Sec. 3. Findings and purposes
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/bill/117/s/5321/is/section-3A research copy — for the controlling text, always check the official state or federal source. Not legal advice.
Congress finds the following: Indian Tribes are sovereign nations that are independent and legally distinct political bodies that exercise self-governance with the inherent power to control their internal relations including natural resource development and management of assets, including spectrum over Tribal lands. This longstanding precedent established territorial sovereignty through distinct and separate jurisdictions in which Indian Tribes retain their sovereign power to control their internal relations and protect Tribal self-governance within designated Tribal lands or reservations.
Tribal lands were established during the Allotment or Reservation era of Federal Indian law and policy (1871–1928) when the Federal Government significantly narrowed the control and rights of Indian Tribes through the unilateral acquisition of Tribal lands and resources, then subsequently gave the rights to this property to non-Indian settlers. Under the General Allotment Act of 1887, Tribal members were forced to surrender their previously undivided interest in Tribally owned trust estate for individually assigned land interests creating permanently divided land allotments on Tribal lands, and further coercing Native Americans into assimilation and dependency on the Federal Government, thus depriving them of their traditional economies.
Congress has acknowledged that this Reservation Era policy is widely known as failed Federal policy that established individual non-Indian land holdings on reservations resulting in checkerboarded Tribal lands that cause complex jurisdictional and legal complications today. In response to these failed, paternalistic Federal assimilation policies, forced acquisition of indigenous lands, and genocide of Native Americans, the United States has recognized the unique legal relationship and trust responsibility it has with American Indians, Alaska Natives, and Native Hawaiians to promote their self-determination and sovereignty in furtherance of its treaty obligations and longstanding government-to-government relationship.
Congressional authority to manage this unique government-to-government relationship with Native nations and Indian affairs generally is recognized as plenary; constitutionally vested congressional authority to regulate commerce and govern activities with Indian Tribes, which is distinct and separate from executive and judicial branch powers. The Federal Government’s trust responsibility with Indian Tribes extends to all governmental branches requiring the United States to uphold its fiduciary duties of care and loyalty, to make trust property income productive, to enforce reasonable claims on behalf of Native Americans, and to take affirmative action to preserve trust property, for the benefit of American Indians and Alaska Natives, and Native Hawaiians as part of this Federal-Tribal relationship and Tribal self-governance.
The Federal Communications Commission
(FCC)has acknowledged this fiduciary responsibility to Native nations and has further recognized the Commission’s own responsibility to promote their self-sufficiency and economic development on Tribal lands. In 2018, a Government Accountability Office
(GAO)report noted that numerous Tribal entities, associations, and academic groups consider spectrum as a natural resource that should be managed by Tribes. FCC officials responded that, spectrum is not considered a reserved right under treaties with Indian tribes, as it is not explicitly stated . The first United States treaty with an American Indian Tribe was ratified in 1778, over 240 years ago, and Indian treaty-making ended in 1871, prior to the development of spectrum, and adoption of the existing regime for licensing and regulating spectrum access. Further, a 2020 GAO report repeatedly stated that spectrum is a finite natural resource used to provide a variety of communication services to governmental entities. However, with the exception of the FCC’s efforts to allocate a severely limited bandwidth of temporary spectrum authority to select Tribal applicants during the COVID–19 crisis, it failed to grant numerous emergency requests from Congress, Indian Tribes, and Native Hawaiian organizations to extend the 2.5 GHz Rural Tribal Priority Window timeline by 180 days to give Native nations a fair opportunity to secure spectrum over their Tribal lands before the September 2, 2020, expiration date amidst the pandemic. To date, the Commission has failed to implement nationwide spectrum opportunities or uniform licensing for Indian Tribes and Native Hawaiian organizations to make spectrum available over their Tribal lands or account for the unmet needs of native Nations in compliance with the Federal trust responsibility. To the contrary, the FCC has used its general authority to regulate for-profit commercial use of spectrum over Tribal lands to assign Indian Tribes’ spectrum licenses to non-Indian companies through privatized auctions, by promulgating regulations for licensed and unlicensed spectrum over Tribal lands, and by conducting oversight over secondary market transactions, including leasing spectrum licenses over Tribal lands and Hawaiian Home Lands to private companies without Tribal consultation or consent. The Commission’s actions parallel failed Federal Reservation Era policy that divided Indian land holdings and created systemic barriers to Indian Tribes’ economic development and legal jurisdictional complications on Tribal lands that continue to disadvantage Tribal communities today. Indian Tribes and Native Hawaiian organizations continue to encounter substantial barriers to accessing spectrum on Tribal lands and Hawaiian Home Lands to deploy telecommunications services for the safety and well-being of their members to decrease the alarming rates of violent crimes, suicides, and additional unnecessary loss of lives that Native Americans disproportionately experience, especially through the lack of access to telehealth services and digital emergency resources as demonstrated during the COVID–19 pandemic that disproportionately impacted Indian Country. Further, the 2018 Broken Promises Report published by the United States Commission on Civil Rights found Native Americans rank near the bottom of all Americans in terms of health, education, and employment due to the unique challenges and harsh living conditions as a result of the Reservation Era when the Federal Government relocated Indian Tribes to geographically isolated reservations where persistent discrimination has rendered their reality often invisible to other Americans . Today, Tribal lands are some of the most digitally disconnected areas in the United States, where 1.5 million people lack basic broadband and wireless services at rates comparable to, and in some cases lower than, developing countries, leaving Tribal lands further behind in the digital divide by global benchmarks. In 2018, the Broadband Commission for Sustainable Development reported that wireless network coverage in Sub-Saharan Africa increased to 70 percent, surpassing the network coverage rates on Tribal lands and Hawaiian Home Lands in the United States. In 2018, the Government Accountability Office
(GAO)and the Federal Communications Commission
(FCC)reported that over 92 percent of people living outside of Tribal lands and Hawaiian Home Lands have access to fixed broadband services, and 98 percent of American households have telephone services. However, only 65 percent of American Indians, Alaska Natives, and Native Hawaiians living on Tribal lands and Hawaiian Home Lands have access to fixed broadband services, and only 69 percent of households on Tribal lands have telephone services. Lack of Indian Tribes’ access to spectrum over their Tribal lands during the COVID–19 pandemic also highlighted Indian Country’s expanding digital divide, as supported by the GAO’s finding that health information technology systems at the Indian Health Service
(IHS)rank as the Federal Government’s third-highest need for agency system modernization since 50 percent of IHS facilities depend on outdated circuit connections based on one or two T1 circuit lines (3 Mbps), creating slower response times than any other health facility system in the country. A 2018 National Congress of American Indians and National Indian Health Board health reform comment filed with the Federal Communications Commission has further stated that 75 percent of rural Indian Health Service
(IHS)facilities do not have reliable broadband networks for American Indians and Alaska Natives to access telehealth-based services, which is a critical need in the most geographically isolated areas of the United States with some of the highest poverty rates, and lack of access to reliable transportation. Additionally, IHS officials reported during the COVID–19 pandemic that deficiencies within their health IT system inhibited the agency’s ability to adequately conduct coronavirus disease surveillance and record accurate data contributing to the disproportional rates of coronavirus transmissions on reservations. The Bureau of Indian Education
(BIE)estimated from a survey of 142 out of 174 schools, that up to 95 percent of their students do not have access to residential internet services depending on Bureau school locations and data cap limitations before and during the pandemic. As an additional barrier, no dedicated Federal funding streams exist for Indian Tribes or Native Hawaiian organizations to deploy telecommunications or broadband services, both wireline and wireless, on Tribal lands and Hawaiian Home Lands. In 2018, the GAO found that the FCC and Department of Agriculture’s combined total of $34,600,000,000 was available for broadband services and infrastructure; however, from 2010 to 2017, only 0.7 percent was allocated to Tribal telecommunications deployment. It is estimated that only 0.3 percent of the 13,000 radio facilities in the country belong to federally recognized Indian Tribes, indicating a severe lack of Tribal ownership of telecommunications services generally. Indian Tribes’ and Native Hawaiian organizations’ longstanding funding and administrative barriers to access spectrum over Tribal lands and Hawaiian Home Lands prohibits their self-governance and further exacerbate rates of unemployment, systemic poverty, health disparities, connection to the global market, educational and economic opportunities, unnecessary loss of lives, and unknown future disparities resulting from the absence of indigenous representation in the modernization of the digital sector, coding, general advancement of technological services and platforms, and Native ownership in the telecommunications industry. The purposes of this Act are— to clarify Indian Tribes’ and Native Hawaiian organizations’ inherent ownership of, and preserve, Indian Tribes’ spectrum licenses and spectrum over Tribal lands and Hawaiian Home Lands in furtherance of the trust responsibility and acknowledgment of sovereign status in the United States; to diminish the effect of the Commission’s Tribal priority filing windows, auctions for spectrum licenses over Tribal lands, and assignment and leasing of spectrum over Tribal lands; ensure the Commission’s competitive bidding authority does not apply to licenses or construction permits issued by the Commission over Tribal lands and Hawaiian Home Lands; and permanently eliminate the public availability of spectrum over Tribal lands and Hawaiian Home Lands; to ensure the Commission requires all unused and unassigned spectrum licenses over Tribal lands and Hawaiian Home Lands to revert to the ownership of the Indian Tribe and Native Hawaiian organization where they are geographically located in furtherance of prioritizing their ownership of spectrum over Tribal lands and Hawaiian Home Lands as part of their inherent self-governance, and expedite the immediate deployment of wireless services for critical government services, including national emergencies, natural disasters, and biohazard threats, access to health, public safety services, educational opportunities, ability to participate in the broadband economy, access to Federal, State, and Tribal voting and elections, and the Federal census count; to promote Indian Tribes’ inherent self-governance and autonomy over their respective Tribal lands by ensuring spectrum over Tribal lands and Hawaiian Home Lands are held by Indian Tribes and Native Hawaiian organizations in perpetuity in compliance with the Federal trust responsibility; to ensure Indian Tribes and Native Hawaiian organizations have resources available for the full retention and immediate deployment of their spectrum over Tribal lands and Hawaiian Home Lands for wireless broadband service and telecommunications services, including all commercial, noncommercial, mobile, radio, television, broadcast, middle mile and long haul fiber, and future spectrum licenses, infrastructure, and interconnectivity services that are within the jurisdiction of their respective Tribal lands and Hawaiian Home Lands; to encourage Indian Tribes and Native Hawaiian organizations to immediately develop and deploy spectrum services over their lands, especially broadband and wireless services, to bridge the increasing digital divide over Tribal lands for the realization of full self-governance and autonomy through access to critical government services, resources for national emergencies, economic development, and management of resources; to create opportunities for Indian Tribes and Native Hawaiian organizations to develop and build out digital and telecommunications networks and infrastructure on their lands and promote full self-governance and autonomy; to require the Commission to initiate and complete the rulemaking process with robust, interactive, pre-decisional, informative, and transparent consultation with Indian Tribes and Native Hawaiian organizations in order for them to obtain free, prior, and informed consent before the approval and adoption of administrative measures or agency action that affects Tribal lands, or other associated Tribal resources, especially where telecommunications processes and associated information are unclear, unreported, or inadequate to meet the needs of Indian Tribes and Native Hawaiian organizations to preserve spectrum rights over Tribal lands and Hawaiian Home Lands, establish the Tribal Broadband Fund, and build out robust digital networks on Tribal lands so their members can access digital services at rates proportional to non-Indians living off Tribal lands; and to ensure the Commission ceases the allotment of spectrum rights over Tribal lands and Hawaiian Home Lands to private telecommunication companies to protect life and property in furtherance of the Federal trust responsibility.