Freedom Of Information Act was first in Indian Country

BY TESINA JACKSON
Former 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 BRITTNEY BENNETT
Reporter – @cp_bbennett
04/23/2018 12:00 PM
TAHLEQUAH – The Attorney General’s Office filed an appeal on April 13 asking the Supreme Court to reverse a District Court ruling declaring Deputy Principal Chief S. Joe Crittenden ineligible for re-election in 2019. Deputy Attorney General Chrissi Nimmo submitted the appeal that states District Court Judge Luke Barteaux “erred” in his decision. “The deputy chief has only served one four-year term and should be able to run for re-election in 2019. This court should reverse the District Court’s decision as to Deputy Chief S. Joe Crittenden’s eligibility to run for the same office as he now holds in 2019,” the appeal states. Cherokee Nation officials declined to comment further on the proceedings. Barteaux’s April 6 ruling, which also declared Principal Chief Bill John Baker eligible for re-election, cited the CN Constitution in ruling Crittenden ineligible. He wrote that Crittenden had “assumed the office of Principal Chief pursuant to Article VII, Section 4, in faithful discharge of his duties as Deputy Principal Chief” while Baker had to await the results of an appeal of the 2011 principal chief’s race. Article VII, Section 4 states: “In case of the absence of the Principal Chief from office due to death, resignation, removal or inability to discharge the powers and duties of the office, the same shall devolve upon the Deputy Principal Chief for the remaining portion of the four (4) year term to which the Principal Chief had been elected.” Barteaux ruled that by Crittenden stepping into the role on Aug. 14, 2011, as dictated by the Constitution, he “completed his first four (4) year term of office four (4) years later without any loss of time from his term, and is now in his second consecutive four (4) year term.” The ruling stemmed from a Feb. 19 petition by CN citizen David Cornsilk, who asked the court to overturn Hembree’s opinion that states Baker and Crittenden were eligible for re-election. Hembree’s opinion states both officials were eligible despite winning elections in 2011 and 2015 because the appeal of the principal chief’s election delayed Baker taking office until October. As such, both Baker and Crittenden were denied full four-year terms. Cornsilk said he’s aware of Hembree’s appeal and plans to file an appeal so that the Supreme Court can decide. “I feel like the decision that was made by Judge Barteaux is incorrect, so I’ll leave it up to the Supreme Court to make a final decision,” he said. “I think in the interest of the health of our election process and for the health of our nation, we need our courts to make to make the decision at the final level, that way nobody can say, ‘well, it could have been different if you had just appealed.’ I really think that a final decision by our tribal court, the Supreme Court, is a good thing.”
BY BRITTNEY BENNETT
Reporter – @cp_bbennett
04/23/2018 10:00 AM
TAHLEQUAH – Cherokee Nation citizen Michael Moore has filed a motion asking the District Court to reconsider its April 6 ruling regarding the election eligibility of Principal Chief Bill John Baker and Deputy Chief S. Joe Crittenden, as well as dismiss the petition that led to the ruling. Moore, an attorney from San Diego, filed the April 13 motion asking the court to allow him to “intervene” and for it to “dismiss” a Feb. 19 petition by CN citizen David Cornsilk. Cornsilk’s petition asked the court to overturn Attorney General Todd Hembree’s 2016 opinion declaring Baker and Crittenden eligible for candidacy in 2019 because neither had served a full four-year term after being elected in 2011. Crittenden took office on Aug. 14, 2011, and assumed principal chief duties until Baker was sworn in on Oct. 19, 2011, following a disputed principal chief’s race. Hembree on March 1 motioned to dismiss Cornsilk’s petition, but on March 26 filed a motion in favor of the court handing down a ruling. District Court Judge Luke Barteaux on April 6 ruled that Baker was eligible for re-election but Crittenden was not. Moore’s filing asks Barteaux to reconsider and rule on Hembree’s original dismissal motion while rebuking Hembree’s March 26 motion to withdraw. By withdrawing, Moore states Hembree essentially “attempted to waive sovereign immunity” that he “lacks authority” to do unless given permission by Tribal Council. Moore argues the burden of proof to show the CN waived its sovereign immunity to be sued is on Cornsilk, who “has not shown” any evidence of a waiver. Moore also argues because “there is no issue or controversy,” the case is not “ripe” for a ruling, as “none of the parties in Cornsilk’s petition have filed to run for office.” Moore asks that Cornsilk’s petition be declared “premature” because Hembree and Cornsilk are asking for an “advisory opinion” in regards to an interpretation of election law provisions in advance of an actual election. “They shouldn’t be ruling on matters of speculation,” Moore said. “When it comes to Attorney General Hembree’s pleadings, he withdrew the issue that the court should have been deciding on in order to move his agenda forward, which was to have his opinion deemed legal...It was clever luring by the attorney general, but I hope that the district judge will reconsider the issue of ripeness and recognize that the issue is not ripe and dismiss the case for everyone.” As of publication, neither Baker nor Crittenden had indicated they planned to run in 2019. Moore states Cornsilk’s petition also “lacks subject matter jurisdiction” because it is without a “case or controversy” as required by the Supreme Court. Instead, it recommends Cornsilk should challenge Baker and Crittenden’s eligibility “when they actually file for a third term.” Moore states the CN Constitution provides an “exclusive remedy” for challenging a candidate’s eligibility in Title 26, Section 37(A) or Section 37(B). Section 37(A) allows any CN citizen who is registered to vote “the right to contest the eligibility of any candidate to run for office” at a hearing with the Election Commission, while Section 37(B) gives the right to appeal decisions concerning a candidate’s eligibility to the Supreme Court. “In regards to Mr. Cornsilk’s pleadings, it’s all based on speculation,” Moore said. “There was no controversy at the time that he filed, and so people applauded him for filing it and moving forward and trying to have this resolved, but on this kind of issue when there is no controversy, for a non-lawyer to go in and try to have this matter decided, it creates problems.” Cornsilk said he’s read Moore’s filing. “Basically what it looks like is he reiterated all of the motions to dismiss, the attorney general had filed and withdrew,” he said. “I think his timing is off because if he wanted to join the case he should have done it before the judge ruled or after we appealed. I don’t know why he’s trying to jump into mine, but the more the merrier and I’ll just leave it to the judges to decide whether or not to let him join the case.” Attempts to contact the attorney general’s office were unsuccessful, though it did file an appeal in the Supreme Court on April 13 concerning Crittenden’s eligibility.
BY ASSOCIATED PRESS
04/22/2018 12:00 PM
BISMARCK, N.D. (AP) – A judge has rejected the request by two American Indian tribes to be more involved in a court-ordered environmental review of the Dakota Access oil pipeline. U.S. District Judge James Boasberg last June ordered the Army Corps of Engineers to further review the pipeline’s impact on tribal interests, though he allowed oil to begin flowing. In December, he ordered Texas-based developer Energy Transfer Partners to produce an oil spill response plan for Lake Oahe, the Missouri River reservoir in the Dakotas from which the Standing Rock and Cheyenne River Sioux draw water. Boasberg also ordered a review by an independent engineering company on whether the pipeline complies with federal regulations. The two tribes have said they were being left out of the process and they asked Boasberg to order that they be given more involvement. Corps and company attorneys accused the tribes of being difficult to work with. Boasberg wrote in an order dated Monday that “the parties engage in a lengthy dispute over who is refusing to talk to whom.” “The court does not believe that further inserting itself into the minutiae of this disagreement is either permissible or wise,” he wrote. Boasberg also noted that ETP submitted the spill response plan and the independent review on April 2, making any request for additional tribal involvement in that work moot. The Standing Rock tribe has started raising money for its own spill response program. As for the Corps’ additional review of the pipeline’s impact on tribal interests, Boasberg said the tribes can continue to press their argument that the study is flawed when that work is completed and presented to him. The Corps had anticipated an April 2 completion date, but that has been delayed by what the agency maintains is difficulties obtaining needed information from the tribes. Standing Rock attorney Jan Hasselman in a statement to The Associated Press said the Corps “is missing the opportunity to engage with the Standing Rock tribe meaningfully on its legitimate concerns about the safety of this pipeline, and continuing to accept without question Energy Transfer’s shoddy technical work.” The Standing Rock and Cheyenne River tribes are leading the four-tribe lawsuit against the $3.8 billion pipeline that is moving oil from North Dakota through South Dakota and Iowa to a shipping point in Illinois. They fear environmental and cultural harm. ETP says the pipeline is safe.
BY STAFF REPORTS
04/22/2018 08:00 AM
TAHLEQUAH – The Cherokee Phoenix needs your help in determining what type of content we should focus on to better please you, the reader. You can help us by completing and mailing back the survey you received with this month’s issue. If you don’t want to complete the form and mail it in, or if you got this issue at one of our many distribution sites, then you can complete the survey online at <a href="https://www.surveymonkey.com/r/PHOENIXSURVEY2018" target="_blank">https://www.surveymonkey.com/r/PHOENIXSURVEY2018</a> until April 30. “Ultimately this survey helps us serve the Cherokee people better,” Brandon Scott, Cherokee Phoenix executive editor said. “Any method we use to gather information is used to improve and give our readers what they want and need in a newspaper. I hope everyone will take a few minutes of their day to answer a few questions. Thank you in advance.” Readers who complete the survey will have a chance to win a $100 gift card as well as one of several Cherokee Phoenix prize packages, which consist of Cherokee Phoenix tote bags, shirts, fleece jackets and office supplies. The Cherokee Phoenix is also still taking names of Cherokee elders and military veterans to provide them free newspaper subscriptions. In November, Cherokee Nation Businesses donated $10,000 to the Cherokee Phoenix’s Elder/Veteran Fund, which provides free subscriptions to elders 65 and older and military veterans who are Cherokee Nation citizens. “The Elder/Veteran Fund was put into place to provide free subscriptions to our Cherokee elders and veterans,” Scott said. “Some of our elders and veterans are on a very limited budget, and other items have a priority over buying a newspaper subscription. The donations we receive have a real world impact on our elders and veterans, so every dollar donated to the Elder Fund is significant.” To request a subscription using this fund, or to nominate an elder or veteran, visit, write, call or email the Cherokee Phoenix. The Cherokee Phoenix office is located in the Annex Building on the W.W. Keeler Tribal Complex. The postal address is Cherokee Phoenix, P.O. Box 948, Tahlequah, OK 74465. You can call 918-207-4975 or 918-453-5269 or email <a href="mailto: justin-smith@cherokee.org">justin-smith@cherokee.org</a> or <a href="mailto: joy-rollice@cherokee.org">joy-rollice@cherokee.org</a>. No income guidelines have been specified for the Cherokee Phoenix Elder/Veteran Fund, and free subscriptions will be given as long as funds last. Tax-deductible donations for the fund can also be sent to the Cherokee Phoenix by check or money order specifying the donation for the Cherokee Phoenix Elder/Veteran Fund. Cash is also accepted at the Cherokee Phoenix offices and local events where Cherokee Phoenix staff members are accepting Elder/Veteran Fund donations. For anyone who donates to the fund, you will be entered into our quarterly drawings as well. For every $10 donated, you will receive one entry. The prize for the second quarterly giveaway is a custom 12-foot, two-piece fishing pole by Larry Fulton of Larry’s Bait and Tackle in Fort Gibson. We’ve also heard that some communities in the tribe’s jurisdiction have no Cherokee Phoenix distribution sites. Most of our paid distribution sites center around CN offices, health facilities and Cherokee casinos. However, if you want to sponsor a distribution site, call 918-207-4975 or email <a href="mailto: justin-smith@cherokee.org">justin-smith@cherokee.org</a>. A bundle of 50 newspapers costs $15 a month.
BY ASSOCIATED PRESS
04/21/2018 04:00 PM
SALT LAKE CITY (AP) — The push for legalized marijuana has moved into Utah and Oklahoma, two of the most conservative states in the country, further underscoring how quickly feelings about marijuana are changing in the United States. If the two measures pass, Utah and Oklahoma will join 30 other states that have legalized some form of medical marijuana, according to the pro-pot National Organization for the Reform of Marijuana laws. Nine of those states and Washington, D.C. also have broad legalization where adults 21 and older can use pot for any reason. Michigan could become the 10th state with its ballot initiative this year. Utah and Oklahoma already are among 16 states that allow for use an oil called cannabidiol, or CBD, a compound from cannabis that doesn't get users high but can treat a range of health concerns. Justin Strekal, political director for NORML, is confident the Utah and Oklahoma measures will pass. "America's appetite for cannabis is not going away," Strekal said. "We are in the death rattles of prohibition." Marijuana legalization efforts have faced some pushback from religions before — including in 2016 in Arizona and Nevada from the Mormon church, and the same year from the Catholic Church in Massachusetts. But not to the scale they could face this year in Utah, where Mormons account for about two-third of the population, said Matthew Schweich, executive director of the pro-legalization Marijuana Policy Project. Mormons have long frowned upon marijuana use because of a key church health code called the "Word of Wisdom," which prohibits the use of alcohol, tobacco and illegal drugs. The Church of Jesus Christ of Latter-day Saints came out against the proposal this month, saying in a statement drugs designed to ease suffering should be tested and approved by government officials first. The church said it respects the "wise counsel" of doctors, and commended the Utah Medical Association for opposing it. The association has accused organizers of trying to disguise their intention of simply paving the way for legalizing recreational marijuana. Utah Gov. Gary Herbert told middle school students in January that he thinks medical marijuana will someday be legalized in the state but in March he announced his opposition to the ballot question, which he argues lacks safeguards for the growing and distribution of marijuana. Advocates remain confident that they've crafted a medical marijuana measure that respects the Mormon church and culture while providing much-needed relief for people with chronic pain, Schweich said. His Washington, D.C.-based organization helped draft the measure. Unlike other medical marijuana states, Utah's proposal would not allow pot smoking or for residents to grow their own, Schweich said. It would create a state-regulated growing and dispensing operation to allow people with certain medical conditions to get a card and use the drug in edible forms like candy, in topical forms like lotions or balms, as an oil or in electronic cigarettes. Proponents turned in the signatures Monday to get the measure on the ballot in November. "It's a question of compassion," Schweich said. Oklahoma will vote in June on its proposal that would allow doctors to recommend that patients receive a medical marijuana license allowing them to legally possess up to three ounces of the drug, six mature plants and six seedlings. Ted Lyon, a 78-year-old Mormon, is a supporter because he saw in the past decade how medical marijuana helped two of his neighbors in Provo — one with multiple sclerosis and another who has seizures. He said he wouldn't support the drug's legalization for recreational use. Lyon, a retired professor at Mormon-owned Brigham Young University, said he's afraid the church's opposition will have a chilling effect on members of the faith but said he remains hopeful there are enough progressive-leaning Mormons who will see the benefits. "In 10 years, the church may say something different," Lyon said. "This is not an eternal banishment of medical marijuana. My father was a good historian, and he used to say, 'If you don't like something in the church, just wait a while because it will change.'" Nathan Frodsham, a 45-year-old married Mormon father of three, is hoping the measure passes so he can get off opioids and back to using the vaporized form of marijuana that he used when he lived in Seattle after his doctor recommended trying for his painful osteoarthritis in his neck. Frodsham wasn't discouraged by the Mormon church statement, which he notes doesn't go as far in opposition as when the church explicitly asked members to vote against full marijuana legalization in Arizona and Nevada. He said marijuana is a natural plant and that the religion's health code doesn't single out cannabis as being prohibited. "I think there's some room for interpretation on this," said Frodsham. The 4,500-member Utah Medical Association isn't against the idea of legalized medical marijuana but has numerous concerns with an initiative it thinks is too broad and doesn't include necessary regulatory measures, said Michelle McOmber, the group's CEO. "We want to be very careful about what we bring into our state," McOmber said. "This is an addictive drug."
BY ASSOCIATED PRESS
04/21/2018 12:00 PM
FORT SMITH, Ark. (AP) — Legislation on an alternative substance that some say could help mitigate the effects of opioid withdrawals is divided along state lines. Kratom, a tropical tree from Southeast Asia with leaves that produce stimulant and sedative effects, has been used in the Fort Smith region to both treat chronic pain and mitigate the effects of opioid painkiller withdrawals. Though it is sold legally through alternative medicine stores throughout Oklahoma, it is listed as a banned substance in Arkansas. People in the United States have started to use kratom as a remedy for drug dependence, anxiety and pain. Proponents argue it is safer than prescription opioids like Vicodin and OxyContin, according to the Associated Press. The Drug Enforcement Agency has listed kratom as a "Drug of Concern." In February, Food and Drug Administration Commissioner Scott Gottlieb said claiming kratom is harmless is "shortsighted and dangerous" and that it's "an opioid that's associated with novel risks because of the variability in how it's being formulated, sold and used recreationally." The Jack Henningfield, vice president of Research, Health Policy and Abuse Liability at Pinney Associates, an organization that assesses the medical value of substances, said there is "insufficient evidence" for the DEA to restrict kratom. In Oklahoma, a similar debate is being held. "Right now, I just don't think everyone is on board with banning it," said Kayla Madera, an employee at the kratom store Earthly Mist in Roland. "They're just butting heads right now." Kratom was banned in February 2016 in Arkansas and is listed as a Schedule I controlled substance in the state. It is also banned from Tennessee, Alabama, Indiana, Wisconsin and Vermont. Paul Smith, director of the 12th and 21st District Drug Task Force in Sebastian and Crawford counties, said the legislation that banned kratom likely came about after the substance was tested in the Arkansas state crime lab. He said other substances have been banned in similar fashion in Arkansas. "They start receiving submissions, and they come back for a particular substance," Smith said. "They'll kind of keep track of it and see if it's a problem, and they'll also do their own research around the United States and see what their other colleagues at other state crime labs." Smith, who supports the substance ban, said other countries that have extended experience with kratom consider it to be dangerous. He called such protocols "a good guide for us to go by here in Arkansas." West of the Arkansas border, kratom is dispensed without fear of seizure, the Times Record reported . Though legislation has been brought against kratom in Oklahoma, no law has officially passed that would ban or schedule the substance in the state. Because of its legality, kratom is sold through shops designed purely for its sale and smoke shops across the state. A handful of them are under the brand name Earthly Mist, which has locations in Tulsa and Oklahoma City along with its Roland location. Earthly Mist in Roland receives 7-10 customers a day, including people who have been prescribed methadone, Madera said. She said she does not ID people at the store, as it is not under any licensed medical practice. "They'll come in, and they'll be tired and groggy and all that, and there will be a lot of pain," Madera said. "They'll come back a week or two later and say how great they've been feeling." Smith said law enforcement officials have conducted one kratom seizure in Sebastian County and a handful of seizures of the drug in Crawford County since the substance was banned in 2016. Though the kratom seized in Sebastian County was found in a plastic bag, it was found in Crawford County with labeling from Earthly Mist, Smith said. "They're basically coming from Roland," Smith said of the drug seizures. Though seized like other recreational drugs, Smith has not seen kratom used in Arkansas for recreational purposes. He said people are attracted to the drug to overcome symptoms like vomiting and diarrhea that come from heavy opioid withdrawals. "It can be used to kind of satiate or stop that kind of withdrawal that comes when they don't have any kind of opioid pills to consume," Smith said. Personal testimonies submitted to Earthly Mist line up with Smith's statements. Some even go as far as to say the substance gives the user energy and helps with pain. "I had been prescribed oxycodone and morphine for five years due to chronic illness," one testimony reads. "One of my friends introduced me to kratom when I was complaining about some of the side effects that were making my life miserable. Within one month, I was able to quit taking those drugs because of the effectiveness of kratom." "Kratom has changed my life," another reads. "I have PTSD, bipolar and fibromyalgia. I am also a recovering addict. Since starting to take kratom, I have been able to stop taking all prescription medications." While he has spoken against opioid over-prescribing and its effects in Sebastian County, Smith also spoke against the use of kratom in an opioid withdrawal situation. Smith said anyone going through an opioid withdrawal — especially a severe one — needs to seek medical attention for his or her symptoms. "It's a medical problem that needs to be addressed in a medical setting, not someone who's trying to do it themselves," Smith said of opioid withdrawals. Smith said "all treatment facilities" in Sebastian and Crawford counties have a protocol to ensure the person going through an opioid withdrawal is medically safe while he or she is going through an opioid overdose. "We try to steer people away from these types of remedies into treatment or medically supervised withdrawal protocols," Smith said. Though he has discussed how opioids are over-prescribed in the past, Smith said the difference between prescription opioids and kratom is that prescription opioids are prescribed as the patient needs them. He also said prescription opioids, if prescribed correctly, are given with the patient's medical reactions in mind. "(Kratom) causes different reactions, psychologically and physiologically to the individual that's taking them," Smith said.