Vol. 2, Issue 36, October 26, 2004
High Court Supports Validity of Treaty Giving Cherokees Control of EM Spectrum
Broadcast conglomerates were buzzing last week with the surprise announcement that the Supreme Court will not be overturning the FCC appeal of an Oklahoma state court decision awarding rights to the entire electromagnetic spectrum to the Cherokee nation.
"We are pleased that the full provisions of this treaty are finally being recognized," said Chad "Corntassel" Smith, principal chief of the Cherokee nation. "It is a turning point for us to see a treaty upheld which benefits the Cherokee nation, and a sign of hope for all Native American tribes in the United States."
At issue is the 1785 Treaty of Hopewell, which was signed to complete the peacemaking process following the Revolutionary War. The treaty is primarily concerned with the acknowledgment of American sovereignty and the exchange of prisoners, but in recent years Article XII of the treaty has become increasingly important, which awards "the waves in the air, and the currents of the sky" to the Cherokees "in perpetuity." The Cherokee nation has argued successfully that this grants them control over the electromagnetic spectrum, specifically broadcast frequencies currently controlled by the FCC.
"That was just a formulaic expression," protested FCC Chairman Michael Powell. "There's no way that the signers of the damn treaty were thinking about EM frequencies. It was just a way of mollifying the Cherokees for submitting to the United States. They were talking about the wind, dammit."
The Oklahoma Supreme Court disagreed, and apparently the Supreme Court is declining to review their decision.
"After having endured so much duplicity and abuse at the hands of the U.S. government - which subsequently stripped the Cherokees of their homeland and banished them on a forced march to Oklahoma known as the 'Trail of Tears,' in which many of them died - it is encouraging to see something positive come of one of those treaties," said American History Professor Clare Esteban at Brandeis University. "And I cannot see how the Cherokee nation could do a worse job than the FCC."
In addition to its recently highlighted censoring responsibilities, the FCC is responsible for distributing much-coveted airwave frequencies to the nation's crowded field of telecommunications providers. Licensing fees bring in many millions of dollars each year, which - according to the Oklahoma court decision - are now due to the Cherokee nation in their entirety, retroactive to 1785.
"That runs into the billions!" said Powell. "Do you have any idea how hard it's going to be for us to come up with that kind of money? The government will have to sell a battleship or something!"
"We're willing to waive all royalties earned on these frequencies prior to 1900," said Smith magnanimously. "After all the United States and the Cherokee nation have been through together, it seems only fair."