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What the Tribal Record Still Needs – Turtle Talk

What the Tribal Record Still Needs – Turtle Talk

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.” What Tribal Leaders Told ACF 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: Tribal authority and the danger of expanding state jurisdiction; the proposed reduction of the administrative cost ceiling from 15 percent to 5 percent; Native language immersion and Tribal control over curriculum; workforce shortages and culturally appropriate qualifications; rural transportation, facilities, fuel, freight, and service costs; health, disability, nutrition, mental health, and family services; adequate funding; and the need for consultation to affect the final rule. 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. Federal Deregulation Must Not Become State Regulation 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: recognize Tribal law wherever it refers to state or local law; state that the regulations don’t create or expand state jurisdiction; recognize Tribal licensing and approval systems; recognize Tribal CCDF standards where appropriate; and preserve a federal floor where no otherwise applicable Tribal, state, or local standard exists. 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 Five Percent Cap Doesn’t Fit Tribal Programs 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. Rural Costs Aren’t Marginal Costs 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. Language Authority Includes Workforce Authority 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. Comprehensive Services Aren’t Administrative Burdens 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. Consultation Must Change the Rule 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 Be Short A useful comment can do four things: Identify the Tribe, program, or community; Identify one proposed change; Explain what that change would do locally; and Tell ACF what it should retain, withdraw, exempt, or clarify. 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. Source link

October 5, 2026

Hallucination-laced TRO raises alarm bells on AI use by courts

Hallucination-laced TRO raises alarm bells on AI use by courts

A judge’s order rife with AI-induced errors gives state and federal courts serious food for thought as they finalize guidelines governing whether and to what extent judges and their law clerks can use generative artificial intelligence tools in drafting court orders and opinions. Last summer, U.S. District Court Judge Henry T. Wingate in the Southern District of Mississippi issued a temporary restraining order against the state in Jackson Federation of Teachers v. Fitch. The TRO entered in the civil rights case referenced allegations and parties not in the lawsuit, nonexistent declarations by parties and witnesses, and language not found in the state law being challenged by the plaintiffs. When made aware of those facts in a motion to clarify by the state, Wingate completely removed the original TRO from the docket and replaced it with a corrected order. But the matter did not end there. Word had gotten out that the errors in the original TRO were produced by a generative AI tool that one of Wingate’s law clerks used in drafting the document. That news prompted calls from a high-ranking U.S. senator for an explanation, and a panel of the 5th U.S. Circuit Court of Appeals last month heard arguments as to whether Wingate should be removed from the case. As state judiciaries and the federal courts finalize guidelines for the use of generative AI tools by judges and other court personnel, attorneys like Boston lawyer Graydon H. Sommer urged caution. “Courts should base policy on demonstrated reliability,” said Sommer, whose practice includes a focus on AI law. “Improved performance may justify different uses, but it should not change who is responsible for the accuracy and reasoning of a signed order.” Class A screwup The plaintiffs in the Fitch case had sued the state of Mississippi in June 2025 to block the enforcement of H.B. 1193, an anti-DEI bill that had just gone into effect. On July 20, 2025, Wingate granted the plaintiffs’ request for a TRO. Two days later, the state filed a motion to clarify or correct the order, alleging the TRO “identifies incorrect plaintiffs and defendants; recites allegations that do not appear in the operative complaint and/or are not supported by record evidence; identifies, as quoted excerpts, certain terms that do not appear in the language of H.B. 1193; and relies upon the purported declaration testimony of four individuals whose declarations do not appear in the record for this case.” State attorneys alleged that, in response to their motion for clarification, Wingate removed the original TRO from the docket and replaced it with a corrected TRO that was signed on July 22, 2025, but backdated to July 20. Later, the state appealed Wingate’s issuance of a preliminary injunction sought by the plaintiffs to the 5th Circuit. Prior to oral argument, a 5th Circuit clerk sent a letter advising counsel to be prepared to address “whether, especially in light of the use of AI by the district court, this matter should be sua sponte assigned to a different district judge.” Sen. Charles E. Grassley, R-Iowa, who chairs the Senate Committee on the Judiciary, caught wind of what had transpired and sent Wingate a letter last October expressing concern that the court had used artificial intelligence to prepare the original TRO. “These do not appear to be simple slips of the pen or mechanical oversights, but substantive errors that undermine confidence in the Court’s deliberative process,” Grassley wrote. Wingate responded with a letter of his own in which he explained that a law clerk had utilized an AI tool “strictly as a foundational drafting assistant to synthesize publicly available information on the docket.” He wrote that the docketed order “was an early draft that had not gone through the standard review process.” What occurred in the Wingate matter mirrors the issues that lawyers encounter incorporating AI technologies in their own practices, said McLane Middleton attorney John F. Weaver. “There are reasons why firms have developed training programs and AI use policies for their attorneys and staff,” he noted. Consequences, consequences During oral argument in the Fitch case last month, the state’s attorney, Anthony M. Shults, argued for reassigning the case to a different judge. “We believe the court’s actions would lead any reasonable observer to question whether it has the ability to afford this case due care to accuracy going forward,” Shults told the 5th Circuit panel. Shults also argued that Wingate’s amended TRO included at least one AI hallucinated case citation from the original order. Circuit Judge Jerry E. Smith asked the plaintiffs’ attorney, Robert B. Duff, whether he thought it was a “serious matter” if after all that had occurred with the original TRO there would still be an “AI hallucination” in Wingate’s amended order. Duff responded: “It is serious, but it’s not as if AI told Judge Wingate to grant the TRO.” But in the 5th Circuit’s recording of the oral argument, Smith sounded exasperated by Duff’s attempt to downplay the seriousness of Wingate’s issuance of an order plagued by AI hallucinations. “Are you saying that we can be confident that that didn’t infect his ultimate reasoning in the case? How can we be confident about that?” Smith asked. Smith honed in on the proper remedy, asking counsel if the panel were to decide to assign a new judge, whether the better course would be to vacate Wingate’s preliminary injunction and let the new judge address the appropriateness of injunctive relief on a clean slate. Fitch crystallizes for courts considering the proper use of AI tools the issue of what remedies might be in order when a judge issues a ruling tainted by faulty output. According to Sommer, the relief available to a party from a court order that contains AI-induced errors would depend on a variety of factors, including the jurisdiction, the procedural posture of the case, the nature of the error, and applicable deadlines. Weaver said it “might make sense that, as a matter of policy, the litigants get another chance to argue their case, because this type of malfeasance does introduce mistrust into the system.” Meanwhile, Davis Malm civil litigator Anthony T. Panebianco said he believes counsel have an obligation to notify the court when faced with an order that appears to include hallucinated AI output, even when the ruling may be favorable to their side. “I would reach out to opposing counsel and say, ‘I think this is wrong; there’s a mistake here,’ and ask whether we want to reach out together to bring it to the court’s attention,” Panebianco said. Source link

October 5, 2026

A Conversation with Frank Bibeau – Turtle Talk

A Conversation with Frank Bibeau – Turtle Talk

The leading blog on legal issues in Indian Country The views and opinions expressed on Turtle Talk are the authors’ and do not necessarily reflect the official policy or position of Michigan State University. Follow Blog via Email Join 11.2K other subscribers Source link

October 4, 2026

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