Leveraging the Federal Trust Responsibility to Safeguard Net Neutrality on Tribal Lands
The internet plays a crucial role in modern life, but equal access to it is not guaranteed. This inequality is only starker since the recent overruling of the Chevron doctrine that afforded agencies deference in their interpretation of statutes and the second Trump administration’s hostility toward net neutrality––a policy that prevents internet service providers from charging more money for access to faster internet while slowing other users’ access. For those living on tribal lands, rescission of net neutrality policies has unique implications due to the federal government’s trust responsibility to American Indians.
The trust responsibility is a long-standing and deeply influential principle in federal Indian law. This trust imposes legally enforceable obligations on the federal government, principally the duty to protect tribal lands, treaty rights, and resources. However, the government’s legal liability depends on both the extent of federal control over a resource and the presence of “rights-creating or duty-imposing language.”
Drawing on existing arguments about tribal spectrum sovereignty, this Comment finds that the control exercised by the Federal Communications Commission’s licensing of the electromagnetic spectrum and language common in many tribal treaties create a tribal access right to spectrum under the trust responsibility. Framing this access to spectrum as a trust-protected resource, the Comment describes allowing tiered internet service in the absence of net neutrality as a violation of the government’s obligations under the trust responsibility.