Tribal Trial To Solve Confiscated Stinson 108 Situation

On October 15, Darrin Smedsmo was flying from Roseau Municipal Airport (KROX) to Bemidji Regional Airport (KBJI) in Minnesota when the Franklin engine in his 1946 Stinson 108 seized up. He was at 3,500 feet near Lower Red Lake, and the sole option was a road near the lake. The land around the lake is swampy and not suitable for an emergency landing, he told AIN.

What happened after his successful emergency landing took Smedsmo by complete surprise, as well as everyone in the aviation industry who heard about the confiscation of his airplane by the Red Lake Band of Chippewa Indians.

Smedsmo was on his way to Bemidji to start instrument flying lessons, and the flight in his Stinson cuts the driving time in half. Over the lake, the Stinson’s engine started laboring, he said, “and then it didn’t make any noise. The word that went through my head was, ‘Huh?’ So, what do you do, you land the plane. That’s what I did. I was over the lake by half a mile, and so I have lake on one side, swamp on the other, and road underneath me. I landed on the road, done deal.”

In a happy coincidence, a state Department of Transportation worker who happened to be Smedsmo’s neighbor was the first to pull up, and he had a radio, warning lights, and signs to mark off the airplane. “We got it off the road,” he recalled, “and he called the tribal cops. They came and they were great. I arranged to have an A&P [mechanic] come and disassemble the Stinson and haul it off.”

But then one of the tribal police said, “Bad news. We’re going to do what the [tribal] chairman said, we’re going to seize [the airplane].” They gave Smedsmo a ticket, alleging that he violated the tribe’s 1978 resolution that prohibits any airplane from flying over the Red Lake Band’s reservation below 20,000 feet.

The tribal police wouldn’t let Smedsmo’s A&P help with removal of the airplane. “They brought a roll-off flatbed and it went up there like nothing,” he said. “They hauled it in one piece. I followed behind in the squad car. I know where it is, it’s behind a fence, and there is a 24/7 security guard. It’s out in the open. It’s a 1946 airplane, not worth much with a bad engine, but worth less every day. The electronics in there aren’t supposed to get wet.”

Smedsmo isn’t looking for publicity; he just wants his airplane back. To that end, he has retained a lawyer recommended by the AOPA, and a tribal trial is scheduled for November 3. He understands that the reservation land is sovereign territory under U.S. law. “The land is theirs, but they are claiming the air is theirs. They don’t control the air. That is basically untenable.”

The 1978 resolution stemmed from an attempt by the U.S. Air Force to ask the FAA for permission to set up low-altitude military training routes over the reservation. The routes would have “seriously adversely affected” wildlife, “upon which the residents of the reservation are dependent for their livelihood,” the resolution explained.

While most of the resolution was about preventing the Air Force from implementing the training routes, the final paragraph is central to what happened to Smedsmo’s Stinson. “Be it further resolved, that there is hereby established an air ban prohibiting the flying of any airplane over the lands of the Red Lake Band of Chippewa Indians at an altitude of less than 20,000 feet.” The resolution did not specify above-ground or sea level altitude. Lower Red Lake is at nearly 1,200 feet, so if the resolution meant agl, then this would mean traffic would have to stay above 21,200 feet or more, depending on the terrain.

In Smedsmo’s opinion, the confiscation of his airplane has devolved into two fights: “One is mine between me and them to get the plane back. The other is between the FAA and them.”

Given that the FAA has jurisdiction over all U.S. airspace, it seems clear that the Red Lake Band’s resolution carries no legal weight. According to Randy Corfman, president of the Minnesota Pilots Association, the lead lawyer on Smedsmo’s case outlined some of the applicable issues, including federal and Minnesota law regarding emergency landings.

The lawyer explained, “Minnesota Statute § 360.012 and federal regulations under 49 USC § 40103 establish that emergency landings are lawful and that the FAA has exclusive authority over U.S. airspace. This federal authority supersedes tribal regulations regarding aircraft operations.”

The lawyer also pointed out, “While the Red Lake Band has sovereignty over their land, Supreme Court precedent (Montana v. United States) limits their jurisdiction over nonmembers like yourself, especially when no consensual relationship exists and the emergency landing doesn’t threaten tribal welfare.”

Advice from the lawyer indicates, “We must first pursue remedies in Red Lake Tribal Court before potentially moving to federal court. This includes filing for admission to their court and challenging both the seizure and any citations.”

If there were any legitimacy to the Red Lake Band’s airspace claim, Smedsmo pointed out, then FAA charts should show that restriction. “There’s nothing marked on the chart,” he said. And in any case, “There are parcels everywhere over northern Minnesota governed by the same tribal laws. If they owned the airspace above each, the chart would look like polka dots. If it were a thing, it would be in the notams.”

With ubiquitous ADS-B Out installed in many aircraft, it wouldn’t be difficult for the Red Lake Band to target a lot of aircraft violating their airspace claim, he added. “If they seized every plane that flew over their land, they’d have [a lot] of them.”

Smedsmo has consulted his insurance provider because he had hull and liability coverage on the Stinson. “They said it looks more like a theft. That could be part of the litigation.”

He is aware that the tribal court is only for tribal members, so the Red Lake Band must deal with him on a civil law basis, not criminally. “They can fine me some, but can’t fine me $6 billion. The best-case scenario is they fine me and let it go.”

Meanwhile, the Minnesota Pilots Association warned members to “Be aware of the direction given by the Red Lake Tribal Council to ‘report low-flying planes,’ which means of altitudes less than 20,000 feet (we assume to be agl): ‘If you observe a plane flying below this altitude, you should contact Red Lake Law Enforcement at 218-679-3313.’

“Until this is clarified, please use discretion when considering flights near or over Red Lake Tribal Lands.”

AIN tried to contact the Red Lake Band of Chippewa Indians to hear its side of this story, but at press time no one from the tribe’s office had returned any calls.