By: Sandra L. Shippey | Partner | sandra.shippey@procopio.com (1)
In 2016, William M. Haney (2) published an excellent comprehensive analysis of issues arising in connection with tribal sovereignty over tribal airspace in Protecting Tribal Skies: Why Indian Tribes Possess the Sovereign Authority to Regulate Tribal Airspace. In this first of its kind article, Mr. Haney analyzed the importance of tribal sovereignty in a tribe’s own airspace and described potential objections that may be raised by the Federal Aviation Administration. The Blogging Circle published an article by Sandra L. Shippey on November 11, 2016 summarizing Mr. Haney’s article and discussing some of these issues, but our reference and link to Mr. Haney’s article did not appear in our article until after a reader clicked through to the entire article. We decided to re-issue and expand on the original article with personal contributions from and more visible credit to Mr. Haney.
Mr. Haney acknowledges in his article that any nation is entitled to “complete and exclusive sovereignty over the airspace above its territory.” (3) He describes the unique sovereign status of Indian tribes in the United States as self-governing entities, which are also subject to the plenary power of the United States and regarded as “domestic dependent nations” under federal law. This status complicates the question of control over tribal airspace. (4)
To focus on these issues, Mr. Haney describes in his article a situation in 2009 with the Hualapai (wal-lah-pie) Tribe, a federally-recognized Indian tribe that lives on a reservation overlooking the western rim of the Grand Canyon. (5) The Hualapai Tribe has an airport on its land and relies, in part, on tourism to fund its tribal government and for income for its members. (6) Currently, 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 4,000 feet above the Colorado River), helicopter, fixed wing and boat tours, and other excursions on the reservation.
Mr. Haney relates a 2009 incident in which a non-Indian freelance tour guide and photographer, Lionel de Antoni, flew a fan-powered paraglider over the Hualapai reservation without permission from the Hualapai Tribe. 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. (7) He did not obtain permission from the Tribe to fly over the Tribe’s reservation. (8)
This matter raised interesting legal issues regarding the confluence of Native American law and federal aviation law. Mr. Haney describes these issues in his article:
A central point of discussion that quickly emerged was whether the Hualapai Tribe has jurisdictional authority to impose sanctions on pilots who enter reservation airspace without prior authorization from the Tribe. Paul Charlton, an attorney representing the Hualapai Tribe in the case, stated plainly that the Hualapai Tribe has “the right to determine who will or will not fly over Hualapai territory.” A spokesman for the Federal Aviation Administration (“FAA”) initially told a reporter that “[a] tribe has no authority over airspace and cannot charge people for using it,” but did not elaborate on the legal basis for this claim other than to assert “[t]he federal government has sole jurisdiction over the nation’s airspace.” (9)
The Hualapai Tribe and Mr. De Antoni settled their case, and to date, there is no definitive 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, according to Mr. Haney, 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). (10)
According to Mr. Haney’s article, tribal governments, as sovereign entities, are permitted to pass and enforce laws to protect the general welfare, health and safety of their citizens. (11) They have an inherent right to physically exclude non-members from reservation land and this right extends to Indians and non-Indians. (12) 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). (13) Tribes should have a right to protect its citizens from aircraft noise, air pollution, aviation accidents and other impositions from low-flying aircraft. (14) 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. (15)
However, Mr. Haney acknowledges that there may be several potential objections to allowing tribal authority over tribal airspace. First, opponents may assert that Tribes are preempted by federal aviation law from exercising control over tribal airspace. (16) Second, opponents may argue that Indian tribes “have been divested of sovereignty in airspace and assertion of tribal jurisdiction in airspace – particularly over non-members – is inconsistent with the domestic dependent status of Indian tribes under federal law.” (17) Third, opponents may argue that Indian tribes do not possess regulatory jurisdiction over non-member pilots and therefore cannot enforce tribal regulations in airspace. (18)
Mr. Haney also acknowledges that the FAA aviation regulatory system is the “global safety standard against which other national aviation systems are measured.” (19) Would allowing tribes to control airspace above their land jeopardize the safety of the traveling public?
Mr. Haney proposes political and regulatory solutions to “the uncertain status of the ability of tribes to regulate tribal airspace and he argues that a cooperative relationship between Indian tribes and the federal government is necessary to protect tribal interests and the integrity of domestic aviation activities.” (20) Mr. Haney ultimately concludes that “[a]s with many issues affecting Indian tribes, federal legislation could be the key to bringing clarity to these issues by affirming the authority of tribes to regulate at least some aspects of tribal airspace.” (21) He also advocates for a cooperative approach with the FAA, given the federal agency’s authority and expertise in matters involving air safety in the United States. (22)
In 2015, while an Associate Attorney at the law firm Berkey Williams LLP, Mr. Haney filed a public comment on the FAA’s then-proposed (and since finalized) drone regulations. In the letter, Mr. Haney asked the FAA to initiate formal consultation with Indian tribes as it developed the new airspace regulations. In its response to public comments, the FAA acknowledged Mr. Haney’s request and comments with the following reply:
Consistent with Executive Order 13175, Consultation and Coordination with Indian Tribal Governments, and FAA Order 1210.20, American Indian and Alaska Native Tribal Consultation Policy and Procedures, the FAA ensures that Federally Recognized Tribes (Tribes) are given the opportunity to provide meaningful and timely input regarding proposed Federal actions that have the potential to uniquely or significantly affect their respective Tribes. At this point, the FAA has not identified any unique or significant effects, environmental or otherwise, on tribes resulting from this rule. However, the FAA has entered into government-to-government consultation with the Northern Arapaho Nation on its general use of UAS. In addition, the Nez Pierce tribe has contacted FAA to discuss obtaining a section 333 exemption to operate small UAS under existing rules.
… The FAA notes, however, that state governments have historically been able to regulate the takeoffs and landings of aircraft within their state boundaries. The FAA anticipates that the Tribes would be able to exercise similar internal sovereignty with regard to the takeoffs and landings of small UAS within their territories. Thus, while preemption is beyond the scope of this rule, the FAA will conduct outreach to tribes seeking information about their ability to regulate small UAS operations conducted within their territory to see how their concerns could be addressed within the broader UAS integration effort. (23)
On May 25, 2017, United States Senator Diane Feinstein introduced the Drone Federalism Act of 2017 in the United States Senate. The stated purpose of the Act is “[t]o preserve State, local, and tribal authorities and private property rights with respect to unmanned aircraft systems, and for other purposes.” (24) An acknowledgment of tribal concerns about the use of airspace by drones, the Act would require that the FAA, “[i]n prescribing regulations or standards related to civil unmanned aircraft systems, the [FAA] shall ensure that the authority of a State, local, or tribal government to issue reasonable restrictions on the time, manner, and place of operation of a civil unmanned aircraft system that is operated below 200 feet above ground level or within 200 feet of a structure is not preempted [by federal regulation of airspace].” (25) The Act would also require the FAA to “preserve, to the greatest extent practicable, legitimate interests of State, local, and tribal governments” in “prescribing regulations or standards related to civil unmanned aircraft systems…” (26)
According to Mr. Haney, the response by the FAA and the introduction of the Drone Federalism Act represent positive movement toward acknowledgment by the federal government that tribal governments have legitimate interests in regulating certain activities in tribal airspace. He believes that tribal governments have a real opportunity to work with their federal, state, and local counterparts to develop sensible solutions to airspace issues while respecting and promoting tribal sovereignty. Mr. Haney notes that the concerns of tribal governments about the uses of drones in airspace are shared by state and local governments, and that political movement toward the development of local regulatory solutions (27) presents a unique opportunity for tribes to align themselves with other governments on this issue.
Mr. Haney has raised some important issues and conflicts arising from Native American sovereignty and federal control of U.S. airspace. The FAA is not likely to easily accede jurisdiction over U.S. airspace, even if it is above tribal lands, especially for flights at higher altitudes. However, it would seem prudent for the FAA to work with tribes and allow them to realize sovereign control at least with respect to low flying flights over tribal lands or create regulations for flights over tribal lands, consistent with FAA standards.
Sandra 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 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.
(1) This article was developed with editorial contributions and input from William M. Haney.
(2) William M. Haney is a Staff Attorney for the San Manuel Band of Mission Indians and the Treasurer of the California Indian Law Association. Mr. Haney is a graduate of the UCLA School of Law and is licensed to practice law in the state of California. During law school, Mr. Haney was a Staff Member and Associate Editor of the UCLA Law Review and served as Secretary and Alumni Chair of the UCLA Native American Law Students Association. His practice areas include tribal governance, economic development, environmental law, intellectual property, employment, real estate, the Indian Child Welfare Act, and the protection and promotion of tribal sovereignty. Mr. Haney is an enrolled member of the Seminole Nation of Oklahoma.
(3) Id. at p. 3.
(4) Id. at p. 3.
(5) Id. at p. 5.
(6) Id. at p. 4.
(7) Id. at p. 5.
(8) Id. at p. 5.
(9) Id. at p. 5.
(10) Id. at p. 19-20.
(11) Id. at p. 28.
(12) Id. at p. 30.
(13) Id. at p. 31
(14) Id. at p. 31.
(15) Id. at p. 31.
(16) Id. at p. 33.
(17) Id. at p. 34.
(18) Id. at p. 34.
(19) Id. at p. 35.
(20) Id. At p. 1.
(21) Id. at pp. 36-37.
(22) Id. at 37.
(23) Fed. Aviation Admin. and the Off. of the Sec. of Trans., Dept. of Trans., Final Rule, Fed. Reg. Vol. 81, No. 124, at p. 42189 (June 28, 2016) (emphasis added), available at https://www.gpo.gov/fdsys/pkg/FR-2016-06-28/pdf/2016-15079.pdf.
(24) Drone Federalism Act of 2017, S. 1272, 115th Congress, 1st Session, introduced on May 25, 2017.
(25) Id. at 2-3 (emphasis added).
(26) Id. at 2.
(27) U.S. News & World Report, Nick Muscavage and Andrew J. Goudsward, Courier News & Home Tribune, Drone Flyers Think About Regulation as Industry Takes Flight, July 23, 2017, available at https://www.usnews.com/news/best-states/pennsylvania/articles/2017-07-23/drone-flyers-think-about-regulation-as-industry-takes-flight (discussing efforts by state and local governments to regulate drone use in airspace).
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