Fort Belknap Agency in Montana serves as headquarters of the Ft. Belknap Indian Community. Photo: 88th Readiness Division
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Tribes prepare court challenge after FCC adopts contentious policy




Tribes across the nation are ready to fight after the Federal Communications Commission approved a new policy that they say will make it harder to protect sacred sites and ancestral territories.

Tribes had already complained about a lack of consultation as Republican members of the FCC proposed to "streamline" the interests of the wireless industry. Now they are preparing court challenges following the federal body's close, 3-2 vote at a meeting in Washington, D.C., on Thursday.

"We are incredibly disappointed by the FCC's vote today," President Andrew "Andy" Werk Jr. of the Ft. Belknap Indian Community told Indianz.Com. "Fixing a system does not require complete obliteration of tribal protections."

Like many in Indian Country, Ft. Belknap's homelands lie beyond existing reservation borders in Montana. In recognition of that unique status, federal environmental and historic preservation laws require tribes to be consulted to determine whether wireless infrastructure, such as cell phone towers, impacts their cultural resources.

"All of the United States was Indian land," Welk pointed out. "Our people lived throughout the nation, and our sacred sites are not limited to the small reserved lands where we have now been sequestered."

But with the Wireless Infrastructure Streamlining Order adopted on Thursday, tribes and their advocates believe the FCC is turning back the clock back on established practice and policy. As part of the changes, the industry will no longer have to reach out to tribes when they install so-called "small" wireless infrastructure.

According to proponents, including some of the largest and wealthiest telecommunications companies in the world, streamlining will create more jobs, reduce costs and improve wireless service around the nation. But Welk said Indian Country's rights are being sacrificed in the process.

"We all want access to broadband, especially in rural isolated areas like the Ft. Belknap Indian Community in Montana," Welk said. "But the nation's growth should not keep coming at the expense of tribal nations and our sacred sites. By forbidding tribes from protecting our sacred sites and other cultural resources, the FCC leaves tribes no choice but to seek relief in the federal courts."

Democrats on the FCC agreed with these types of concerns. Commissioner Mignon Clyburn had called on her colleagues to delay the vote in order to engage in more government-to-government consultation with tribes but her request was ignored.

"At this juncture, the potential adverse impact of these proposed rules on tribal nations, historic sites and the natural environment are severe and have yet to be fully addressed," said Clyburn.

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Commissioner Jessica Rosenworcel, another Democrat, also voiced alarms. While the FCC has touted conference calls, meetings and other outreach sessions as evidence of consultation, she pointed out that "not a single tribe has stressed support " for the changes.

"We have long-standing duties to consult with tribes before implementing any regulation or policy that will significantly or uniquely affect tribal governments, their land or their resources. This responsibility is memorialized in the FCC policy statement on establishing a government-to-government relationship with Indian tribes," Rosenworcel said. "But we do not honor it here."

Republicans hold three seats on the FCC so they were easily able to push through the changes over the objections. Ajit Pai, the chairman, was joined by Brendan Carr, who took the lead on the proposal, and Michael O'Rielly in approving the wireless streamlining report and order.

"Whether you live in a big city or a rural town, broadband is key to economic opportunity and job creation," Carr said in a statement after the vote. "Outdated federal regulations shouldn’t be what stands in the way of connectivity for any community."

In addition to limiting tribal input, the FCC bowed to the industry by addressing a controversial monetary issue. The streamlining order states that wireless firms have "no legal obligation to pay up-front fees when providing tribal nations and NHOs (Native Hawaiian Organizations) with an opportunity to comment on proposed facilities deployments."

Tribes and their historic preservation offices use the fees to conduct studies and ensure that wireless development won't harm important sites. Though the funds have long been considered a cost of doing business, Republicans on the FCC complained they were too burdensome, with Commissioner O'Rielly calling some of them "outrageous."

"For too long, we've allowed a small subset of tribes acting in bad faith to unnecessarily slow communications build-out," said O'Rielly. "This brings a bad name to the rest of American tribes that really try to do good faith effort to work with wireless providers on behalf of consumers."


The industry, for its part, is cheering the FCC's action. Many had submitted comments in defense of the agency's tribal consultation efforts.

“The reforms will make a big difference in how quickly these more powerful networks can be installed for consumers and communities across the nation," Meredith Attwell Baker, the president and CEO of CTIA, an advocacy organization for wireless companies, said in a press release.

As of Thursday afternoon, the filings system for the "Accelerating Wireless Broadband Deployment by Removing Barriers to Infrastructure Investment" had over 850 entries. That makes it one of the most active proceedings at the FCC.

Tribes from every region of the country have submitted comments. They are now consulting with law firms and experts on legal challenges to the FCC's policy, advocates said on Thursday.

Related Stories:
Democrats demand consultation on FCC policy opposed by tribes (March 21, 2018)
Tribes object as Trump appointees 'streamline' interests of industry (March 20, 2018)