BY BRITTNEY BENNETT
EDITOR
WASHINGTON - The United Keetoowah Band of Cherokee Indians will give oral arguments against the Federal Communications Commission on March 15 after tribal officials say the agency attempted to “exclude” tribal consultation requirements on its federal projects.
“I’m glad that our leadership within the tribe has seen the importance of protecting our sacred sites and our sovereignty in this legal challenge,” said Sheila Bird, UKB’s Tribal Historic Preservation officer. “For 26 years, these laws have been in place and tribal nations have had the opportunity to protect our sacred sites, not only in our current tribal jurisdictions, but also in our aboriginal lands. This FCC action is a severe federal overreach.”
Arguments will be heard in the U.S. Court of Appeals for the District of Columbia Circuit, nearly a year after the UKB first filed on May 14, 2018. The UKB is listed as the lead tribe on the case and since 2018, 24 other tribes across the U.S. have joined in solidarity against the FCC.
The case specifically asks the courts to halt the FCC’s Wireless Infrastructure Streamlining Order, which first appeared in the Federal Registrar on May 3, 2018.
In the order, the FCC ruled it could deploy thousands of cellular wireless antennae for 5G capabilities across the U.S. without meeting tribal consultation requirements because the projects were not defined as “undertakings” under the National Historic Preservation Act or “major Federal actions” under the National Environmental Policy Act.
NHPA was enacted in 1966 to preserve historical and archaeological sites in the U.S. NEPA was enacted in 1970 and requires federal agencies to determine any environmental effects that could happen as a result of a proposed project.
The FCC argued what constitutes an “undertaking” or “major Federal actions” is an objective inquiry and that its projects should bypass NHPA and NEPA regulations because 5G antennae are less than 200 feet in height, won’t be located near an airport and their construction is not subject to the agency’s “limited approval authority.”
Bird, whose office consults on proposed federal projects to ensure they will not disturb any potential burial sites or archaeologically significant sites to Cherokees, called the order “illegal.”
“The FCC took it upon themselves to change the definition of what a ‘federal undertaking’ is and exclude the tribes from a review process that allows us to identify the potential harm to our most sacred interest, our land,” she said. “If this illegal rule making is allowed to take place, these actions will set precedence for other federal agencies to abrogate these laws and ignore their trust responsibilities.”
While Bird does not deny the need for more communication infrastructure in Indian Country, she said she believes the project will actually be at the expense of tribal communities if tribes continue to be shut out of the consultation process.
“It’s not that we don’t need these towers in our communities. Tribal communities continue to be the highest underserved in regards to high speed internet, but we also are not willing to sacrifice our sacred places just to have it,” she said. “Telecommunication companies will come in and build their towers and move on, but for tribes, we have a deep connection to the landscape that does not allow us to do that.”
Bird said her office first became involved in March 2018 after years of talks about the role of tribes in the FCC consultation process fell through.
That same month, she journeyed to D.C. with UKB Executive Director Sean Nordwall and tribal officials with the Pawnee Nation and the Fort Belknap Indian Community to speak directly with FCC Chairman Ajit Pai.
“One of the first statements that I had made to our party was, ‘We’re not going to D.C. to change their minds. This is a party line vote. With this new administration they’ve already got their minds made up, but we’re going to meet with the highest authority within the FCC and their governing body to go on record, because this is going to end up in court,’” she said.
Bird is excited to move forward as she continues to gain support from other tribes, organizations and state leaders including Senate Minority Leader Chuck Schumer (D).
“I am beyond excited,” she said. “If you asked me then, one year later, we would be arguing our position in the Washington D.C. Court of Appeals, it might have been a hard reality to process. We knew that this would end up in court, but what I didn’t know was that the UKB would be the lead tribe and that our arguments would be heard so quick.”
Bird credits Nordwall for understanding the significance of the case, not only for UKB, but Indian Country.
“The FCC was proposing a rule change that would take away our rights as sovereign nations to consult on our cultural resources, sacred sites and unmarked burial locations. To get this message across to my supervisor and our need to intervene took a great deal of understanding of a very complicated issue,” she said. “Not only will the UKB vs. FCC court case have a significant impact on the historical value of this country, but also tribal sovereignty.”
Law360 has labeled the case as one of the top to watch in Indian Country.
In the meantime, Oklahoma tribes continue to meet each month about how to take a collective approach should consultation rights be restored.
“When we win this case, the tribes will once again stand ready to meet with the FCC in an effort to develop best practices and to form standardization that will ensure a long working relationship,” said Bird. “My great grandfather Osie Hogshooter, Secretary of the Keetoowah Nighthawks, along with Redbird Smith, Chief of the Keetoowah Nighthawks, went to Washington D.C. in 1910 to fight for these exact same reasons. They met with President Taft and members of Congress on issues such as these. I am honored to pick up where he left off.”
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