Parity for Tribal Governments Operating Drones

HIGHLIGHTS:

• In 2012, unmanned aircraft systems (UAS) legislation left tribal governments out of the definition of governments eligible to use UAS by means of Section 334 Certificates of Waiver or Authorization (COAs).
• As a matter of basic parity, tribal governments should have the same access that all other governments have to the latest tools and technology serving public safety purposes.
• H.R. 4441, the Aviation Innovation, Reform, and Reauthorization Act of 2016 pending in the U.S. House of Representatives, contains a technical provision that would expressly include tribal governments among all governments treated as public safety agencies operating UAS "public aircraft" for purposes of Section 334 COAs.

When Congress first authorized the domestic use of unmanned aircraft systems (UAS) in the Federal Aviation Administration (FAA) Modernization and Reform Act of 2012 (FMRA), it created special, streamlined provisions for the use of UAS by governmental agencies for public safety, hazardous and natural resource management, and property protection. Unfortunately, Congress did not expressly include federally recognized tribal governments among the governments authorized to make use of Section 334 Certificates of Waiver or Authorization (COAs), forcing tribal governments to conjure up a "commercial" purpose under the more restrictive Section 333 authority.

Most tribal governments, like almost all other governments, carry out law enforcement, firefighting, emergency medical, search and rescue, natural disaster response and other activities that promote the public safety of those who reside on or are the guests on their lands. Tribal governments also typically cross-deputize their public safety officers with their governmental neighbors, as threats to public safety do not respect jurisdictional boundaries. But under FMRA, tribal governments are not permitted the same UAS tools available to their neighboring partners, leaving those on tribal lands at a disadvantage.

Congress has been responsive to the concerns of tribal leaders seeking governmental parity and access to the latest tools and technology serving public safety purposes. H.R. 4441, the FAA Aviation Innovation, Reform, and Reauthorization Act of 2016 pending in the U.S. House of Representatives, includes a technical provision that would expressly define tribal governments among all governments treated as public safety agencies operating UAS "public aircraft" for purposes of Section 334 COAs. Section 437 amends 49 U.S.C. 40102(a)(41) to add a provision extending Section 334 authority to unmanned aircraft operated by tribal governments as follows:

(a) Public UAS Operations by Tribal Governments.—Section 40102(a)(41) of title 49, United States Code, is amended by adding at the end the following:

"(F) An unmanned aircraft that is owned and operated by, or exclusively leased for at least 90 continuous days by, an Indian tribal government, as defined in section 102 of the Robert T. Stafford Disaster Relief and Emergency Assistance Act (42 U.S.C. 5122), except as provided in section 40125(b).".

(b) Conforming Amendment.—Section 40125(b) of title 49, United States Code, is amended by striking "or (D)" and inserting "(D), or (F)".

Senate staff involved in drafting the Senate’s emerging FAA reauthorization legislation have indicated that their offices are giving serious consideration to including similar language in the Senate bill.    

Information contained in this alert is for the general education and knowledge of our readers. It is not designed to be, and should not be used as, the sole source of information when analyzing and resolving a legal problem. Moreover, the laws of each jurisdiction are different and are constantly changing. If you have specific questions regarding a particular fact situation, we urge you to consult competent legal counsel.