DIGITAL Reservations Act

II 116TH CONGRESS 2D SESSION S. 4331 To preserve Indian Tribes’ and Native Hawaiian organizations’ autonomy of access to spectrum over Tribal lands and expedite immediate deploy- ment of telecommunications services for critical government services, including national emergencies, natural disasters, public health and bio- hazard threats, safety, education, opportunity to participate in the broadband economy, self-governance, access to Federal, State, and Tribal voting and elections, and the Federal census count, for the protection of life and property in furtherance of the Federal trust responsibility, and for other purposes. IN THE SENATE OF THE UNITED STATES JULY 27, 2020 Ms. WARREN (for herself and Ms. HIRONO) introduced the following bill; which was read twice and referred to the Committee on Commerce, Science, and Transportation A BILL To preserve Indian Tribes’ and Native Hawaiian organiza- tions’ autonomy of access to spectrum over Tribal lands and expedite immediate deployment of telecommuni- cations services for critical government services, including national emergencies, natural disasters, public health and biohazard threats, safety, education, opportunity to par- ticipate in the broadband economy, self-governance, ac- cess to Federal, State, and Tribal voting and elections, and the Federal census count, for the protection of life and property in furtherance of the Federal trust respon- sibility, and for other purposes. VerDate Sep 11 2014 18:00 Aug 11, 2020 Jkt 099200 PO 00000 Frm 00001 Fmt 6652 Sfmt 6652 E:\BILLS\S4331.IS S4331 pamtmann on DSKBC07HB2PROD with BILLS 2 •S 4331 IS Be it enacted by the Senate and House of Representa- 1 tives of the United States of America in Congress assembled, 2 SECTION 1. SHORT TITLE. 3 This Act may be cited as the ‘‘Deploying the Internet 4 by Guaranteeing Indian Tribes Autonomy over Licensing 5 on Reservations Act’’ or the ‘‘DIGITAL Reservations 6 Act’’. 7 SEC. 2. TABLE OF CONTENTS. 8 The table of contents for this Act is as follows: 9 Sec. 1. Short title. Sec. 2. Table of contents. Sec. 3. Findings and purposes. Sec. 4. Indian Tribes’ and Native Hawaiian organizations’ exclusive right to all available or unlicensed electromagnetic spectrum over Tribal lands. Sec. 5. Access to spectrum over Tribal lands. Sec. 6. Existing spectrum licenses and spectrum over Tribal lands. Sec. 7. Tribal Broadband Fund. Sec. 8. Directing the Commission to engage in rulemaking proceedings for broadband development on Tribal lands. Sec. 9. Technical assistance for spectrum management, contractual agreements, and procedural requirements. Sec. 10. Annual reporting requirements. Sec. 11. Definitions. SEC. 3. FINDINGS AND PURPOSES. 10 (a) FINDINGS.—Congress finds the following: 11 (1) Indian Tribes are sovereign nations that are 12 independent and legally distinct political bodies that 13 exercise self-governance with the inherent power to 14 control their internal relations including natural re- 15 source development and management of assets, in- 16 cluding spectrum over Tribal lands. 17 VerDate Sep 11 2014 18:00 Aug 11, 2020 Jkt 099200 PO 00000 Frm 00002 Fmt 6652 Sfmt 6201 E:\BILLS\S4331.IS S4331 pamtmann on DSKBC07HB2PROD with BILLS 3 •S 4331 IS (2) This longstanding precedent established ter- 1 ritorial sovereignty through distinct and separate ju- 2 risdictions in which Indian Tribes retain their sov- 3 ereign power to control their internal relations and 4 protect Tribal self-governance within designated 5 Tribal lands or reservations. 6 (3) Tribal lands were established during the 7 ‘‘Allotment’’ or ‘‘Reservation’’ era of Federal Indian 8 law and policy (1871–1928) when the Federal Gov- 9 ernment significantly narrowed the control and 10 rights of Indian Tribes through the unilateral acqui- 11 sition of Tribal lands and resources, then subse- 12 quently gave the rights to this property to non-In- 13 dian settlers. 14 (4) Under the General Allotment Act of 1887, 15 Tribal members were forced to surrender their pre- 16 viously undivided interest in Tribally owned trust es- 17 tate for individually assigned land interests creating 18 permanently divided land allotments on Tribal lands, 19 and further coercing Native Americans into assimila- 20 tion and dependency on the Federal Government, 21 thus depriving them of their traditional economies. 22 (5) Congress has acknowledged that this Res- 23 ervation Era policy is widely known as failed Federal 24 policy that established individual non-Indian land 25 VerDate Sep 11 2014 18:00 Aug 11, 2020 Jkt 099200 PO 00000 Frm 00003 Fmt 6652 Sfmt 6201 E:\BILLS\S4331.IS S4331 pamtmann on DSKBC07HB2PROD with BILLS 4 •S 4331 IS holdings on reservations resulting in checkerboarded 1 Tribal lands that cause complex jurisdictional and 2 legal complications today. 3 (6) In response to these failed, paternalistic 4 Federal assimilation policies, forced acquisition of 5 indigenous lands, and genocide of Native Americans, 6 the United States has recognized the unique legal 7 relationship and trust responsibility it has with 8 American Indians, Alaska Natives, and Native Ha- 9 waiians to promote their self-determination and sov- 10 ereignty in furtherance of its treaty obligations and 11 longstanding government-to-government relationship. 12 (7) Congressional authority to manage this 13 unique government-to-government relationship with 14 Native nations and Indian affairs generally is recog- 15 nized as plenary; constitutionally vested congres- 16 sional authority to regulate commerce and govern 17 activities with Indian Tribes, which is distinct and 18 separate from executive and judicial branch powers. 19 (8) The Federal Government’s trust responsi- 20 bility with Indian Tribes extends to all governmental 21 branches requiring the United States to uphold its 22 fiduciary duties of care and loyalty, to make trust 23 property income productive, to enforce reasonable 24 claims on behalf of Native Americans, and to take 25 VerDate Sep 11 2014 18:00 Aug 11, 2020 Jkt 099200 PO 00000 Frm 00004 Fmt 6652 Sfmt 6201 E:\BILLS\S4331.IS S4331 pamtmann on DSKBC07HB2PROD with BILLS 5 •S 4331 IS affirmative action to preserve trust property, for the 1 benefit of American Indians and Alaska Natives, 2 and Native Hawaiians as part of this Federal-Tribal 3 relationship and Tribal self-governance. 4 (9) The Federal Communications Commission 5 (FCC) has acknowledged this fiduciary responsibility 6 to Native nations and has further recognized the 7 Commission’s own responsibility to promote their 8 self-sufficiency and economic development on Tribal 9 lands. 10 (10) In 2018, a Government Accountability Of- 11 fice (GAO) report noted that numerous Tribal enti- 12 ties, associations, and academic groups consider 13 spectrum as a natural resource that should be man- 14 aged by Tribes. FCC officials responded that, ‘‘spec- 15 trum is not considered a reserved right under trea- 16 ties with Indian tribes, as it is not explicitly stated’’. 17 (11) The first United States treaty with an 18 American Indian Tribe was ratified in 1778, over 19 240 years ago, and Indian treaty-making ended in 20 1871, prior to the development of spectrum, and 21 adoption of the existing regime for licensing and reg- 22 ulating spectrum access. 23 (12) Further, a 2020 GAO report repeatedly 24 stated that ‘‘spectrum is a finite natural resource 25 VerDate Sep 11 2014 18:00 Aug 11, 2020 Jkt 099200 PO 00000 Frm 00005 Fmt 6652 Sfmt 6201 E:\BILLS\S4331.IS S4331 pamtmann on DSKBC07HB2PROD with BILLS 6 •S 4331 IS used to provide a variety of communication services’’ 1 to governmental entities. 2 (13) However, with the exception of the FCC’s 3 efforts to allocate a severely limited bandwidth of 4 temporary spectrum authority to select Tribal appli- 5 cants during the COVID–19 crisis, it failed to grant 6 numerous emergency requests from Congress, Indian 7 Tribes, and Native Hawaiian organizations to extend 8 the 2.5 GHz Rural Tribal Priority Window timeline 9 by 180 days to give Native nations a fair oppor- 10 tunity to secure spectrum over their Tribal lands be- 11 fore the August 3, 2020, expiration date amidst the 12 pandemic. 13 (14) To date, the Commission has failed to im- 14 plement nationwide spectrum opportunities or uni- 15 form licensing for Indian Tribes and Native Hawai- 16 ian organizations to make spectrum available over 17 their Tribal lands or account for the unmet needs of 18 native Nations in compliance with the Federal trust 19 responsibility. 20 (15) To the contrary, the FCC has used its 21 general authority to regulate for-profit commercial 22 use of spectrum over Tribal lands to assign Indian 23 Tribes’ spectrum licenses to non-Indian companies 24 through privatized auctions, by promulgating regula- 25 VerDate Sep 11 2014 18:00 Aug 11, 2020 Jkt 099200 PO 00000 Frm 00006 Fmt 6652 Sfmt 6201 E:\BILLS\S4331.IS S4331 pamtmann on DSKBC07HB2PROD with BILLS 7 •S 4331 IS tions for licensed and unlicensed spectrum over Trib- 1 al lands, and by conducting oversight over secondary 2 market transactions, including leasing spectrum li- 3 censes over Tribal lands and Hawaiian Home Lands 4 to private companies without Tribal consultation or 5 consent. 6 (16) The Commission’s actions parallel failed 7 Federal Reservation Era policy that divided Indian 8 land holdings and created systemic barriers to In- 9 dian Tribes’ economic development and legal juris- 10 dictional complications on Tribal lands that continue 11 to disadvantage Tribal communities today. 12 (17) Indian Tribes and Native Hawaiian orga- 13 nizations continue to encounter substantial barriers 14 to accessing spectrum on Tribal lands and Hawaiian 15 Home Lands to deploy telecommunications services 16 for the safety and well-being of their members to de- 17 crease the alarming rates of violent crimes, suicides, 18 and additional unnecessary loss of lives that Native 19 Americans disproportionately experience, especially 20 through the lack of access to telehealth services and 21 digital emergency resources as demonstrated during 22 the COVID–19 pandemic that disproportionately im- 23 pacted Indian Country. 24 VerDate Sep 11 2014 18:00 Aug 11, 2020 Jkt 099200 PO 00000 Frm 00007 Fmt 6652 Sfmt 6201 E:\BILLS\S4331.IS S4331 pamtmann on DSKBC07HB2PROD with BILLS 8 •S 4331 IS (18) Further, the 2018 Broken Promises Re- 1 port published by the United States Commission on 2 Civil Rights found Native Americans rank near the 3 bottom of all Americans in terms of health, edu- 4 cation, and employment due to the unique challenges 5 and harsh living conditions as a result of the Res- 6 ervation Era when the Federal Government relo- 7 cated Indian Tribes to geographically isolated res- 8 ervations where ‘‘persistent discrimination has ren- 9 dered their reality often invisible to other Ameri- 10 cans’’. 11 (19) Today, Tribal lands are some of the most 12 digitally disconnected areas in the United States, 13 where 1.5 million people lack basic broadband and 14 wireless services at rates comparable to, and in some 15 cases lower than, developing countries, leaving Trib- 16 al lands further behind in the digital divide by global 17 benchmarks. 18 (20) In 2018, the Broadband Commission for 19 Sustainable Development reported that wireless net- 20 work coverage in Sub-Saharan Africa increased to 21 70 percent, surpassing the network coverage rates 22 on Tribal lands and Hawaiian Home Lands in the 23 United States. 24 VerDate Sep 11 2014 18:00 Aug 11, 2020 Jkt 099200 PO 00000 Frm 00008 Fmt 6652 Sfmt 6201 E:\BILLS\S4331.IS S4331 pamtmann on DSKBC07HB2PROD with BILLS 9 •S 4331 IS (21) In 2018, the Government Accountability 1 Office (GAO) and the Federal Communications 2 Commission (FCC) reported that over 92 percent of 3 people living outside of Tribal lands and Hawaiian 4 Home Lands have access to fixed broadband serv- 5 ices, and 98 percent of American households have 6 telephone services. However, only 65 percent of 7 American Indians, Alaska Natives, and Native Ha- 8 waiians living on Tribal lands and Hawaiian Home 9 Lands have access to fixed broadband services, and 10 only 69 percent of households on Tribal lands have 11 telephone services. 12 (22) Lack of Indian Tribes’ access to spectrum 13 over their Tribal lands during the COVID–19 pan- 14 demic also highlighted Indian Country’s expanding 15 digital divide, as supported by the GAO’s finding 16 that health information technology systems at the 17 Indian Health Service (IHS) rank as the Federal 18 Government’s third-highest need for agency system 19 modernization since 50 percent of IHS facilities de- 20 pend on outdated circuit connections based on one 21 or two T1 circuit lines (3 Mbps), creating slower re- 22 sponse times than any other health facility system in 23 the country. 24 VerDate Sep 11 2014 18:00 Aug 11, 2020 Jkt 099200 PO 00000 Frm 00009 Fmt 6652 Sfmt 6201 E:\BILLS\S4331.IS S4331 pamtmann on DSKBC07HB2PROD with BILLS 10 •S 4331 IS (23) A 2018 National Congress of American In- 1 dians and National Indian Health Board health re- 2 form comment filed with the Federal Communica- 3 tions Commission has further stated that 75 percent 4 of rural Indian Health Service (IHS) facilities do 5 not have reliable broadband networks for American 6 Indians and Alaska Natives to access telehealth- 7 based services, which is a critical need in the most 8 geographically isolated areas of the United States 9 with some of the highest poverty rates, and lack of 10 access to reliable transportation. 11 (24) Additionally, IHS officials reported during 12 the COVID–19 pandemic that deficiencies within 13 their health IT system inhibited the agency’s ability 14 to adequately conduct coronavirus disease surveil- 15 lance and record accurate data contributing to the 16 disproportional rates of coronavirus transmissions on 17 reservations. 18 (25) The Bureau of Indian Education (BIE) 19 estimated from a survey of 142 out of 174 schools, 20 that up to 95 percent of their students do not have 21 access to residential internet services depending on 22 Bureau school locations and data cap limitations be- 23 fore and during the pandemic. 24 VerDate Sep 11 2014 18:00 Aug 11, 2020 Jkt 099200 PO 00000 Frm 00010 Fmt 6652 Sfmt 6201 E:\BILLS\S4331.IS S4331 pamtmann on DSKBC07HB2PROD with BILLS 11 •S 4331 IS (26) As an additional barrier, no dedicated 1 Federal funding streams exist for Indian Tribes or 2 Native Hawaiian organizations to deploy tele- 3 communications or broadband services, both wireline 4 and wireless, on Tribal lands and Hawaiian Home 5 Lands. In 2018, the GAO found that the FCC and 6 Department of Agriculture’s combined total of 7 $34,600,000,000 was available for broadband serv- 8 ices and infrastructure; [Text truncated for display. Full text available on Congress.gov.]