BLOGGING ALL OVER THE WORLD IN 2016

blogging-all-over-the-world-in-2016

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.

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

whats-up-native-american-aviation-and-airspace

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.

Aviation in Indian County: Seminole Tribe of Florida

By: Sandra L. Shippey | Partner | sandra.shippey@procopio.com
Theodore J. Griswold | Partner | ted.griswold@procopio.com
Stephanie Conduff | Law Clerk | stephanieconduff@procopio.com

Seminole Tribe of Florida Chairman James E. Billie, an ex-military and licensed pilot, used to land his plane on a desolate reservation road. His airplane allowed him to travel independently to and from the Seminole Tribe of Florida reservation as he worked to develop Tribal businesses. My, how things have changed. Today that road has become the Big Cypress Airfield. Privately owned by the Seminole Tribe of Florida, the airfield employs 18 staff members and is buzzing with 3 winged aircraft – including a 13 passenger Gulfstream IV – and 4 helicopters, and it is growing. It seems Chairman Billie was onto something.

The Seminole Tribe has begun to realize the business and governmental benefits of having its own airfield on its Reservation. Other tribes may want to take notice.

The operational costs of the Big Cypress Airfield are limited and the benefits substantial. The Tribal airfield uses existing reservation land, so there was no acquisition cost and no lease. Likewise, state property taxes on the airfield itself are not an issue and there are no state property or use taxes on the aircraft. Oh, and parking is free.

Many reservations struggle with a geographic challenge of isolation from business centers. The Seminole Tribe has mitigated this issue by making travel more efficient and flexible. The Big Cypress Airfield allows Tribal business leaders to use the Seminole Tribe’s own aircraft to visit its off-reservation business operations, conduct business, and attend intergovernmental meetings without being tied to a commercial airline schedule. This becomes important when Tribal executives are running both a business empire and a Nation. The Seminole Tribe has more than 4,000 citizens and booming businesses including the Hard Rock International purchased in 2007 from the Britain-based company Rank Group plc for an estimated $965 million. The unprecedented deal now includes 191 venues in 59 countries, including 145 Hard Rock Cafes, 21 Hard Rock Hotels and 10 casinos.

In addition, the Seminole Tribal government generates billions of dollars in economic impact in Florida and elsewhere through vendor contracts and indirect spending spun-off from its gaming and governmental operations, as well as its other business interests. For this tribal government, the efficiency of using its Aviation Department to fly Tribal executives to and from the Reservation is a valuable business tool for saving time and increasing revenues.

Tribal governmental services can be more efficient and immediate with the availability of aircraft. When West Nile virus was detected at the Brighton Reservation, the Seminole Tribe’s Aviation Department was able to immediately ramp up mosquito control with the Bell 206B helicopter through aerial applications of mosquito control throughout the reservation. Tribal citizens were quickly protected from encephalitis and other mosquito-borne illnesses.

The Big Cypress Airfield has long been used as a home base for fire suppression efforts. The Seminole Tribe, in conjunction with the Bureau of Indian Affairs, has created a fire suppression and response program that extends beyond the reservation jurisdictional boundaries. By servicing the surrounding community, the Tribe ensures the safety of both Native and non-Native communities.

The Aviation Department also supports the Seminole Police Department in providing aerial security on and off the reservation. During the Super Bowl activities at the Seminole Hard Rock Hotel, the Department provided aerial support for security and traffic control.

The Tribe also holds open houses at Big Cypress Airfield to inspire and attract Native youth to careers in aviation.

Tribal airfields and aircraft are not reserved for the largest of Tribal Nations. The benefits of a tribal airfield along with the right aircraft can assist even moderate sized reservations shorten the distance from the reservations to economic centers and the use of aircraft on and around the reservations can better serve tribal citizens. Does your reservation have a dusty road waiting for a new use?

A special thanks to Clinton A. El-Ramey, Director of the Aviation Department, at the Seminole Tribe of Florida, for his public service to Indian Country and the United States.

Sandy Shippey is co-chair of Procopio’s Aviation Practice Group and a member of the Native American Practice Group.

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.

Advising the Advisor to the President: My Experience with Federal Governmental Advisory Committees

By: Stephanie Conduff | Law Clerk | stephanie.conduff@procopio.com
Theodore J. Griswold | Partner | ted.griswold@procopio.com

There are experiences in life that you have to be there to believe. So often in Indian Country, we recount the Bureau of Indian Affairs (BIA) and the Indian Health Service (IHS) failures without any appreciation of the people who create these organizational structures and buildings in Washington DC and all over the United States.

Two of the major players that you read about in Congressional Testimony, court filings and national media headlines are:

  • Kevin Washburn – Assistant Secretary, Indian Affairs for the US Department of the Interior
  • Yvette Roubideaux – Acting Director, Indian Health Service

This time last week, I worked side-by-side with the DOI Self-Governance Advisory Committee and the Indian Health Service (IHS) Tribal Self-Governance Advisory Committee to participate in the consultation process between tribal leaders and the federal government. They are empowered with the task of advising both Secretary Washburn and Dr. Roubideaux on a myriad of multifaceted policy topics including advanced appropriations, contract support costs, Ebola preparedness, third-party collections and grants for school boards. In turn, Secretary Washburn and Dr. Roubideaux advise the President.

These two aren’t figureheads. They are engaging and passionate leaders. Both confident, respectful and open to learning. They exemplify the spirit of consultation and what a government-to-government relationship should look like; in this room one could imagine observing the G8 Summit. This work group feels more like a peer group than a representational sampling of sovereigns. Perhaps it is because we are all related – by definition a tribe is a family of families. I realize that I am kinfolk to at least three people in the room before lunch. Governance changes when you have to answer to the taxpayers and to Great Aunt Pearl on Sunday. Both want answers.

I leave day two especially thankful policy work groups like this exist to ensure the mundane (think FY 2016 appropriations) are in line and the urgent (imagine Ebola isolation units at your local IHS facility) are anticipated. It is the work of these leaders in Indian Country that we are protected, represented and heard by the federal decision makers on the most important issues facing our families, neighbors and communities.

This was true consultation – one that can’t be codified by law. It can only be done out of genuine respect for self-governance and by a true statesman (or stateswoman). It’s refreshing to see the head of these agencies – sitting in a circle – with tribal leadership. They joke. They laugh. They are serious, focused and respectful. This wasn’t just a stop on a busy agenda of meetings but a place where a team of advisors met to hold each other accountable and generate solutions to Indian Country’s top problems.

Stephanie Conduff is a citizen of the Cherokee Nation. She graduated from the University of Oklahoma College of Law.

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.