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.

Multimedia

BY BRITTNEY BENNETT
Reporter – @cp_bbennett
12/12/2017 08:00 AM
TULSA, Okla. – Oklahoma audiences were treated to a special Q&A with Cherokee actor Wes Studi after screening his new film “Hostiles” on Nov. 29 during the Tribal Film Festival at Circle Cinema. “The story itself goes on to touch on the basis of the fact that we do have to come together, be it for survival or whatever,” Studi said. “It’s really a matter of survival that we bring our minds together to forge a better beginning as we move forward.” “Hostiles” is set in 1892 and follows Capt. Joseph J. Blocker (Christian Bale) as he battles hatred towards dying Cheyenne Chief Yellow Hawk (Studi) while being forced to escort him and his family from New Mexico back to their ancestral lands in Montana. The film also stars Rosamund Pike, Adam Beach, Q’orianka Kilcher and Ben Foster. Christina Burke, curator of Native American and Non-Western Art at the Philbrook Museum of Art, moderated the panel. Also participating were “Smoke Signals” director Chris Eyre and Dr. Joely Proudfit, who were tribal consultants for the film and brought in to the production to assist with creating an accurate portrayal of Cheyenne people and customs. “We were brought in pretty early on, and we were on set most of the time. I would say over 90 percent of the time, everyday on the set, both of us or at least one of us,” Proudfit said. “We had an actual Cheyenne chief come and do a blessing before we began shooting. And for a production of that caliber to take that time to allow for this culture and tradition to be a part of the process, I’ve never seen anything like that.” Studi was quick to agree and praised their efforts on the film. “(Eyre and Proudfit) really brought a lot to the table in terms of authenticity, of not only the language, but customs and other things we needed from the Cheyenne community,” he said. “I think that the film is much better off for the fact that they were there to help us.” The audience was also given a peak into the choices made during filming, including what motivated certain characters and that the cast and crew shot two versions of the ending. The panel also shared with the audience that while they have screened “Hostiles” multiple times, there are still new things to discover about its message. “This movie is a touchstone to so many ideas that we have right now in this country and that’s why I think this movie is so valuable because it’s about the gray areas,” Eyre said. “I keep watching, and I think the highest compliment to the movie is that I keep getting new things out of the movie.” Proudfit agreed, telling audiences that “you have to see it again.” “It takes time to marinate because these are such deep issues,” she said. “We’ve seen it eight times and every time we hear something new. We’ve been entertained so much with film and media now that we’re not ever asked to feel or think anymore, and I think we do that in this film.”
BY LINDSEY BARK
Reporter
12/11/2017 04:00 PM
VINITA, Okla. – On Dec. 5, Cherokee Nation and city officials unveiled a 12-foot-by-10-foot captioned photo as a mural in honor of the late Anna Belle Sixkiller Mitchell, a Cherokee National Treasure who revived Southeastern-style pottery. “This project started a year ago as a way to beautify the city and celebrate the historic nature that we have with the Cherokee Nation. As people drive by in Vinita they can learn more about our town and our community,” Vinita City Councilor Stephanie Hoskin said. The City Council worked with downtown store owners to find a space for the mural and with the Eastern Trails Museum for the mural’s photo. The project was funded through the city’s hotel tax. The photo depicts Mitchell making pottery in her studio. She is known for restoring the Southeastern-style of pottery back into the Cherokee culture. The tribe’s pottery tradition was not continued after removal to Indian Territory in the 1830s until Mitchell began making pottery in the 1960s. Mitchell was born Oct. 16, 1926, to Oo-loo-tsa and Houston Sixkiller in Delaware County. Several CN officials – including Mitchell’s daughter, Tribal Councilor Victoria Vazquez – attended the mural’s unveiling. “I saw it on the wall, and I was just blown away. It just made my heart soar because my dad especially would be so proud. He was very proud of what mom did, and if he could have been here today we would just be beaming, but I can feel what he would have felt,” Vazquez said. “Most of all, I’m just so proud of our community, the fact that we would have an idea to do this and make it happen in such a short period of time.” Cherokee National Treasure and graphic artist Dan Mink was responsible for the photo’s look. He said he was up for the challenge of designing the border and selecting the color and font. “Just thinking about what I was doing and what this lady represented, I just wanted to do a good job,” he said. “I thought the little script font that looked like a paintbrush type effect on there, I thought that, to me, it suited her well. I got the color off that vase or the pottery that’s in the picture. It was an ochre red, which is a traditional color of ours, so I took that color and made the border around it.” The mural, located at 127 S. Wilson St., will stay up until it is replaced with another notable Vinita resident who has made a contribution to the community.
BY LINDSEY BARK
Reporter
12/11/2017 08:00 AM
TAHLEQUAH, Okla. – The Cherokee National Treasures were honored by Cherokee Nation and Cherokee Nation Business officials with an annual holiday luncheon on Dec. 4 in the O-Si-Yo Room at the W.W. Keeler Tribal Complex. Treasures enjoyed a lunch catered by the Restaurant of the Cherokees and received $100 gift cards and chances to win door prizes. The luncheon was hosted by CNB, which officially took on the program in 2015. “Today’s event was the annual holiday luncheon for Cherokee National Treasures. This event brings treasures together to celebrate the holidays and a special meal together where they can visit and just catch up with everyone before the busy Christmas season,” CNB Senior Vice President of Marketing and Cultural Tourism Molly Jarvis said. Tribal Councilor and Cherokee National Treasure Victoria Vazquez spoke about the day’s importance. “It’s very important because throughout the year (Cherokee) National Treasures continually contribute to sharing the art and culture and language that they have learned and used for many years. A lot of times it’s done without anyone knowing about what they’ve done. So it’s a way to pay back for their giving because a lot of these treasures are elderly and probably have been doing this thing that they do probably for 25, 30 years. This is just a small pay back for them.” CN officials spoke about the CNT program and what it means to keep the arts, language and culture alive. Principal Chief Bill John Baker said since the recognition of treasures, the value of their art has increased. “I was talking to Lorene (Drywater)…and her (buffalo grass) dolls have gone up seven and a half times, which is part of the marketing,” Baker said. “I hope that all of our art goes up in value because it’s priceless. It truly is priceless. But it’s my honor and privilege to work with you and work for you. I’m always there with an open ear, an open mind and an open heart to help you do what you do.” Jane Osti, a Cherokee National Treasure for pottery, said she came to the event to see her “treasure” friends and thinks the program is on a “good path” with the mentoring program. “I think we are on a really good path with our mentoring. I think if we continue that, we can continue our arts and language and culture. I think that everybody is wanting to work toward that, that we have a good group of people that care about it,” Osti said. Many treasures brought their “Cherokee National Treasures: In Their Own Words” books to be signed by other treasures with the opportunity to visit and take photos. For more information, call 918-207-3503 or email <a href="mailto: cherokeenationaltreasures@cn-bus.com">cherokeenationaltreasures@cn-bus.com</a>.
BY ASSOCIATED PRESS
12/09/2017 02:00 PM
OKLAHOMA CITY (AP) — A nonprofit public watchdog is suing Oklahoma Attorney General Mike Hunter for refusing to release a special audit into criminal allegations connected to the state's effort to clean up heavily polluted communities in northwest Oklahoma. Washington, D.C.-based Campaign for Accountability filed the lawsuit in Oklahoma County District Court Monday against Hunter and Auditor and Inspector Gary Jones, seeking the audit's release. Jones' office conducted the audit in 2011 at the request of former Attorney General Scott Pruitt, President Donald Trump's pick to head the U.S. Environmental Protection Agency. But after the audit's completion, Pruitt ordered it not to be released. The audit looked into suspected unlawful contracting practices of a state trust involved in a buyout of residents in the lead-polluted communities. Hunter's office declined comment Monday on the lawsuit.
BY ASSOCIATED PRESS
12/07/2017 04:15 PM
SALT LAKE CITY (AP) — President Donald Trump's rare move to shrink two large national monuments in Utah triggered another round of outrage among Native American leaders who vowed to unite and take the fight to court to preserve protections for lands they consider sacred. Environmental and conservation groups and a coalition of tribes joined the battle Monday and began filing lawsuits that ensure that Trump's announcement is far from the final chapter of the yearslong public lands battle. The court cases are likely to drag on for years, maybe even into a new presidency. Trump decided to reduce Bears Ears — created last December by President Barack Obama — by about 85 percent and Grand Staircase-Escalante — designated in 1996 by President Bill Clinton — by nearly half. The moves earned him cheers from Republican leaders in Utah who lobbied him to undo protections they considered overly broad. Conservation groups called it the largest elimination of protected land in American history. The move comes a week after tribal leaders decried Trump for using the name of a historical Native American figure as a slur. On Nov. 27, Trump used a White House event honoring Navajo Code Talkers to take a political jab at Sen. Elizabeth Warren, a Massachusetts Democrat he has derisively nicknamed "Pocahontas" for her claim to have Native American heritage. "It's just another slap in the face for a lot of us, a lot of our Native American brothers and sisters," Navajo Nation Vice President Jonathan Nez said. "To see that happen a week ago, with disparaging remarks, and now this." Trump also overrode tribal objections to approve the Dakota Access and Keystone XL oil pipelines. The Navajo Nation was one of five tribes that formed a coalition that spent years lobbying Obama to declare Bears Ears to preserve lands home to ancient cliff dwellings and an estimated 100,000 archaeological sites. Native Americans visit the area to perform ceremonies, collect herbs and wood for medicinal and spiritual purposes, and do healing rituals. A lawsuit from the coalition of the Hopi, Ute Indian, Ute Mountain Ute, Zuni tribes and Navajo Nation was filed late Monday night. Earlier Monday, Earthjustice filed the first of several expected lawsuits, calling the reduction of Grand Staircase-Escalante an abuse of the president's power that jeopardizes a "Dinosaur Shangri-la" full of fossils. Some of the dinosaur fossils sit on a plateau that is home to one of the country's largest known coal reserves, which could now be open to mining. The organization is representing eight conservation groups. Trump, in a speech at Utah's Capitol with the governor and other politicians, said the state's lands should not be managed by "very distant bureaucrats located in Washington." "Your timeless bond with the outdoors should not be replaced with the whims of regulators thousands and thousands of miles away," Trump said. "I've come to Utah to take a very historic action to reverse federal overreach and restore the rights of this land to your citizens." The decision marks the first time in a half century that a president has undone these types of land protections. Trump's move followed months of lobbying by Utah's mostly Republican officials who said the two monuments closed off the area to energy development and other access. Environmental and tribal groups say the designations are needed to protect important archaeological and cultural resources, especially the more than 1.3 million-acre (2,030-square-mile) Bears Ears site featuring thousands of Native American artifacts. Navajo Nation Attorney General Ethel Branch said only Congress, not the president, has the power to reduce a national monument, something that the tribal coalition argued in its lawsuit. Additional legal challenges were expected from environmental groups and outdoor clothing company Patagonia. Outside Trump's announcement Monday, roughly 3,000 protesters lined up near the State Capitol. Some held signs that said, "Keep your tiny hands off our public lands," and they chanted, "Lock him up!" A smaller group gathered in support, including some who said they favor potential drilling or mining there that could create jobs. Bears Ears has no oil or gas, Interior Secretary Ryan Zinke told reporters, though Grand Staircase-Escalante has coal. Bears Ears, created nearly a year ago, will be reduced to 201,876 acres (315 square miles). Grand Staircase-Escalante will be reduced from nearly 1.9 million acres (nearly 3,000 square miles) to 1 million acres (1,569 square miles). Both were among a group of 27 monuments that Trump ordered Zinke to review this year. Democrats and environmentalists accuse Trump and Zinke of engaging in a secretive process aimed at helping industry groups that have donated to Republican political campaigns. Zinke accompanied Trump aboard Air Force One, as did Utah's Republican U.S. Sens. Orrin Hatch and Mike Lee. Hatch and other Utah Republican leaders pushed Trump to launch the review, saying the monuments designated by the former Democratic presidents locked up too much federal land. Trump framed the decision as returning power to the state, saying, "You know and love this land the best and you know the best how to take care of your land." He said the decision would "give back your voice." "Public lands will once again be for public use," Trump said to cheers. Hatch, who introduced Trump, said that when "you talk, this president listens" and that Trump promised to help him with "federal overreach." No president has tried to eliminate a monument, but some have reduced or redrawn the boundaries on 18 occasions, according to the National Park Service. The most recent instance came in 1963, when President John F. Kennedy slightly downsized Bandelier National Monument in New Mexico. Trump signed an executive order in April directing Zinke to review the protections, which Trump is able to upend under the 1906 Antiquities Act. The law gives presidents broad authority to declare federal lands as monuments and restrict their use. Zinke has also recommended to Trump that Nevada's Gold Butte and Oregon's Cascade-Siskiyou monuments be reduced in size, though details remain unclear. The former Montana congressman's plan would allow logging at a newly designated monument in Maine and more grazing, hunting and fishing at two sites in New Mexico. Patagonia President and CEO Rose Marcario said the outdoor-apparel company will join an expected court fight against the monument reduction, which she described as the "largest elimination of protected land in American history."
BY STAFF REPORTS
12/07/2017 12:00 PM
OKLAHOMA CITY – The Carolyn Watson Rural Oklahoma Community Foundation is accepting grant applications for projects in Cherokee County communities with a population less than 6,000. Designed to improve the quality of life for rural Oklahomans, the program will award grants to qualified nonprofit organizations or entities of state and local government for projects that will positively impact the community in the areas of arts, culture and history; health; and libraries and literacy. The deadline for grant applications is Jan. 15. The Community Grant program supports projects that provide opportunities for rural Oklahomans to improve themselves and their communities. Earlier this year, $168,140 was awarded for 16 community projects through the grant program. Grants are available for projects serving communities with a population less than 6,000 in Adair, Atoka, Bryan, Caddo, Cherokee, Choctaw, Coal, Greer, Harmon, Haskell, Jackson, Johnston, Kiowa, Latimer, Le Flore, McCurtain, Pushmataha, Sequoyah, Tillman and Washita counties. Grants of up to $10,000 will be considered for projects serving one eligible community and/or county and up to $15,000 for projects serving multiple eligible communities and/or counties. The one-year grant may be used to create a program or significantly expand an existing program and should benefit a broad range of individuals in the community. For complete grant guidelines and application information, visit <a href="http://www.ruraloklahoma.org/community-grants" target="_blank">ruraloklahoma.org/community-grants</a>. Call Erika Warren with questions at 405-606-2920 or email <a href="mailto: e.warren@occf.org">e.warren@occf.org</a>.