FirstNet releases policy for consulting with tribal nations after governors make ‘opt-in/opt-out’ decisions

FirstNet yesterday released a policy outlining the consultation process it will have with tribal nations after governors in states and territories have made their “opt-in/opt-out” decisions regarding FirstNet’s nationwide public-safety broadband network (NPSBN).

“The First Responder Network Authority (“FirstNet”) respects the nation-to-nation relationship that exists between federally recognized Indian tribes1 and the United States government,” according to the FirstNet policy. “The purpose of this policy is to establish a foundation for honoring tribal sovereignty, accompanied by productive and long-lasting communications, consideration, and engagement with tribal governments surrounding the deployment and operation of the nationwide public- safety broadband network.”

FirstNet board member Kevin McGinnis, who has served as the board’s tribal liaison for several years, said FirstNet’s has been constrained from having full-fledged consultations with tribal nations—as well as federal entities—by legal language that specifies that FirstNet consult only through the single points of contact (SPOCs) in each state and territory until “opt-in/opt-out” decisions are made.

FirstNet has found ways to have some initial discussions with tribal nations, but those have been conducted during the past two years with the participation or agreement of the SPOC in each state or territory. This is a less-than-ideal arrangement, because tribal nations legally have a nation-to-nation relationship with the federal government that is independent of state governments. In addition, some tribal-nation territories span multiple states.

Once governors have completed their “opt-in/opt-out” decisions, FirstNet will be able to conduct more formal consultation proceedings directly with each of the 576 federally recognized Indian Nations.

“Having been able to do some meaningful things, we have been looking forward to the time when that legislation no longer impeded more formal discussions with tribes, in terms of formal consultations,” McGinnis said during an interview with IWCE’s Urgent Communications. “We are about upon that time. Once all of the governors’ decisions have been made [whether to ‘opt-in’ to FirstNet or pursue the ‘opt-out’ alternative], we are then free to do formal consultation with the tribes.

“The policy itself is fairly typical of nation-to-nation tribal policies, in that it simply says how the consultation is going to be started, conducted and concluded.”

McGinnis said the new policy was established with input from the Tribal Working Group within FirstNet’s Public Safety Advisory Committee (PSAC).

Under the law that established FirstNet, governors in all 56 states and territories have the choice of making an “opt-in” decision—accepting the FirstNet deployment plan and allowing AT&T to build the LTE radio access network (RAN) within the state’s borders at no cost to the state—or pursuing the “opt-out” alternative, which would require the state to be responsible for building and maintaining the RAN for the next 25 years.

With the exception of three Pacific territories—Guam, American Samoa and the Northern Mariana Islands—governors in all states and territories must make their “opt-in/opt-out” decisions by Dec. 28. To date, governors in 25 states and two territories have announced “opt-in” decisions.

One potentially intriguing scenario for FirstNet would be how public-safety entities in tribal nation would be served if a tribal-nation territory is geographically within multiple states, one of which being an opt-out state.

McGinnis acknowledged that the scenario could create some issues, but they are not items that are addressed by the new consultations policy.

“The details of how any agency is dealt with in an opt-out situation—tribal or otherwise—are details that we’re still working on, and I imagine that it will differ from state to state, if there is more than one opt-out state,” McGinnis said. “But, for the consultation piece, it really doesn’t matter whether states opt in or opt out, because we’re going to be consulting directly with the tribes, regardless of the state condition.”