United Keetoowah Band fight Federal Communication Commission as they push to accelerate wireless broadband deployment without tribal preservation consultation
The United Keetoowah Band of Cherokee Indians of Oklahoma — joined by numerous other tribes, the Natural Resources Defense Council and the National Association of Tribal Historic Preservation Officers — told the court in an emergency motion to stay on July 18, 2018, the Federal Communication Commission's permit of construction while evading environmental and historic reviews violated federal law requirements.
“The FCC is leaving it up to the industry to determine who can qualify the cultural interest on future projects,” said Sheila Bird, Director of Natural and Cultural Resources for the United Keetoowah Band.
In early June, Bird sent a letter to hundreds of tribes asking them to consider the legal importance of the matter and the impact of the legal action will have on Indian Country pertaining to sacred sites, ceremonial ground and anything that has cultural or religious significance.
“The changes by the FCC are a direct attack on tribal sovereignty and the special privileges tribes have with government to government relations. Any effort to abrogate those rights is to undermine relationships with the U.S. government,” said Ben Barnes, Second Chief of the Shawnee Tribe. “We walk tall in the next world knowing that we stood for all the 500 Nations, declaring that violations of our most sacred places cannot stand.”
The Shawnee Tribe and nearly twenty others are plaintiffs along with the UKB.
Twenty (20) Oklahoma tribal governments currently have formal Tribal Historic Preservation Officer status of the National Historic Preservation Act of 1966.
The Act requires federal agencies to take into account the effects of the undertakings on historic properties and afford the Advisory Council on Historic Preservation a reasonable opportunity to comment. Under section 106 the responsible Federal agency is to first determine whether an undertaking that is a type of activity that could affect historic properties.
On March 22, 2018, the Commission adopted a Second Report and Order in the Wireless Infrastructure proceeding (WTB Docket No. 17-79), which clarified and revised its National Historic Preservation Act (NHPA) and National Environmental Policy Act (NEPA) review processes relating to the deployment of wireless infrastructure. These changes became effective on July 2, 2018.
The United Keetoowah Band was the first to file the injunction against the FCC after they ruled to allow companies to build fifth-generation technology.
The court already ruled on a similar issue on July 20, in Oglala Sioux v. NRC , finding that the agency wrongly allowed Powertech to maintain a uranium mining license without acquiring tribal review, the tribes said. That ruling shows that if the FCC order is not stopped, the tribes will suffer consequences that cannot later be rectified, they said.
The debate over tribal consultation has been pervasive within the telecom industry in recent weeks. Earlier this month, FCC Chairman Ajit Pai rebuffed Sen. Jon Tester, D-Mont., who raised concerns that the agency did not adequately consult with Native American tribes before making the rule change allowing wireless carriers to sidestep historic preservation and environmental reviews for such small-cell fixture installations.
Pai responded by saying the FCC sought to be responsive to consultation requests and commissioners and agency staff visited tribal representatives in at least nine states. He said those meetings improved the rule change the tribes are challenging in court.
FCC commissioner Michael O’Reilly fully supported the measure while dissenting statements were made by Commissioner Mignon Clyburn and Jessica Rosenworcel.
“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’s Policy Statement on Establishing a Government-to-Government Relationship with Indian Tribes. But we do not honor it here,” said Rosenworcel.
The lead case is United Keetoowah Band of Cherokee Indians in Oklahoma et al. v. FCC et al., case number 18-1129, in the U.S. Court of Appeals for the D.C. Circuit.