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 STAFF REPORTS
05/23/2016 09:52 AM
LOS ANGELES – A new online course called Cherokee Community Organizations and Development is being offered this summer through the University of California Los Angeles Extension. The online course will be from June 30 through Sept. 8 and will be in conjunction with the Tribal Learning Community Educational Exchange. It is open to both students and community members, and is available for three unites of transferable college credit through UCLA Extension. According to a class flier, all work will be done online except a bi-weekly video conference on Wednesdays at 5:30 p.m. To register for the class visit https://www.uclaextension.edu/pages/Course.aspx?reg=266571&qe=true .
BY STAFF REPORTS
05/20/2016 01:45 PM
TAHLEQUAH, Okla. – The United Keetoowah Band of Cherokee Indians will host the Keetoowah Cherokee Football and Sports Skills Camp from 8 a.m. to 3:30 p.m. on June 22. The camp will be at the UKB Celebration Grounds on West Willis Road. Boys and girls ages 8-18 are able to register for the free camp. To sign up for the camp, call Sammy Still at 918-431-1818, ext. 156 or email <a href="mailto: sstill@unitedkeetoowahband.org">sstill@unitedkeetoowahband.org</a>.
BY STAFF REPORTS
05/19/2016 05:00 PM
TAHLEQUAH, Okla. – The Tribal Council on May 16 approved submitting more than 800 acres of tribal land to the Bureau of Indian Affairs to be placed into trust status. The 809.15 acres are located in Adair, Cherokee, Craig, Delaware, Nowata and Washington counties and includes land on which four of the tribe’s health centers are built. Tracts of land being requested for trust status were on the Nation’s priority list to be submitted to the BIA in an effort to help the federal government reach their trust goal in 2016. “Placing land into trust status is an assertion of our tribe’s sovereignty,” Tribal Councilor Joe Byrd said. “Trust status grants our tribe full control of our land and its uses. With more land potentially being placed into trust status, we can pursue more housing for our citizens or create more jobs for our citizens through potential economic opportunities.” The CN already has more than 61,000 acres of land in trust status. The next Tribal Council meeting is scheduled for 6 p.m. on June 13 at the W.W. Keeler Complex.
BY STAFF REPORTS
05/19/2016 04:00 PM
The Cherokee Phoenix Editorial Board will meet at 1 p.m. CST, May 31, 2016, via conference call. It is an open meeting and the public is welcome to attend by using the conference call information to join the meeting. <a href="http://www.cherokeephoenix.org/Docs/2016/5/10290_EditorialBoardAgendaMay2016.pdf" target="_blank">Click here to view</a>the agenda. Dial-in: 866-210-1669 Entry code: 4331082
BY TRAVIS SNELL
Assistant Editor – @cp_tsnell
05/19/2016 08:15 AM
NEWKIRK, Okla. – The Bureau of Indian Affairs’ Eastern Oklahoma Regional Office recently placed nearly 1,334 acres of Cherokee Nation land into trust, the office’s largest-ever single trust designation. Principal Chief Bill John Baker and BIA Regional Director Eddie Streater signed the deed that moved 1,333.99 acres from fee status into trust status on April 21. “Having land placed into trust status gives the Cherokee Nation the authority to decide how we use our natural resources for things like new economic development or housing to benefit our Cherokee people for generations to come,” Secretary of State Chuck Hoskin Jr. said. The property is about 22 miles north of Ponca City in Kay County and was formerly the Chilocco Indian Industrial School site. Natural Resources Secretary Sara Hill said the lands were located within the former Cherokee Outlet and were once part of the CN. According to the Oklahoma Historical Society, in February 1890 President Benjamin Harrison forbade all grazing in the Outlet after October, effectively eliminating tribal profits from leases. The CN agreed to sell the following year at a price ranging from $1.40 to $2.50 per acre. According to the OHS, the Outlet was later deemed surplus land, and on Sept. 16, 1893, it was Oklahoma Territory’s fourth and largest land run. “The United States bought the property from the Cherokee Nation in 1893, and the government developed the Chilocco Indian School,” Streater said. “About 75 years later, the U.S. government determined 2,667 acres was surplus to the needs of the school and the Cherokee Nation was allowed to buy it back for $3.75 an acre.” Originally, the school was 8,640 acres. The CN, as well as the Kaw, Pawnee, Ponca, Otoe-Missouri and Tonkawa tribes now own the land. The Nation’s 2,667 acres are in two parcels and both are now in trust. Hill said the CN leases the land for agricultural purposes and that the trust designation would not affect the leases. According to a CN Freedom of Information Act response, the tribe leases at least nine land tracts in Kay County, titled Chilocco 1-9, totaling nearly 4,200 acres and accruing more than $230,000 annually. According to the response, the leases end on June 30, 2018, and the names of the lessees are confidential. Hill added that the tribe in the future could explore other avenues for the land. “Getting it into trust was a first step in order for the tribe to make decisions on how best to use our resources to benefit our Cherokee people long term,” she said. The land is outside the tribe’s 14-county jurisdiction, but the property has strong historical connections to the tribe. More Cherokees attended Chilocco than citizens of any other Indian tribe. For the previous 180 years, the acreage has had no owner other than the CN and the United States. Previous to that, the land was under the ownership of Spain from 1762 to 1803, when it was purchased by the United States in the 1803 Louisiana Purchase for $15 million.
BY STAFF REPORTS
05/18/2016 02:00 PM
TAHLEQUAH, Okla. – Tribal Councilors on May 16 authorized Attorney General Todd Hembree to seek a complete historical accounting of the United States’ management of Cherokee Nation property and assets controlled by the federal government. According to a CN press release, the property and assets include trust accounts, property, natural resources and other valuable tribal resources. “The Cherokee Nation is legally entitled to the accounting it seeks,” Hembree said. “We believe a full accounting will show additional assets the United States owes to the Cherokee Nation. We look forward to obtaining those records so we can fully measure any shortfall or damages owed to the tribe.” Principal Chief Bill John Baker said since he was elected his administration has examined in detail the historical record of the United States’ handling of CN trust funds, natural resources, sales of land accounts, land management and other valuable CN assets held in trust. “A full accounting by the federal government of our assets is warranted, and we are entitled to it under the law,” Baker said. According to the release, the tribe’s analysis shows many of the treaties between the United States and the Nation promised compensation to the tribe and provided that monies would be held in trust by the United States for the benefit of the CN. An accounting is required to determine whether the United States has fulfilled these obligations, the release states. According to the Attorney General’s Office, the federal government is obligated to prudently manage the land, real estate, property and natural resources, as well as the income derived from those resources it holds in trust on behalf of the CN. The United States has exercised extensive control over the tribe’s resources but has never provided a comprehensive accounting to the CN or the Cherokee people, according to a CN press release. Without a full accounting, it is impossible to determine whether the Cherokee Nation’s assets are being managed properly, the release states. “The Cherokee Nation has many valuable natural resources, which have been comprehensively managed and controlled by the United States,” Secretary of Natural Resources Sara Hill said. “The Cherokee Nation is entitled to an accounting of the income earned by these natural resources over the decades the federal government has held them in trust.” According to the release, the United States’ obligation extends to the time it controlled and suppressed the tribal government in about 1906 until after the landmark decision of Harjo v. Kleppe in 1978, which held that the United States’ takeover of the CN government was illegal. The United States, during that time, was obligated to act in the Nation’s best interests and make claims on its behalf. Todd Hembree first went before the Tribal Council to request approval of the litigation during the April 28 Rules Committee meeting. “This is a monumental lawsuit. We discussed the details and arrangement. This does involve treaty rights, therefore, in accordance with the Consent to Litigation Act, before going forward we want to have a council resolution,” he said at the meeting. “This is a once-in-a-lifetime type of suit and we hope to be very judicious in its prosecution and hope to be a game changer for the Cherokee Nation.” The lawsuit requires a contract with outside counsel that is expected to cost an undetermined amount of tribal monies, tribal officials said. “I will tell you…it is very advantageous for the Cherokee Nation,” Hembree said on April 28. “The way it’s structured is, if I was the plaintiff in this lawsuit, I’d be comfortable with it.” Officials said other tribes have done something similar to this and been successful. Hembree said he hopes to prosecute the lawsuit within three years.