Broadband internet and the tools necessary to access it are critical for economic development, education and employment opportunities, and public health and safety for tribal nations and their citizens. Broadband internet is an essential utility, especially during this global pandemic, which is disproportionately affecting tribal communities. Native Nations face many hurdles on their paths to connectivity. Access to backhaul, hardware, funding, and electromagnetic spectrum (spectrum) are important pieces of the broadband puzzle. This talk will focus on federal policies relating to telecommunications in tribal communities, including those relating to spectrum, and how specific changes to these policies will result in closing the digital divide in Indian Country. This talk mirrors my law journal article titled Broadband Internet Access: A Solution to Tribal Economic Development Challenges, which will be published in the Indigenous People's Journal of Law Culture and Resistance at UCLA later this year.
Indigenous Graduate Education in Science and Engineering in the Southwest. "Darrah Blackwater: Indigenize the Internet: How to close the digital divide by respecting tribal sovereignty," Indigenous Graduate Education in Science and Engineering in the Southwest, University of Arizona. Tucson, Arizona. Wednesday, April 29, 2020.
Darrah Blackwater is from Farmington, New Mexico, and is a citizen of the Navajo Nation. Blackwater is pursuing her J.D. from the University of Arizona, James E. Rogers College of Law. In 2014, Blackwater walked 1,388 miles across China with her walking partner, Ann Liang, to raise money for the New Day Foster Home and to advocate for children and adults with disabilities. Upon returning from China, she worked on the Navajo Reservation, teaching tennis and nutrition education, and co-leading a teen outreach program. She spent her 1L summer working in the office of the Assistant Secretary of Indian Affairs in Washington D.C. with the Udall Congressional Internship. She spent her 2L spring semester back at the Department of Interior doing an internship under the Inspector General. Last summer she worked as a clerk at Hobbs Straus Dean & Walker, a federal Indian law firm in Washington D.C. She is a fierce advocate for Indigenous peoples and is focusing her energy on the fight for spectrum sovereignty. In her free time, she enjoys wandering the globe, playing tennis, writing, and hiking with her dog, Kai.
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“Indigenize the Internet: How to close the digital divide by respecting tribal sovereignty”
A presentation by Darrah Blackwater
Indigenous Graduate Education in Science and Engineering in the Southwest, University of Arizona. Tucson, Arizona.
Wednesday, April 29, 2020
Allison Huff MacPherson (00:00):
Okay, thank you everybody for attending this presentation that Darrah Blackwater is going to be talking about Indigenize the Internet: How to Close the Digital Divide by Respecting Tribal sovereignty.
Allison Huff MacPherson (00:16):
My name is Allison Huff MacPherson. This is a speaker series brought to you by an NSFNRT Innovative Graduate Education grant, entitled Indigenous Graduate Education in Science and Engineering in the Southwest. I'm the PI of that grant. My team is, our co-PIs are Dr. Dan Kilper in the College of Optical Sciences, Dr. Jeremy Garcia in the College of Education, Dr. Ron Trosper in American Indian Studies. We also have other members of our team, Dr. Julie Flegal-Smallwood, who is our evaluator in Redlands Community College in Oklahoma. We have a Dr. Sweeney Windchief, who is our consultant for the indigenous mentoring program for faculty development out of Montana State University.
Allison Huff MacPherson (01:08):
Again, I want to thank you all for being here and being part of this wonderful experience to try to improve indigenous graduate education for all of our graduate students, indigenous graduate students at the University of Arizona.
Allison Huff MacPherson (01:24):
Darrah Blackwater is from Farmington, New Mexico. She's a citizen of the Navajo Nation. She's pursuing her Juris doctorate here at the university of Arizona in the James E. Rogers College of Law. In 2014, Darrah walked 1,388 miles across China with her walking partner. That is a lot of walking. Ann Liang was her walking partner. She wanted to raise money for the New Day Foster Home and to advocate for children and adults with disabilities. When she came back from China, she worked on the Navajo reservation teaching tennis and nutrition education and co-leading a teen outreach program. We can see the importance that advocating for children, adolescents, and individuals is important to Darrah.
Allison Huff MacPherson (02:21):
She spent her summer working in the Office of the Assistant Secretary of Indian Affairs in Washington, DC with the Udall Congressional Internship. She also spent her spring semester back in the Department of Interior doing an internship under the Inspector General. Last summer she worked as a clerk at Hobbs Straus Dean & Walker, a federal Indian law firm in Washington D.C. She is a fierce advocate for Indigenous peoples, and is focusing her energy on the fight for spectrum sovereignty. In her free time, which I don't know how she has any given all the wonderful things she's doing, she enjoys wandering the globe, playing tennis, writing, and hiking with her dog, Kai.
Allison Huff MacPherson (03:01):
I want to thank Darrah for being here today and for giving us a little bit of her time. I want to thank her for all her efforts as well for being an advocate for many types of people, and so thank you Darrah. With that, I will turn it over to her.
Darrah Blackwater (03:20):
Thank you so much, Allison. Thank you so much, everybody for being here. It is a little bit strange to be doing it this way. When we talked about this back in January or February, we were planning obviously on doing it in person, but this works too. Now, you can all join, which makes it even better.
Darrah Blackwater (03:40):
I will start with my own introduction. As Allison said, my name is Darrah Blackwater. I am in my last two weeks of law school, almost finished. I am of the Navajo Nation, so Darrah Blackwater, [inaudible 00:03:57]. I'm from Farmington, New Mexico. I'm currently not too far from there. I'm in Durango, Colorado waiting this out since we can do classes anywhere.
Darrah Blackwater (04:14):
But first I want to just think a few people. Professor Kilper is the one who really instigated this and got us to this point. Then Allison and Annabel literally got us to this point, as far as figuring out how to do the Zoom and all of the things that stress me out that I didn't want to do. They did a great job with that. I also want to thank Rebecca Tsosie, Professor Tsosie at the law school, as well as Professors Fodder and Andrew Woods, who I have written on this topic under them. They've just been great mentors to me throughout this process of studying.
Darrah Blackwater (04:52):
This talk is titled Indigenize the Internet: How to Close the Digital Divide by Respecting Tribal Sovereignty. I really love that title. I love, first I love indigenizing the internet is something it that has become more and more important to me as I'm learning more and more about this is that we talk so much about what indigenous communities are lacking by not having the internet, but we don't really talk that much about how indigenous people have so much to offer the global economy, the global culture, just everything that the internet is to the, I guess, broader American society. Indigenous people have so much to offer that.
Darrah Blackwater (05:40):
Just some of the content that I've seen come out of indigenous people just during this quarantine has been incredible and so inspiring and so beautiful. And so it's not just coming one way. It's not just that indigenous people need the internet. It's that the internet, I believe really needs indigenous people as well. That really excites me, the idea of participating on a greater level.
Darrah Blackwater (06:04):
Then the second part, How to Close the Digital Divide by Respecting Tribal Sovereignty is also something that people really like to fight about and talk about how they think it might mean one thing or mean another thing. This is just the best case scenario for me, for everyone else to be muted and me just to be able to talk about my ideas of it. We'll get right into it.
Darrah Blackwater (06:28):
I discovered, I've never been interested in telecommunications before the last couple years through my research in law school. It really was born from my first semester, the summer after my first year of law school, my one L summer, I was lucky enough to get the Udall Congressional Internship. I went out to Washington, DC. I hadn't been there since I was 14 years old on a field trip, but I went there. I interned under the Assistant Secretary of Indian Affairs, who has been in the news a lot lately for other things, not broadband related, but I interned under her. It was actually John Tahsuda was the Deputy Secretary at the time because Tara Sweeney hadn't been appointed yet that summer, so a little bit under Tara, but mostly under John Tahsuda.
Darrah Blackwater (07:21):
I just learned about so many other tribes. As a Navajo person, it's really easy to just grow up in Navajo country and not really think outside of how there are 573 other tribes in America. And so I learned a lot about the challenges that other tribes are going through as well as our collective challenges that really everybody seems to struggle with.
Darrah Blackwater (07:44):
During that time, I was, I think my brain was just filtering of try to find the most important thing, try to find something that you can work on that just touches the most people and affects the most people in a positive way. Telecommunications really struck me because it affects every other part of the challenges or yeah, of what we have to do in Indian Country, as far as like medicine. As we're seeing right now in the midst of this pandemic, telemedicine is a huge asset that is just not an opportunity for a lot of unconnected tribal communities.
Darrah Blackwater (08:21):
eCommerce is also huge. I've been happy to see more and more square, the swipe strips that you can use at like flea markets and powwows and stuff like that. But in places where you can't access the internet and don't even have like 3G coverage, that's just not going to work, and so people who are selling jewelry or vending other things just don't have that option if there's not connectivity.
Darrah Blackwater (08:49):
Just in addition to that, just people who work from home on reservation, land or tribal lands or even rural lands, it's huge for them to be able to make their goods in a studio that's maybe where they want to be off the beaten path, and then also when they choose be able to connect to the internet so that they can set up a website, sell their goods, talk to other artists, do their taxes, whatever they need to do online from a space where they want to be.
Darrah Blackwater (09:15):
Then obviously education where right now, we're seeing huge, huge gaps for the students who are going home to reservation or tribal areas. They just simply can't connect. I think a lot of tribes have done really good jobs of figuring out how we can either make a drive-in wifi spot or get hotspots out to students. People are really scrambling to try to figure that out. But there are longer term solutions for the next emergency that we can start planning for now.
Darrah Blackwater (09:50):
Then there's a million things in between. I'm sure everyone here can think of something that is the most important thing in a moment or on a day or whenever for connectivity issues. It affects everyone differently and uniquely. The truth is we really need to indigenize the internet and get everyone connected.
Darrah Blackwater (10:12):
That's what I came to when I worked at ASIA. When I say ASIA, it's the acronym, the Assistant Secretary of Indian Affairs. When I worked there, I went to a few meetings on the Hill, went to a few meetings in the Department of Interior, which is where ASIA is housed. The connectivity issues, really one on tribal connectivity, I remember was in a dusty basement in the Eisenhower Building, which is on the west side of the west wing of the White House. It was on tribal connectivity. It was just in kind of like a Harry Potter closet of the Eisenhower Building. They did a good job. It was a great presentation.
Darrah Blackwater (10:53):
But then the next day, it was Zinke, Secretary Zinke, at the time he did a connectivity meeting. That one was about how to connect national parks. He wanted to talk about how we can bring connectivity to national parks to up tourism and get more people to national parks. That meeting, it was all the executives of all the telecom places and telecom companies. It was in the penthouse of the Department of Interior. I just remember thinking, and I'm sure everyone who works in Indian law has had a similar experience of, "Wow, how do I get this room reservation? Or who do I need to talk to, to get this level of importance for an issue that affects way more people and is way more important for tribes than it is maybe for people to be able to put their butts on Instagram in Yellowstone." But there are differing opinions about that, so we'll just leave that there.
Darrah Blackwater (11:55):
My paper about this actually looks at economic development and how broadband affects that, but through this pandemic, as well as just my research, I'm seeing all of the different ways that it affects everyone in Indian Country and elsewhere. My paper is the basically looking at the legislation that got us to this point, as well as how we move through some of the challenges that we have now that we're at this point. I thought I'd start by just looking back at some of that legislation. I'm not going to spend a ton of time on it because personally, I think it's boring, but I'll just give you a run through.
Darrah Blackwater (12:32):
The Universal Service Fund is one of the first things that really overhauled broadband and connectivity in America. This includes four different parts. The first part is eRate and that's the schools and libraries. It's up to a 90% discount on telecom services for schools and libraries in low income areas. Sorry, these are all out of the Telecommunications Act of 1996, which was signed into law by President Clinton. Two is the rural healthcare support, which is again, so important in the wake of COVID-19 because of telemedicine. Three is the low income support. This is through a nonprofit actually. It's a weird setup. It's called USAC, which is the Universal Service, I'll have to look that up. The acronym is USAC. But it's a nonprofit and actually in one of the government accountability reports, that was one of their recommendations was why are you filtering money through this nonprofit? You really need to make it go to treasury so that it can be dispersed by Congress and not funnel through this nonprofit. But the low income support obviously is for low income customers. This is also called Lifeline.
Darrah Blackwater (13:52):
I know a lot of tribal communities are, they understand this and they utilize this, but actually yesterday Senator Klobuchar, put out a letter. She sent a letter to Chairman Pai, who is the Chairman of the Federal Communications Commission, the FCC. She basically was saying that we should be informing people that Lifeline exists, especially people who are eligible for SNAP or people who are eligible for Medicaid, because those are the same people who need broadband and maybe can't afford some sort of connection. She said that even before the pandemic, only seven million out of the 38 million people who are eligible for Lifeline were actually signed up for Lifeline. This letter, lots of senators signed onto it. They were essentially urging the Federal Communications Commission to advertise this better and partner with other agencies where they would be able to get the word out that Lifeline is a huge resource, especially right now, and those who are eligible should be signing up to get this discount on connectivity. That's one potentially huge area of growth for Indian Country and its citizens to be able to connect to broadband internet.
Darrah Blackwater (15:05):
Then the fourth is the high cost support mechanism. This essentially subsidizes telephone company is that serve high cost areas, which when we're talking high cost areas for telecom, we're basically talking rural areas where there are fewer people out there that the companies can make money off of and less infrastructure that's very expensive to stretch over vast areas of land. That's really why the digital divide happens, why it exists in the first place is because of that problem. Telecom companies aren't motivated to offer service out there because they're not going to get a return on their investment. Whereas the people out there really need connectivity and they don't have the money to fund the infrastructure for themselves, especially like, I'm sure you've heard of fiber, it's the glass fiber that runs in the ground. That's what the, really, the best connectivity tool that we have. It can be very, very expensive. I've heard up to $1 million a mile to lay. So this infrastructure is really, for the best infrastructure, it can be very expensive.
Darrah Blackwater (16:15):
Going on with the legislation, in 2002, the Farm Bill authorized the USDA to put out grants for rural telecom infrastructure. And so that is one thing that people were able to take advantage of. Then in 2009, Congress rolled out the National Broadband Plan. This was signed into law by Obama who launched the Connect Ed Program in 2013. That basically was with the intention of bringing connectivity to classrooms.
Darrah Blackwater (16:46):
The [inaudible 00:16:47] schools benefited more from the eRate program. That's what the Department of Interior used to upgrade connectivity. They reported upgrading it in 45 schools before 2014 and then 35 schools in the 2014-2015 school year. They spent about $4.3 billion, sorry, million on that, that year. Those, I think, were specifically in boarding school dorms.
Darrah Blackwater (17:17):
Moving on, when I first started researching this, I thought that the problem was going to be money. I feel like when a lot of people are researching indigenous issues and the challenges that our communities face, that's really what it comes down to most of the time or that's maybe just an easy way to explain a way what is actually happening because the policy issues can be much more complicated and difficult. I assumed that it was just going to be looking at legislation of what kind of grants are available to get infrastructure out there. That's really not the biggest part of it. Of course, we need more infrastructure in Indian Country. NCAI has called for that multiple times. We need money to do that since obviously our land is in trust and we can't use it as collateral, so loans and subsidies are very, very important for infrastructure.
Darrah Blackwater (18:08):
But what I found was that the policy is actually much, much more, I guess, influential in connectivity and rural areas. A lot of rural areas don't have fiber. They don't have the infrastructure, kind of like a telephone line that goes all the way out to where we need it to go, which means they use microwave as back haul. I'll kind of explain this as we, I'll kind of walk it back, but they use microwave back haul, which basically means that they're shooting connectivity out to far away areas like a laser beam. Then it gets to the antenna. If you're in a city and you look around anywhere right now, you probably can see those small cells that are mounted either they're on towers or they're on buildings or they are on water towers in rural areas, sometimes just the highest point. And so you've got to really blast to a signal to that antenna in order for it to bounce off and like a sprinkler head, be dispersed onto where other people's routers, wifi routers. That's how it gets to people or to their cell phones.
Darrah Blackwater (19:19):
And so in order for all of that to work, any wireless connection that is working, including your cell phone that's probably next to you right now, you need spectrum, electromagnetic spectrum. And so that's really where all of my work led to was realizing the policy issues around spectrum are most of what's keeping wireless communications in rural areas from happening and especially in tribal areas. I have solutions for that.
Darrah Blackwater (19:51):
A little bit about spectrum, just so we are all on the same page and just to give everyone a heads up as well, I'm going to talk for maybe like 10 or so more minutes, and then I really want to leave a lot of time for questions for people. So as you're listening, feel free to think of any questions that come to mind and I will address those here shortly.
Darrah Blackwater (20:10):
Spectrum, it's essentially radio frequencies. Think of it, it's non-tangible, it's around you all the time, but it's not something that you can touch, which makes it really hard to make a case for property rights over it. I think that's been a lot of our struggle of getting this problem out into the open and for people to see and understand because you literally can't see it. But spectrum is the radio frequencies. I think of it as a river in the sky. It's a natural resource, so it's been on this land forever, since time immemorial is what we say in Indian and in treaties. It's been on the land since time immemorial. It's not going anywhere. It never runs out. It never goes away. But you can't use it. You can't bottle it up obviously, and use it later. If you're not using it right now, it's going away. You can't use future spectrum. You only can use the spectrum in your area. If there's spectrum in New York, that's not something that we really would care or be able to utilize in Colorado.
Darrah Blackwater (21:19):
As I said, it's essential to wireless communications and wireless connections. I've heard it called the oxygen of the internet, so it is absolutely essential if you're doing anything wireless that you're utilizing spectrum. Yeah, if there are more questions about spectrum, I can come back around to it. But yeah, just think of it as the radio frequencies that are connecting really any wireless devices and connecting us to back haul, which means connecting us to cities, connecting us to satellite and where we're getting those really strong connections.
Darrah Blackwater (21:57):
Spectrum is regulated by the Federal Communications Commission, which is the FCC. In the 1994, Omnibus Budget Reconciliation Act, or sorry, in 1993, the FCC was authorized to conduct spectrum license auctions. The FCC was given authority by Congress to regulate these auctions. Since then, so starting in 1994, the next year, the FCC started doing these auctions. And so they're basically cutting out a geographic area of America. They're saying, "Okay, somebody gets to use this spectrum in this circle." I think they're 30 mile radius circles. I'll show you here in a second. They say, "Somebody gets to use this spectrum in this area for 10 years. What's it worth to you? Who wants it?" Then a bidding, people bid on it. They make so much money off of this.
Darrah Blackwater (22:59):
Since 1994, the FCC has auctioned off 44,167 spectrum licenses. They've brought in $114.6 billion off of these spectrum licenses. Again, that's 44,000 spectrum licenses that the FCC has sold in the last 20 years, and they have made $114.6 billion off of these licenses.
Darrah Blackwater (23:28):
I started doing the math when I found this in my I research. I thought, "Okay, so there's 56.2 million acres of tribal land in America that the government holds in trust for tribes. They're selling these big chunks of spectrum all over America." I started making the connection to the Dawes Act, which I don't really want to go all the way into, but essentially the Dawes Act is the statue, the legislation that allowed America to disenfranchise tribes from their land. It essentially put tribes on whatever reservations they're on now. Then the excess land that tribes weren't using, it sold off to private companies or people or whomever in 160 acre chunks and kept all the money and didn't give any of the money to tribes. That's pretty much essentially what's happening right now, except they're not even reserving the spectrum over tribal lands for tribes. They're selling or allocating that spectrum as well.
Darrah Blackwater (24:30):
I'm going to share my screen right now. I'll show you one of the maps that the FCC has put out. Hopefully, nothing, hopefully this is an easy process. Okay. Can someone give me confirmation that my screen is being shared now?
Allison Huff MacPherson (24:55):
It is, Darrah. [crosstalk 00:24:57].
Darrah Blackwater (24:56):
Okay, thank you. Okay, so this is the FCC's page. This is a map for their tribal priority. Sorry, I'm trying to get to the top here, their tribal priority window. There is a priority window right now, which means that the 2.5 gigahertz band of spectrum, that 2.5 frequency is being, tribes can now put in applications to get this specific frequency over their land. This is a good start, that tribes will be able to reclaim some of their spectrum, but it is not the complete solution. It's basically the FCC, in my view, it's the FCC taking away a cookie from the tribes and giving them a crumb, which to me is a bit of a slap in the face. But like I said, not everybody sees it that way.
Darrah Blackwater (25:48):
Here we can look at the maps. I'm going to look at my homeland. Oh, I don't know if I can. I don't know if it'll let me do this. Okay I'll just look at, let's look at Acoma Pueblo. This is something anybody can access through this website.
Darrah Blackwater (26:12):
Here it's showing me the Pueblos. I'm going to zoom out a little bit. We can look at, I'm going to go up to Farmington because I'm more familiar with that one. Here's my hometown. We're going to look at the different channels. We will be able to see who has these different spectrum licenses over this land in particular and over all the other land.
Darrah Blackwater (26:44):
These are all of the spectrum circles that are allocated in this area. Red is, I think, no spectrum is available, so that means all of the licenses have been allocated. Then as the colors become more light, there's more spectrum available. The green reservations indicate that they have applied for their spectrum licenses. If we zoom in again and look at Farmington, we can see who owns, and this is part of the Navajo Nation. Here's the Hopi Nation as well. These are reservations, and I think this is Ute, so we can see who owns the spectrum, it's being slow, in this circle. It looks like they've got 30 different licenses in the circle. The Faith Baptist Church has some of the licenses in Farmington, the Navajo Nation now, since I'm sure you guys have heard that the 2.5 gigahertz is now part of the Navajo Nation has control over it.
Darrah Blackwater (27:47):
This is being really slow. I don't think it likes the screen share very much. Oh, oh, these are all Faith Baptist Church as well and then Victory Christian Academy. For these licenses in particular, it had to be educational institutions that had it earlier. Down here, I bet if we go down further toward Albuquerque, we've got North American Catholics. These are all the spectrum holders. These are people who, the Hispanic Information Telecom Network. These are people who the FCC have allocated the spectrum frequencies to in those areas.
Darrah Blackwater (28:24):
AS you can see, a lot of these circles where it's been allocated to people who are not tribes, they're over tribal land. And so if we go down again, it's being so slow, but you get the gist. If we went down to Tucson where I am going to school and who is hosting this, we would see that the University of Arizona holds a lot of the spectrum licenses over the Pascua Yaqui lands and the Tohono O'odham land. If you're interested in looking at who owns spectrum licenses over your tribal lands, you can go onto this map through the FCC's website and just kind of look at the reservations, they're marked and see. Again, this is only the 2.5 gigahertz, so there are others that aren't on this map as well.
Darrah Blackwater (29:13):
There's a little bit of that. I'm just going to, I think I'll go through just a little bit of the case law. Obviously, the question for a lawyer when we're looking at spectrum is how we would litigate this if it came to litigation or legislate it, because both of those I see as potential solutions to tribes getting their spectrum back. The link here is that tribes have the land that is in the treaties. It says for use and occupation or sometimes absolute use and occupation. They have the land and everything that they need to live on the land. My argument is that in 2020, especially in light of this global pandemic, broadband communications, broadband internet is necessary to live on those lands, and so it would be included in the treaties, specifically spectrum, which is necessary to create that broadband internet connection is included in the treaties under for absolute use and occupation.
Darrah Blackwater (30:23):
The FCC doesn't see it this way, unsurprisingly. And I think it'll be really interesting to see how it plays out. Sorry, lost my notes here.
Darrah Blackwater (30:35):
I want to be clear that I see it as two potential solutions for tribes to take control back of their spectrum. One is that I understand that not all tribes want to control their spectrum, not all tribes want that responsibility of allocating it, keeping track of the licenses, regulating it, selling it or subleasing it or whatever. It can be a lot. I think one solution is that tribes should be able to choose to allow the FCC to continue to regulate spectrum on or over their lands. But then when the FCC makes money, as we've seen, they allocate or sell spectrum over tribal lands, when they are selling those licenses within tribal lands, they should be putting that money into trust for tribes, for the respective tribe. So if they sell the spectrum over Pascua Yaqui lands, they should be taking that money, millions, if not billions of dollars, putting it in the trust account, which they already do for other natural resources for the Pascua Yaqui tribe or whatever tribe. That is one and potential solution.
Darrah Blackwater (31:44):
Another potential solution is that tribes manage their own spectrum. The Navajo Nation, since they have been authorized by the FCC to run their 2.5 gigahertz, I was actually on the roof of Dine College and Navajo Technical University last week, helping them set up their networks. The Navajo Nation and many, many, the other nations are ready and willing to regulate their own spectrum and do it in a way that suits their sovereignty and their goals for their nations, so it's completely doable.
Darrah Blackwater (32:17):
We can talk a little bit if anyone's interested about the case law behind all of this, I don't want to necessarily do to deep of a dive, but I will say that the challenges, the two big challenges that I've seen in the case law leading up to this, this hasn't been necessarily directly litigated with the FCC. I think it would be really interesting. But the challenges are one, that the FCC and the US government don't necessarily see spectrum as property, which seems really strange to me, I guess, spectrum licenses. There's got to be some distinction there, but it'll be interesting to see how that plays out. They don't see it as property. They might this property, but not necessarily a natural resource that was encompassed in the treaties.
Darrah Blackwater (33:02):
And so one calling it a natural resource and then two is just establishing standing. That is really the hardest part of any case and getting it into court and litigating it is establishing that standing, identifying the correct injury, finding that direct link of causation and then establishing redressability, that this is something that the court can fix, this is something that is wrong, that injures the tribe that was caused by certain actors who or certain pieces of legislation that disenfranchise the tribe and that the court has the tools that it needs to address the situation and make it better. That is pretty much the end of what I have planned for this talk, but now I would really love to hear from people and hear any questions, clarifications, anything that you are needing or wanting.
Allison Huff MacPherson (34:02):
Hi, thank you, Darrah. That was a wonderful presentation. I want to go over a couple housekeeping things when it comes to asking questions, but before that something I should have done in the beginning, I want to take a moment to acknowledge the tribal lands that we reside on. I want to remind everybody that there have always been indigenous peoples who have lived on and called home the lands that we currently reside on. I think it's important for us to not only acknowledge that, but to respect it and to honor it and to allow that to infiltrate everything we do when it comes to research, interactions with others, ideas and concepts that we may be propagating. It's just important for all of us to remember that. And so particularly the University of Arizona sits on Tohono O'odham sacred lands. Again, I just want to remind everybody and bring us back to that place of respecting and honoring the lands that we are currently residing in. With that said again, Darrah thank you so much for your presentation.
Allison Huff MacPherson (35:22):
We seem to have lost the raise hand icon. We don't know where it went. We tried to get it back before the, oh, Byron has raised his hand. Okay, I see that it works, so that's good. That makes it a little less complicated. There's two ways that we can do this. You can either type your question in and we'll read it and you can unmute yourself to ask your question or if you have any follow up or you can raise your hand and when we call on you, you can go ahead and unmute yourself. We're trying to avoid, obviously speaking over one another and bombarding Darrah with a bunch of questions that she may not be able to answer at the same time. We will continue to do that.
Allison Huff MacPherson (36:11):
It looks like we have our first question from Ron Trosper. Ron, I can go ahead and read it, and then as Darrah responds, then you can unmute yourself and have that dialogue. Ron says, "In many countries, subsurface resources are owned by the national government, but not in the USA. Does the USA assert it owns spectrum rather than the owner of the surface?"
Darrah Blackwater (36:37):
Yeah, that's a good question. That's where a lot of this is going to come out. I guess, this is the wiggle room in the courts, sort of. But I think the case that probably hits this the most head on is the NBC versus US. It was in 1943, and so this was less than 10 years after the 1934 Telecommunications Act was established. Here, essentially the court held the NBC, the company, what is it? National Broadcasting Corporation, they challenged the FCC's ability to regulate spectrum, and so that's really more where the FCC is coming at it from is the authority to regulate spectrum through auctions or allocation or leases or what have you. They don't ever really get to, whether or not they own it, it's more the authority for regulation.
Darrah Blackwater (37:47):
And so the Supreme court in NBC V. US, they basically upheld and said, "No, the FC- ..." Because it was an administrative claim that NBC was making. NBC was saying, "Okay, fine. That legislation allowed you to do some regulatory work, but to regulate these licenses in the way that you're doing it, FCC, you are overstepping your boundaries. This is too broad. Your discretion is too much. That's never what Congress intended." And so the court really clarifies and they say, "Nope, this is exactly what Congress intended," because before we enacted their ability to regulate this, it was absolute chaos is essentially what they said that people were using too much power and utilizing frequencies too far out, and then there was so much interference. It's like when lots of people are in an echoy room and they're talking over each other. That's what was happening before they allowed the FCC to regulate spectrum.
Darrah Blackwater (38:48):
They call it the Public Interest Doctrine or they utilized the Public Interest Doctrine, which essentially says it's in the best public interest for the FCC to regulate this, because if they don't chaos ensues and everybody just utilizes it however they want, and then nobody can really use it because the frequencies are so jammed up. Yeah, it's a good question. They just don't exactly hit that head on because they don't really need to, honestly.
Allison Huff MacPherson (39:22):
Thank you, Darrah. We have a question from Byron Hemple, "Great presentation. Do you know some of the reasons ..." That just went away. Hold on. "Do you know some of the reasons why tribes don't want ownership of their spectrum? It seems like it would increase the sovereignty of the tribes."
Darrah Blackwater (39:43):
I don't think it's that they don't want ownership of their spectrum. I think some tribes maybe have so much else on their plate that they maybe wouldn't be immediately ready to take on full regulation of spectrum. Because the FCC in regulating this, it's a really big job to regulate all of the different frequencies all over America. And so even for like Navajo Nation, we have, I think it's 27 million square miles. We're about the size of West Virginia, and so that's a lot of spectrum and different areas, as you saw on the map, those big circles, they would have lots of those.
Darrah Blackwater (40:23):
And so it's just a question of each tribe, are they trained? Have they trained people? Are they ready? Are they willing to take on this responsibility of regulating the spectrum in their area? It is completely doable for each tribe to do that for themselves and to learn what they need to learn if they haven't already. But it's just a question of priorities and capacity of each tribal government of is this the time for them, do they want to do that, or should they just let the FCC do it and ideally get the money from those auctions into trust.
Byron Hempel (40:59):
Cool. Thanks for that response.
Darrah Blackwater (41:01):
Allison Huff MacPherson (41:03):
Great, so Andrew Woods just wanted to let you know, he had to hop off to join another meeting, but he wanted to thank you for the great talk, so valuable and looking forward to see where it goes next. We have a question from James Hopkins, "Has there been any consideration by the FCC of a tribal broadband and fund that pulls auction revenue for tribes, either as a point of creating access and delivery or as form of revenue sharing, considering federally licensed assets in and around reservation lands, i.e., the transportation system for broadband." Let me know if you need me to read that again.
James Hopkins (41:43):
Do you want me to just summarize that really quickly?
Darrah Blackwater (41:45):
Yeah, are you able to? Can you translate it to English?
James Hopkins (41:47):
Yeah, there's just two competing policies that the FCC's hearing, right? It's the same for Canada's CRTC, which is "Okay, so we have an under serviced population. Are we going to ameliorate the problem by creating more universal, more equitable access, and likewise, do we empower these communities to become their own delivery systems to set up their own production and delivery systems?" Or as you were saying, and I think this is really interesting, is it a form of redistribution under a treaty, like a reserved right, because one of the things I'm learning in this is the vast amount of capital equipment that you don't see. You don't see the fiber optic cables that get embedded in the ground. You see some cell towers, but there's tons and tons of equipment around that need servicing, et cetera. To me, it's almost like a federal asset that generates huge amounts of revenue.
James Hopkins (42:58):
And so the question is, has the FCC ever entertained something like that, like a special redistribution fund. I'm only asking this because in Canada they have a $750 million broadband fund that they created in 2018, but it's based on this universal model of bringing First Nations, who are the group identified as having the least access on par with Northern and rural communities. That's really expensive. There's a ton of money involved to do it.
Darrah Blackwater (43:31):
Yeah. Yeah, not that I know of, but it could be completely possible that they have entertained that idea. I've sat in on a few meetings with the FCC. My understanding of the people that I've spoken to is that tribes are new on their radar. That's the, to the people that I've spoken to, that's the impression that I get, so I doubt, unless it's been floated directly to them by someone who really understands what the trust responsibility is and what that should really mean. I'm not completely convinced that that would be something that they would just be sitting around brainstorming, personally.
Darrah Blackwater (44:17):
But to your point, I think that it is really interesting of thinking, "How is this going to happen? Is it going to come from the federal government? As I've gone through this legislation, that kind of works, kind of doesn't. I know you all just dropped a broadband bill and Deb Holland is going to drop a broadband bill soon. And so there's these piece things that people, different communities can get maybe some infrastructure or get some spectrum or something here and there. But it's really, in my view, it's really up to each tribal community to figure out all of the ingredients for the cake, to figure out what connectivity looks like to them and for them.
Darrah Blackwater (44:57):
I think if anything, in my research has become extremely clear it's that nobody is going to swoop in and save any tribal community as far as connectivity goes. It's really up to them to figure out what they want it to look like, what data so he looks like for them, what network sovereignty looks like for them, what they want their connectivity to look like. Some places don't want connection. Some places are sacred. Some places are somewhere that you go where you don't want a bunch of information and crowded frequencies flying through the air. That's something that is all only going to be respected if tribes are really participating in the process or moving the process forward, because no nobody's going to do it the way that tribes would want it done unless they do it themselves.
James Hopkins (45:45):
Well. Great. Well thank you for your response. What an amazing time to be doing this work because bandwidth is only going to become more scarce, more valuable, and we're going to be relying on it more and more.
Darrah Blackwater (45:59):
James Hopkins (45:59):
Thank you very much.
Darrah Blackwater (46:00):
Thank you, Professor Hopkins.
Allison Huff MacPherson (46:03):
Thank you for that. Dan Kilper has a question. I'll let him go ahead and unmute himself and ask it.
Daniel Kilper (46:09):
Yeah. Hi. Hi, Darrah. Thanks so much. That was a fantastic presentation.
Darrah Blackwater (46:14):
Daniel Kilper (46:16):
Let me get my video screen on there, so I don't know the right legal terminology, but when I think about governance versus management and regulation, it seems to me that the tribe should have governance over their spectrum without having to take on the management and regulation piece unless they have the capacity to do so. I mean FCC, aren't they the ones who take care of those difficult details, and then, but as you say, the tribes should be able to determine what lands people can use spectrum and how it's being used on their lands. Is there some notion in all of this about the difference between say what, what I would call governance versus management regulation?
Darrah Blackwater (47:07):
Yeah, sort of. I like the way that you put that. I think it really displays it very nicely what's happening right now, because in my view, the FCC has it really upside down where what you're saying should be true and what I'm saying should be true, where tribes can ask the FCC or delegate their regulation to the FCC. But right now what's happening is that the FCC is "allowing" or giving tribes pieces of spectrum that they can use. Whereas it should be the other way around where the tribe that governs and has jurisdiction over whatever land they have, they should be able to say, "We've got this FCC. Don't worry about it. We've got it handled." Or they should be able to say, "Okay, FCC, you can regulate this for us, but make sure that the profits from whatever auctions or allocations or leases are going into our trust account."
Darrah Blackwater (48:14):
Yeah, it's really flipped. It's really backwards. I get why it's that way because precedent in America and in case law means that tribes lose and why do we lose? Because we have always lost. And so that's what is happening in the courts. But what it really should be in the opposite way is exactly what you're saying.
Daniel Kilper (48:38):
Thanks so much. There's a couple questions behind me, but I just want to slip in a really quick question. So this idea of spectrum being a natural resource, I think is excellent. We saw it just yesterday, actually there was a presentation by someone who represents a National Resources Department of the Mashpee tribe. Do you know of tribes that are including spectrum in their Natural Resources Departments and thinking about it that way?
Darrah Blackwater (49:14):
I've heard that that's where it belongs in Navajo. Right now they're really in the midst of, because they are their, their governance of the 2.5 gigahertz band, which is the circles that I showed you when I shared my screen has kind of, they were not supposed to get that technically until August, but because of the pandemic, they got it earlier. And so I don't think that they had a complete plan yet. I think as they continue to roll that plan out, that's probably where it will live in their government is in natural resources. I'm just speculating, but that's where it belongs in my view.
Daniel Kilper (49:52):
Okay, thank you.
Darrah Blackwater (49:52):
Allison Huff MacPherson (49:53):
Thanks, Dan. We have a question from Joan Timeche. Do you want to unmute yourself and ask your question or do you want me to read it, Joan?
Joan Timeche (50:02):
Well, I guess I can ask it since I'm online. I wanted to know what the obligations were of a tribe once they took over ownership of the spectrum. I was wondering if some of their reluctance might be because they don't have the management or regulatory systems in place to be able to manage it. I didn't know what all was involved. I just remember going to the last annual session and the lady from FCC was making an announcement about the 2.5 gigahertz being megahertz or whatever it is available. I'm texting my tribal chair and my vice chair, and they said, "Thanks for the info." We have a telecom, but I still see that nothing's being done on it. I was just wondering what other obligations.
Darrah Blackwater (50:50):
Well, I think there's two important pieces to this question. One, I think really goes to empowerment and tribes that maybe don't have a robust it department or really a person willing to take lead on this right away. I think there's a question of empowerment as far as letting them know or letting it be known that everyone, every tribe is capable of meeting the requirements and that it's really just a matter of starting and asking questions and figuring it out. But every single tribe is capable of doing what needs to be done to get that particular band of spectrum.
Darrah Blackwater (51:30):
The priority window that's open right now, I don't have the specs in front of me exactly, but there are build out requirements. So that means that tribes can put in an application for the 2.5 gigahertz band. Then if their application is approved, they can utilize that 2.5 gigahertz band, but they have to meet certain build out requirements in their area.
Darrah Blackwater (51:52):
And so as an ex, I don't know exactly what it is. I want to say a third and maybe if Mark, I saw Mark Buell is on, but if you can maybe fill this in, but there's certain build out requirements where you have to be able to offer access to a certain percentage of the population or the households within a certain period of time. They're really not that hard to meet. So this is what I've been doing. In last November, I was lucky enough to go down to Waimanalo, Hawaii, where we set up a community network there. I think would've met their build out requirements very easily. As I said, the other day, I was down in Crown Point and in [inaudible 00:52:35] helping them build out their 2.5 gigahertz networks and dropping off some of their equipment. They are probably meeting their build out requirements on their licenses pretty right away.
Darrah Blackwater (52:48):
It's not, I think those kits to really blast that out, I think, it was a 10 watt, 2.5 gigahertz channel base station going out to different CPEs, which are the units that you mount on people's homes. I think it's like $10 or $15,000 to really connect a lot of people in your area. I want to say a six up to like 19 mile radius that you can reach out, so there are some requirements, but they're really not that hard to meet. Mark, can you tell us what the, exactly what the build out requirements are?
Mark Buell (53:27):
Off the top of my head? No, but I think you [crosstalk 00:53:30].
Darrah Blackwater (53:29):
Okay, that's okay.
Mark Buell (53:30):
Well, yeah. In terms of, say what we did in Waimanalo, that was connecting about 40 houses, 90 people total and yeah, well, under $20,000.
Darrah Blackwater (53:45):
Okay. Well, Petra's here to save the day for both of us. She says it's 50% of the population in two years and 80% in five years that you have to offer service to. And so it is very doable, especially on smaller tribal lands. Maybe time for one more question, Allison?
Allison Huff MacPherson (54:06):
Yeah, we have about four minutes. I think Ron Trosper has a question. Ron, go ahead and unmute yourself and you can ask that question. It's a long one.
Ron Trosper (54:15):
All right, Darrah thank you very much for an excellent presentation. I'm coming from the perspective of an economist and noticing that the spectrum is a common property or public good, which in America is not very well managed usually because American systems try to turn everything into private property ideas. And so some of the problems that are occurring are probably occurring because the private property system isn't applicable to a public good or a common pool good. I'm just making that point. I think it's a way to look for answers. We're probably pretty much trapped in the fact that the system is always going to have private property as a main idea. But for instance in fishing, what they do is they come up with individual transferable quotas and make those for sale. Then if they're transferable pretty soon one or a few fishermen own them all. And so the question that comes to mind with regard to spectrum is, is it transferable? Do people buy and sell it? Is it possible to be monopolized or is it possible for tribes to just go out and buy something?
Darrah Blackwater (55:33):
Last I checked Sprint, which is now they recently merged with T-Mobile, owns over 70% of the spectrum in America. Yes, what you're saying is absolutely true. They are transferable through, you can sublease your spectrum license. That's essentially, they will buy up all of the spectrum. I've heard once at a broadband brunch that I was at, that they can write it off on their taxes. I haven't confirmed that with anything. I don't talk to a lot of big telecom people these days, but they can write it off on their taxes or just hold it and have it in case they want it in the future. But they hold a lot of that spectrum over tribal lands, even in rural areas.
Darrah Blackwater (56:23):
They are holding and they're not utilizing it. They are not letting ... In a lot of cases, they are not letting other people utilize it. Or the people just don't know to ask. I don't think sprint is necessarily in their castle saying, no one can touch this but us, but if there's not a lot of communication happening between tribal community members and those big telecom companies who are holding the spectrum in their area, then that means that it's not going to be used by those tribal communities and those students, and really anyone who needs it the most.
Darrah Blackwater (56:55):
I think it's a problem of lack of communication, people who are not doing their jobs to facilitate that communicate. I think in the bigger scheme of things, as far as certain companies monopolizing resources, that's really above my pay grade, so I'll let you handle that, Ron.
Ron Trosper (57:16):
Well, what comes to mind is I'm thinking about this is the situation with the Bering Sea where the government gave community development quotas to Alaska tribes around the Bering Sea. And so they got a certain portion of the quota to the fish of the barring sea, which they could then lease out to big fishermen companies that were usually based in Seattle, but it assured them that they would get of the fish. So they could take that, it was called Community Development Quota, so that was a source of income for these communities. It was actually quite beneficial. It sounds to me like you're thinking down those similar lines for tribes, that a tribe would be able to get a certain portion of the spectrum and get the revenue from it because it's their land and so on.
Darrah Blackwater (58:10):
Ron Trosper (58:10):
That was your first proposal. I'm just mentioning that there are analogies and other common pool resources such as the Bering Sea fisheries.
Darrah Blackwater (58:18):
Yeah, that's great. Thank you so much.
Allison Huff MacPherson (58:21):
Thank you, Ron. It looks like we're right at 12 o'clock. We do have Karin Blackwater just wants to say great job, Darrah.
Darrah Blackwater (58:29):
That's my mom.
Allison Huff MacPherson (58:30):
Is that your mom? Awesome. [crosstalk 00:58:32] just blows my mind that FCC is allowing six months for tribal lands to sign up for spectrum, so she is on point with that, for sure. Mark Buell says, I don't know if I pronounce that correctly, "Amazing work Darrah." I just want to thank you again, Darrah for agreeing to present for us. I want to thank National Science Foundation and the University of Arizona on behalf of our grant, the Indigenous Graduate Education and Science and Engineering in the Southwest and my team. We will be sending out other flyer for other presenters, so look out for those as well. Again, thank you Darrah.
Darrah Blackwater (59:10):
Thank you so much. Thank you everyone for joining. I appreciate you.
Allison Huff MacPherson (59:14):