Freedom Of Information Act was first in Indian Country

BY TESINA JACKSON
Reporter
06/12/2014 10:30 AM
TAHLEQUAH, Okla. – The Cherokee Nation enacted its Freedom of Information and Rights of Privacy Act in 2001, becoming the first Federally recognized tribe to allow citizens access to public records of a public body. Governmental bodies in the United States, including some tribes, have similar laws governing the availability of information contained in public records.

“Native Americans have as much right as anybody else to get information from their government,” Kevin R. Kemper, former journalist and University of Arizona assistant professor of social and behavioral sciences, said. “When a tribe doesn’t have a freedom of information law, it’s extremely tough for journalists and the public.”

Kemper, who also serves as a Native American Journalists Association Legal Hotline intake liaison, said he believes strongly in freedom of information and tribal sovereignty.

“Each tribe needs to have the opportunity to have a freedom of information act, incorporate freedom of information as a way of helping the people,” he said.

According to the CN FOIA, a public record includes all books, papers, maps, photographs, cards, tapes, recordings or other documentary materials regardless of physical form or characteristics prepared, owned, used, in the possession of, or retained by a public body.

“The requirements under FOIA are that (a request) be in writing to the department with a specific request for the document you are requesting,” CN Attorney General Todd Hembree said. “The department will take it, the process is to have it reviewed by the Attorney General’s Office to see if it meets the requirements of FOIA, and we handle it according to process.”

However, Hembree said there are documents, such as meeting minutes of a public body, that don’t need a formal request.

Each department of the tribe’s executive and legislative branches, after receiving a records request, has 15 business days to fulfill the request. According to the act, if written notification of the response is neither mailed nor personally delivered to the person requesting the documents within the 15 days, the request must be considered denied and the requestor may appeal the denial.

After reviewing the CN FOIA, Joey Senat, Oklahoma State University School of Media & Strategic Communications associate professor, said if a record is obviously public information then the person handling it should know that.

“Anyone should be able to walk up and make a request right there,” Senat, who served on the Society of Professional Journalists Freedom of Information Committee, said. “If the law was written so it was effective, it would allow anyone in the tribe to walk up to a public agency and make a request for a record that’s with that agency or with that official.

“If the record is right there and it can be made a copy, it should be provided on the spot, under the ways our law is written,” he added. “Having a 15-day delay wouldn’t be acceptable under (Oklahoma) state law.”

Hembree said he hasn’t received any complaints about the current process so he assumes it’s working fine. However, he said his staff has been overwhelmed by an increase of requests that come from a select group of people.

“The purpose of the act ¬– and it’s a great purpose – is to make sure that citizens know how their government is run, know how their money is made, know how their money is spent and the system has worked greatly up until October 2011, at which time there had been a dramatic increase in the amount of FIOA (requests),” he said. “That’s always been my number one goal, people will have that right and I, for one, will never stand in the way of that right.”

But Senat said because the CN FOIA gives tribal citizens the right to know what their government does the costs and number of requests shouldn’t matter.

“God forbid that the citizens know what their government is doing and that they want to find out,” he said. “It costs too much and there’s an increase? Well God forbid that the public actually put into effect the statute that says they have a right to know. That’s the purpose of these statutes and people should put them into effect and make requests. That’s why they’re there.”

Senat added that a list of all record requests should also be a public record and anyone should be able to ask for it.

“It’s a way to provide a paper trail so that the public can judge how well their government is responding to records requests,” he said. “Every time they have gotten a request, that’s a record.”

What records are public?

Public records are documents or pieces of information that are not considered exempt or confidential. Under the CN FOIA, certain categories are specifically made public information, however the use of the information for commercial solicitation is prohibited.

Public information includes the names; sex; race; title and dates of employment of all employees of public bodies; administrative staff manuals and instructions to staff that affect a member of the public; final opinions; documents identifying persons confined in any jail, detention center or prison; statements and interpretations of policy; statute and the Constitution; written planning policies and goals and final planning decisions; final CN audits and of its subsidiaries; information in or taken from any account; voucher or contract dealing with the receipt or expenditure of public or other funds by public bodies; the minutes and votes of all proceedings of all public bodies; and reports that disclose the nature, substance and location of any crime or alleged crime reported as having been committed.

“Tribal people expect transparency and accountability from their leaders, and there are a lot of great leaders throughout Indian Country,” Kemper said. “The best leaders tend to recognize transparency.”

The Nation’s FOIA states that any person has a right to inspect and/or copy public records.

“That’s one of the problems with how it is written now,” Senat said of the tribal law. “It should say ‘have the right to inspect and copy.’ It shouldn’t say ‘or.’ You should have the right to inspect a record and make your own copy if it means with a pencil and paper, to write down what you’re reading. Even with technology today, with a cell phone, the simplest thing is to take a photograph of a document.”

Some record copying may require a fee

According to the act, a public body – which is any CN board, commission, agency, authority, any public or governmental body or political subdivision of the Nation, including any organization or agency supported in whole or in part by public funds – may establish and collect fees that do not exceed the actual cost of searching for or making copies of records.

However, records must be furnished at the lowest possible cost and be provided in a form that is both convenient and practical for use by the person requesting copies of the records concerned. Fees may not be charged for examination and review to determine if the documents are subject to disclosure.

Open meetings and their rules

According to Robert’s Rules of Order, an executive session is a meeting or portion of a meeting that is convened in private. Only members of the governing body are entitled to attend but they may invite others to stay at the pleasure of that board, council, committee or commission. A motion is required to go into executive session and a majority must approve it. Those present must maintain the confidentiality of the discussion.

The regular meeting minutes should indicate when the board went into an executive session, what the primary reason was, any formal decisions that were made in executive session and when the board, council, committee or commission came out of executive session.

Investments or other financial matters may be in executive session if disclosure of the deliberations or decisions would jeopardize the ability to implement a decision or to achieve investment objectives.

A record of the board or of its fiduciary agents that discloses deliberations about or a tentative or final decision on, investments or other financial matters is exempt from disclosure as long as its disclosure would jeopardize the ability to implement an investment decision or program or to achieve investment objectives.

The panel may discuss, deliberate on and make decisions on a portion of the annual investment plan or other related financial or investment matters in executive session if disclosure would jeopardize the ability to implement that portion of the plan or achieve investment objectives.

A record of the panel that discloses discussions, deliberations or decisions on portions of the annual investment plan or other related financial or investment matters is not a public record to the extent and so long as its disclosure would jeopardize the ability to implement that portion of the plan or achieve investment objectives.

Matters exempt from disclosure

A public body may, but is not required to, exempt from disclosure information of a personal nature that would constitute unreasonable invasion of personal privacy, trade secrets, records of law enforcement under investigation and documents to proposed contractual arrangements and proposed sales or purchase of property.

Specific, individual salaries are also exempt from disclosure but annual budgets contain position listings without names.

Senat said omitting salaries from the public eye is “fodder for corruption.”

“You can go down to OSU and you can ask to see what I get paid as a state employee,” he said. “There’s no way to figure out who’s getting paid what? The public is the employer. The tribal citizens are the employer. They’re the ones paying the bill. They should be entitled to know who’s being paid what specifically. It should be open because that’s one way to fight corruption. That opens it up to favoritism, political patronage, basic corruption.”

Information that would violate attorney-client relationships, the identity of the maker of a gift to a public body if the maker requests to be anonymous and the identity of an individual who makes a complaint, which alleges a violation or potential violation of law or regulation also may be exempt from disclosure.

Memoranda, correspondence and working papers in the possession of individual members of the executive and legislative branches or their immediate staff are exempt. However, nothing may be construed as limiting or restricting public access to source documents or records, factual data or summaries of factual data, papers, minutes or reports.

Other memoranda, correspondence, documents and working papers relative to efforts to attract business or industry to invest within the CN may be exempt from disclosure. However, any record that is requested and is exempt and not disclosed or is disclosed and marked confidential should have a statement explaining the reasons for that determination.

“It does has a lot of common exemptions,” Senat said. “This is a strength under the law where it says that if they’re going to deny it they have to explain why something is exempt. These statutes can be very strong, but if they’re not enforced they’re worthless.”

Photographs, signatures, addresses, race, weight, height, Social Security number and digitized images from a driver’s license or personal identification cards are also not considered public records.

“Some leaders keep things secret and that could violate the right of the people,” Kemper said. “You see a lot of that throughout Indian Country and the tribe will have to sort that out.”

Kemper added that he believes there are some understandable exceptions such as sacred knowledge.

“Every tribe’s culture is different, that’s why it’s important to create freedom of information that’s a cultural match,” he said.

Penalties for not providing records

Any CN citizen may look to the District Court for a declaratory judgment and injunctive relief in FOIA cases as long as the application is made not later than one year following the date on which the alleged violation occurs or one year after a public vote in public session.

The court may order equitable relief as it considers appropriate and a violation must be considered to be an irreparable injury for which no adequate remedy at law exists.

If a person or entity seeking such relief prevails, they may be awarded reasonable attorney fees and other costs of litigation. If they prevail in part, the court may award them reasonable attorney fees or an appropriate portion.

According to the act, any person or group of persons who willfully and maliciously violates the provisions of the FOIA may be found guilty of a crime and upon conviction shall be fine not more than $100 or imprisoned for not more than 30 days for the first offense. For the second offense, the fine shall not be more than $200 or imprisoned for not more than 60 days and shall not be fine more than $300 or imprisoned for not more than 90 days.

News

BY LENZY KREHBIEL-BURTON
Special Correspondent
06/28/2016 08:15 AM
WASHINGTON – National retailer Dollar General will have to go before a tribal court judge thanks to a U.S. Supreme Court ruling. On June 23, the Supreme Court announced it had deadlocked 4-4 in Mississippi Band of Choctaw Indians vs. Dollar General, which raised the question of whether tribes have the authority to pursue civil litigation over the activities of non-Natives on tribal trust land. By virtue of the tie, the court upheld a ruling from the Fifth Circuit Court of Appeals that sided with the tribe. In 2003, a non-Native Dollar General manager allegedly sexually assaulted a 13-year-old Mississippi Choctaw boy who was working at the Dollar General store on the reservation through the tribe’s summer youth program. When the federal government declined to pursue criminal charges against the manager or company, the victim’s parents sued both the manager and the retailer in tribal court. Despite signing a lease that required it to give the Mississippi Band of Choctaw Indians’ court system legal authority over it, Dollar General balked, claimed the tribe did not have jurisdiction and pursued litigation that was heard by the U.S. Supreme Court in December 2015. More than 100 tribes and Indigenous organizations filed amicus briefs with the Supreme Court in support of the Mississippi Band of Choctaw Indians, with many noting the potential implications for Indian Country’s domestic violence cases if the court sided with Dollar General. According to a recent study released by the National Institute of Justice, a supermajority of violent crimes against Native Americans – both male and female – are committed by non-Native assailants. “Today’s decision reaffirms tribal sovereignty and the inherent civil authority of tribal courts to protect our citizens when non-Indians assault them,” Jana Walker, a senior attorney at the Indian Law Resource Center, said. “This is critical considering that a National Institute of Justice research report issued last month found that more than four in five Native women have experienced violence in their lifetimes, and more than one in two have experienced sexual violence.” With the tie, the possibility remains for the Supreme Court to revisit the issue of tribal jurisdiction in the future, as the decision does not create a binding nationwide precedent. “It is a reminder that more work is needed to educate lawyers, judges, and lawmakers about tribal sovereignty and the authority of tribal courts,” Walker said. The case will now go back to tribal court. The family of the victim is seeking $2.5 million in damages. In a statement released June 24, Principal Chief Bill John Baker praised the Supreme Court’s decision. “As tribal sovereign governments, we applaud the Supreme Court’s preservation of our right to protect tribal citizens on tribal land,” he said. “The Cherokee Nation is taking critical steps to strengthen its ability to arrest, convict and prosecute people who commit crime in our jurisdiction and against our citizens. “We also continue to strengthen our civil code to allow us to increase our exercise of civil jurisdiction over non-Indian people and companies who commit wrongs within the Cherokee Nation. This will better protect all of our citizens, including our most vulnerable, like the elderly, women, and children.”
BY ASSOCIATED PRESS
06/27/2016 02:00 PM
ASHEVILLE, N.C. (AP) — A man has pleaded not guilty to charges that he set a fire five years ago that burned 142 acres of land belonging to the Eastern Band of Cherokee Indians. The Asheville Citizen-Times reports that Raymond Neal Swayney was indicted last month after being accused of setting the May 21, 2011 fire. Swayney pleaded not guilty to the two arson-related charges Monday in U.S. District Court in Asheville. If convicted, he could face up to 15 years in prison, in addition to a fine. Swayney has been released from custody on a $25,000 bond.
BY LENZY KREHBIEL-BURTON
Special Correspondent
06/27/2016 12:28 PM
LITTLE ROCK, Ark. – Cherokee Casinos’ footprint may be going beyond Oklahoma’s borders in the near future. On June 23, Arkansas Wins in 2016, an advocacy group trying to expand commercial gaming into the Natural State, announced that it had reached an agreement with Cherokee Nation Entertainment to own a casino, hotel and entertainment venue in Washington County, Arkansas. “It’s been an interest of ours for many years to leverage our nearly 30 years’ experience in gaming, hospitality and entertainment into markets outside of Oklahoma,” Cherokee Nation Businesses CEO Shawn Slaton said. “This commercial gaming venture is a natural evolution of our business model that will be good for the state, northwest Arkansas and the Cherokee Nation. We employ thousands of people, and are good community partners, and we look forward to extending that into Arkansas.” The agreement is contingent upon the passage of a potential ballot measure. On June 1, Arkansas Attorney General Leslie Rutledge approved the form for a proposed constitutional amendment that would allow gaming in three specific counties: Washington, Boone and Miller. Boone County is in north-central Arkansas near Branson, Missouri. With its county seat at Texarkana, Miller County is in the southwestern corner of the state. The state’s third-most populous county, Washington County is home to the University of Arkansas’ flagship campus in Fayetteville. Robert Coon, a spokesman for Arkansas Wins in 2016, said the group’s decision to target specific counties rather than seek approval for gaming statewide was a conscious one to not over-saturate Arkansas’ gaming market. In addition to a statewide lottery, there is a horse race facility with video poker in Hot Springs and a dog racing track in West Memphis. State law currently only allows casinos at facilities with pari-mutuel betting. “We don’t want to overwhelm the market,” Coon said. “We wanted to look at where would be opportunities where there’s already specific tourism draws where people are going and taking their money outside the state’s boundaries.” According to the ballot measure’s text, an Arkansas-based limited liability company would operate each of the three sites, which would be subject to state law. The commercial casinos would also be governed by regulations enacted by the Arkansas Gaming Commission, established by the same ballot measure. “The Cherokee Nation, just like any other operator, would be subject to the requirements of the amendments, including laws enacted by the General Assembly,” Coon said. “They would be an operator just like any other business venture operator would be treated here.” Repeating language from the proposed ballot measure, Amanda Clinton, Vice President of communications for CNB, said the casino would be subject to the laws enacted by the Arkansas General Assembly, regulations promulgated by the Arkansas Gaming Commission. Several of the specifics about the project, including the site, size, number of new jobs and available amenities, have not yet been determined. Cherokee Casino West Siloam Springs is about 30 minutes away from Washington County’s two largest communities: Fayetteville and Springdale. For the measure to get on the November ballot, organizers must collect signatures from 84,859 registered Arkansas voters by July 8. Coon was unable to provide the number of signatures collected as of June 24, but said the group was “on track” to meet the minimum requirement by the Arkansas secretary of state’s deadline. Two similar referenda were slated to go before Arkansas voters in 2012, but both were stricken from the ballot at the last minute due to litigation. In an interview with the Tulsa World, Slaton confirmed that ties between CNB and the Arkansas pro-casino group were established during that failed 2012 campaign. “We’ve watched closely as Arkansas has moved to legalize casino gaming in recent years,” Clinton said. “Now that this initiative seems poised to be on the ballot this fall, it was the perfect time for this strategic business decision.”
BY STAFF REPORTS
06/25/2016 10:00 AM
OKLAHOMA CITY (AP) – A man who pleaded guilty in the killing of a prostitute featured on the HBO series “Cathouse” and three other people has testified in the Oklahoma City trial of two other men charged in the case. The Oklahoman reports that Cherokee Nation citizen Jonathan A. Cochran, 37, testified June 7 at the trial of Denny Phillips and Russell Hogshooter. Both men charged with six counts of first-degree murder and one count of conspiracy in the deaths of Brooke Phillips, Milagros Barrera, Jennifer Lynn Ermey and Casey Mark Barrientos. The other two murder charges are because Brooke Phillips and Barrerra were pregnant. Hogshooter is accused of shooting Brooke Phillips, who was among the prostitutes featured on the cable network’s show about the Moonlite BunnyRanch, a legal brothel near Carson City, Nevada. Prosecutors say Denny Phillips ordered the killing of Barrientos and that the women were killed to eliminate witnesses. Phillips and Hogshooter have pleaded not guilty. David Tyner, who is also accused of being involved in the slayings, pleaded guilty in the case and has testified that he killed Barrientos, Barrera and Ermey because Denny Phillips threatened his family. Cochran testified that before he entered a home and saw several bodies, he heard muffled gunshots from inside. Cochran, who was given a 25-year prison sentence, also testified that he knew that the killings were going to take place, but that he “didn’t verbally agree to kill anybody.” “I went there under the assumption that somebody else was going to murder someone. I didn’t agree to the murders but I agreed to go down there,” Cochran testified. Cochran said that he saw three bodies in the home once he entered, and that Hogshooter told him to shoot a woman who prosecutors identified as Brooke Phillips. Cochran said he fired a couple of shots, purposely missing. Defense attorneys argue that there are inconsistencies in Cochran’s version of events. But prosecutors argue that significant details of what happened have stayed consistent with other testimony.
BY STAFF REPORTS
06/24/2016 04:00 PM
TAHLEQUAH, Okla. – The Cherokee Nation honored Korean War veterans Jack Merle Gardner, George Edward Dewayne Johnston, Ralph George Grass and Eva D. Rider Tallon with the Medal of Patriotism at the June 13 Tribal Council meeting. Cpl. Gardner, 74, was born April 16, 1942, in Claremore and joined the Marine Corps in 1959. Gardner attended basic training in San Diego and was sent to Camp Butler in Okinawa, Japan, a Marines supply depot. He received weapons maintenance training while in Okinawa and maintained the base’s weapons. He also played football on its team. A colonel saw him playing and had Gardner transferred to Quantico, Virginia. He was part of the traveling football team that played football at Air Force, Army and Navy bases across the country. When the Cuban Missile Crisis began, football was suspended and all Marines were on standby. Gardner received an honorable discharge in 1963. He received medals and ribbons for his service, including the Good Conduct Medal. “Serving the country helped me buy my home and get through college with the GI Bill,” Gardner said. “I appreciate the Cherokee Nation for this recognition award. I also thank the tribe for their quick response when a tumor was found on the lower part of my spine. I thank God they were on the ball.” Staff Sgt. Johnston, 85, was born May 4, 1931, in Kenwood and entered the U.S. Air Force in 1952. Johnston attended basic training in San Antonio and radio school in Biloxi, Mississippi. While waiting for his top-secret clearance, Johnston travelled to Burma, London, Germany and Amsterdam before being stationed in Scotland as a radio operator. He was responsible for copying all Russian aircraft Morse Code transmissions. Johnston spent 20 months overseas copying Russian transmissions. He returned to the United States and received an honorable discharge in 1956. Johnston received ribbons and medals for his service, including the National Defense Service Medal and the Good Conduct Medal. Petty Officer 3rd Class Grass, 79, was born March 7, 1937, in Locust Grove and enlisted in the U.S. Navy in 1955. Grass attended basic training in San Diego and was stationed on the USS McCoy Reynolds, where he trained servicemen from New Zealand. After the USS McCoy, Reynolds was turned over to the New Zealand Navy, deployed on the USS Picking to the South China Sea, where he served as a boiler operator helper. During his service, Grass made one trip around the world. He received an honorable discharge in 1959 and earned ribbons and medals for his service. Cpl. Rider Tallon, 86, was born June 13, 1930, in Bunch and joined the U.S. Army in 1951. She attended basic training at Fort Lee in Virginia and surgical technician school at Brooke Medical Center in San Antonio. Rider Tallon was then stationed at Fort Lawton in Washington, where she served as a company clerk. While at Fort Lawton, she received “Soldier of the Week” honors and attended the University of Seattle. She was then deployed to the 8168th Army Hospital Unit in Yokohama, Japan, where she served as the editor of the battalion newspaper and attended Red Cross activities for wounded soldiers from the Korean War. Rider Tallon received an honorable discharge in 1954 and earned ribbons and medals for her service. To nominate a veteran who is a CN citizen, call 918-772-4166.
BY STAFF REPORTS
06/24/2016 12:00 PM
TAHLEQUAH, Okla. – The Cherokee Nation donated $75,000 to organizations that ensure school children get snacks and school supplies when they return to school this fall. In northeastern Oklahoma at least 20 organizations participate in backpack programs that send backpacks home with students who are in need of everything from school supplies to nutritious weekend snacks. The tribe donated the funds from its donations and charitable contributions budget. Tribal Councilors individually delivered the checks totaling $75,200 to the churches, schools and organizations in their areas. “We have a responsibility to our children, especially those in need, to ensure they have access to basic and essential items when they are away from structured activities like school and church,” Principal Chief Bill John Baker said. “Networking with these partners, organizations that have similar values and a mission to help kids, enables us all to do more, and that is critical if we hope to raise healthy and happy children in northeast Oklahoma. If we can address any insecurity a child has at home, whether it’s food or clothing or supplies, then we are helping build a better tomorrow.” The programs serve 3,643 students, with half of those students being CN citizens. Tribal Councilor Joe Byrd said the tribe is able to help more families when developing healthy partnerships with organizations inside the 14-county jurisdiction. “By partnering with churches, schools and organizations inside the communities, we are able to make the greatest impact with our tribal dollars,” Byrd said. “These organizations know the needs of our young people in their respective communities, and I am proud that the Cherokee Nation can contribute to meeting those needs.” Organizations receiving funds are in Adair, Cherokee, Craig, Delaware, Mayes, Muskogee, Nowata, Rogers, Sequoyah and Washington counties. New Life Church in Stilwell received $15,000 to help. At the beginning of every school year, the church hosts a cookout and backpack giveaway night for parents and students in Adair County. The church also partners with four rural Adair County schools and uses the donation to provide nutritious weekend snacks to students every week during the school year. “We are so thankful to be able to partner with the Cherokee Nation and help students and parents in our area with necessary school supplies and nutritious snacks on the weekend,” said New Life Church Pastor Max Ford. “The tribe’s generosity is a godsend for our community, and we are more than happy to help pass that blessing on to those in need.” <strong>Receiving Donations</strong> Organization, County, Award New Life Church, Adair, $15,040 Hulbert Public Schools, Cherokee, $9,388.32 Tahlequah Public Schools, Cherokee, $3,689.94 Craig County Salvation Army, Craig, $1,121.49 Okay Public Schools, Delaware, $1,961.74 Choteau-Mazie Public Schools, Mayes, $781.04 First United Methodist Church Locust Grove, Mayes, $710.95 Boulevard Christian Church, Muskogee, $2,350 Chandler Road Church of Christ, Muskogee, $555.45 Eastern Heights Baptist Church, Muskogee, $1,516.82 First United Methodist Church Muskogee, Muskogee, $1,602.27 Grace Ministries Inc., Muskogee, $341.82 Warner Public Schools, Muskogee, $3,845.45 Boys & Girls Club of Nowata, Nowata, $6,118.14 Oologah United Methodist Church, Rogers, $791.58 Rogers County Salvation Army, Rogers, $14,248.42 Hillside Pentecostal Church, Sequoyah, $1,388.64 Lee’s Chapel Assembly of God, Sequoyah, $2,307.27 The BOD Church, Sequoyah, $1,132.27 Agape Mission of Bartlesville Inc., Washington, $6,308.39