"We as tribal nations have never given up our airspace."
Fred McLaughlin speaks with a melancholy tinge in his voice. It's not just caused by his drawn out North Dakotan accent. McLaughlin feels certain that eminent domain practices, which have cleared the path for the Dakota Access Pipeline, are setting up another future showdown.
From his back porch on Standing Rock Sioux Tribe's reservation, located near the southern border with South Dakota, McLaughlin can see people arriving to protest against oil being piped under the Missouri River, a source of water for the tribe and 18 million other Americans. But as general manager of Standing Rock Telecom, the tribe-owned local wireless service provider, McLaughlin worries that federal and private entities are coming for the tribe's cellular spectrum next. He mapped out this scenario for me while the sun set on the majestic North Dakota plains, closing out a tense day where fellow Native Americans were confronted by the National Guard, private security and militarized police from six states.
"It's a spectacular benefit to have our own telecoms company, and everyone can see this and validate it. It's a point of pride," he said. "We as tribal nations have never given up our airspace." Standing Rock Telecom owns 17 towers and provides month-to-month contracts for 1,600 subscribers (and growing). The strong signal it provides to the reservation, which stretches from Sioux County, North Dakota, to Corson County, South Dakota, covers 3,500 square miles and has played a crucial part in disseminating grassroots media coverage of the pipeline protests.
Federal and private entities are closing in on the tribe's water source. Soon they'll be coming for the reservation's cellular spectrum. McLaughlin says the first tremors of telecom confrontation came in 2009, shortly after Standing Rock received Eligible Telecommunications Status from the FCC, which allowed the tribe to obtain certain subsidies available to many private companies. West River, another local telecoms, immediately appealed that status and temporarily blocked Standing Rock from competing for subsidies, McLaughlin said. Motherboard requested a statement from West River on this, but general manager Troy Shilling replied that he "doesn't know how and when that unfolded. I just don't have that history."
It's only a matter of time before aggression comes from a larger telecoms company, McLaughlin added. That's because of a new government program called FirstNet, a nationwide emergency communications network that will be built out by a private contractor.
"I think it's scary that the government is essentially funding an eminent domain scenario, where the winning bidder is building over existing networks, without a fair or negotiable agreement," McLaughlin said. "I could very easily see a Tier 1 telecoms provider saying, 'Oh, you don't agree to us putting something on your tower? Boom, eminent domain, we're just gonna build over your network now.' That's how this issue impacts our sovereignty."
What in the world is McLaughlin talking about and how can he be so certain? On February 22, 2012, Congress passed the Middle Class Tax Relief and Job Creation Act. Stuffed into that act was a bill for FirstNet, "the first high-speed, nationwide wireless broadband network dedicated to public safety…[which would] provide a single interoperable platform for emergency and daily public safety communications," utilizing both cellular and radio networking.
It sounds maybe a little Orwellian, but McLaughlin is particularly concerned that FirstNet is backed by the Department of Commerce, not Interior or Defense, and has already had $7 billion thrown at it. The government stopped taking contract proposals on June 2. However, a Tier 1 telecoms provider like Verizon or AT&T will likely win, because they operate existing infrastructure, which FirstNet could piggyback on. On November 2, FirstNet's CEO Michael Poth will provide a status update for a major communications summit, but will not reveal the winner.
"We as tribal nations have never given up our airspace."
Whoever wins the contract will be able to resell part of the FirstNet spectrum to smaller companies, much like AT&T does with Cricket Wireless, a prepaid carrier. That's because, on a day-to-day basis, McLaughlin says 80 percent of that spectrum will be open for commercial use. It's only in the event of a 9/11 catastrophe, as McLaughlin puts it, that FirstNet would fully give itself over to emergency responders.
In other words, the US government has essentially built a program that blurs the line between corporation and federal oversight, by incentivizing federally-subsidized smaller companies such as Cricket—which are seeking to expand wireless service to more customers—to compete with independent actors such as Standing Rock, who may not wish to expand their service beyond a predetermined group or area.
"They're not shy about making money on this program," McLaughlin bluntly said.
A FirstNet spokesperson described the program as a "public-private partnership that can be monetized." While details were still hazy because a winning proposal hasn't been chosen yet, she described the logistics in terms of a highway which contains an emergency vehicle lane.
FirstNet's website also says it wants to work with Native Americans on the program. As a statement reads:
FirstNet is creating an education and outreach program to engage tribal leaders on the network and their public safety needs. In addition to encouraging the designated single officer or governmental body to include tribal nations in the FirstNet state consultation process, FirstNet plans to hold additional meetings with tribal representatives.
However, the public-private nature of it poses a host of potential problems, like the fact that your carrier would essentially be part of a government-operated network. Bullying to get the tribe to install equipment or give up spectrum for the emergency network is the problem foremost in McLaughlin's mind.
Standing Rock has already been through the trade-or-die ringer. McLaughlin has been in telecoms for five years, but he knows the history stretching back even further. He said that, back in the 90s, Tier 1 providers came to tribes, asking to build towers on reservations in exchange for cheap service and cheap phones. Ten years later, he said, diplomacy is extinct. (Tier 1 providers are defined by level of control. They're sole operators of their network; they host their own numbers; and they have a direct connection to the internet used to deliver voice and data services.)
"They took [the earlier refusal] personally. Last summer, we approached them about locating some Tier 1 equipment on our towers, in exchange for cheaper roaming costs," McLaughlin described to me. "It was kinda giving up a lot [of autonomy] for us. But both times we got a stern 'No.' See, we're making do, without having to sell out. And they don't like that—they want ownership of everything. I can already get a sense of what's to come with FirstNet. Someone coming to us and saying, 'Hey, be a reseller like Cricket Wireless and we'll give you cheaper roaming costs.' We're obviously not a reseller, but that's how it would start."
"Like the pipeline, they want this to get to the point of no return, then say, 'Hey government, we're waiting on you,'" McLaughlin continued, describing how eminent domain would be the logical next step, if FirstNet's contractor couldn't secure a tradeoff with Standing Rock. "I wouldn't want someone like us to halt it, but it endangers so much."
William M. Haney, an attorney for the San Manuel Band of Mission Indians, recently wrote an article for the American Indian Law Review about why Native Americans "possess sovereign authority to regulate tribal airspace" and "potential concerns and objections to federal regulations of that power."
Haney was not immediately available for comment. But his article has important implications for any future telecoms confrontation at Standing Rock, because he discusses the conception that tribes are foreign governments within US borders. That's actually a misconception—in his article, Haney says that tribes have been set up as "domestic dependent nations," a status which means Indian rights are preserved but don't necessarily apply to non-Indians. Therein lies the problem, because the federal government has left itself a backdoor, in the event of tribe's claiming sovereignty over airspace.
"This doctrine, known as implicit divestiture, has most frequently been used where tribes have attempted to assert some measure of authority over non-Indians," Haney writes in the article. "Thus, one major objection to tribal sovereignty in airspace may be that tribes have been implicitly divested of the ability to control entry into tribal airspace because such power is inconsistent with the character of a domestic dependent nation."
But after reading Haney's fine-grained analysis, it's important to note that Standing Rock Telecom is not going on a paranoid rant here against the government. If you read telecoms trade publications from five or six years ago, during the mobile broadband boom, you'll see experts warning about these kinds of clouds on the horizon.
"The incumbent operators which currently dominate the market, AT&T and Verizon, do not want to see more spectrum freed up because they are now sitting in a very favorable position," wrote Paul Budde in a June 2010 article for CircleID, a telecoms news website for industry insiders. He continued:
This is the 'beachfront property' with much lower costs to build for 4G… This is exactly where AT&T and Verizon want to be…What AT&T and Verizon want is to see spectrum tied up in regulatory/legislative battles while they consolidate their monopolistic positions. They have fine-tuned their legal approach and know that they can play the regulatory system game for another five to 10 years.
So, according to Budde's forecast, that puts us in the present day, or maybe circa 2020. Think of it this way: Whoever is president for the next four years will be preparing FirstNet to go live.
By 2020, the year of the next US presidential election, wireless executives and law enforcement will go bonkers if FirstNet isn't well on its way. Back in 2012, after FirstNet was passed, in a meeting with then Attorney General Eric Holder and Homeland Secretary Janet Napolitano, a wireless executive named Craig Farrill said: "We're in year 11 from 9/11 now, so to wait another three to five years to build that out would be hurtful and painful for us all."
Chuck Dowd, New York City's then-deputy police chief, backed Farrill up during this meeting, saying, "we need to roll up our sleeves here and get this done." Dowd was demoted from the NYPD Communications Department in 2014, and was investigated by his employer in 2010 on whether he accepted gifts from Verizon while trying to modernize the 911 emergency system. As a FirstNet board member, he was cleared in a similar investigation conducted by internal FirstNet personnel in 2013, but larger conflict of interest questions linger. Among other credibility missteps, an inspector general's report in 2014 declared that the "board's contracting practices lacked transparent award competition," as summarized by the Ames Tribune, a newspaper in Ames, Iowa, where a local sheriff's protest sparked the transparency investigation.
Just as the Dakota Access Pipeline protests are turning years of climate change bickering into a flashpoint event, so too would a crackdown on Standing Rock Telecom set off a mass discussion. Or as Budde wrote in his 2010 article, "We might need an 'oil spill' in telecoms to get Congress to take action."
Just as the Dakota Access Pipeline protests are turning years of climate change bickering into a flashpoint event, so too would a crackdown on Standing Rock Telecom set off a mass discussion.
Since there are already tech issues surrounding coverage of the pipeline protests, one can only imagine that something like mesh networks might play a part in covering encroachment on reservation grounds. Already, these decentralized networks are coming to major Western cities in opposition to the reach of larger telecoms. It's somewhat similar to how community gardens were formerly hipster punchlines, but are now centerpieces of suburbia. Once the wider public understands the far-reaching implications of programs like FirstNet, you could even see people who aren't technically inclined stepping up to defend Standing Rock, demanding transparency and more protection for independent networks.
For Standing Rock Sioux Tribe's part, it's just another in a long line of incursions against Native American culture.
"This doesn't even address tribal sovereignty. It's supposed to be government to tribal nation, not Tier 1 company to tribal nation," McLaughlin said. "That's how relations are supposed to work."
"So, yeah, welcome to telecoms," he added with a wry laugh, before literally riding off into the North Dakota sunset, bracing for another day of pipeline protests.
Get six of our favorite Motherboard stories every day by signing up for our newsletter.