A question was raised during my recent vacation to a National Park in Montana: Do Native American Nations have sovereign authority over their airspace? I had intended to fly the Park’s edge region from Tribal lands (which legally complies with the NPS Policy Memorandum 14-05). However, I realized the rules that apply to airspace over tribal lands might be different.
Airspace Sovereignty from the Native American Perspective
A retired chief of police of an Indian reservation (Gila River Indian Community, AZ) advised that tribal governments are very sensitive of their sovereignty and sacred grounds. He recommended that drone pilots contact the tribal government or police department and ask for permission to fly. The tribes appreciate a show of respect by asking. To sweeten the deal, perhaps you as a drone pilot could offer photos and videos that the tribe could use for its own purposes.
Unfortunately, there have been many cases of trespassers desecrating tribal lands and taking sacred artifacts. As a result, tribal governments now employ their own law enforcement officers that patrol their territory on 4×4’s. My understanding is that you do not want to be on the wrong side of a tribal LEO if you meet up with one!
Has Tribal Sovereignty over Airspace been Settled by the Federal Courts?
In my blog “Does an Aerial Drone Pilot have the Right to Fly Over Private Property?” we looked at property owners’ rights to the airspace within their property lines. It would be consistent, then, that Tribal Nations would have the same airspace rights. That is, they own the airspace up to 500 feet above ground level. This policy was affirmed in a 2016 paper by the University of Oklahoma College of Law Digital Commons “Why Indian Tribes Possess the Sovereign Authority to Regulate Tribal Airspace.” However, in this paper, an argument was made that Tribal Nations own ALL of the airspace within their boundaries.
Of course, such an assertion by tribal governments conflicts with federal regulations and FAA jurisdiction. However, the author makes a good point that Native American Nations enjoy significant sovereignty in other areas of the law. Since the airspace jurisdiction question had not been resolved as of 2016, drone pilots should contact tribal authorities and request their permission to fly.
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