How to Improve Your Tribal Consultation Practice

How to Improve Your Tribal Consultation Practice

By:      Gabriela Rios | Attorney | gabriela.rios@procopio.com

In the aftermath of the fight to prevent the construction of the Dakota Access Pipeline and continuing efforts to reverse the actions taken by the U.S. Army Corps of Engineers, many people are wondering how a future conflict such as this might be prevented.

Much of the problem—i.e., the desecration of cultural and religious sites–lies with inadequate consultation by the federal, state and local governments under federal law and policies, as well as a misunderstanding of or even a complete disregard for, tribal cultures and religions. I was recently reminded that some of the burden also lies with tribal governments. Although we should continually demand improved federal, state or local policies surrounding the protection of cultural and religious sites and for improved consultation with tribes,that is only half the battle. It takes two parties (at least) to consult.

Tribes must be effective participants at the consultation table.  One way to do this is to develop tribal consultation policies. Trese policies can provide an important tool to ensure meaningful consultation on a Tribe’s own terms. We have found that written policies also provide clear goals, rationale, predictability and consistency on the tribe’s side of the consultation, which provides structure to a dialogue with other government agencies that often lack each of these qualities.

The Indigenous Peoples Law and Policy Program at the University of Arizona James E. Rogers College of Law created a reference tool for tribes considering enacting their own consultation laws and policies, available here.  Consultation can mean different things to different tribes, and the capacity to respond to requests for consultation can vary from tribe to tribe. Therefore it is important to develop a process that implements best practices, but also one that the tribe has the capacity to implement.

Gabriela Rios -LJR_2938Gabriela is a citizen of the Cahuilla Band of Indians and an associate with the Native American Law Practice Group. She graduated from the James E. Rogers College of Law at the University of Arizona in 2015 and is admitted to the State Bar of California.

Ted GriswoldTed 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.

Right Sizing Renewable Tribal Energy Projects at the Right Time

Right Sizing Renewable Tribal Energy Projects at the Right Time

By:      Theodore J. Griswold | Partner | ted.griswold@procopio.com

What direction is renewable energy going in Indian country? Roof top solar is piecemeal and requires multiple individual actions to achieve a meaningful movement toward a green energy future. Utility scale solar and wind can impact large swaths of land and impact landscape-scale cultural viewsheds. Are community scale renewable energy projects the right fit for Tribal communities? More and more, it is appearing that this is the case.

In California, utility scale renewable energy facilities–those sized with the capability to sell energy to the energy grid in the hopes of making a profit–are facing the difficult situation of excess electrical generation during daylight hours that significantly complicate and undermine the financial viability of such facilities. However community scale facilities–those sized to serve a specific community, or portion of a community–are receiving increased attention and may be the direction of future Tribal projects. Community renewable projects allow for Tribal governments and businesses to survive off the grid, increasing energy security and in some places, providing cost effective energy in Indian country for the first time.

The need and wisdom of community scale renewable utilities were recently addressed in Rachael White Hawk excellent review of the forces and opportunities supporting the movement. As if on cue, shortly after the publication of her article, the Chemehuevi Tribe announced the opening of their community scale project in Southern California and the Blue Lake Rancheria announced the groundbreaking for a new community microgrid.

The Chemehuevi Tribe worked with community partners and UC Riverside to demonstrate how a modest-scaled solar project can serve community facilities with long-term research and energy savings results. The project includes a 90-kW solar array plus a 25kW/125-kW battery storage system which allows the benefitting facilities–the Tribe’s community center and housing agency offices—to remain functional during grid outages.

Like the Chemehuevi project, Blue Lake Rancheria has begun construction of a solar facility and battery storage that will allow the Tribe to continue operations in connected buildings without another connection to the grid. More ambitious, the Blue Lake Rancheria project combines a 500 kW solar PV array with a 950-kWh Tesla battery storage facility, and a microgrid that was developed in connection with Humboldt State University’s Schatz Energy Research Center, Idaho Natural Laboratory, and funding from the California Energy Commission.

Collaborative projects such as these may provide Tribal communities the best avenue to fund, develop and generate a dependable energy system that will reduce costs and could help support future economic development. What are your Tribe’s plans for greater energy security?

Ted GriswoldTed 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.

Procopio’s Native American Practice Catches a Rising Star

By:      Ted Griswold | Partner | ted.griswold@procopio.com

I am truly proud and excited to welcome Kerry Patterson as a partner at Procopio.   Kerry is a seasoned tribal attorney that has spent the past 15+ years representing tribal clients and businesses in real estate, governmental, gaming, commercial transactions, finance and economic development in Indian country.   She has developed a significant client base in Arizona and California, helping plan out and implement long-term success strategies for tribal governments that have reaped significant benefits for their tribal communities.  By joining Procopio, Kerry will work with our current practice group to extend the breadth and depth of those successes.

I met Kerry for the first time in 2008, working together as co-counsel for a mutual tribal client.  As a bright, tireless advocate for her tribal clients, I respected her work immensely.  I admired her ability to connect with her clients, engendering a mutual trust and purpose to maximize her clients’ success, protect their sovereignty and realize their self-governance.  That ability to connect requires empathy for your clients, and the strategic savvy to direct them in positive ways.

Now working together as part of the same team, Procopio is able to provide broader services and greater depth for  Kerry’s clients, including self-governance, infrastructure development, education, employment, tax, finance, health care, energy,  intellectual property and complex business transactions.  As importantly, Kerry helps expand our commitment to our tribal clients through giving back to the Native American community.  Kerry’s recognition of Procopio’s commitment to increase opportunities in the Indian community through its internship programs, pro bono assistance to tribal organizations, and voluntary assistance supports our belief that having the honor of representing our clients is joined by the honor of serving their communities.

For more information about Kerry’s background, see here and here.

Kerry Patterson is a partner and a member of the Native American Law and Energy and Environment practice groups at Procopio.  Kerry can be reached at 619.515.3295 or kerry.patterson@procopio.com.

Ted GriswoldTed Griswold 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.

Ninth Circuit Holds that the Federal Reserved Rights Doctrine Applies to Groundwater

Ninth Circuit Holds that the Federal Reserved Rights Doctrine Applies to Groundwater

By:      Walter E. Rusinek | Senior Counsel | walter.rusinek@procopio.com

For the first time, a federal appellate court has held that that the federal “reserved rights” doctrine for water established in the seminal case of Winters v. United States, 207 U.S. 564 (1908), applies to groundwater.  In Agua Caliente Band of Cahuilla Indians v. Coachella Valley Water District, the Ninth Circuit Court of Appeals upheld the trial court’s grant of summary judgment to the Tribe on the reserved rights issue in the first phase of the trial. The remaining two phases of the trial will address whether that reserved right includes the right to maintain the quality of the groundwater and the quantity of groundwater that was reserved.

Relying on Winters, the Ninth Circuit held that when the Tribe’s reservation was established by Executive Orders, those actions reserved an amount of water “necessary to accomplish the purposes of the reservation.”  The “primary purpose” for the Reservation “was to create a home for the Tribe, and water was necessarily implicated in that purpose.”  The Winters doctrine applied to groundwater because a Reservation “without an adequate source of surface water must be able to access groundwater.”  The reserved rights doctrine thus applies to “both surface water and groundwater appurtenant to the reserved land.”

The Court rejected the District’s argument that the decision in United States v. New Mexico, 438 U.S. 696 (1978) required that the Court determine whether groundwater was necessary to fulfill the “primary purpose” of the Reservation in deciding whether a reserved right to groundwater exists at all.  The Court also rejected the District’s arguments that there was no reserved right because the Tribe had the right to pump groundwater under California law, it had not yet pumped any groundwater, and it had rights to surface water.  The Court found all those points irrelevant because the right was limited only by the government’s intent in creating the Reservation.  That conclusion reflected previous decisions applying the Winters doctrine to surface water.

While the Court confirmed that Tribes have reserved rights in groundwater, it did not address the remaining trial court issues, including the amount of groundwater reserved.  The Court acknowledged that the New Mexico primary-secondary analysis could be applicable in that process.  Under New Mexico, which concerned reserved rights on forest lands not a Native American Reservation, the quantity of water reserved is to accomplish the “primary” purpose of the reservation and water needed for “secondary” purposes must be obtained under state law.

The Court’s confirmation that the Winters doctrine applies to groundwater is a significant victory for Tribes.  That is especially true for Tribes in the arid west where groundwater may be the sole or primary source of water for the Reservation.

In addition, the Court’s finding that the Reservation was created to establish a homeland for the Tribe provides a broad and evolving basis to quantify the amount of water reserved.  Most courts had held that the purpose of reservations was for agriculture and that the method to quantify the amount of water reserved was to calculate the “practicably irrigable acreage” or “PIA” on each reservation. The “homeland” purpose adopted here is more rational, although it is not clear how the quantity of water reserved for that broad purpose will compare with the quantity calculated under the PIA process.  That will become clearer as the case proceeds through the next phases of the trial.

Procopio_Rusinek_Walter_Bio Photo

Walter Rusinek is a member of the Native American Law and Energy and Environment practice groups.  He counsels Native American clients on various environmental and Indian law issues, including the transfer of fee-owned property into trust.  Connect with Walter at walter.rusinek@procopio.com.

Ted GriswoldTed 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.

Appreciating Diversity in Graduation Ceremonies

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

High School Graduation is a significant accomplishment for every high school student and their families. The graduation ceremony honors those students for that accomplishment and is a time when their families and communities can take pride in their accomplishments. Schools want their students dressed “appropriately” for the occasion. But, what is “appropriate”?  For many schools, this means prohibiting students from altering their cap and gown and/or restricting the types of shoes and clothing they are allowed to wear for the ceremony to “preserve the dignity and formality of the event.” However, as Heather Torres previously noted on this blog, in Pride or Prejudice: Native Regalia and Graduation Ceremonies, schools across the country also use the “proper attire” rationale to prevent native students from wearing eagle feathers and other traditional regalia at their graduation ceremonies, identifying traditional regalia “as informal, inappropriate, and undignified.”  “Appropriateness” needs to be seen through a lense that maintains culture and tradition that is well established and recognizable.

We applaud California Indian Legal Services’ representation of students to fight decisions by school officials that prevent them from wearing their traditional regalia at their graduation ceremonies. However, not all students are able to get that representation. To proactively address this issue, CILS worked with California Assembly member Todd Gloria from San Diego to introduce Assembly Bill (AB) 233, which would amend the Education Code to prevent schools from prohibiting a student from wearing religious, ceremonial or cultural adornments at high school graduation ceremonies.  We support this effort.

AB 233 is a simple, yet important recognition of the importance of cultural and religious symbols during significant rites of passage for all students.  Each student should be able to honor their achievement with their established religious and cultural traditions on such an important day.  Graduation events are ceremonies, by definition.  The ability to include their tradition as part of their ceremony empowers Native students and endorses the importance of their traditions.  It also shows all graduates an appreciation of the diversity they will encounter as they leave the school system.

For those interested in learning how they can support AB 233 visit Assembly Member Gloria’s  website https://a78.asmdc.org/news , or the CILS website: http://www.calindian.org/donatefeather/ .

Gabriela Rios -LJR_2938Gabriela is an attorney with the Native American Law Practice Group and citizen of the Cahuilla Band of Indians. She graduated from the James E. Rogers College of Law at the University of Arizona in 2015 and is a member of the State Bar of California.

Ted GriswoldTed 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.

BLOGGING ALL OVER THE WORLD IN 2016

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By:      Ted J. Griswold | Partner | ted.griswold@procopio.com

As we look forward to what 2017 may bring, we thought that it might be instructive to review our readers’ interests in 2016.  Thanks to those more tech savvy than yours truly, I was able to determine that the Blogging Circle was read in 10 countries around the globe over the past year.  Readers from the USA, Canada, Mexico, Chile, Brazil, India and Australia—all countries with active indigenous populations—were somewhat predictable, but gaining readership in in the UK, Italy and Ireland was a bit more surprising.  It tells us that there is a diverse audience out there that is looking to learn more about Native American legal issues that may be applicable to their local situation, wherever that is.

What were people looking for?  The top 10 Blogging Circle articles reviewed in 2016 were:

1. No Dice for California Indian Casinos?

2. Aviation in Indian Country: Seminole Tribe of Florida

3. “What’s Up? Native American Aviation and Airspace

4. Standing Rock Sioux Water Protectors Win a Battle, But More Battles to Come

5. Pride or Prejudice: Native Regalia and Graduation Ceremonies

6. Bully’s Beware: Tribal Elected Officials CAN be Sued in State Court

7. Indian Tribes May Gain Relief from NLRB Actions

8. Where are they now? 9 and Counting…The Procopio Native American Internship Alumni

9. Increasing the Numbers: Effective Recruitment of Native American Law Students (Guest column)

10. Now Accepting Applications for Procopio’s Summer 2017 Native American Law Internship Program

We appreciate your interest and hope that you enjoyed reading the Blogging Circle this year, and we look forward to surprising you with additional relevant, entertaining and newsworthy articles next year.  Wishing you a happy, safe and prosperous New Year.

Ted GriswoldTed 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.

IMPROVING BEHAVIORAL HEALTH IN INDIAN COUNTRY

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By:  Shelley A. Carder| Senior Counsel | shelley.carder@procopio.com
Ted Griswold | Partner | ted.griswold@procopio.com

Earlier this month, the first-ever Tribal Behavioral Health Agenda (TBHA) was released.  The TBHA is a ground-breaking formal statement recognizing the unique needs of tribal communities concerning behavioral health care and setting forth an agenda to improve the emotional, spiritual, and mental well-being of tribal members.  The TBHA resulted from extensive consultation among tribal leaders, the Substance Abuse and Mental Health Services Administration (SAMHSA), Indian Health Service (IHS), and National Indian Health Board (NIHB).

The TBHA notes that the Native American population experiences a disproportionately high rate of mental health and substance abuse issues.  Adult American Indians and Alaska Natives experienced higher rates of past year mental illness compared with the general population (21.2 percent versus 17.9 percent) and youth ages 12 and older had higher levels of illicit substance use than the general population (22.9 percent versus 17.8 percent) (SAMHSA).  The study also addresses trauma, violence and crime, historical and current, which result from substance abuse.

The TBHA is intended to provide a unified front to battle behavioral health issues, to elevate priorities and strategies to address these challenges and to promote improved national awareness of the specific problems identified facing tribal communities.   SAMHSA’s Principal Deputy Administrator Kana Enomoto said: “This new initiative represents an important step in our government-to-government relationship and gives American Indian and Alaska Native tribes a greater role in determining how to address their behavioral health needs with urgency and respect.”

The TBHA begins with the American Indian and Alaska Native Cultural Wisdom Declaration, which uses historical and cultural context to identify the issues and to set strategies and priorities for improvement.  The agenda emphasizes the role that cultural wisdom and traditional practices must play in order to achieve improvements in mental health and substance abuse issues among the Indian population.  Prevention, support and recovery issues must respect the need to develop unique ideas and models of health and healing interventions within tribal communities. The document recognizes that healing must focus on historical and intergenerational trauma and the need to develop a socio-cultural-ecological approach to addressing behavioral health issues.

The TBHA also acknowledges that the Native American population has traditionally been underserved and that collaborative efforts will be necessary among the tribes, and with state and federal agencies.

Stacy Bohlen, the Executive Director of the National Indian Health Board (NIHB) called the TBHA “.. . a valuable tool and resource to address the critical behavioral health needs we see across Indian Country.”  The TBHA can be used as a helpful starting point for tribal communities to examine their own data to plan meaningful and effective responses to meet their own unique behavioral health needs.

The TBHA reflects a current nationwide behavioral health crisis that is not limited to the Native American community.  SAMHSA reports that as of 2014 one-third of adults with a major depressive episode received no treatment in the previous year.  The National Survey on Drug Use and Health from that same year reported that 21.2 million Americans ages 12 and older needed treatment for an illegal drug or alcohol use problem.  Despite this need, there has been a 90% reduction in the number of available beds in state hospitals, with 20% eliminated in just the past five years. This results in a lack of placement and treatment options for persons with serious mental illness.

We agree with the TBHA that a successful strategy must simultaneously address the increase in behavioral health needs, as well as decreasing capacity to handle these needs.  We look forward to working with Tribal governments to reverse both trends.

Procopio attorneys are experienced in representing and counseling Tribal governments, Tribal corporations, Inter-Tribal organizations and Tribal-affiliated clients in a wide range of legal matters.  In addition, Procopio’s Health Care practice represents many groups comprising the healthcare industry and approaches the unique needs of Indian and Native American Health care with cultural sensitivity and appreciation for issues of sovereign immunity.


procopio_carder_shelley_bio-photoShelley is a member of the Native American Law and Health Care practice groups.  She has more than 25 years’ experience in health care law that include litigation representing physicians, medical staffs and health care entities.  Connect with Shelley at
shelley.carder@procopio.com.

 

Ted GriswoldTed 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.

Standing Rock Sioux water protectors win a battle, but more battles to come

standing-rock-sioux-water-protectors-win-a-battle-but-more-battles-to-comeEditorial Credit: NYCStock / Shutterstock.com

By: Theodore J. Griswold | Partner | ted.griswold@procopio.com

Yesterday, while many were sipping their Sunday coffee, the U.S. Army Corps of Engineers announced that the Department of the Army will not approve an easement that would allow the proposed Dakota Access Pipeline (DAPL) to cross under Lake Oahe in North Dakota.  I am sure more than one cup of coffee spilled with elation and disbelief that the Water Protectors at and near the Standing Rock Sioux reservation had achieved a major victory against Dallas-based Energy Transfer Partners (ETP).  (Standing Rock Press release is here, and Corps release is here).

When the Dakota Access Pipeline (DAPL) was originally proposed, the pipeline was to follow an alignment that crossed the Missouri River north of Bismarck,  North Dakota and never approached the Standing Rock lands.  However, when concerns were raised by the Bismarck community regarding water supply threats caused by the pipeline tunneling beneath the City’s water source, the project alignment was revised to the south and west.  The revised alignment crossed through disputed lands which the Standing Rock Sioux claimed were dedicated to their use, and proposed to cross the Missouri River by tunneling beneath Lake Oahe, which is just upstream from the Standing Rock reservation and is the Tribe’s water source.  Crossing beneath the Lake would require that the US Army Corps of Engineers grant an easement to construct and maintain the pipeline.  The proposed alignment could not be completed without the approval of easement, and the easement decision is a discretionary decision by the Department of the Army, meaning that it must undergo environmental review, and the Army is not required to grant the easement.

Earlier this year, with the full knowledge that this critical easement was not approved or in place, ETP began construction of the pipeline along this alternative alignment, crossing the disputed Standing Rock Sioux lands.  This premature construction raised the ire of the nationwide Native American community, leading to thousands of “water protectors” to take up residence in protest, seeking to halt the progress of the pipeline while the easement decision was being considered. The militarized police and private security response to the protests were broadcast first on social media, and ultimately in the mass media.  The restraint and tenacity of the protestors gained international attention and support for the water protectors.  Two messages were being challenged by the Native American and environmental communities—1) Bismarck’s water source was deemed worthy of protection, but the Tribe’s was not, and 2) ETP was not going let details like easements (or cultural heritage sites) affect their project.  The Standing Rock Community did not accept these messages, and the rest is (recent) history.

I understand that the opposition to the DAPL alignment arose from the younger members of the Standing Rock community.  Good for them.  They may need to be around for a while to continue their vigilant efforts.  Make no doubt about it– This is a significant battle victory for the Native American and environmental communities; however, as we have learned in many other efforts to preserve cultural heritage and environmental resources (e.g. our recently completed 16 year battle to protect Gregory Canyon and the San Luis Rey River from a landfill, here), it will likely take battles on many fronts to finally achieve protection of the Standing Rock water source and cultural heritage lands.

The current Corps decision does not negate the possibility of the proposed alignment.  Rather, the Corps’  stated that “[a]lthough we have had continuing discussion and exchanges of new information with the Standing Rock Sioux and Dakota Access, it’s clear that there’s more work to do,” Darcy said. “The best way to complete that work responsibly and expeditiously is to explore alternate routes for the pipeline crossing.”  The intention is to consider alternative routes through an Environmental Impact Statement with full public input and analysis.  At the end of this process, there are no guarantees that the same alignment may not be chosen, and with a new administration in January, we will have a president that is financially invested in ETP.  But that is a battle for another day.

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

GCL, LLC and Pala Band of Mission Indians Come Together to End Decades-Long Dispute Over Proposed Gregory Canyon Landfill

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“A victory not just for Pala, but for all Native people who continue the fight to protect sacred lands and waters all over the country”.

During battles such as those currently underway over the Standing Rock Sioux protection of its water source and heritage against the DAPL pipeline project, victories such as this must be celebrated  Thank you Pala Band of Mission Indians for allowing us to be part of your Victory!

FOR IMMEDIATE RELEASE                              CONTACT: Doug Elmets

November 17, 2016                                                              (916) 329-9180

 PALA, CA – Today, GCL, LLC (“GCL”) and the Pala Band of Mission Indians came together to end the decades-long dispute over the proposed Gregory Canyon Landfill. GCL, the owners of the property, and the Pala Band cooperated to negotiate the sale of a portion of the property that included the former landfill site.

This represents a new beginning for GCL, the Pala Band, and the neighboring community. The purchase protects sacred Gregory Mountain and other important and culturally-significant sites forever.

In their discussions with the Pala Band, GCL came to understand and appreciate the importance of the surrounding community and the interest in preserving a cultural landscape. GCL has begun to explore alternative uses for the remaining land which include residential and commercial development. The Pala Band has long urged developers to consider such alternative uses for the property and has agreed to show support for GCL throughout this process.

“The Pala Band of Mission Indians is very pleased to have been able to work cooperatively with GCL to achieve a result that protects both our sacred sites and the water resources critical to numerous users along the river,” said Pala Band Chairman Robert Smith. “Pala supports GCL’s efforts to construct an alternative and more desirable residential and commercial project on its remaining property.”

Pala Environmental Director and Tribal Historic Preservation Officer Shasta Gaughen added, “This is a victory not just for Pala but for all Native people who continue the fight to protect sacred lands and waters all over the country. We are relieved to know that sacred Chokla will never again be threatened.”

Todd Mikles, principal of GCL, stated that, “Since my involvement two years ago, I made it a priority to understand the concerns of the Pala Band and neighboring community. I commend Chairman Smith and the entire Pala Band on working with us to reach a resolution. We are excited about the prospect of benefiting North County San Diego in the future.”

The Pala Band of Mission Indians is a federally recognized tribe whose reservation is located along the Palomar Mountain range approximately 30 miles northeast of San Diego. The majority of the over 900 tribal members live on the 12,000-acre reservation, established for Cupeño and Luiseño Indians, who consider themselves to be one proud people – Pala. 

“WHAT’S UP? NATIVE AMERICAN AVIATION AND AIRSPACE”

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By:  Sandra L. Shippey  Partner | sandra.shippey@procopio.com

The Hualapai (wal-lah-pie) Tribe is a federally-recognized Indian tribe that lives on a reservation overlooking the western rim of the Grand Canyon.  One of its tribal enterprises is Grand Canyon West on the Hualapai reservation at the west rim of the Grand Canyon.  The Hualapai Tribe relies, in part, on tourism to fund its tribal government and for income for its members, and views from above are a large part of the tourist attraction.  The Tribe offers tour packages that can include spectacular views from the “Skywalk” (a glass bridge that enables visitors to walk beyond the rim of the Grand Canyon at 4,000 feet above the Colorado River), helicopter, fixed wing and boat tours, and other excursions on the reservation.  But how well is this commodity protected for the Tribe?

In 2009, a non-Indian freelance tour guide and photographer, Lionel de Antoni flew a fan-powered paraglider over the Hualapai reservation without the Tribe’s permission.  Mr. de Antoni began and ended his flight over the reservation from federal land adjacent to the reservation.  Mr. de Antoni operated a freelance tourism business from the federal land and would regularly fly over the Tribe’s reservation, organize tours, post photos and sell them.  He did not obtain permission from the Tribe to fly over the Tribe’s reservation but did he gain financially from the airspace of the reservation?

This matter raised interesting legal issues regarding the confluence of Native American law and aviation law.  Does the Hualapai Tribe have jurisdiction to impose sanctions on pilots who enter reservation airspace without prior authorization from the Tribe?  An attorney for the Hualapai Tribe believes that “[the Hualapai Tribe] has the right to determine who will or will not fly over Hualapai territory.” “The Federal Aviation Administration (FAA) says the tribe is overstepping its jurisdiction in fining the pilot as much as $25,000 for violating its airspace. “A tribe has no authority over airspace and cannot charge people for using it,” said FAA spokesman Ian Gregor. “The federal government has sole jurisdiction over the nation’s airspace.” [1]

The Tribe and Mr. De Antoni settled their case and as of yet, there is no statutory or case law on whether a Tribe has any sovereign control over the airspace above its reservation.  The FAA has not acknowledged that Tribes possess any sovereign authority in tribal airspace.  However, several Indian Tribes have asserted such a right in their respective constitutions and tribal codes or acknowledged their sovereignty over tribal airspace in their civil ordinances. (e.g. Potawatomi Nation, White Earth Nation, Snoqualmie Indian Tribe, Coquille Indian Tribe). [2]

As sovereign entities, tribal governments are permitted to pass and enforce laws to protect the general welfare, health and safety of their citizens.  As sovereign entities, federally recognized Tribes have an inherent right to physically exclude non-members from reservation land and this right extends to Indians and non-Indians.  The question is whether this right to exclude covers tribal airspace.  Tribes could assert that air traffic above tribal lands could pose a risk or threat to tribal citizens or the tribal government (especially low flying aircraft).  Also, Tribes should have a right to protect its citizens from aircraft noise, air pollution, aviation accidents and other impositions from low-flying aircraft.  In the case of the Hualapai Tribe, the right to exclude could be for the purpose of protecting its own on-reservation airport from unauthorized flights and to control exploitation of its natural resources for unauthorized commercial gain that would protect tribal business interests. By regulating the activity, the Tribal government could appropriately charge a fee for the use of its airspace.

However, others would assert that Tribes are preempted by federal aviation law from exercising control over tribal airspace or that because Tribes are domestic dependent nations, their authority does not extend over their tribal airspace.  We have even heard allegations that, since the FAA aviation regulatory system is the global standard and considered the safest national aviation system in the world, allowing Tribes to regulate tribal airspace could jeopardize safety.  The United States government has a right to require Tribes to permit the free and safe passage of U.S. citizens and officials through reservations and tribal airspace is like a public highway in the sky; however, use of airspace for business purposes that are not transitory is a different situation.

The FAA is not likely to give up much jurisdiction over the greater U.S. airspace, even if it is above tribal lands, especially for flights at higher altitudes.  However, it is possible that Tribes can realize sovereign control over low flying flights over tribal lands or create regulations for such flights over tribal lands, that are consistent with FAA standards.

We are not alone in exploring these areas of economic uses of Tribal airspace, directly or indirectly.  See here and here.

[1] Ultralight pilot arrested for flying over tribal land published on January 22, 2009 by Janice Wood in the General Aviation News.

[2] Id.

Shippey 2013Sandra Shippey is a member of the Native American Practice Group and the State Bar of California – Business Law Section Uniform Commercial Code Committee.  Connect with Sandra at Sandra.shippey@procopio.com and 619.515.3226.

 

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