AG opinion: Councilor wrongly barred Phoenix video

BY TRAVIS SNELL
Assistant Editor – @cp_tsnell
11/26/2008 11:11 AM
TAHLEQUAH, Okla. – In a Nov. 18 opinion, the tribe’s Attorney General’s Office stated Council Speaker Meredith Frailey wrongly denied the Cherokee Phoenix video coverage of a June public forum concerning the tribe’s planned takeover of W.W. Hastings Indians Hospital.

“The Cherokee Nation Freedom of Information and Right of Privacy Act of 2001 provides members of the public and the press with a statutory right to make sonic recordings at open meetings,” the opinion states. “Government employees and officials do not have the authority to restrict the tribal newspaper staff from making a video recording of a public meeting or forum unless the restriction is reasonable, narrowly tailored, advances a substantial government interest and does not obstruct other alternative forms of communication.”

Cherokee Phoenix staffer Craig Henry said Frailey told him he was not allowed to video record a June 26 public forum where tribal health officials, administration cabinet members and councilors answered questions from the public and discussed Cherokee Nation’s planned assumption of Hastings.

He said before the event Frailey asked CN Communications Officer Mike Miller and CN Leadership Group Leader Todd Enlow if they had set up the camera.

“They told her no, so she turned to me and said I had to take it down,” Henry said. “She told me they (she and forum co-sponsor Councilor Bradley Cobb) were not allowing anyone to record the meeting. She said they were afraid people would be reluctant to speak if there were cameras.”

Henry also said Frailey told him several other media outlets had inquired about video access and that they were denied.

“We considered this a public forum, and it was called primarily for the benefit of W.W. Hastings employees so they could learn and discuss freely the topics concerning the future of Hastings hospital,” Frailey said. “We felt that video taping such an event would have a rather chilling effect on the free flow of ideas and communications concerning the issues that arose.”

However, according to the opinion, “Members of the public may be unable, due to work or family commitments, to attend the forum on the date and time prescribed. Having a recording of the event available to the public allows a larger number of citizens to benefit from the public discourse. Many of the questions asked by members of the public at the forum may be questions of interest to all of the citizens of the Cherokee Nation.”

Jami Custer, the staff writer who covered the forum, said no audience comments were made during or after the officials’ presentation and that audience members wrote questions on paper and put them into a box.

The questions were later read by Cobb, who allowed officials to answer. She added that the only audience member who spoke during the forum did so to reiterate a question he wrote for the panel to answer.

Frailey said the forum’s original plan called for allowing public comments, but because the forum ran long, Cobb, who moderated the event, didn’t open it up for comments.

The two councilors sponsored the forum so the tribe’s negotiation team could publicly present an overview of the proceedings with Indian Health Service about the planned Hastings takeover from the IHS.

Secretary of State Melanie Knight said Cobb and Frailey were two of the four councilors designated by the council’s Health Committee who attended the negotiations.
About the Author
Travis Snell has worked for the Cherokee Phoenix since 2000. He began as a staff writer, a position that allowed him to win numerous writing awards from the Native American Journalists Association, including the Richard LaCourse Award for best investigative story in 2003. He was promoted to assistant editor in 2007, switching his focus from writing to story development, editing, design and other duties.

He is a member of NAJA, as well as the Society of Professional Journalists, Investigative Reporters and Editors, and Society for News Design.

Travis earned his journalism degree with a print emphasis in 1999 from Oklahoma City University. While at OCU, he served as editor, assistant editor and sports reporter for the school’s newspaper.

He is married to Native Oklahoma publisher Lisa Snell. The couple has two children, Sadie and Swimmer. He is the grandson of original enrollee Swimmer Wesley Snell and Patricia Ann (Roberts) Snell.
TRAVIS-SNELL@cherokee.org • 918-453-5358
Travis Snell has worked for the Cherokee Phoenix since 2000. He began as a staff writer, a position that allowed him to win numerous writing awards from the Native American Journalists Association, including the Richard LaCourse Award for best investigative story in 2003. He was promoted to assistant editor in 2007, switching his focus from writing to story development, editing, design and other duties. He is a member of NAJA, as well as the Society of Professional Journalists, Investigative Reporters and Editors, and Society for News Design. Travis earned his journalism degree with a print emphasis in 1999 from Oklahoma City University. While at OCU, he served as editor, assistant editor and sports reporter for the school’s newspaper. He is married to Native Oklahoma publisher Lisa Snell. The couple has two children, Sadie and Swimmer. He is the grandson of original enrollee Swimmer Wesley Snell and Patricia Ann (Roberts) Snell.

News

BY STACIE GUTHRIE
Reporter – @cp_sguthrie
03/22/2017 04:00 PM
TAHLEQUAH, Okla. – Tribal Councilors on March 20 amended Legislative Act 30-04 to limit “holdover” clauses to six months for people appointed to certain Cherokee Nation boards and commissions after their terms expire. According to the amendment, after six months, if no one is confirmed or appointed for the expired seat, it becomes vacant. The act passed 15-1 with Tribal Councilor Rex Jordan voting against it. Tribal Councilor David Thornton was absent. During the Feb. 22 Rules Committee meeting, Tribal Councilor Frankie Hargis said having some positions “holdover continuously for years” creates an “unstable environment” and a “time limit” is needed. “We have some positions that holdover continuously for years, a year or two. Maybe some having been longer, I don’t know. In my opinion it’s an unstable environment and we need to set a time limit,” she said. “It shouldn’t take more than a month or two to reappoint or replace a board member or commissioner, but set a time limit of six months to do that.” Chrissi Nimmo, CN assistant attorney general, said on Feb. 22 that boards and commissions such as Cherokee Nation Businesses, the Cherokee Nation Tax Commission and Cherokee Nation Gaming Commission would be affected by the amendment, while the Election Commission and Cherokee Phoenix Editorial Board would not. “I do believe that the way it’s written is the Election Commission and the Editorial Board would not be subject to…this at all because they both have their own statute on holdover previsions,” Nimmo said. “So this excludes Election Commission, Editorial Board, non-Cherokee entities for which we appoint and approve board members. The way the previous law was written any commission, board, agency that has it’s own enacting legislation that talks about how they’re appointed, how they holdover, this doesn’t change that. This is kind of the catch all for the ones that aren’t specifically mentioned elsewhere.” Thornton on Feb. 22 said he didn’t “see the point” of the amendment. “The very first thing I see is on E. of this legislation, the last sentence, ‘If no reappointment or new appointments have been confirmed, that seat becomes vacant.’ Well that seat’s vacant period if someone’s not sitting in it. Why should we have to make someone fill that seat within six months? This is counteracting exactly what I think you’re trying to do,” he said. Tribal Councilor Keith Austin on Feb. 22 said he was not “opposed” to the legislation but wished it included the EC and Editorial Board. “My only problem with it is that it doesn’t affect the problem with the Election Commission and it doesn’t fix the problem with the Editorial Board because the Editorial Board member that we appointed…is replacing one that was in holdover status for almost a year. Those two agencies both have a history of long holdover status. It’s important, especially with the Election Commission, that they have a full working staff. This is exactly what we need except for those two agencies and they’re excluded,” he said. Tribal Councilor Dick Lay on Feb. 22 said that passing the amendment was a “good start.” “This is the council, this is what we can affect today. We can affect and take on the other issues tomorrow. We can’t cure the world’s ills on one sweeping motion. This sets the progress for the boards and commissions that we have control over at this point and time,” he said. “This is a good start and I think it’s a bold move for this council to set the tone that you can’t just holdover these boards forever.” Nimmo added that the amendment would not apply retroactively. “We all agree that this can’t apply retroactively because our Constitution says,” she said. “There might be a disagreement on what retroactive means. Does it mean that someone who is currently in holdover status after six months they’re gone? I think probably not. I think to avoid retroactive application that this would only apply to newly appointed and confirmed people.” In other business, legislators: • Re-approved Leroy Qualls as a Cherokee Nation Foundation board member, • Increased the fiscal year 2017 capital budget by $102,733 to $279.5 million, • Increased the FY 2017 operating budget by $1.2 million to $667.9 million, • Approved a contract for the Oklahoma Tobacco Settlement Endowment Trust Healthy Living program, and • Authorized an application for a National Park Service grant to survey the Rose Cottage site.
BY JAMI MURPHY
Senior Reporter – @cp_jmurphy
03/22/2017 12:00 PM
TAHLEQUAH, Okla. – During the March 21 Rules Committee meeting, Tribal Councilors indefinitely tabled legislation aiming to have Cherokee Nation citizens vote this year on whether the tribe should allow same-sex marriage. “This has been an extremely sensitive subject within the Cherokee Nation. The Osages (Osage Nation), they had an election yesterday. It was favorable for the same-sex community. It passed 52 percent. The thing is, their people had a vote in the matter. Our people didn’t have a vote in the matter,” Tribal Councilor David Walkingstick, the legislation’s sponsor, said referring to Attorney General Todd Hembree’s Dec 9 opinion. The opinion, which has the weight of law, states two sections of the CN Family and Marriage Act – one defining marriage as between a man and woman and another prohibiting parties of the same gender to marry– were unconstitutional. Following the opinion, CN citizens Dawn Reynolds-McKinley and Kathy Reynolds-McKinley filed their marriage license on Jan. 19 at the CN Courthouse. As of publication, only two same-sex marriage licenses have been filed with the District Court. Walkingstick said as a legislator he did not think the attorney general’s office should be making laws because that was the Tribal Council’s job. Other legislators questioned whether to move forward with Walkingstick’s act because of a case in District Court challenging Hembree’s opinion. Tribal Councilor Curtis Snell on March 20 filed a declaratory judgment petition asking the court to declare lawful the two Family and Marriage Act sections Hembree opined were unconstitutional. “I don’t know at this time if it’s gone to the courthouse. I’m at odds to whether we should vote on it or not,” Tribal Councilor Dick Lay said. Tribal Councilor Keith Austin said he couldn’t vote for the legislation because the CN Constitution states “equal protection shall be afforded under the laws of the Cherokee Nation.” “Based on that alone, I can’t vote for something that denies a portion of our population a privilege or a benefit that is afforded other portions of our population,” he said. “That Constitution says equal protection. It doesn’t say equal protection for straight people. It says equal protection.” He added that he sees it as a violation of the Tribal Council oath of office to support legislation conflicting with the CN and U.S. constitutions. “If the voters came to us with an initiative petition then we would deal with that,” he said. “But for us to promote a law that is in conflict with the United States Constitution, I interpret that to mean that we are violating our oath of office.” Hembree said he wasn’t on either side of the same-sex marriage issue but on the side of the CN Constitution. He added that Walkingstick’s legislation was a legal nullity. “If you want to attempt to amend the Constitution to make gay marriage illegal, Mr. Walkingstick, I recommend that you do that. But in the resolution that you brought forward it doesn’t do that at all,” he said. “And whoever helped you draft this, Mr. Walkingstick, didn’t do it correctly.” Following the discussion, legislators voted 13-3 to table the bill with Tribal Councilors Shawn Crittenden, Lay and Walkingstick voting against. Tribal Councilor Don Garvin was absent. Kathy Reynolds-McKinley, who attended the committee meeting with her wife, said afterward that “equality shouldn’t be voted on, it should be expected” and that she and Dawn were happy to see the legislation not approved. “We don’t expect 100 percent support, but at bare minimum hope for mutual respect among tribal members,” she said. Walkingstick said the meeting “opened the eyes of our Cherokee people on our executive branch and attorney general.” “The Tribal Council has great faith in the Cherokee people and their ability to self-determine what’s right for them. It’s the Cherokee people’s tribe. I will make every effort that their voice will be heard, instead of one person or a few making the laws,” he said.
BY STAFF REPORTS
03/21/2017 12:00 PM
TAHLEQUAH, Okla. – Sequoyah High School will celebrate the 2017 3A state champion Sequoyah Lady Indians basketball team at 5:30 p.m. on March 22 at The Place Where They Play gymnasium on the SHS campus. According to an email from Athletic Director Marcus Crittenden, the public is invited to attend and celebrate “the outstanding achievements of these players and coaches.” “This is the second gold ball in three years for the Lady Indians, and the fifth in program history,” Crittenden said.
BY ASSOCIATED PRESS
03/21/2017 08:15 AM
NASHVILLE, Tenn. (AP) – President Donald Trump is paying homage to a predecessor, Andrew Jackson, with the highest form of flattery. Trump says the nation’s seventh president reminds him an awful lot of himself. The president paid a visit on March 15 to The Hermitage – Jackson’s Nashville home - to commemorate Jackson’s 250th birthday. Trump hailed Jackson as “one of our great presidents” and described some of their similarities. Trump’s team has long seized on parallels between the current president and the Tennessee war hero, comparing Jackson’s triumph in 1828 over President John Quincy Adams to Trump’s victory over Hillary Clinton last year. Trump described Jackson as a fellow outsider who pledged to represent the forgotten worker and took on the Washington establishment. “It was during the revolution that Jackson first confronted and defied an arrogant elite,” Trump said. “Does that sound familiar to you?” he asked his crowd. “Oh, I know the feeling, Andrew.” Trump said Jackson’s victory “shook the establishment like an earthquake” and talked about how he’d tried to sweep out government corruption, improve veterans’ care and impose tariffs on foreign countries to protect American workers - all things Trump pledged to do during his campaign. Trump spoke after taking a tour of the property, which included a stop at the home’s library. There, the curator told Trump that Jackson subscribed to 16 newspapers and made notes on stories about which ones he liked and disliked. On one editorial, he drew a big black “X'” to show his disapproval. “We know that feeling,” said Trump, who has been known to scrawl angry notes on reporters’ stories with a black Sharpie and send the marked-up stories back to them. Following a tour of the property the president placed a wreath at Jackson’s tomb. He stood, saluting, as taps played. Jackson has enjoyed a moment of resurgence thanks to Trump, who mused during his first days in Washington that “there hasn't been anything like this since Andrew Jackson” and hung a portrait of Jackson in the Oval Office after moving in. Historians had been souring on the slave-owning president, whose Indian Removal Act of 1830 commissioned the forced removal of Native Americans from their ancestral homelands. More than 4,000 died during their journeys west. Jackson’s standing had fallen so much that that the U.S. Treasury opted to remove Jackson from the $20 bill. But Howard Kittell, the President and CEO of the Hermitage mansion, said attendance at the museum has surged since the election. “Jackson is probably getting more media attention now than when he was president,” he said.President Trump visited President Andrew Jackson’s home in March to celebrate his birthday.
BY JAMI MURPHY
Senior Reporter – @cp_jmurphy
03/20/2017 07:45 PM
TAHLEQUAH, Okla. – The Cherokee Nation Supreme Court on March 20 heard arguments regarding Cherokee Nation citizen Randy White’s appeal of the Election Commission decision that disqualified him as a Dist. 11 Tribal Council candidate. Dist. 11 covers Craig County, northern Mayes County and northern Nowata County. Prior to appeal arguments, the court rejected two motions – one for intervention in the case by the tribe’s attorney general’s office and the other to dismiss made by the EC. Attorney General Todd Hembree said he should be able to intervene because of his responsibility to uphold the CN Constitution. However, White’s attorney, Deb Reed, said the election law (Title 26) states the EC contracts with its attorney and that no other attorney may work on its behalf. Regarding the dismissal motion, EC attorney Harvey Chaffin said Title 26 states the EC may present evidence and testimony and that it “intends the EC be made a party.” “Once they’ve made a decision it’s my job to support that decision,” he said about the EC. Reed said Title 26 does not say “shall be a party” and that the EC had made its ruling. After a recess, the court denied both motions and stated the EC was welcome to present its evidence and testimony. Attorney Curtis Bruehl – representing Chance Hayes, who challenged White’s candidacy – said, “to run (for office) you need to have Cherokee blood running through your veins.” He said the 2006 Lucy Allen v. Cherokee Nation ruling states the “only time a legal right, under Cherokee law, depends on Cherokee blood, is when a person decides to run for elected office…we rely on the blood degree findings of the Dawes Commission to make sure our principal chief and council members are Cherokee citizens by blood. This guarantees Cherokee control of government, but that government is ultimately elected by a larger and more diverse constituency of citizens.” White is Shawnee by blood but a CN citizen via an 1869 agreement with the U.S. government to adopt Shawnees. In court documents, Bruehl states White is a CN citizen by adoption but not “by blood.” He said the CN Constitution states the Tribal Council will consist of those “who are citizens by blood of the Cherokee Nation.” Chaffin said there are three types of CN citizenship – Cherokees by blood, Delaware by adoption and Shawnee by adoption. He said the Allen case sets forth the reasoning why the “by blood” be Cherokee and not just a citizen to be a candidate for office. “Cherokees want to be governed by the Cherokees,” he said. Reed said Article 6, Section 3 of the CN Constitution states “any citizen by blood of the Cherokee Nation…” can be a Tribal Council candidate. Reed has argued that the statutory definition of “citizen by blood” includes Shawnee Cherokees based on a 2007 Constitutional amendment, 1999 Constitutional Convention delegate intent and the attorney general’s representations to the federal courts. She has also stated the CN Citizenship Act requires a person to “prove back directly to an individual who is listed by blood on a base roll.” She states the act defines the “by blood base roll” to include Shawnee Cherokees for CN citizenship. “‘Base roll’ means a specific list of individuals used for determining tribal citizenship…Those final rolls by blood used for citizenship purposes are Cherokee by blood, Cherokee minors by blood, Delaware Cherokees and Shawnee Cherokees,” she stated. She added that she agrees CN citizens elect their representatives and that White is “asking for a chance to run.” After the hearing, White said he doesn’t understand the confusion because all parties “go by what the Constitution states.” “They’re all arguing the same thing, but if they meant you had to be Cherokee blood, actual Cherokee blood, then they need to write it that way and they didn’t,” he said. “We’ve had other Cherokee Shawnees and Cherokee Delaware on council before. Why now is it being challenged?” Reed said Greg Pitcher, a Cherokee Shawnee, and Wathene Young, a Cherokee Delaware served on Tribal Council previously. According to the Tribal Council’s website, Pitcher served Craig and Nowata counties, and Young was an At-Large councilor. The court said it would rule by March 28. To view court documents relating to the case, visit cherokeecourts.org.
BY STAFF REPORTS
03/20/2017 01:00 PM
CLAREMORE, Okla. – On March 25, the Indian Women’s Pocahontas Club will host its annual wild onion lunch complete with salt pork, fry bread, grape dumplings and sassafras tea. “This season brings the cleansing of the body and the thinning of the blood and fond memories of going with my daddy in his old white Ford truck. Walking through the woods alongside the running creek water until we discovered the green tips of spring peeking through the blanket of autumn leaves,” said Debra West, IWPC president. “The Indian Women’s Pocahontas Club welcomes you to share our tradition.” The lunch will be from noon to 2 p.m. at the Claremore Senior Citizen’s Center located at 475 E. Blue Starr Drive. Adult tickets are $15 and children 10 and under are $5. Tickets are available at the door. For reservations, call Ollie Starr at 918-760-7499.