Guest opinion. When Congress passed TikTok ban legislation in April, it did so without consulting with tribal representatives. On Monday, the D.C. Circuit heard oral arguments in the case that will determine the fate of the ban. The court should strike down this overly broad and unconstitutional ban for many reasons, including the government’s despicable inability to consult with the tribes.
Tribal representatives have said the ban would have disastrous consequences in Indian Country because it would silence a vital forum for tribal leaders. If this type of legislation stands, without regard to tribal consultation, what else could it mean for the future of digital tribal sovereignty and respect for the established norm of tribal consultation?
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Here are the facts: TikTok is a major source of tribal activism, community building, communication, creative economy and commerce.
Many tribal members have used TikTok to raise awareness about the epidemic of violence against indigenous people. We did this by posting videos for May 5, National Day for Missing and Murdered Indigenous Women and Girls. Tribal members are using TikTok to raise awareness about the shocking numbers of Native women being murdered and raped without any kind of official response. Through TikTok, we encouraged other tribal members to paint a red hand on their faces to honor the legacy of these sisters and raise awareness of the crisis facing Native women.
Tribal citizens also used TikTok as a site to raise awareness about the disappearance of Indigenous actor Cole Brings Plenty in April 2024. Indigenous-led campaigns started #BraidsForCole on TikTok, with people of all colors around the world getting their hair braided from solidarity and to raise awareness for the many other indigenous youth who go missing every year. This campaign moved the investigation forward and earned a rare apology from the officers investigating the disappearance. April 15 has now been officially declared Cole Brings Plenty Day by the Oglala Lakota government.
TikTok has been the site of successful Get Out The Vote efforts aimed at tribal youth, helping tribal voices be heard in important elections. Indigenous politicians have found a place to campaign on TikTok. TikTok was also a place where tribal members could raise awareness about the Supreme Court case that threatened to overturn the Indian Child Welfare Act (ICWA), a fifty-year-old law that prevents states from separating tribal families, and ward off the looming consequences . history of displacement and assimilation. Last summer, the Supreme Court narrowly upheld the ICWA after months of activism. Apps like TikTok are especially important for reaching rural tribal members because the primary form of internet access for many is smartphones, often received through the Federal Lifeline program.
TikTok is also a major site for tribal commerce. Many reservations are rural and isolated from the rest of the country, let alone the world. Artisan goods are one of the most important sources of income for tribal members and are now accessible to anyone, anywhere in the world all year round via TikTok.
The federal government has long recognized that tribal consultation is a critical aspect of maintaining the unique relationship of trust between the United States and tribal nations.
Considering the many ways tribes and tribal citizens use TikTok, you would think the federal government would have at least considered the effects the ban would have. But Tribes were not consulted at all.
Moreover, this is not the first time this neglect has occurred. In April 2023, Montana unsuccessfully tried to ban TikTok in the state, without considering the impact on Indian country. The state has overstepped its right to regulate within reservations, where it has no jurisdiction, by grossly circumventing the relationship of trust between governments, completely rejecting federal consultative practices.
Congress has chosen to ignore the voices of the countless tribal members who make up the 170 million Americans who use TikTok. Instead, the government submitted secret evidence, redacted from public view, to support its national security concerns.
When lawsuits impact tribes, tribes take notice. Groups representing their interests have already joined the conversation at the Supreme Court to challenge this brazen federal indifference to sovereignty and tribal data protections. The US federal government cannot change the rules based on secret evidence.
Their speculative national security concerns cannot justify the collateral damage of the TikTok ban. The court should strike down this unconstitutional legislation.
Other social media platforms simply don’t have the same reach and impact when it comes to Indian Country. Help us keep this important source of communication, commerce and creative expression open to all.
Leland Marmon of Laguna Pueblo is a policy attorney focused on addressing systemic inequality and advancing Indigenous rights.
About the Author: “Levi \”Calm Before the Storm\” Rickert (Prairie Band Potawatomi Nation) is the founder, publisher and editor of Native News Online. Rickert was awarded the Best Column 2021 Native Media Award for the print category\/ online by the Native American Journalists Association. He is a member of the advisory board of the Multicultural Media Correspondents Association. He can be reached at levi@nativenewsonline.net.
Contact: levi@nativenewsonline.net
