Indigeneity in the Air: The Highs and Lows of Asserting Tribal Airspace Sovereignty

Advancements in marine and aerospace technology drive legal reform in admiralty and air law. The increased accessibility and affordability of these technologies demand and motivate lawmakers and federal agencies to anticipate potential threats to peoples’ rights and resources in the seas and skies. Given the recent applications of unmanned aircraft in the public and private sectors, developments in aircraft and air law are rapidly becoming more relevant to American Indian and Alaska Native tribes. In anticipation of legal reform, tribal nations are taking steps to assert, expand, and secure their air rights before agencies or the courts attempt to divest their sovereign authority. An analysis of two case studies through a lens of water and federal Indian law locates spaces in American jurisprudence that have the legal foundation and structural capacity to support a greater presence of Indigeneity in airspace. Research findings from these studies answer the following inquiries about tribal airspace sovereignty: where does Indigeneity reside in the US national airspace system and domestic air law, how are tribal air rights strengthened or weakened by American jurisprudence, what strategies do tribes employ to exercise their sovereignty in airspace, and how are tribes planning for future developments in aircraft and air law? Answers lead to proof of how meaningful consultation through collaborative rulemaking produces far greater mutual benefits than burdens for federal agencies and tribes, and much more. Most importantly, these discoveries celebrate a diverse and accumulative strategic legacy of strengthening and expanding tribal sovereignty in the face of imminent threats and possibilities in tribal airspace.