Freedom Of Information Act was first in Indian Country

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.
About the Author
Born in Dayton, Ohio, Tesina first started working as an intern for the Cherokee Phoenix after receiving the John Shurr Journalism Award in 2009. Later that year, Tesina received her bachelor’s degree in journalism from Ball State University in Muncie, Ind., and in 2010 joined the Phoenix staff as a reporter.    

In 2006, Tesina received an internship at The Forum newspaper in Fargo, N.D., after attending the American Indian Journalism Institute at the University of South Dakota. She also attended the AIJI summer program in 2007 and in 2009 she participated in the Native American Journalists Association student projects as a reporter. Tesina is currently a member of NAJA and the Investigative Reporters & Editors organization. • 918-453-5000 ext. 6139
Born in Dayton, Ohio, Tesina first started working as an intern for the Cherokee Phoenix after receiving the John Shurr Journalism Award in 2009. Later that year, Tesina received her bachelor’s degree in journalism from Ball State University in Muncie, Ind., and in 2010 joined the Phoenix staff as a reporter. In 2006, Tesina received an internship at The Forum newspaper in Fargo, N.D., after attending the American Indian Journalism Institute at the University of South Dakota. She also attended the AIJI summer program in 2007 and in 2009 she participated in the Native American Journalists Association student projects as a reporter. Tesina is currently a member of NAJA and the Investigative Reporters & Editors organization.


11/27/2015 04:00 PM
TAHLEQUAH, Okla. (AP) - In preparation for upcoming balloting, the Oklahoma Scenic Rivers Commission has made notification of its Dec. 1 election and eligible candidates. The election is Dec. 1 for commissioners representing Cherokee and Adair counties. Those elected serve a term of four years on the OSRC Board of Commissioners, which numbers 12. Running for Cherokee County representative are Gary Dill, incumbent John Larson, Kathy Ryals and Howard Tate. Incumbent George Stubblefield and Kathy Tibbits are running for Adair County representative. Steve Randall, incumbent, is unopposed for the Delaware County seat. Under its rules, the OSRC must post prior public notice of the election in five conspicuous locations in both Cherokee and Adair counties. It must also be published twice in newspapers of record in each county and sent by email to all on the OSRC email list. Eligible voters must be registered to vote in Oklahoma, and reside or own real property within 660 feet of a scenic river. They must also have filed a voter registration qualification affidavit with the OSRC between 2001 and Nov. 7, 2015. Absentee voting is prohibited. Voters may cast ballots from 7 a.m. – 7 p.m. Cherokee County polling site is OSRC Headquarters, 15971 Highway 10, two miles northeast of Tahlequah. Adair County polling site is the Chewey Area Community Center. For further information contact Ed Fite, OSRC administrator, at 918-456-3251 or write to <a href="mailto:"></a>.
Assistant Editor
11/27/2015 12:00 PM
OKLAHOMA CITY – The Oklahoma Indian Gaming Association held a Nov. 17 press conference at the Gaylord-Pickens Oklahoma Heritage Museum to celebrate tribal gaming’s nearly billion-dollar contribution to education in the state. OIGA officials released findings from the 2015 Inaugural Statewide Economic Impact from Oklahoma Tribal Governmental Gaming study. The study states more than $980 million from Oklahoma-based gaming tribes has been deposited into two state education funds in the 10 years since gaming was approved by a statewide vote. “We are thrilled to share the results of this important study, and happy to have such a great story to tell about our vital and growing industry,” OIGA Chairman Brian Foster said. “We are very proud of the enormous contribution our Oklahoma tribes in gaming have been able to make to education and look forward to that number growing substantially in the coming years. With our continued commitment to financially supporting education in Oklahoma, we want to become a driving force in making our state’s education system one others want to emulate.’’ According to the Cherokee Nation’s gaming compact with Oklahoma, the tribe pays fees on Class III gaming activities to the state’s treasurer. The compact states the tribe pays 4 percent of the first $10 million, 5 percent of the next $10 million and 6 percent of any subsequent amount of adjusted gross revenues received by the tribe from its electronic games, as well as a monthly 10 percent payment of net wins from non-house banked card games. In exchange for these fees, the tribe receives certain geographic exclusivity, limits to the number of gaming machines at existing horse racing tracks and the prohibition of non-tribal operation of certain machines and covered games. Prior to the 2004 approval of State Question 712, Oklahoma-based tribes could only operate Class I or Class II gaming, which did not require state compacts. According to, there are now 34 tribes that have state gaming compacts. According to a Nov. 16 Cherokee Nation Gaming Commission report, the CN has paid $162.9 million in gaming exclusivity fees, or compact fees, to the state since 2005. That report also states that $12.1 million in compact fees had been paid this year, with four months remaining. According to the report, compact fees include payments to the state, Fair Meadows racetrack in Tulsa and the Oklahoma Horse Racing Commission. The Nation’s payments to the state alone total $111.7 million since 2005, according to the CNGC report. Principal Chief Bill John Baker said the OIGA study shows tribal governments have and will continue to make the state stronger and better for all Oklahomans. “For the Cherokee Nation and other tribes in Oklahoma, gaming represents economic opportunities that improve the lives of our tribal citizens. But secondary economic impacts from gaming revenues are equally important. The direct revenue we pay to the state of Oklahoma is significant, but the Cherokee Nation and other tribes also support thousands and thousands of jobs. That impact on Oklahoma families is immeasurable,” he said. “Money generated by our casinos also creates additional educational opportunities for our children, improves roads and infrastructure in our neighborhoods, provides greater access to quality health care and creates homeownership opportunities for our citizens. Our impact on the lives of Oklahomans is very real. Since the passage of State Question 712, 10 years ago, the tangible results have far surpassed initial expectations, and we are eager to continue our work making Oklahoma better for all.” According to OIGA, the state initially projected $71 million per year in revenue from gaming compacts. Other highlights of the study were: • The total estimated impact on Oklahoma from gaming was nearly $6.2 billion in 2014, • Tribal gaming is now Oklahoma’s 19th largest employment sector, • In 2014, tribal gaming supported 23,277 jobs – 19,523 of which were full-time positions, • Tribal gaming workers earned $1.16 billion in wages and benefits in 2014, and • Gaming workers paid more than $264 million in state and federal payroll taxes in 2014. For more information on the OIGA study, go to <a href="" target="_blank"></a>.
11/26/2015 04:00 PM
TAHLEQUAH, Okla. – On Nov. 21, the 2015-16 Cherokee Nation Tribal Youth Councilors were sworn into office to begin serving and potentially help shape future tribal policy. “It’s going to be a good opportunity to get involved and make a difference and build relationships within the tribe,” Laurel Reynolds, a Claremore High School sophomore, said. The 17-member Council learns the CN Constitution and bylaws and identifies issues affecting Cherokee youths to pass on to the Tribal Council and administration. The leadership program started in 1989 and has 184 alumni. Students meet monthly and serve as tribal ambassadors. “The best days of the Cherokee Nation are in front of us and we need leaders in every field imaginable from doctors, lawyers, engineers, teachers, administrators and business people. Leadership starts with young people like you, who are willing to serve,” Principal Chief Bill John Baker said. “The Tribal Youth Council is an opportunity for young Cherokees from all over the 14-county tribal jurisdiction to gain exposure to our tribal government, get to know the elected officials and have a voice in the discussions that will impact the Cherokee Nation today and in the future.” The 2015-16 Tribal Youth Council members are Taylor Armbrister, of Kansas; Jori Cowley, of Vinita; Bradley Fields, of Locust Grove; Amy Hembree, of Tahlequah; Camerin James, of Fort Gibson; Austin Jones, of Hulbert; Destiny Matthews, of Watts; Emily Messimore, of Claremore; Treyton Morris, of Salina; Sarah Pilcher, of Westville; Sunday Plumb, of Tahlequah; Laurel Reynolds, of Claremore; Abigail Shepherd, of Ochelata; Julie Thornton, of Gore; Chelbie Turtle of Tahlequah; Jackson Wells, of Tahlequah; and Sky Wildcat, of Tahlequah.
11/26/2015 12:00 PM
KETCHUM, Okla. – Pine Lodge Resort at Grand Lake is inviting people to its 12th annual “Winter Wonderland Christmas Light Tour” seven nights a week from 5 p.m. to 10 p.m. from Nov. 26 through January 1. The “old fashion” Christmas light display features nearly half a million lights, lighted antique vehicles, a nativity scene and a host of characters. Admission is free and visitors may drive or walk through the light displays. Pine Lodge Resort is located one-hour northeast of Tulsa and 2.5 miles east of Ketchum off of Hwy 85. The resort, owned by Art and June Box, a Cherokee Nation citizen, sits near Grand Lake and has 17 cabins, seven mobile homes and RV sites for rent. The couple opened Pine Lodge Resort 15 years ago. Ten minutes away from the resort is golfing, a swim beach, spas, hiking, wave runner rentals and the South Grand Lake Regional Airport with free shuttles to and from the airport provided by the Pine Lodge Resort staff. The lodge is also close to casual and fine dining. Groups may reserve the resort’s clubhouse for dinners or special occasions. The resort has won the “Crystal Pelican Award” given by the Grand Lake Association for “The Most Outstanding Visitor’s Accommodations.” For more information, call 918-782-1400 or visit the Pine Lodge website at <a href="" target="_blank"></a>. You can also find the resort on Facebook.
Senior Reporter
11/26/2015 08:00 AM
VINITA, Okla. – It’s easier for tribal leaders today to keep in contact with constituents via phone calls, social media and emails, but for Dist. 11 Tribal Councilor Victoria Vazquez nothing is better than seeing them in person. Dist. 11 encompasses Craig County and parts of Mayes and Nowata counties, and Vazquez said she tries to hold meetings to allow constituents to meet with her, other tribal leaders and representatives from Cherokee Nation programs and departments that are based in Tahlequah about 70 miles south. “It puts a more personal spin of what my job really is because I talk to individuals at those meetings, and they hear me talk things they don’t see on Facebook,” she said. The meetings help her hear concerns from constituents. She then takes those concerns to the Tribal Council and other tribal representatives who may be able to address them. “So many times after a community meeting I will go home with five or six issues that a citizen has told me about at the meeting and then the next day I call or email people in those (CN) departments,” Vazquez said. During a Nov. 17 meeting at the tribe’s Vinita Health Center, staff from Cherokee Nation Businesses; Election Commission staff, who helped people register to vote; Education Services; Marshal Service; Tax Commission, who provided information about the new hunting and fishing license program; Health Services, who gave free flu shots; Human Services; Child Support Services; Dental Services; and Housing Authority of the Cherokee Nation assisted CN citizens. She said citizens also appreciated seeing their leaders. Principal Chief Bill John Baker, Deputy Chief S. Joe Crittenden, Secretary of State Chuck Hoskin Jr. and Chief of Staff Chuck Hoskin Sr. all attended. The Hoskins are from Vinita and both served as Tribal Councilors and worked to bring more attention to the needs of people in the Vinita area. Hoskin Sr., who served three four-year terms on the council from 1995 to 2007, said he has “witnessed tremendous growth” in the area since his childhood. He said “to be quite honest” during all the years of him growing up in Vinita until he got on the council in 1995, if you asked anyone in the Vinita area if there were CN services available “the answer would be no.” “The only type of services we had was our housing addition out there, Buffington Heights, but as far as service, there wasn’t any,” he said. “Obviously, as you can tell this evening, there’s a lot of Cherokee up here, and I knew that, and the people that live up here, we knew that. So, that was the message, when I was first elected, that people told me to take to Tahlequah, and that’s exactly what I did.” Hoskin Sr. said he was glad to serve with a council that believed tribal services were for everyone no matter where they lived in the CN. “I’m proud to say we started the first Cherokee health care in Vinita in 1996 when we got the mobile clinic up here. It came to Vinita one day a week, and the people showed up. I used those (clinic) numbers to prove Cherokees were here. We just needed to provide services.” He said Principal Chief Bill John Baker, who served on the Tribal Council with him, also advocated for services for people in Vinita. “As more services began to come up here, more and more people began to come out and take advantage of them and use them,” he said. He said the town eventually received a walk-in clinic and finally a 92,000-square-foot health center in 2012, which was justified by the number of people in the Vinita area who needed and utilized CN services. Leon Dick, 81, of Vinita, who is Shawnee and Delaware and a CN citizen, said he comes to the community meetings to “find out what’s going on,” to fellowship and for “the eats.” He also gets to see family and friends in one place, he said. He said he grew up in nearby White Oak and takes part in the Shawnee stomp dances there, reading the Shawnee prayer before the dances. He said he appreciates the Vinita Health Center because he only has to drive 4 miles to receive medical care and no longer has to drive to the Claremore Indian Hospital nearly 40 miles away or the tribe’s Nowata clinic about 29 miles away. “At Claremore you’ve got to wait all day and sit around there all day. Here you get taken right in,” he said. Vazquez said Vinita has long been a center for Cherokees who built their homes and businesses there. Cherokee attorney Elias C. Boudinot established the Craig County seat in Vinita in 1871. “It was a center for Cherokees. They built the buildings and lived here, and we had chiefs come from here, streets are named after Cherokees,” she said. More attention is being brought to that history, she said, because the tribe now has more money to give to the Eastern Trails Museum in Vinita, which stores and displays the area’s history, and to buy artifacts and art to showcase the history of Vinita and Craig County in the Vinita Health Center. “We have a very caring and giving administration, and I’m just thankful to be a part of that and because of that I’m able to share much more locally than I have been in the past,” Vazquez said.
11/25/2015 04:00 PM
KESHENA, Wis. – The Menominee Indian Tribe of Wisconsin is suing federal Drug Enforcement Administration and Department of Justice after federal agents destroyed the tribe’s industrial hemp crop on Oct. 23. “The Menominee Tribe, in cooperation with the College of Menominee Nation, should have the right under the Farm Bill to cultivate industrial hemp in the same manner as Kentucky, Colorado and other states,” Gary Besaw, Menominee chairman, said. “These and other states cultivate industrial hemp without threats or interference from the United States government. In contrast, when our tribe attempted to cultivate industrial hemp we were subjected to armed federal agents who came to our reservation and destroyed our crop. The Department of Justice should recognize the equality of tribes under the Farm Bill, and provide us with the same respect they have demonstrated to states growing industrial hemp for research purposes.” Industrial hemp, which can be grown as a fiber and a seed crop, is used to produce a range of textiles, foods, papers, body care products, detergents, plastics and building materials that are available throughout North America, Europe and Asia. Unlike marijuana, it has no psychoactive effect. Farmers in more than 30 countries around the world cultivate industrial hemp. “This is a straightforward legal issue,” Brendan Johnson, Menominee attorney, said. “The lawsuit focuses on the specific legal question of whether the Farm Bill’s industrial hemp provisions apply to Menominee. We are confident that the provisions do apply to Menominee, that Menominee is authorized under federal law to cultivate industrial hemp consistent with those provisions and that a federal court will read the Farm Bill provisions as we do and require the federal government to recognize Menominee’s rights under federal law to cultivate industrial hemp.”