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
09/26/2016 01:00 PM
SALLISAW, Okla. – Cherokee Nation officials said they are moving forward with the purchase and acquisition of the historic home of the Cherokee syllabary inventor, Sequoyah. However, as of publication, CN officials had not announced a final deal. The Oklahoma Historical Society, a state agency, owns and operates Sequoyah’s Cabin near Sallisaw. The site is a Sequoyah County tourist attraction. “Sequoyah is one of our most well-known statesmen and historical figures, and his contributions to the Cherokee Nation are immeasurable,” CN Chief of Staff Chuck Hoskin said in a Sept. 2 CN Communications release. “His invention of the Cherokee syllabary may be one of the single most important contributions to the advancement of the Cherokee people and Cherokee society. The Cherokee Nation is taking an important step by ensuring the preservation of Sequoyah’s homestead.” According to the release, the OHS has needed to divest itself of the property due to state budget cuts. According to a Sequoyah County Times report, it costs about $100,000 annually to maintain the cabin. “Over the past eight years, the state appropriation to the Oklahoma Historical Society has been cut by 40 percent,” OHS Executive Director Dr. Bob Blackburn said. “Fortunately for us and the legacy of Sequoyah, the Cherokee Nation is willing to assume ownership and keep the site open.” According to the CN release, Hoskin said it is “unfortunate that after 80 years, the state no longer has the resources to manage and maintain the property because the significance of Sequoyah’s homestead cannot be overstated.” Sequoyah was born in Tennessee around 1778. He began experimenting with an alphabet for the Cherokee language, and it was complete in the 1820s. The Cherokees were the first Indian tribe to develop a written alphabet, known as the Cherokee syllabary. Literacy rates among Cherokees soared within just a few years. Sequoyah was among the “Old Settlers” of the CN, who migrated to present-day Oklahoma and western Arkansas in approximately 1818, prior to the Trail of Tears. Built in1829, the one-room log cabin and more than 200 acres were acquired by the OHS in 1936. In 1965, it was designated as a National Historic Landmark. According to the Sequoyah County times report, CN Natural Resources Director Gunter Gulager said the CN had paid $100,000 for the 171.54-acre property and that the property was expected to transfer to Cherokee Nation Business for management. However, according to a Sept. 6 email from CN Communications, the tribe was still in the process of buying the cabin and no deal had been finalized. According to the Sequoyah County Times, the state and tribe plan to work together to advertise and draw in tourists and that OHS officials said the money it makes from selling the cabin would be invested in other state-owned historic properties. “Our planned acquisition of the cabin is another example of the Cherokee Nation relieving the state of public use facilities that might otherwise be closed,” Hoskin said in the CN release. According to the release, in recent years the CN has assumed ownership of two Oklahoma welcome centers that still operate as welcome centers and now feature Cherokee merchandise, clothing and information on Cherokee attractions. The Cherokee Phoenix requested comment from CN officials regarding the cabin but did not receive a response as of publication.
BY STAFF REPORTS
09/23/2016 02:00 PM
WASHINGTON – On Sept. 26, President Obama will host the 2016 White House Tribal Nations Conference at the Andrew W. Mellon Auditorium in Washington, D.C. This will be the President’s eighth and final Tribal Nations Conference, providing tribal leaders from the 567 federally recognized tribes with the opportunity to interact directly with high-level federal government officials and members of the White House Council on Native American Affairs. Each tribe is invited to send one representative to the conference. This year’s conference will continue to build upon the President’s commitment to strengthen the government-to-government relationship with Indian Country and to improve the lives of American Indians and Alaska Natives. The conference will be streamed live at www.whitehouse.gov/live.
BY STAFF REPORTS
09/21/2016 12:00 PM
TAHLEQUAH, Okla. – Applications for the 2017 “Remember the Removal” bike ride are available for Cherokee Nation citizens. The application deadline is midnight Oct. 28. The three-week, 1,000-mile ride in June teaches CN citizens ages 16-24 about their culture and history as they cycle the same route their ancestors were forced to walk in 1838-39 to Indian Territory, now Oklahoma. The route travels through seven states testing the cyclists’ physical and mental endurance. If selected to participate, participants would be required to take part in a physical training schedule and attend history classes. The classes will be taught during the four months of training to prepare for the ride. Participants will learn about the struggles their ancestors. The selection committee, whose members will not be related to any applicant, will review the required essays and applications submitted. It will be looking for CN citizens willing to learn more about Cherokee history and their ancestry related to the Trail of Tears. Successful applicants will be expected to interact with the public and speak to the public about their experiences on the ride. “Remember the Removal” cyclists also will be photographed, videoed, interviewed during the trip. So the committee will be looking for riders who are personable, well-spoken and would make ambassadors for the CN. Applicants must not have participated in the program before, be 16 to 24 as of Jan. 1 prior to the event and be able to pass a sport physical provided by the CN during the post-selection orientation. It is recommended participants reside inside the tribe’s jurisdiction, including the contiguous counties. Participants may have a different temporary address while away at school. If a participant lives outside the jurisdiction he or she will still be required to make all mandatory trainings and history classes in Tahlequah. Applications are online at <a href="http://remembertheremoval.cherokee.org/ParticipationApplication.aspx" target="_blank">http://remembertheremoval.cherokee.org/ParticipationApplication.aspx</a> and must be submitted by Oct. 28. The application requires an essay about why the applicant wants to participate, three letters of recommendation mailed or emailed to <a href="mailto: rtr@cherokee.org">rtr@cherokee.org</a> directly from the recommending party by the application deadline. Letters of recommendation should not be from CN employees, administration officials or Tribal Councilors. Letters should be from someone the applicant has worked with academically or professionally or a person they have known for a minimum of three years. For more information, call Gloria Sly at 918-453-5154 or email <a href="mailto: gloria-sly@cherokee.org">gloria-sly@cherokee.org</a>.
BY ROGER GRAHAM
Media Specialist – @cp_rgraham &
JAMI MURPHY
Senior Reporter – @cp_jmurphy
09/21/2016 08:00 AM
TAHLEQUAH, Okla. – The Cherokee Nation Election Commission called a special meeting for Sept. 16 to discuss fiscal year 2017 merit increases for staff as well as the renewal of commissioner and EC attorney contracts. Also, on the agenda were items regarding the renewal of Maxim, Center for Spatial Analysis and Hart Intercivic’s contracts. All contracts were approved except for Hart Intercivic. It was tabled due to the contract not being completed through CN contracts at the time of the meeting.
BY STACIE GUTHRIE
Reporter – @cp_sguthrie
09/20/2016 08:15 AM
TAHLEQUAH, Okla. – On Sept. 12, Cherokee Nation citizens Twila Pennington and Melanie Fourkiller filed an initiative petition to “outlaw absentee voter fraud” by seeking a vote to institute the Election Fraud Prevention Act of 2016. Originally filed Aug. 31, it was circulated during the Cherokee National Holiday, but a question regarding the tribal Election Commission’s official stamp led to its re-filing, Fourkiller said. EC officials said documents coming to their office are stamped with a stamp that contains the date and time it was filed, as well as “Cherokee Nation Election Commission Filed.” Fourkiller said despite its re-filing, the petition remained unchanged. She said it calls to “limit the number of ballots that one notary can notarize in any election,” require “all absentee ballots…be mailed to be returned to the Election Commission,” and “prohibit anyone from harassing a voter either at their home or by telephone over their absentee ballot.” “So these are measures that we particularly feel strongly about to protect voters and the integrity of absentee ballots,” Fourkiller said. Attorney General Todd Hembree said under CN law notaries can notarize an unlimited amount of ballots. He said notaries are “completing the form on the exterior envelope, not the actual ballot itself, and confirming, through their ‘notarization,’ that the person signing the envelope is the person appearing before them.” CN election laws state when filing absentee ballots voters must take their ballots, which are sealed in secrecy envelopes, and sign the affidavits on the affidavit envelopes in the presence of a notary public. As for returning ballots, election laws state the “affidavit envelope must be notarized and the notary seal affixed for the ballot to be counted, and return the documents inside the postage paid return envelope via the United States mail to the Election Commission.” Fourkiller said the Election Fraud Prevention Act would require voters to mail their votes or turn them into the EC. She said currently anyone could collect absentee ballots from voters and return them to the EC. “We’re concerned about there’s really no limit as to the number of hands a ballot can go through before it eventually reaches the Election Commission,” she said. “So that’s one issue. Just about every jurisdiction that I know of requires absentee ballots to be mailed, so we feel like everyone should have access to their own mailbox or post office to be able to drop that in the mail.” Hembree said candidates or campaign workers turning in ballots has “been the practice for decades.” “Voters have always been able to give their completed ballot, sealed in a secrecy envelope, to whomever they wish for delivery of the ballot to the Election Commission,” he said. Regarding alleged voter harassment, Fourkiller claims she’s received calls from campaigns asking about absentee ballots. “Don’t I want an absentee ballot? Can I request an absentee ballot for you? And I kept saying, ‘no, no, no. Please take me off you list,’ and yet still continued to receive those calls,” she said. “Especially for elders and folks being harassed that way, and we were aware that people would show up on their doorstep and say, ‘we’re here to get your absentee ballot” when they were not asked to come. So people feel intimidated over that kind of heavy attention.” Fourkiller also said the Election Fraud Prevention Act would curb multiple ballots going to a home or business address. She said ballots currently could be mailed to a citizen’s choice of address, but that she’s noticed in elections “tens of ballots going to one address or going to a business address.” “So what has happened in the past is that there is a public listing that the Election Commission produces of the absentee ballots that are requested and where they’ve been mailed. I’ve personally noticed on those lists in past elections where several ballots, like tens of ballots going to one address or going to a business address or so forth,” she said. “What this law would do is the ballot has to be mailed to the voter. It would still allow for a different address to be put in but it has to be mailed to the voter not to someone else.” However Hembree said the tribe only allows for a voter to “request and receive one ballot” and that people cannot request ballots on behalf of other voters. He added that ballots could be mailed to wherever the voter requests, including a home address, post office or business address. He said before a ballot could be mailed a voter must fill out a ballot request form. “The Cherokee voter can decide where they want their ballot sent,” he said. “For example, if a person is serving in the military or a student is away from home for college they may designate where they want their ballots sent to ensure timely delivery and maximize their opportunity to vote.” Hembree said despite accusations there’s not been a proven case of absentee voter fraud in CN elections. “In previous elections, candidates have made accusations of potential voter fraud, yet when given the opportunity to produce evidence in court, none of the accusations were substantiated,” he said. As for the petition moving forward, Fourkiller said once the attorney general has reviewed it, the EC would inform her about how many valid signatures it must receive. “So we’ve not been notified, but it is based on a percentage of the votes cast in the last general election, I believe,” she said. If the petition gets the needed amount of signatures then those signatures must be validated, Fourkiller said, and once validated it gets placed on the next regular election’s ballot. Hembree said if the petition is certified his office “expects to review the provisions of the law.” He said he’s concerned with wording stating “that the Oklahoma notary ‘law... is applicable to Cherokee elections.’” “That provision will require careful review to determine the impact on our sovereignty. We’ve not previously had state laws ‘applicable’ to our elections, so it is unprecedented,” he said. Fourkiller said the 90-day time period to gather signatures was reset and began Sept. 12 and that signatures collected under the original petition are void. She also said CN citizens wanting to sign the petition or circulate it can visit www.cherokees4change.com. <strong>Election Fraud Prevention</strong> Cherokee Nation Attorney General Todd Hembree said the “entire existing election code is designed to prevent election fraud.” He said the following laws are some of the laws and regulations that “help prevent absentee voter fraud.” • The Election Commission must confirm that the person requesting an absentee ballot is a registered Cherokee voter prior to sending them an absentee ballot, • The Election Commission has a process that ensures that a voter is only able to have one absentee ballot counted even if they requested more than one, • If a voter appears at a precinct to vote and has previously requested an absentee ballot, that person must cast a Challenged Ballot. Only if it is determined that the voter did not submit their absentee ballot is the Challenged Ballot opened and counted, • The notarization process ensures that every voter’s identification is confirmed by the notary who signs and affixes their notary seal or stamp to the exterior envelope and, • The Election Commission also confirms that every notary who signs the exterior envelopes is in fact a notary and that his or her commission has not expired.
BY ROGER GRAHAM
Media Specialist – @cp_rgraham
09/19/2016 12:00 PM
TULSA Okla. – On Sept. 8, hundreds of supporters of different ages and walks of life gathered at the Guthrie Green for the Stand up for Standing Rock rally. Currently, the Standing Rock Sioux Tribe in North Dakota is trying to stop Dallas-based Energy Transfer Partners from constructing the Dakota Access Pipeline near sacred tribal lands and the Missouri River, from which the tribe receives its water supply. The event was the idea of Dakota Morse, who is of Cherokee, Muskogee-Creek and Choctaw descent. “I’m here to raise awareness for the people up in Standing Rock.” Morse said. “And maybe get some donations to take up there to them also. Maybe to help them pick up a few things.” Volunteer organizers reported on social media after the event that more than $1,300 in donations had been raised. Former Osage Principal Chief Jim Gray, who also attended, said he was there to support the effort to send a loud message to the rest of the world. “Water and Indigenous land must be respected,” he said. “There are so many people across the world who have joined this effort, and it’s so nice to see something local that stands in solidarity with what’s going on in North Dakota.” While the exact number of people in attendance was not counted, organizers said they were surprised by the turnout. “I wasn’t expecting this many people to show up,” Morse said. “You know you get a lot of people on Facebook who say they’re going to be there and then they don’t. So for this many people to actually show up, it’s pretty amazing.”