New Mexico paper seeks records regarding taxpayer-funded Hawaii trip by 362 Navajos
The Daily Times of Farmington, N.M., submitted 147 freedom of information requests to Navajo and federal government officials asking who benefited from subsidized travel for hundreds of Navajos to a Hawaii conference. U.S. Sen. Pete Domenici also is demanding to know, calling for a federal inquiry into use of the tribal and federal funds. The paper reported this month that 362 people claiming ties to the Navajo Nation registered for the American Indian Education Association conference in Hawaii, held in October, more than five times the tally of any other tribe. The newspaper reported, after talking to tipsters, that some of the travelers used federal funds intended for schools. Now the newspaper, the senator and the public want the detailed records to see exactly what happened to the public funds. A tribal spokesman criticized the newspaper, calling the public records request a "fishing expedition" and saying the paper is just out to make tribal leaders look bad.
Trying to get records involving tribes can be tricky, as they are sovereign nations, however, if the records are kept by a federal agency and would normally be public under other circumstances, then they ought to be public even if they involve a tribe. For example, see the 2001 unanimous U.S. Supreme Court decision Department of Interior v. Klamath Water Users Protection Association, where the Department of Interior wanted to keep intra-agency memos created by the tribes and submitted to the agency secret as a sort of "Indian trust" exemption (the federal government being the overseer and "protector" of tribes, therefore needing to protect Native Americans by keeping records secret). While the court agreed that some communication needed to remain secret to enhance candor, there is no such thing as an "Indian trust" exemption that the Department of Interior claimed. The court stated in its opinion: "All of this boils down to requesting that we read an 'Indian trust' exemption into the statute, a reading that is out of the question... There is simply no support for the exemption in the statutory text, which we have elsewhere insisted be read strictly in order to serve FOIA's mandate of broad disclosure, which was obviously expected and intended to affect Government operations." It gets trickier at the state level. Case law is mixed but generally against the requestor. In Arizona, a state supreme court ruling said tribal records aren't subject to the state public records law, however, a ruling in Washington state found that tribal gaming records held by the state should be made public. For more information, see A Reporter's Guide to American Indian Law, put out in 2006 by Reporters Committee for Freedom of the Press.
See the Daily Times story.