.m. -3 :00 p.m.
Ketchikan, AK

ANC Consultation
Wednesday, October 17, 2018
1:00 p.m. -3:00 p.m.
Anchorage, AK

Tribal Consultation
Sunday, October 21, 2018
1 :00 p.m. -3 :00 p.m.
Anchorage, AK

Tribal Consultation
Wednesday, December 5, 2018
1:00 p.m. -3:00 p.m.
Bethel, AK

Tribal Consultation
Friday, December 7, 2018
1:00 a.m. -3:00 p.m.
Kotzebue, AK

Tribal Consultation
Wednesday, December 12, 2018
1:00 p.m. -3:00 p.m.
Tel: 877-716-4291
Passcode: 6919058

If you would like to provide written input, please email your comments to by midnight Eastern Standard Time on December 20, 2018.

More Comments Needed! Now on Title IV-E/Families First Developments

Here. DUE JULY 22.

This one is arguably a little more complicated than usual, but also not inherently nefarious. Here’s a very quick overview (with thanks to Jack Trope for his recent presentation up at Grand Traverse Band for all the info).

In somewhat of a surprise development, Congress passed an overhaul to Title IV-E a few months ago. Title IV-E is the reimbursement program for foster care funding. Until this change, called Families First, the funding was triggered both by the removal of the child, and by the family’s income qualification.

Families First does two things–it releases funding for children who are “candidates” for foster care and removes the income qualification for services for those children and families. Allowable pre-removal services include “evidence-based”:

1. Mental health prevention and treatment services
2. Substance abuse prevention and treatment
3. In-home parenting-skill based programs

“Evidence based” Services and programs must be “trauma-informed” and “promising”, “supported”, or “well-supported” practices. HHS is to release practice criteria and pre-approved programs. There are long definitions in the quotes above, but basically:

Promising: one study with a control group
Supported: one study with random control or quasi-experimental
Well-supported: is at least two studies that used a random control or quasi-experimental trial

Finally, HHS must allow programs and services adapted to culture and context of a tribal community. No one really knows how this provision will interact with the evidence based provision above. This call for comments “solicits comments by July 22, 2018 on initial criteria and potential candidate programs and services for review in a Clearinghouse of evidence-based practices in accordance with the Family First Prevention Services Act of 2018.”

The HHS approved list of programs (“Clearinghouse”) will be automatically eligible for the funding. So! If you are provider who knows about such evidence-based practices for tribal youth and families, TELL HHS! Alternatively, if you work for a tribe, you might ask about how tribal consultation will fit into this process.

This may also be a partial game changer for tribes on the fence about doing direct IV-E funding with the federal government. The planning grant for that process should pop up again in the spring.

Arizona Pro Hac Vice for ICWA Attorneys: UPDATE

COMMENTS NEEDED for this rule change–go HERE.

Previous post with questions here. Proposed changes here.

Here’s the clarification–the proposed rule change provides TWO options for out of state attorneys in Arizona ICWA cases:

The first is the change to Rule 38, which requires the course (online, about 6 hours, available here). That rule is for the out of state attorneys who contemplate being involved in a number of ICWA cases in AZ over a two year period (say you’re a tribe that divides up your ICWA cases and responsibilities by region, FOR EXAMPLE).

The second change is to Rule 39 and is for attorneys that have an immediate need and/or the rare case in AZ and only plans on appearing for that case. The course is not required for a Rule 39 exception.

This is a really interesting model. Out of state tribal ICWA attorneys are STRONGLY encouraged to file comments explaining your need for special practice rules, and any suggested changes you think might improve the rules.

Thank you to everyone who helped explain Arizona practice, the UBE, and the distinction to between the rules.

California ICWA Attorneys Pro Hac Waiver Proposal

And the biggest ICWA state joins the movement! Comments on this are due June 8, 2018.

Here is the proposal to change the rules to waive associating with local counsel and remove the limit on the number of times appearing (fees are intact, but are being addressed in another forum–post on how to show support for that forthcoming).

Deadline for Comments: June 8, 2018 5:00 PM (Pacific)
Submit Comment Online or, email:

Here is our current ICWA attorney pro hac page. Contact me if you would like any draft model comments.


AFCARS Comments Due May 9

As we previously posted, for the first time, the federal government is proposing to collect data on state ICWA cases. If you, or your employer, or your tribe are willing to let the feds know you think this is a good idea, please submit comments by MAY 9 over here.

Want to submit something but aren’t sure what to write or don’t have time to research all of these acronyms? We have you covered:

Model comment for in-house counsel from MSU

Model comment for tribes from NARF

Model comment for tribes/tribal social services from NICWA.