BUILDING A TRIBAL ECONOMY FROM THIN AIR (SPACE)

By: Sandra L. Shippey | Partner | sandra.shippey@procopio.com
Theodore J. Griswold | Partner | ted.griswold@procopio.com

Earlier this year, the first official test flights of unmanned aerial systems (“UAS”), also referred to as drones, were held at Warm Springs Indian Reservation in Oregon.  The test flights were a long-time coming and represent an innovative way for the Tribe to attract economic interest by using little more than its own airspace.  Warm Springs took the air above its reservation, colored it with a special designation that allows for a rare use—testing drones—and hopes that the simple equation will create a destination site for aeronautic companies and enthusiasts.

The Warm Springs Indian Reservation is one of three test ranges in Oregon and one of only six test ranges in the United States approved by the Federal Aviation Administration (the “FAA”) for testing unmanned vehicle systems.  Warm Springs is the only Indian reservation with an FAA approved drone testing range.  Warm Springs is banking on the rarity of the testing areas for drones to create a sort of destination industry for the reservation, which will attract not just the aerial testing capabilities, but also the ability for companies to meet, design, redesign and perhaps even manufacture drones all adjacent to the testing location.  These uses should bring rental and use fees for the Tribal economy.

The timing could not be better.  Drones are no longer just for military applications such as intelligence, surveillance, reconnaissance, communications, battle management, electronic warfare and missile defense.  There is enormous potential for the non-military uses of drones including aerial photography and videography for the motion picture and real estate industries, farming, monitoring and fighting wildfires, performing search and rescue operations, conducting law enforcement operations, monitoring and forecasting the weather, monitoring and managing fish and wildlife, monitoring floods and traffic, mapping and surveying, inspecting infrastructure, delivering packages and much more.  However, designing and testing new drones has been a significant hurdle for the industry.

The Tribe’s effort began when, in 2012, President Obama signed the Federal Aviation Administration Modernization and Reform Act, which requires the FAA to integrate unmanned aircraft systems (drones) into national air space.  The FAA is understandably cautious about allowing drones into national air space, seeing conflicts with manned aircraft as just one of the hazards.  However, given the mandate to begin the integration, the FAA needed to create a very controlled (and limited) method to move the technology to a domestic use.  Limiting testing sites was the first step in this effort.

Warm Springs saw the opportunity that limited testing zones could provide and immediately sought certification.  However, the tribe was told that it was not considered a public entity under the Act and was not eligible for a test range.  Undeterred in its efforts, the tribe partnered with the states of Oregon, Alaska and Hawaii, Oregon State University and the University of Alaska to submit their proposal for test ranges as part of a larger system that extends through Alaska, Oregon and Hawaii.    In December, 2013, the Pan-Pacific Unmanned Aerial System Test Range Complex was approved by the FAA which included approval of the test range on the Warm Springs Indian Reservation proposed by the partnership of the states of Oregon, Alaska, Hawaii and the Warm Springs tribal government.  Research conducted at the Warm Springs Indian Reservation test site will help the FAA determine the rules and regulations for operation of drones and how to safely integrate them into national airspace.

The Association for Unmanned Vehicle Systems International, the world’s largest nonprofit organization devoted exclusively to advancing the unmanned systems and robotics community, recently stated that the demand for developing drone technology is significant and growing.  The Association estimates that during the first decade after UAS integration, the industry would create over 100,000 jobs and more than $82 billion in economic impact. By lending these companies the use of their air space for testing, and a safe harbor for testing and design, the Confederated Tribes of Warm Springs are positioned to ride this business current into a significant self-made economic engine.

Sandra is a member of the Native American Practice Group, Co-Chair of the Aviation Practice Group and a member of the State Bar of California – Business Law Section.  Connect with Sandra at sandra.shippey@procopio.com and 619.515.3226.

Ted is head of the Native American Law practice group and primary editor for the Blogging Circle. Connect with Ted at ted.griswold@procopio.com and 619.515.3277.

Indian Health Service 2016 Annual California Tribal Consultation: “Can You Hear Us Now?”

By: Natalie Mueller | Associate | natalie.mueller@procopio.com
Gabriela Rios | Law Clerk | gabriela.rios@procopio.com
Theodore J. Griswold | Partner | ted.griswold@procopio.com

Last week the California Area Office for the Indian Health Service (IHS) held its annual Tribal Consultation Conference at the Viejas Casino & Resort. It brought together IHS California Area Staff and Tribal Leaders from across California. The consultation provided Tribal Leaders a forum to voice their concerns, convey their priorities, and to make budget recommendations for the coming year. For more information on IHS Tribal Consultation Policy click here.

The final day of the conference featured a three-hour listening session that gave Tribal Leaders an opportunity to directly express their concerns and priorities to California Area Indian Health Service Staff.  Those who spoke noted the lack of representation from the national Headquarter Office and how that weakened the consultation process with the Tribal Leaders.

The main concern of Tribal Leaders was funding.  Many tribal health programs such as diabetes programs and behavioral health services are significantly underfunded, despite the overwhelming need for such programs.  In addition, tribes in California are concerned that they will be unable to obtain sufficient funding to build much needed health facilities or to maintain their current ones. Technology was also a large concern, with Tribal Leaders describing how the technology programs offered and sponsored by IHS are not well-suited to handle the new ICD-10 requirements.

With the exception of the final day, many of the Tribal Leaders expressed their frustration that meaningful consultation was not taking place; rather Tribal Leaders were being updated on current and upcoming programs, but were not provided opportunities to provide input.

Many also expressed frustration that California, with one of the largest tribal populations, is receiving less IHS funding than other states. The takeaway seemed to be that tribes in California need to come together, present a united front to Congress, and demand the funding necessary to support California tribal health programs and facilities in their communities.

Natalie is a member of Procopio’s Health Care practice group. She regularly assists Native American health clinics, hospitals, and medical groups with quality oversight compliance and governance. Natalie also advises and represents health care entities throughout the peer review and judicial review hearing process.

Ted is head of the Procopio Native American Law Practice Group working with Native American tribal governments and is the primary editor for the Blogging Circle. Connect with Ted at ted.griswold@procopio.com and 619.515.3277.

Gabriela is a citizen of the Cahuilla Band of Indians and an attorney in Procopio’s Native American Law Practice Group. She graduated from the James E. Rogers College of Law at the University of Arizona in 2015 and was recently admitted the State Bar of California.

Trust Lands an Easier Target for Tribes

By: Gabriela Rios | Law Clerk | gabriela.rios@procopio.com
Theodore J. Griswold | Partner | ted.griswold@procopio.com

This week, the Bureau of Indian Affairs (BIA) announced a proposed change to the fee-to-trust acquisition process. Title Evidence for Trust Land Acquisitions, 81 Fed. Reg. 10,477 (Mar. 1, 2016).  The current rule requires that an applicant provide title evidence meeting the Standards for the Preparation of Title Evidence in Land Acquisition by the United States (issued by the Department of Justice). These more stringent requirements can significantly delay or in some situations foreclose the possibility of putting land into trust. The new rule is meant to provide a “more targeted evidence standard” and should provide more certainty for tribes in the fee-to-trust application process.

Proposed to be effective April 15, 2016, applicants seeking to put land into trust will only be required to provide: (1) evidence that the applicant has ownership, or will have ownership, of title and how title was acquired, as well as either (1) a current titled insurance commitment; or (2) the policy of title insurance issued at the time of the applicant’s or current owner’s acquisition of the interest and abstract dating from the time the interest was acquired. This rule will apply to new trust applicants and pending applications where a Preliminary Title Opinion has not yet been prepared by the Office of the Solicitor as of the effective date. Comments on the rule change will be accepted until March 31, 2016.

Gabriela is a citizen of the Cahuilla Band of Indians and currently clerking for Procopio. She graduated from the James E. Rogers College of Law at the University of Arizona in 2015 and is awaiting July bar results.

Ted is head of the Native American Law practice group and primary editor for the Blogging Circle. Connect with Ted at ted.griswold@procopio.com and 619.515.3277.