The Unraveling of Government-to-Government Tribal ConsultationTribal Nations Involvement Minimized outside Reservation Boundaries by Action of Federal Communications Commission
By Tim Mentz Sr. (Makoche Wowapi)
For the Teton Times
facebook.com/thetetontimes As Indian Tribes, as referenced in the National Historic Preservation Act of 1966, we had to jump over numerous legal and legislative hoops to have a voice on our culture, spirituality within our established reservation boundaries and within our recognized treaty boundaries. But all of that has changed again, the Federal Communications Commission (FCC) made an abrupt change in Indian policy. On March 22, at a FCC meeting, the commission voted (3-2) to pull the federal requirements for reviewing small wireless infrastructure projects that directly impact Indian Tribes involvement and government-to-government consultation. The vote basically amounts to the erosion of certain statutory requirements contained within two federal laws. The proposal would eliminate the implementation of federal review and oversight on small cellular 5G installations. Andy Szal wrote an article posted by the Wireless Week titled “FCC Alters Small Cell Oversight, Tribal Review Process” quotes certain FCC commissioners on the actions:
“It’s a chance for the FCC to demonstrate our commitment to seeing the United States and American consumers win the race to 5G,” Commissioner Brendan Carr, who authored the proposal, said during the meeting. One of the opponents stated:
“Our nation’s infrastructure policies must be aligned with existing congressional mandates and the needs of local communities,” Commissioner Mignon Clyburn said. “Commissioner Clyburn argued that the National Historic Preservation Act (NHPA) and the National Environmental Policy Act (NEPA) apply to every federal agency and that ‘winning the 5G race’ needs not come at the expense of those important statutory goals.” “FCC Chairman Ajit Pai said the proposal — which also alters certain environmental assessment filings and the timeframe during which the FCC can address them — seeks to treat small cells differently than massive cell towers used to deploy 4G networks.” "You can stick with the regulatory status quo, or you can have 5G," Pai said. "You cannot have both." The action of these three commissioners will surely raise concerns with the agency leadership of FCC trying to understand how to implement public involvement and mandates that requires government-to-government consultation with Indian Tribes. Currently these are required in the NHPA and NEPA. FCC cites in their report that they have internal regulations that will provide streamlining of the requirements of these two Acts and/or Executive Orders. With the national infrastructure policies adjusting to corporate wish lists, more infrastructure development will continue to chip away at the environmental goals and reviews that are statutory requirements. Ready to Fight: Tribes prepare court challenge after FCC adopts contentious policy
Indian Tribes Lose Consultation Rights with this ActionAn added provision in the March 22nd decision of the FCC would also alter the process for Indian Tribes to participate in the federal review and section 106 consultations on small wireless 5G installation(s). Specifically, this provision addresses the excessive fees that Wireless Carriers state are outrageous that Tribal Historic Preservation Officers (THPO) requires operators to pay. Most Indian Tribes unbeknownst to them don’t realize it’s the tribal government’s job to oversee the THPO’s and their actions. The federal agencies hold the THPO’s to relaying this type of information to their leadership from consultation. But, this breakdown raises other concerns to the FCC. FCC Commissioner Michael O’Rielly accused a small number of tribes of “acting in bad faith” to turn “towers and antenna siting into the latest cash cow.” Some Cultural Resource Management (CRM) firms are watching certain Great Plains THPO’s guilty of this very statement that has led to the clipping away of the monumental 1992 amendments to the NHPA from the hands of certain THPO’s. We, the CRM firms in the Great Plains area, know who you are but are the tribal governments aware what their THPO is doing? One would ask what prompted this decision by FCC to examine why it’s difficult to permit and approve a Section 106 federal undertaking under NHPA for development of cell tower placement in the United States. In the CRM communities we have witnessed and followed the stalling of section 106 projects by THPO’s in the Great Plains alone because it involved money. The THPO was created in the 1992 amendments to regulate federal undertakings within their respective reservation boundaries on Tribal Lands. The THPO’s have no regulatory authority outside reservation boundaries. THPO’s feel it’s their responsibility to contract federal or private industry in the identification of historic properties of religious and cultural significance to Indian Tribes. It’s a conflict of interest for the THPO to act as contractors whether inside or outside reservation boundaries. The THPO’s seem to have forgotten it was the Indian Tribes that lobbied Congress up to the passage of the ’92 amendments for the right for Indian Tribes to identify historic properties of religious and cultural significance outside reservation boundaries that were important to them. Rather, THPO’s are fooling themselves that they can fulfill section 106 consultations and government-to-government consultations by sending their own tribal individuals out representing their THPO office to participate in the identification process by surveying. Yet, the entire process at this point loses the foundation of the 1992 amendments.
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THPO’s are using archaeological firms to identify, document and write a report for the THPO’s on the importance of our sacred sites. Doing so, we have slingshot ourselves back to the 1960’s era and back into the conflict of assimilation, repeating their old understanding to us that we don’t know our own culture. The archaeologists would love to control this process and the THPO’s are handing it to them without any remorse. Currently, that’s the only way THPO’s have been placing people on projects since 2013 without their tribe’s knowledge. They don’t realize THPO’s are a liability to their tribal governments as they are messing with the tribe’s tax status being a regulatory office but “for profit.” They are deep into contracting with private industry that is unchecked, no record of running the contracts through tribal government and because the tribal governments are oblivious to what the THPO’s are doing it’s a question whose pocket is the money going into? Is this why the THPO’s are missing the response time to letters on important big infrastructure development? In the September 12, 2017, tribal council meeting, SRST THPO John Eagle makes a continuous statement “we don’t have time to review all the letters because we get over (100) letters a month.” That statement doesn’t relieve the Wireless Carrier or FCC from moving the project in a timely manner. This decision by FCC was inevitable. One would also ask what a timely manner is. First, most if not all cell placement projects, are located outside tribal reservation boundaries already under review by the respective State Historic Preservation Officer, who has the legal responsibility to sign off or concur with a determination of effects letter generated by a federal agency, in this case FCC. Secondly, one would ask why the THPO’s are requested to consult is because of the 1992 amendments also calls for government-to-government consultation on areas or historic properties of religious and cultural significance, section 101 (d) (6)(B) of NHPA. But the THPO’s tend to administer both unless they tell federal agencies what role they play. The THPO’s including Standing Rock’s THPO responds to a FCC letter and charges for the response. Some responses he billed $2,750. This is a regulatory function that will be taken away because it’s being used as a cash cow to mis-guided THPO’s who think, “everybody else is doing it.” It’s unclear which THPO’s are guilty of charging as FCC contends. This action was a long time coming as it came to a head starting in 2016 and building steam from pressure from Wireless Carriers into 2017 that complained to FCC that Tribes with THPO’s are stalling the process until their fee is paid. FCC held listening sessions and heard the Carriers repeat the continuous comments about outrageous fees by tribes.
FCC Hearing On WT Docket No. 17-79, Proposed Rulemaking and Notice of InquiryIn response to the comments from Carriers, the public, private citizens and tribes, FCC adopted on April20, 2017 a Notice OF PROPOSED RULEMAKING AND NOTICE OF INQUIRY and released it on April 21, 2017. The following excerpt provides the reader the scope of this issue. This portion states the purpose for this action and comes directly out of the document which stated in part: [“This Notice of Proposed Rulemaking and Notice of Inquiry (NPRM and NOI, respectively) commence an examination of the regulatory impediments to wireless network infrastructure investment and deployment, and how we may remove or reduce such impediments consistent with the law and the public interest, in order to promote the rapid deployment of advanced wireless broadband service to all Americans. Because providers will need to deploy large numbers of wireless cell sites to meet the country’s wireless broadband needs and implement next generation technologies, there is an urgent need to remove any unnecessary barriers to such deployment, whether caused by Federal law, Commission processes, local and State reviews, or otherwise.”] The following is a large excerpt also from this Document that describes in detail the comments from the Carriers and wireless providers. This gives the reader exactly why this decision was made by the FCC: [“The historic preservation review process under Section 106 of the NHPA has raised particular concerns among wireless providers. This process not only requires that providers make their own determinations as to whether a project will have effects on historic properties, but also requires obtaining input from SHPOs and Tribal Nations, and wireless providers argue that this process results in significant delays in the execution of their deployment plans. A large number of wireless providers complain that the Tribal component of the Section 106 review process is particularly cumbersome and costly. Providers have argued that Tribal Nation review has caused substantial delays that significantly exceed those attributable to the SHPO review process, and Tribal compensation in connection with the review of submissions to TCNS has become a highly contentious subject. These Tribal reviews do not relate to Tribal lands, but to areas of Tribal interest, which include Tribal burial grounds and other sites that Tribes regard as sacred off Tribal lands. We observe that TCNS data reveals that, in recent years, the areas of interest claimed by Tribal Nations have increased. TCNS data reveals that the average number of Tribal Nations notified per tower project increased from eight in 2008 to 13 in August 2016 and 14 in March 2017. Six of the 19 Tribal Nations claiming ten or more full States within their geographic area of interest in March 2017 had increased that number since August 2016, with three Tribal Nations claiming 20 or more full States in addition to select counties. In 2015, 50 Tribal Nations noted fees associated with their review process in TCNS; by March 2017, Commission staff was aware of at least 95 Tribal Nations routinely charging fees, including 85 with fees noted in TCNS and 10 that staff was aware of from other sources. This data further suggests that the average cost per Tribal Nation charging fees increased by 30% and the average fee for collocations increased by almost 50% between 2015 and August 2016. Many wireless providers argue that, as a result, the cumulative Tribal fees that they pay both per site and for their overall deployment programs have increased precipitously. According to Sprint, its costs associated with Tribal participation “have become prohibitive and are unnecessarily diverting capital from deployment” as its per site costs have “increased 14-fold in the last six years, from less than $500 per site in 2011 to more than $6,300 today.” Furthermore, the progression toward smaller and more numerous cell sites is likely increasing the number of submissions that are subject to fee requests. Moreover, Verizon notes that the total fees it pays for Tribal participation “increased from just over $300,000 in 2012 to almost $4 million in 2015. And the average spend per site is now $2,344.” Further, Competitive Carriers Association (CCA) contends that one of its members “reports that rooftop macrocell collocations in Chicago have generated between $11,000 -12,000 per site in Tribal fees, and that does not even account for the necessary expenses to collocate on a site,” though CCA recognizes “a duty to protect Tribal ancestral lands and properties,” and states a desire to “work collaboratively with Tribes to more clearly define the pre-consultation process and cost.” Wireless providers and facility owners argue that these developments have combined to increase the urgency of reexamining the Commission’s rules and policies to ensure that they are clear on licensees’ and applicants’ obligations, and that these rules and policies at present are effectively requiring that applicants pay fees that are not legally required by law. We seek concrete information on the amount of time it takes for Tribal Nations to complete the Section 106 review process and on the costs that Tribal participation imposes on facilities deployment and on the provision of service.”] Indian Country and Industry: Tribes object as Trump appointees 'streamline' interests of wireless industry
Sacrificing our sacred sites for moneyThe cultural history of indigenous nations in Turtle Island has been a continuous chapter upon chapter of defending the rights of our nations against corporate America. We have progressed from the termination era to having rights legislated by Congress for civil rights to freedom of religion and self-determination. The action and decision by FCC on March 22 was a hard one to make as a federal regulatory agency but the process broke down for tribal governments. The tribal leadership cannot depend on the THPO’s right now because they are part of the problem. The THPO’s have compromised the tribal leadership’s position when they stand on aboriginal rights, treaty rights, the UN Declaration when defending the environment, sacred sites and mni wiconi. The THPO’s already destroyed that legal standing with FCC on small wireless installations outside reservation boundaries. Does the erosion of hard fought preservation laws and efforts by some of us who stood for the future of our children get destroyed by a few money hungry THPO’s? Does it stop with FCC or do certain Congressional representatives take this opportunity to also take Indian Tribes out of unceded treaty lands for big infrastructure development? Ask your respective tribal leader and how they intend to address the continued erosion of tribal sovereignty, water rights and treaty rights. Tim Mentz Sr. is a citizen of the Standing Rock Sioux Tribe. He served as the first tribal historic preservation officer at Standing Rock, which was the first federally recognized tribe to be certified under the National Historic Preservation Act. He has worked at Makoche Wowapi, a cultural resource management firm founded by his family. Copyright permission Teton Times Related Stories:
Tribes prepare court challenge after FCC adopts contentious policy (March 22, 2018)
Democrats demand consultation on FCC policy opposed by tribes (March 21, 2018)
Tribes object as Trump appointees 'streamline' interests of wireless industry (March 20, 2018)