Darrah Blackwater
Navajo
It’s been four years since I wrote my debut Indian Country Today op-ed on the subject of spectrum sovereignty, and an update is well overdue. For anyone new to the subject, electromagnetic spectrum (or spectrum, for short) is the invisible natural resource all around us that allows us to transmit information using technology without wires. For example, cell phones, car radios, walkie talkies, baby monitors, and remote controls (any many more everyday items) all use spectrum to move information from one place to another wirelessly. This means you’re using spectrum each time you change the TV channel with a remote control, listen to the radio, heat up leftovers in a microwave oven, get an X-ray, or watch a video or talk on your cell phone.
Different Indigenous people have different names, understandings, and uses for what White scientists now call spectrum, but that doesn’t mean it’s a new concept to us. In a traditional sense, Indigenous peoples have observed how spectrum behaves on our planet for millenia, and we have many special names and ceremonies that honor this mysterious relative that presents itself to us as sunlight, rainbows, fire, and lightning. You may know of spectrum through the Beings we honor and dance for such as Sun Bearer, Thunder Beings, Tawa, lightning gods, or Jóhonaaʼéí. Now humans have developed technologies that allow us to use and capture spectrum such as radio antennas and solar panels. Spectrum is considered sacred to many Indigenous peoples, and it is an extremely valuable natural resource because it allows us to set up broadband networks that connect our communities. But it is highly regulated by the U.S. government, and it is historically difficult for tribal governments to access, even on their own lands. For example, if a tribal government wishes to set up a wireless broadband network to serve their people, the tribal government needs a license from the United States government (namely the Federal Communications Commission, or FCC for short) to use the spectrum on their land. There are obvious sovereignty implications here. You may be wondering: why would a tribal government serving tribal citizens on tribal land need to ask the U.S. government for permission to use a sacred natural resource (spectrum) on tribal land? That’s a great question. I’ve been studying spectrum rights for over five years, and I have yet to find a good answer to that question (because there isn’t one).
But I do know that since Congress authorized the FCC to auction spectrum licenses in 1994, the FCC has made over $258 billion in auction revenue from companies like Sprint, T-Mobile, and Verizon. Even though none of the 574 federally recognized tribes have given the FCC consent to sell spectrum licenses on their lands, the FCC has sold countless spectrum licenses on tribal lands. Worse, the FCC has shared zero percent of the revenue from these sales with the respective tribal governments. That means the FCC has made billions of dollars selling rights to use a natural resource on tribal lands for over three decades without compensating tribal governments. Tribal sovereignty, who? The FCC doesn’t know her.
In June I was honored to speak at the opening of the Smithsonian National Museum of Natural History exhibit on cell phone technology titled “Cellphone: Unseen Connections” in Washington D.C. The new exhibit includes a short video I made about the importance of Indigenous spectrum rights. While the Smithsonian did edit crucial parts of the tribal sovereignty argument out of my video, I’m happy that more people will learn about this issue through my work in the setting of an important (albeit problematic) American institution. To see the edited version of my video, visit the National Museum of Natural History in Washington D.C. between now and 2025. The full, unedited version of my video is available here.
As we all know, this is not the first time tribal governments have had to fight for the United States government to recognize their rights to natural resources on tribal lands. First it was the land itself, then the water, the oil, the gas, the coal, the copper, and now the spectrum. Securing rights to spectrum (or not) will affect our people in perpetuity. As Indigenous people within the U.S., we are not alone on the journey to getting our rights to spectrum recognized. All over the world, Indigenous peoples are having this same conversation. In Mexico, the Supreme Court recently exempted the largest Indigenous telecommunications company from paying for a spectrum license to serve Indigenous communities. In New Zealand, the Māori Interim Spectrum commission and the government of New Zealand signed a memorandum of agreement that recognizes Māori control over 20 percent of all future spectrum allocations for telecommunications. And at a Special Chiefs Assembly of First Nations in Canada, the First Nations called upon the government of Canada to immediately stop all sales and renewals of spectrum licenses and permits on Indigenous traditional territories, and to review the spectrum licensing process in Canada to ensure it aligns with treaty rights and the United Nations Declaration on the Rights of Indigenous Peoples, which requires free, prior, and informed consent. Here in America, national spectrum policy is currently being reformed, with the National Telecommunications and Information Administration seeking comments and input about how to move forward with the national spectrum strategy. This strategy will shape how the U.S. allocates and uses spectrum in the decades to come, including spectrum on tribal lands. Now is the time for Native nations, Native organizations, and allies to speak up about the need for spectrum rights in our nations and communities. Now is the time for the American government to honor its treaties and trust responsibilities by recognizing exclusive Indigenous rights to all natural resources on tribal lands, including spectrum.
Darrah Blackwater is an attorney and the owner of Blackwater Consulting LLC. She is from Farmington, New Mexico and is a 2020 graduate of the University of Arizona Law School. Darrah is a proud citizen of the Navajo Nation. She currently lives and works in Santa Fe, New Mexico.
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