DIGITAL Reservations Act

I 116TH CONGRESS 2D SESSION H. R. 7774 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 HOUSE OF REPRESENTATIVES JULY 24, 2020 Ms. HAALAND introduced the following bill; which was referred to the Com- mittee on Energy and Commerce, and in addition to the Committee on Natural Resources, for a period to be subsequently determined by the Speaker, in each case for consideration of such provisions as fall within the jurisdiction of the committee concerned 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 VerDate Sep 11 2014 16:58 Aug 15, 2020 Jkt 099200 PO 00000 Frm 00001 Fmt 6652 Sfmt 6652 E:\BILLS\H7774.IH H7774 pamtmann on DSKBC07HB2PROD with BILLS 2 •HR 7774 IH and property in furtherance of the Federal trust respon- sibility, and for other purposes. 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 VerDate Sep 11 2014 16:58 Aug 15, 2020 Jkt 099200 PO 00000 Frm 00002 Fmt 6652 Sfmt 6201 E:\BILLS\H7774.IH H7774 pamtmann on DSKBC07HB2PROD with BILLS 3 •HR 7774 IH source development and management of assets, in- 1 cluding spectrum over Tribal lands. 2 (2) This longstanding precedent established ter- 3 ritorial sovereignty through distinct and separate ju- 4 risdictions in which Indian Tribes retain their sov- 5 ereign power to control their internal relations and 6 protect Tribal self-governance within designated 7 Tribal lands or reservations. 8 (3) Tribal lands were established during the 9 ‘‘Allotment’’ or ‘‘Reservation’’ era of Federal Indian 10 law and policy (1871–1928) when the Federal Gov- 11 ernment significantly narrowed the control and 12 rights of Indian Tribes through the unilateral acqui- 13 sition of Tribal lands and resources, then subse- 14 quently gave the rights to this property to non-In- 15 dian settlers. 16 (4) Under the General Allotment Act of 1887, 17 Tribal members were forced to surrender their pre- 18 viously undivided interest in Tribally owned trust es- 19 tate for individually assigned land interests creating 20 permanently divided land allotments on Tribal lands, 21 and further coercing Native Americans into assimila- 22 tion and dependency on the Federal Government, 23 thus depriving them of their traditional economies. 24 VerDate Sep 11 2014 16:58 Aug 15, 2020 Jkt 099200 PO 00000 Frm 00003 Fmt 6652 Sfmt 6201 E:\BILLS\H7774.IH H7774 pamtmann on DSKBC07HB2PROD with BILLS 4 •HR 7774 IH (5) Congress has acknowledged that this Res- 1 ervation Era policy is widely known as failed Federal 2 policy that established individual non-Indian land 3 holdings on reservations resulting in checkerboarded 4 Tribal lands that cause complex jurisdictional and 5 legal complications today. 6 (6) In response to these failed, paternalistic 7 Federal assimilation policies, forced acquisition of 8 indigenous lands, and genocide of Native Americans, 9 the United States has recognized the unique legal 10 relationship and trust responsibility it has with 11 American Indians, Alaska Natives, and Native Ha- 12 waiians to promote their self-determination and sov- 13 ereignty in furtherance of its treaty obligations and 14 longstanding government-to-government relationship. 15 (7) Congressional authority to manage this 16 unique government-to-government relationship with 17 Native nations and Indian affairs generally is recog- 18 nized as plenary; constitutionally vested congres- 19 sional authority to regulate commerce and govern 20 activities with Indian Tribes, which is distinct and 21 separate from executive and judicial branch powers. 22 (8) The Federal Government’s trust responsi- 23 bility with Indian Tribes extends to all governmental 24 branches requiring the United States to uphold its 25 VerDate Sep 11 2014 16:58 Aug 15, 2020 Jkt 099200 PO 00000 Frm 00004 Fmt 6652 Sfmt 6201 E:\BILLS\H7774.IH H7774 pamtmann on DSKBC07HB2PROD with BILLS 5 •HR 7774 IH fiduciary duties of care and loyalty, to make trust 1 property income productive, to enforce reasonable 2 claims on behalf of Native Americans, and to take 3 affirmative action to preserve trust property, for the 4 benefit of American Indians and Alaska Natives, 5 and Native Hawaiians as part of this Federal-Tribal 6 relationship and Tribal self-governance. 7 (9) The Federal Communications Commission 8 (FCC) has acknowledged this fiduciary responsibility 9 to Native nations and has further recognized the 10 Commission’s own responsibility to promote their 11 self-sufficiency and economic development on Tribal 12 lands. 13 (10) In 2018, a Government Accountability Of- 14 fice (GAO) report noted that numerous Tribal enti- 15 ties, associations, and academic groups consider 16 spectrum as a natural resource that should be man- 17 aged by Tribes. FCC officials responded that, ‘‘spec- 18 trum is not considered a reserved right under trea- 19 ties with Indian tribes, as it is not explicitly stated’’. 20 (11) The first United States treaty with an 21 American Indian Tribe was ratified in 1778, over 22 240 years ago, and Indian treaty-making ended in 23 1871, prior to the development of spectrum, and 24 VerDate Sep 11 2014 16:58 Aug 15, 2020 Jkt 099200 PO 00000 Frm 00005 Fmt 6652 Sfmt 6201 E:\BILLS\H7774.IH H7774 pamtmann on DSKBC07HB2PROD with BILLS 6 •HR 7774 IH adoption of the existing regime for licensing and reg- 1 ulating spectrum access. 2 (12) Further, a 2020 GAO report repeatedly 3 stated that ‘‘spectrum is a finite natural resource 4 used to provide a variety of communication services’’ 5 to governmental entities. 6 (13) However, with the exception of the FCC’s 7 efforts to allocate a severely limited bandwidth of 8 temporary spectrum authority to select Tribal appli- 9 cants during the COVID–19 crisis, it failed to grant 10 numerous emergency requests from Congress, Indian 11 Tribes, and Native Hawaiian organizations to extend 12 the 2.5 GHz Rural Tribal Priority Window timeline 13 by 180 days to give Native nations a fair oppor- 14 tunity to secure spectrum over their Tribal lands be- 15 fore the August 3, 2020, expiration date amidst the 16 pandemic. 17 (14) To date, the Commission has failed to im- 18 plement nationwide spectrum opportunities or uni- 19 form licensing for Indian Tribes and Native Hawai- 20 ian organizations to make spectrum available over 21 their Tribal lands or account for the unmet needs of 22 native Nations in compliance with the Federal trust 23 responsibility. 24 VerDate Sep 11 2014 16:58 Aug 15, 2020 Jkt 099200 PO 00000 Frm 00006 Fmt 6652 Sfmt 6201 E:\BILLS\H7774.IH H7774 pamtmann on DSKBC07HB2PROD with BILLS 7 •HR 7774 IH (15) To the contrary, the FCC has used its 1 general authority to regulate for-profit commercial 2 use of spectrum over Tribal lands to assign Indian 3 Tribes’ spectrum licenses to non-Indian companies 4 through privatized auctions, by promulgating regula- 5 tions for licensed and unlicensed spectrum over Trib- 6 al lands, and by conducting oversight over secondary 7 market transactions, including leasing spectrum li- 8 censes over Tribal lands and Hawaiian Home Lands 9 to private companies without Tribal consultation or 10 consent. 11 (16) The Commission’s actions parallel failed 12 Federal Reservation Era policy that divided Indian 13 land holdings and created systemic barriers to In- 14 dian Tribes’ economic development and legal juris- 15 dictional complications on Tribal lands that continue 16 to disadvantage Tribal communities today. 17 (17) Indian Tribes and Native Hawaiian orga- 18 nizations continue to encounter substantial barriers 19 to accessing spectrum on Tribal lands and Hawaiian 20 Home Lands to deploy telecommunications services 21 for the safety and well-being of their members to de- 22 crease the alarming rates of violent crimes, suicides, 23 and additional unnecessary loss of lives that Native 24 Americans disproportionately experience, especially 25 VerDate Sep 11 2014 16:58 Aug 15, 2020 Jkt 099200 PO 00000 Frm 00007 Fmt 6652 Sfmt 6201 E:\BILLS\H7774.IH H7774 pamtmann on DSKBC07HB2PROD with BILLS 8 •HR 7774 IH through the lack of access to telehealth services and 1 digital emergency resources as demonstrated during 2 the COVID–19 pandemic that disproportionately im- 3 pacted Indian Country. 4 (18) Further, the 2018 Broken Promises Re- 5 port published by the United States Commission on 6 Civil Rights found Native Americans rank near the 7 bottom of all Americans in terms of health, edu- 8 cation, and employment due to the unique challenges 9 and harsh living conditions as a result of the Res- 10 ervation Era when the Federal Government relo- 11 cated Indian Tribes to geographically isolated res- 12 ervations where ‘‘persistent discrimination has ren- 13 dered their reality often invisible to other Ameri- 14 cans’’. 15 (19) Today, Tribal lands are some of the most 16 digitally disconnected areas in the United States, 17 where 1.5 million people lack basic broadband and 18 wireless services at rates comparable to, and in some 19 cases lower than, developing countries, leaving Trib- 20 al lands further behind in the digital divide by global 21 benchmarks. 22 (20) In 2018, the Broadband Commission for 23 Sustainable Development reported that wireless net- 24 work coverage in Sub-Saharan Africa increased to 25 VerDate Sep 11 2014 16:58 Aug 15, 2020 Jkt 099200 PO 00000 Frm 00008 Fmt 6652 Sfmt 6201 E:\BILLS\H7774.IH H7774 pamtmann on DSKBC07HB2PROD with BILLS 9 •HR 7774 IH 70 percent, surpassing the network coverage rates 1 on Tribal lands and Hawaiian Home Lands in the 2 United States. 3 (21) In 2018, the Government Accountability 4 Office (GAO) and the Federal Communications 5 Commission (FCC) reported that over 92 percent of 6 people living outside of Tribal lands and Hawaiian 7 Home Lands have access to fixed broadband serv- 8 ices, and 98 percent of American households have 9 telephone services. However, only 65 percent of 10 American Indians, Alaska Natives, and Native Ha- 11 waiians living on Tribal lands and Hawaiian Home 12 Lands have access to fixed broadband services, and 13 only 69 percent of households on Tribal lands have 14 telephone services. 15 (22) Lack of Indian Tribes’ access to spectrum 16 over their Tribal lands during the COVID–19 pan- 17 demic also highlighted Indian Country’s expanding 18 digital divide, as supported by the GAO’s finding 19 that health information technology systems at the 20 Indian Health Service (IHS) rank as the Federal 21 Government’s third-highest need for agency system 22 modernization since 50 percent of IHS facilities de- 23 pend on outdated circuit connections based on one 24 or two T1 circuit lines (3 Mbps), creating slower re- 25 VerDate Sep 11 2014 16:58 Aug 15, 2020 Jkt 099200 PO 00000 Frm 00009 Fmt 6652 Sfmt 6201 E:\BILLS\H7774.IH H7774 pamtmann on DSKBC07HB2PROD with BILLS 10 •HR 7774 IH sponse times than any other health facility system in 1 the country. 2 (23) A 2018 National Congress of American In- 3 dians and National Indian Health Board health re- 4 form comment filed with the Federal Communica- 5 tions Commission has further stated that 75 percent 6 of rural Indian Health Service (IHS) facilities do 7 not have reliable broadband networks for American 8 Indians and Alaska Natives to access telehealth- 9 based services, which is a critical need in the most 10 geographically isolated areas of the United States 11 with some of the highest poverty rates, and lack of 12 access to reliable transportation. 13 (24) Additionally, IHS officials reported during 14 the COVID–19 pandemic that deficiencies within 15 their health IT system inhibited the agency’s ability 16 to adequately conduct coronavirus disease surveil- 17 lance and record accurate data contributing to the 18 disproportional rates of coronavirus transmissions on 19 reservations. 20 (25) The Bureau of Indian Education (BIE) 21 estimated from a survey of 142 out of 174 schools, 22 that up to 95 percent of their students do not have 23 access to residential internet services depending on 24 VerDate Sep 11 2014 16:58 Aug 15, 2020 Jkt 099200 PO 00000 Frm 00010 Fmt 6652 Sfmt 6201 E:\BILLS\H7774.IH H7774 pamtmann on DSKBC07HB2PROD with BILLS 11 •HR 7774 IH Bureau school locations and data cap limitations be- 1 fore and during the pandemic. 2 (26) As an additional barrier, no dedicated 3 Federal funding streams exist for Indian Tribes or 4 Native Hawaiian organizations to deploy tele- 5 communications or broadband services, both wireline 6 and wireless, on Tribal lands and Hawaiian Home 7 Lan [Text truncated for display. Full text available on Congress.gov.]