Published March 1, 2017
Part 8 of 9
This is part eight of a nine part series will illuminating the FAA’s complacency and the role the FAA’s concession played in the violence against Water Protectors.
The Standing Rock Sioux are an independent nation. Many treaty and Native American legal authorities assert the Native American nations have authority to determine airspace requirements and regulations over their nation.
The Paris Convention for the Regulation of Air Navigation, an international agreement clarifying rules of airspace, states that nation states that nations have the right to control their own airspace, deny entry into their airspace, and regulate flights. It also states that other nations will comply with each nation’s airspace rules.
While the issue of Native American nation’s airspace is largely unlitigated in American courts, Native American nations have asserted authority over their own airspace and federal courts have upheld the rights of municipalities of lower authority than the federal government to create their own restrictions.
Several tribes have asserted the right to sole control over their airspace. The Constitution of the Citizen Potawatomi Nation includes, “all waters and air space within the Indian Country . . . over which the Citizen Potawatomi Nation has authority.”
The Hualapai Nation successfully asserted its jurisdiction over its airspace in a case where a man was flying over at low altitude in a glider. He took off from federal land and landed on federal land but flew over the reservation. He was charged with trespass and plead guilty. However, it was not litigated in federal court and it is unknown how successful such an assertion of tribal authority would be in the future.
The FAA asserts it is the one with exclusive right to determine flights.
“A tribe has no authority over airspace and cannot charge people for using it. The federal government has sole jurisdiction over the nation’s airspace.” said FAA spokesman Ian Gregor.”
However, the Supreme Court has stated that “a hallmark of Indian sovereignty is the power to exclude non-Indians from Indian lands.”
The Treaty of 1868 includes what is called “the bad man provision.” It requires the American government to prosecute any non-tribe members who behave badly against a tribe member.
“If bad men among the whites, or among other people subject to the authority of the United States, shall commit any wrong upon the person or property of the Indians, the United States will, upon proof made to the agent and forwarded to the Commissioner of Indian Affairs at Washington city, proceed at once to cause the offender to be arrested and punished according to the laws of the United States, and also reimburse the injured person for the loss sustained.”
In the case of Standing Rock, the aircraft has posted a physical health risk in the case of the sleep deprivation and the attempts to demount riders. The flights are being used to prosecute tribe members. The helicopters are being used to terrorize Water Protectors.
While the tribe has yet to formally assert any rights over their airspace, the right to control who enters it is the airspace over the reservation may be theirs to assert. By entering it, and by doing harm, the bad man provision may be triggered and if it is, the federal government has a duty to punish the bad men.
LaRae Meadows is a freelance writer, who has been embedded at Standing Rock.
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