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February 21, 2009
Followup - Hualapai airspace case will continue
What you'll find HERE is an editorial from the Arizona Daily Sun about the case of the Hualapai Tribe, which has argued for years that it has jurisdiction over flights over the portions of the Grand Canyon in which their tribal lands are located, sending tribal rangers off the reservation and confiscating the motorhome, paraglider and camera equipment of a European tourist, Lionel De Antoni. It's a pretty fair editorial, we think.
Frankly, we don't see the jurisdictional leg that the Tribe is trying to stand on. Even if (and we can't find it in the law, comments pointing us in the right direction are welcome) the Tribe has jurisdiction over the airspace, how does that justify the warrantless, off-reservation seizure of this tourist's motorhome? After all, the motorhome didn't fly over the reservation, did it?
twp
February 21, 2009 in Reservations, Indian Country and Land Use | Permalink
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Comments
You people won't find it in the law because it's a "Reserved Right." You call this a Native American Law Blog?
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Your editor responds: Yes, we DO call this a Native American Law Blog. And we're happy to discuss the LAW here. If you have a point to make about the law, some legal theory to advance, by all means do so. We are happy to have such discussions.
But if you just want to come here and insult people, then we simply will choose not to post any further such rants. twp
Posted by: ndn writer | Feb 22, 2009 2:16:54 AM
It's not an insult, it's a valid question. Let me re-phrase that. Are you aware of what a Reserved Right is to an Indian Tribe? yes, I agree that the taking of the items off the rez is wrong. I do not agree that they have no jurisdictional leg to stand on. They never gave up the right to govern their own airspace-which is where the entire incident began. That is a reserved right. It is a basic tenet of Treaty law and has it's merits in the Cannons of Construction and in Supreme Court Rulings. Most Native American law professionals are aware of Reserved Rights.
There are multiple examples where you look at what Tribes gave up in a treaty. Whatever they did not give up is a reserved right and is a matter for the treaty to govern in such instances, not legislation where it will not appear because it doesn't have to. No insults, just questioning, and pointing you in the right direction.
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The editor responds: I have given much thought to whether to post this comment or not since the author sent it on Feb. 23. As it was much more measured and thoughtful than the previous, I have chosen to do so.
Briefly - I am well aware of the concept of reserved rights. Frankly, however, don't know that it applies in this situation since the US Congress, which possesses plenary power over reservations, has given to the FAA the complete power to control air space over the entire US. If this pilot was flying in airspace legal to transit in accord with the FAA rules and regulations, as it appears he was, I still do not see how the tribe can legitimately claim jurisdiction and seize his person and property. If there is a disagreement over airspace control, the tribe should take it up with the FAA, not with a pilot in this circumstance. And frankly, the statements we've seen coming from the tribe and it's lawyers has not been very persuasive.
Posted by: ndn writer | Feb 24, 2009 2:50:44 AM
