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Monday, August 17, 2015
FOI Toolbox

FOI in Indian Country

By Joey Senat

State open government laws and the federal Freedom of Information Act won’t help journalists seeking information directly from Native American tribal governments. As sovereign nations, the 566 federally recognized tribes operate apart from those statutes. Only because Maine’s unique statutory framework treats tribes as municipal governments does that state’s open records law apply when tribes communicate in their municipal capacities with other governments. It doesn’t apply when tribes engage in purely internal matters such as self-government.

Elsewhere, perhaps no more than eight tribes have enacted open records laws. Of those, only the Navajo and Osage nations don’t limit the right of access to tribal members.

How can non-Natives as well as Native journalists and citizens obtain information from tribal officials not subject to strong open government laws?

Understand tribal motivations for secrecy and make counter-arguments for openness

Tribal officials can be secretive for the same reason as non-Natives: Control of information protects political power and cronyism. But some tribes are insulated because they distrust the federal government and journalists. Some tribal laws also conflate sacred knowledge, cultural artifacts and public records, said Kevin R. Kemper, a non-enrolled Choctaw/Cherokee and former intake liaison for the Native American Journalists Association (NAJA) Legal Hotline for Journalists.

Resources:

- A Reporter's Guide to American Indian Law, Reporters Committee for Freedom of the Press

- Native American Journalists Association:

o Access in Indian Country

o Free Press Resource Page

o Legal Hotline for Journalists

- Sunshine Laws in Native America, Native America Calling

- Tribal Directory, Bureau of Indian Affairs

But cultural and governmental information should not be treated as the same, emphasized Bryan Pollard, a Cherokee and executive editor of the Cherokee Phoenix.

“Tribal citizens need to be able to see what’s happening, how it’s impacting their lives, so they can make decisions about people they put in office,” he said.

Develop sources within tribal governments

Trust and respect are built over time, Kemper said, not by “just parachuting journalists in when there’s a scandal or when there’s a powwow and you can get pretty pictures.”

But be wary of tribal sources with their own agendas, advised Lenzy Krehbiel-Burton, a Cherokee and freelance reporter specializing in American Indian issues.

Find a workaround

Hire a member of the tribe to request the records, ask the tribal newspaper to get the document, or find another agency in the tribal government more willing to provide the information, recommended

Louise Red Corn, owner and publisher of The Bigheart Times.

Request tribal-related records from federal and state governments

Appellate courts in at least Minnesota and Washington have ruled that tribal information in the possession of state government is public. Likewise, the U.S. Supreme Court has ruled that federal documents are not exempted from the FOIA simply because the information is related to Native American tribes. A specific exemption must apply, the court said.

But obtaining records from the federal Bureau of Indian Affairs can be as difficult as getting information from tribal governments. In late May, Kemper sued the BIA for copies of the constitutions and articles of incorporation of the federally recognized tribes. The BIA had said no such records could be found in its Washington, D.C., office even though federal law requires tribes to submit them to the agency. Kemper wants the records, in part, to determine how many tribes explicitly protect freedoms of speech, press and access to information.

Joey Senat, Ph.D., is an associate professor in the Oklahoma State University School of Media and Strategic Communications. Email: joey.senat@okstate.edu. Interact on Twitter @Joey_Senat.

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