United States: "What's Up? Native American Aviation And Airspace"

Last Updated: November 17 2016
Article by Sandra L Shippey

The Hualapai (wal-lah-pie) Tribe is a federally-recognized Indian tribe that lives on a reservation overlooking the western rim of the Grand Canyon.  One of its tribal enterprises is Grand Canyon West on the Hualapai reservation at the west rim of the Grand Canyon.  The Hualapai Tribe relies, in part, on tourism to fund its tribal government and for income for its members, and views from above are a large part of the tourist attraction.  The Tribe offers tour packages that can include spectacular views from the "Skywalk" (a glass bridge that enables visitors to walk beyond the rim of the Grand Canyon at 4,000 feet above the Colorado River), helicopter, fixed wing and boat tours, and other excursions on the reservation.  But how well is this commodity protected for the Tribe?

In 2009, a non-Indian freelance tour guide and photographer, Lionel de Antoni flew a fan-powered paraglider over the Hualapai reservation without the Tribe's permission.  Mr. de Antoni began and ended his flight over the reservation from federal land adjacent to the reservation.  Mr. de Antoni operated a freelance tourism business from the federal land and would regularly fly over the Tribe's reservation, organize tours, post photos and sell them.  He did not obtain permission from the Tribe to fly over the Tribe's reservation but did he gain financially from the airspace of the reservation?

This matter raised interesting legal issues regarding the confluence of Native American law and aviation law.  Does the Hualapai Tribe have jurisdiction to impose sanctions on pilots who enter reservation airspace without prior authorization from the Tribe?  An attorney for the Hualapai Tribe believes that "[the Hualapai Tribe] has the right to determine who will or will not fly over Hualapai territory." "The Federal Aviation Administration (FAA) says the tribe is overstepping its jurisdiction in fining the pilot as much as $25,000 for violating its airspace. "A tribe has no authority over airspace and cannot charge people for using it," said FAA spokesman Ian Gregor. "The federal government has sole jurisdiction over the nation's airspace." 1

The Tribe and Mr. De Antoni settled their case and as of yet, there is no statutory or case law on whether a Tribe has any sovereign control over the airspace above its reservation.  The FAA has not acknowledged that Tribes possess any sovereign authority in tribal airspace.  However, several Indian Tribes have asserted such a right in their respective constitutions and tribal codes or acknowledged their sovereignty over tribal airspace in their civil ordinances. (e.g. Potawatomi Nation, White Earth Nation, Snoqualmie Indian Tribe, Coquille Indian Tribe). 2

As sovereign entities, tribal governments are permitted to pass and enforce laws to protect the general welfare, health and safety of their citizens.  As sovereign entities, federally recognized Tribes have an inherent right to physically exclude non-members from reservation land and this right extends to Indians and non-Indians.  The question is whether this right to exclude covers tribal airspace.  Tribes could assert that air traffic above tribal lands could pose a risk or threat to tribal citizens or the tribal government (especially low flying aircraft).  Also, Tribes should have a right to protect its citizens from aircraft noise, air pollution, aviation accidents and other impositions from low-flying aircraft.  In the case of the Hualapai Tribe, the right to exclude could be for the purpose of protecting its own on-reservation airport from unauthorized flights and to control exploitation of its natural resources for unauthorized commercial gain that would protect tribal business interests. By regulating the activity, the Tribal government could appropriately charge a fee for the use of its airspace.

However, others would assert that Tribes are preempted by federal aviation law from exercising control over tribal airspace or that because Tribes are domestic dependent nations, their authority does not extend over their tribal airspace.  We have even heard allegations that, since the FAA aviation regulatory system is the global standard and considered the safest national aviation system in the world, allowing Tribes to regulate tribal airspace could jeopardize safety.  The United States government has a right to require Tribes to permit the free and safe passage of U.S. citizens and officials through reservations and tribal airspace is like a public highway in the sky; however, use of airspace for business purposes that are not transitory is a different situation.

The FAA is not likely to give up much jurisdiction over the greater U.S. airspace, even if it is above tribal lands, especially for flights at higher altitudes.  However, it is possible that Tribes can realize sovereign control over low flying flights over tribal lands or create regulations for such flights over tribal lands, that are consistent with FAA standards.

We are not alone in exploring these areas of economic uses of Tribal airspace, directly or indirectly.  See here and here.

Footnotes

1 Ultralight pilot arrested for flying over tribal land published on January 22, 2009 by Janice Wood in the General Aviation News.

2. Id.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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