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.
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.
TESINA-JACKSON@cherokee.org • 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.

News

BY WILL CHAVEZ
Senior Reporter
12/19/2014 02:42 PM
EUCHA, Okla. – Eucha residents gathered on the evening of Dec. 13 to celebrate the opening of the new Eucha Community Center. The center’s opening was five years in the making after setbacks prevented residents from completing the 50-foot-by-75-foot building, which will be used by the Eucha Indian Organization and community. “We had a lot of problems. The roof blew off twice while we were trying to build it. Some of the guys got dissatisfied and they quit, but some of them stayed on. And then about three months ago I started coming up here and working on the inside of it,” community organizer Tad Dunham said. “We finally got it finished. Actually we got it finished yesterday (Dec. 12).” The center’s opening coincided with the annual Eucha Fire Department Christmas dinner. The fire department and its firefighters are a centerpiece for the community located about four miles west of Jay in Delaware County and about two miles north of Lake Eucha. Dunham said when the lake was built in 1952 the town was moved to its present location. In years past, the fire department, which is next door to the community building, backed its trucks out of the fire station to make room for events. “We always worried about them freezing this time of year because some of the water lines are only an eighth of an inch that go to the gauges and they freeze really quickly,” Dunham said. “Now we don’t have to pull them out. We can use this building (community center), and it just makes everything greater. Plus we have more room in here.” Cullus Buck, EIO chairman and EFD assistant chief, said the center would “mean a lot” because it gives residents a place to meet without using the fire station. “We opened up the fire department many times for family reunions and different things, and now this will take care of that, and we won’t have to worry about our trucks freezing,” Buck said. He said he wants to use the center to keep the area’s Cherokee heritage alive by having craftspeople and others visit to share their knowledge. “I’m going to try to get some beading classes in. My wife, she knows how to (do) that and some basket weaving. We had a guy come up and said he would teach knife (making), and I’ve got a couple of people who are interested in teaching the Cherokee language,” Buck said. He said he appreciates any help the Cherokee Nation could provide in preserving Cherokee heritage in Eucha but believes there are residents qualified to teach the Cherokee language and arts and crafts. The CN’s Community Work Program provided $116,000 to build the center, and the nearby Seneca-Cayuga Tribe in Grove and the Eastern Shawnee Tribe in Wyandotte also provided assistance. The Eastern Shawnee donated the building’s appliances, and the Seneca-Cayuga helped fund the Christmas dinner. “It wasn’t just the Cherokee Nation. Different tribes helped pitch in to get it (community center) done,” Buck said. “There was one point I wanted to give up. We got it all ready to go, had all the trusses up, and they all fell in because we had a tornado right down the road.” Dunham said he believes the building will begin an era in the community because people now have a gathering place for reunions, parties, weddings and funerals. “It’s going to open up the whole area for the community, not just the Eucha community but the surrounding area. It will be a general purpose building for the whole community,” he said. “I want to thank the Cherokee Nation not only for this building, but everything else they do for the community and all the Cherokee people – all the health care they provide, the roads they build – if you look around you can see their mark on about everything in the area, so we really appreciate the Cherokee Nation.”
BY ASSOCIATED PRESS
12/19/2014 12:47 PM
TULSA, Okla. (AP) – The Cherokee Nation has opened a tag office in Tulsa as it makes its license plates available to its citizens across Oklahoma. Principal Chief Bill John Baker says demand is up for Cherokee Nation license plates, so it was necessary to open a Tulsa office so it can deliver tags in a timely manner. The tag office opened Thursday with a ribbon-cutting ceremony. It joins five others - at Adair, Collinsville, Jay, Sallisaw and Tahlequah. The new office is in the Cherokee Nation Welcome Center off U.S. 412. In the last fiscal year, the Cherokee Nation generated $11 million in motor vehicle tag revenue, up $2 million from the earlier year. Funds are used for public schools, road and bridge improvement projects, and law enforcement.
BY TESINA JACKSON
Reporter
12/18/2014 04:00 PM
CATOOSA, Okla. – During its Dec. 5 meeting, Cherokee Nation Gaming Commission Chairwoman Stacy Leeds announced that starting in January the commission would require a series of amendments to its regulations to implement the recently amended Gaming Commission Act. “As you all know as soon as we hit the ground running in January we will require a series of amendments to our own regulations to implement the new ordinance, and our first order of business will be taking up changes to licensing,” Leeds said. CN Attorney General Todd Hembree said that whatever changes are made would come from the CNGC. “If policies are changed they will go through the Administrative Procedures Act, and there is a publication period and a public comment period,” he said. “These will not happen overnight. There are processes.” In April, Tribal Councilors limited the CNGC’s regulatory powers over Cherokee Nation Entertainment operations with Legislative Act 07-14. In June, the council made technical changes to that act with LA 17-14. Principal Chief Bill John Baker signed both acts but the amendments didn’t become law until they received National Indian Gaming Commission approval on Oct. 27. Before the NIGC approved the amended act, the CNGC regulated all gaming operations, including auditing, to ensure compliance with the act and any regulations adopted by the CNGC. The CNGC also enforces any gaming-related compacts with the state. The amendment calls for the CNGC to regulate and issue regulations only related to CNE’s gaming operations and follow only the NIGC’s minimum internal control standards or MICS. Before, the CNGC was required to establish tribal internal control standards or TICS to meet the tribe’s specific gaming needs. Nongaming operations would include areas such as food, beverage, hotel and entertainment. Because the CNGC would no longer be regulating them, they would fall under the regulation of Cherokee Nation Businesses and CNE, according to the amended act. “So it’s my understanding that the attorney general will visit with the council, see what their desires are and he’ll propose back to us regulations that would be put into effect and those would be put into effect in this body and through our regulatory process just like everything else,” Leeds said. “But I think as a courtesy to the council we get their point of view about how that is carried through and then it becomes part of our general regulatory structure like anything else would.” Hembree said if there were changes in policy there would be changes in the way CNB does business and it would have to follow the law and the policies. He added that he has met with Leeds, Gaming Commission Director Jamie Hummingbird, CNB officials to address changes and questions. “With any change there are questions. One thing I believe the intent of the amendments were was to ensure that CNB played on a level playing field with other gaming facilities and that the Cherokee Nation Gaming Commission was able to maintain their very well oversight of the gaming operations and that they adhere to the strict federal standards that are there,” Hembree said. “It comes into the interpretation of what is an operational facility, what is a gaming activity. Those are the questions that we are working out. I do not believe that there will be much that changes from the implementation of these amendments.” Hembree said he, Leeds and Hummingbird also met with NIGC legal staff in Washington, D.C., to discuss issues that may or may not arise. “I wouldn’t say concerns, but there’s unknown because we’re exploring new ground on this,” he said. “There are going to be questions that if X happens how does that effect Y, and that’s why we are meeting and working out the details and implementation. We’re not just blindly going into this. Before these things happen we talk it out and make sure we are all on the same page.” The revised act also called for the creation of a three member, non-voting advisory board to be made up of Tribal Councilors. According to the act, Tribal Councilors shall appoint the advisory board with members serving three-year terms. Leeds said the CNGC knows there will be an advisory board but commission officials have no guidance on how or when it’s going to be implemented. According to the previous and revised act, the CNGC is part of the tribe’s executive branch that carries out the Nation’s responsibilities under the Indian Gaming Regulatory Act and the NIGC’s regulations. The act states the CNGC shall be consistent with all laws and resolutions of the Tribal Council. When asked if the advisory board violates the Constitution’s separation of powers clause, Hembree said it does not because the board would serve as a non-voting board. He added that advisory board members would get access to information that a sitting commissioner would get. Hembree also said, as of Dec. 11, he had not met with the Tribal Council but would be giving suggestions to its legal counsel “as to the policies of how the advisory members are chosen, their length of term, how they resolve any potential or perceived conflicts of interest.”
BY STAFF REPORTS
12/18/2014 02:23 PM
TAHLEQUAH, Okla. – Hunger Buster Beef Cuts, a made-in-Oklahoma company, donated 720 pounds of beef cuts to the Cherokee Nation Foundation to supplement programs helping the tribe’s citizens facing food insecurities. Wal-Mart, Hunger Buster and Jason Christie, professional angler and CN citizen, presented the donation to tribal officials on Dec. 11. “Our mission is to provide education assistance to Cherokee students,” CNF Executive Director Janice Randall said. “We know hunger is often an obstacle to learning. This is a way for us to support the Nation’s efforts in addressing food insecurities and provide more food for backpacks going home with kids this winter.” As part of Christie’s partnership with Hunger Buster Beef Cuts and Wal-Mart, the company is donating 25 percent of all products sold at participating Wal-Mart locations to the CNF in the form of beef sticks. Hunger Buster as well as Cherokee Nation Businesses sponsors Christie. “Wal-Mart is proud to partner with Hunger Buster Beef Cuts and Jason Christie to provide a great product to our customers,” Jim Enneking, fishing buyer for Wal-Mart, said. “We are excited to be part of the donation to the Cherokee Nation Foundation to combat hunger.” Christie and Wal-Mart chose the CNF to receive the beef cuts in hopes a portion would be used to support backpack programs throughout the rural areas of the CN as well as other CN programs addressing food insecurities. Backpack programs provide a bag of shelf-stable food to elementary, junior high and high school students at risk of going hungry over weekends and school holidays. “I am a big advocate of giving back to the community, and Cherokee Nation is a major part of our community,” Christie said. “I take pride in representing Hunger Buster Beef Cuts not only because they are a healthy snack, but because of their 25 percent donation of food to charities. I value being a part of that.” Tribal Councilor David Walkingstick was instrumental in forming the partnership and praised the donation. “Jason is a former educator and coach at a rural school district and is aware of some of the hardships our kids face,” he said. “His generosity to give back to our tribe and help these kids from missing one less meal is overwhelming. It takes a tribe to raise these children.” “We couldn’t be more proud of Jason and his example of leadership and giving back,” Principal Chief Bill John Baker said. “We will work diligently alongside the foundation to ensure this donation supplements our existing programs. I know it will be utilized by Cherokee families and Cherokee children in need.” Hunger Buster beef sticks are 100 percent beef, gluten-free, low-calorie, low-carb, low-sugar and contain no MSG or trans fat. “Jason Christie is a valuable partner of ours, having been a major supporter of our products and our mission to help feed the hungry,” Richard Cranford, owner of QuarterShare LLC, said. “We are pleased that the Cherokee Nation Foundation is his choice to receive our donation. To provide children with nutritious snacks is a principal priority for our company.”
BY STAFF REPORTS
12/18/2014 12:21 PM
TULSA, Okla. – Cherokee Nation Technologies, a division of Cherokee Nation Businesses, has advanced and expanded its abilities to support unmanned systems integration and operations. Recently retired Department of Defense acquisition professional and naval aviator John Coffey is leading CNT’s efforts to offer unmanned support and services. “We have a long standing relationship with several key agencies focused on developing unmanned systems,” Steven Bilby, president of CNB diversified businesses, said. “John’s experience and knowledge has proven to be valuable and we look forward to his leadership in advancing our position in the market.” Coffey teamed up with the National Oceanic and Atmospheric Administration to create and implement an unmanned systems strategy that delivers recommendations for the operation of unmanned aircraft systems and other unmanned technologies as well. “This is a wonderful opportunity for CNT to advance into a thriving business with the potential to have a lasting economic impact and create jobs,” Coffey said. “There is estimated to be $70 to $100 billion pumped into the economy through the development of UAS (unmanned aircraft systems) over the next 10 years, and CNT is striving to be at the forefront of the industry.” The team works to conduct in-depth analyses of new and developing systems and evaluates the different observation requirements in hopes to establish how those needs can be attained by using unmanned aerial vehicles. According to a CN press release, the two major systems in development are the Puma, a ship-launched unmanned aerial vehicle specializing in low-altitude and short-endurance missions and the Global Hawk, which is the size of a 737 aircraft and made for high-altitude and long-endurance missions. “Our goal is to match systems to requirements that will increase organizational observing capacity and develop high-science-return missions such as high-impact weather monitoring, polar monitoring and marine monitoring,” Coffey said. “Unmanned systems have the potential to efficiently, effectively and economically fulfill observation requirements in an environmentally friendly manner, and it is a privilege to be a part of these industry advancements.” For more information, visit <a href="http://www.cherokee-cnt.com" target="_blank">www.cherokee-cnt.com</a>.
BY STAFF REPORTS
12/18/2014 10:18 AM
PORTLAND, Ore. – Eradicating Offensive Native Mascotry, a national group of Native American parents dedicated to ending the use of Native mascots, have shown support for the Oklahoma City Public School Board of Education’s recent decision to stop the re¬enactment of the 1889 Land Run and to change the name of the Redskins mascot at Capital Hill High School. According to its press release, the group stated it applauded “the efforts of Native American students and parents of OKCPS Native American Student Services to educate their community on the harm of Native mascotry.” For more information, call Jennie Stockle at 918-¬312-¬0467 or email jenniestockle@yahoo.com or call Jacqueline Keeler at 503-¬915-¬5011 or email <a href="mailto: jackiekeeler@mac.com"> jackiekeeler@mac.com</a>.