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Montana’s TikTok ban oversteps tribal jurisdiction and counters the movement to strengthen tribal digital sovereignty

On May 7, 2024, the Confederated Salish and Kootenai Tribes (CSKT) and the National Congress of American Indians (NCAI) filed an amicus brief with the U.S. Court of Appeals for the Ninth Circuit in Alario vs. Knudsen, which highlights how Montana’s TikTok ban law infringes on tribal sovereignty and jurisdiction. CSKT and NCAI have expressed their objection to the design of the ban as it could result in the ban being applied to tribal lands, where the law does not apply. CSKT and NCAI emphasized that tribal nations are the appropriate sovereigns to exercise digital sovereignty on their lands, and that states should work to support tribal nations’ exercise of digital sovereignty and close the digital divide, as there are large gaps remain in Indian country’s digital infrastructure and services.

The Montana ban (SB 419), signed into law by Montana’s governor on May 17, 2023, imposes civil penalties on “entities” (defined as mobile app stores or TikTok), for example, instances of TikTok use within the “territorial jurisdiction” of Montana. Entities may be fined an additional $10,000 for each day the violation continues.

While Tribal Nations are not within Montana’s “territorial jurisdiction,” the data shows the ban is likely to be enforced in cases of TikTok use on Tribal lands. This is because TikTok tracks users’ locations based on IP addresses, which is an inaccurate geolocation method, especially in rural areas such as many tribal reservations. For example, a user can be determined to be within Montana jurisdiction when the user is actually on tribal land.

NCAI and CSKT state that the ban will impact the use of TikTok on tribal lands, and that they will act before Tribal Nations in exercising digital sovereignty. Tribal Nations must be able to exercise digital sovereignty to address the digital divide and regulate the critical issues involved in a modern, digital world, such as data privacy, in accordance with the unique needs of tribal communities. Many tribes across Indian Country are still building infrastructure and developing regulations necessary to provide high-speed internet to tribal citizens, protect tribal data, or exercise other regulatory powers in the digital world. Collaboration among states, tribal nations, and the federal government is necessary to support this effort.

“Tribal Nations have the capacity to address digital inequality and are the right sovereigns to set policies for their communities,” said Native American Rights Fund (NARF) staff attorney Beth Margaret Wright. “Tribal Nations already exercise authority in this area by building broadband infrastructure, providing critical telehealth, telework and telelearning capabilities to their members, and protecting private tribal data.”

NARF represents the CSKT, with tribal headquarters in Pablo, Montana, and NCAI, a representative congress of American Indians and Alaska Natives, with headquarters in Washington, D.C.

“As economic development and the health and well-being of tribal nations become increasingly dependent on digital infrastructure and resources, we must go a step further to defend tribal sovereignty,” said NARF Staff Attorney Jason Searle. “Tribal Nations exercise digital sovereignty, and states must act in support of that.”

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