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 STACIE GUTHRIE
Reporter – @cp_sguthrie
03/22/2017 04:00 PM
TAHLEQUAH, Okla. – Tribal Councilors on March 20 amended Legislative Act 30-04 to limit “holdover” clauses to six months for people appointed to certain Cherokee Nation boards and commissions after their terms expire. According to the amendment, after six months, if no one is confirmed or appointed for the expired seat, it becomes vacant. The act passed 15-1 with Tribal Councilor Rex Jordan voting against it. Tribal Councilor David Thornton was absent. During the Feb. 22 Rules Committee meeting, Tribal Councilor Frankie Hargis said having some positions “holdover continuously for years” creates an “unstable environment” and a “time limit” is needed. “We have some positions that holdover continuously for years, a year or two. Maybe some having been longer, I don’t know. In my opinion it’s an unstable environment and we need to set a time limit,” she said. “It shouldn’t take more than a month or two to reappoint or replace a board member or commissioner, but set a time limit of six months to do that.” Chrissi Nimmo, CN assistant attorney general, said on Feb. 22 that boards and commissions such as Cherokee Nation Businesses, the Cherokee Nation Tax Commission and Cherokee Nation Gaming Commission would be affected by the amendment, while the Election Commission and Cherokee Phoenix Editorial Board would not. “I do believe that the way it’s written is the Election Commission and the Editorial Board would not be subject to…this at all because they both have their own statute on holdover previsions,” Nimmo said. “So this excludes Election Commission, Editorial Board, non-Cherokee entities for which we appoint and approve board members. The way the previous law was written any commission, board, agency that has it’s own enacting legislation that talks about how they’re appointed, how they holdover, this doesn’t change that. This is kind of the catch all for the ones that aren’t specifically mentioned elsewhere.” Thornton on Feb. 22 said he didn’t “see the point” of the amendment. “The very first thing I see is on E. of this legislation, the last sentence, ‘If no reappointment or new appointments have been confirmed, that seat becomes vacant.’ Well that seat’s vacant period if someone’s not sitting in it. Why should we have to make someone fill that seat within six months? This is counteracting exactly what I think you’re trying to do,” he said. Tribal Councilor Keith Austin on Feb. 22 said he was not “opposed” to the legislation but wished it included the EC and Editorial Board. “My only problem with it is that it doesn’t affect the problem with the Election Commission and it doesn’t fix the problem with the Editorial Board because the Editorial Board member that we appointed…is replacing one that was in holdover status for almost a year. Those two agencies both have a history of long holdover status. It’s important, especially with the Election Commission, that they have a full working staff. This is exactly what we need except for those two agencies and they’re excluded,” he said. Tribal Councilor Dick Lay on Feb. 22 said that passing the amendment was a “good start.” “This is the council, this is what we can affect today. We can affect and take on the other issues tomorrow. We can’t cure the world’s ills on one sweeping motion. This sets the progress for the boards and commissions that we have control over at this point and time,” he said. “This is a good start and I think it’s a bold move for this council to set the tone that you can’t just holdover these boards forever.” Nimmo added that the amendment would not apply retroactively. “We all agree that this can’t apply retroactively because our Constitution says,” she said. “There might be a disagreement on what retroactive means. Does it mean that someone who is currently in holdover status after six months they’re gone? I think probably not. I think to avoid retroactive application that this would only apply to newly appointed and confirmed people.” In other business, legislators: • Re-approved Leroy Qualls as a Cherokee Nation Foundation board member, • Increased the fiscal year 2017 capital budget by $102,733 to $279.5 million, • Increased the FY 2017 operating budget by $1.2 million to $667.9 million, • Approved a contract for the Oklahoma Tobacco Settlement Endowment Trust Healthy Living program, and • Authorized an application for a National Park Service grant to survey the Rose Cottage site.
BY JAMI MURPHY
Senior Reporter – @cp_jmurphy
03/22/2017 12:00 PM
TAHLEQUAH, Okla. – During the March 21 Rules Committee meeting, Tribal Councilors indefinitely tabled legislation aiming to have Cherokee Nation citizens vote this year on whether the tribe should allow same-sex marriage. “This has been an extremely sensitive subject within the Cherokee Nation. The Osages (Osage Nation), they had an election yesterday. It was favorable for the same-sex community. It passed 52 percent. The thing is, their people had a vote in the matter. Our people didn’t have a vote in the matter,” Tribal Councilor David Walkingstick, the legislation’s sponsor, said referring to Attorney General Todd Hembree’s Dec 9 opinion. The opinion, which has the weight of law, states two sections of the CN Family and Marriage Act – one defining marriage as between a man and woman and another prohibiting parties of the same gender to marry– were unconstitutional. Following the opinion, CN citizens Dawn Reynolds-McKinley and Kathy Reynolds-McKinley filed their marriage license on Jan. 19 at the CN Courthouse. As of publication, only two same-sex marriage licenses have been filed with the District Court. Walkingstick said as a legislator he did not think the attorney general’s office should be making laws because that was the Tribal Council’s job. Other legislators questioned whether to move forward with Walkingstick’s act because of a case in District Court challenging Hembree’s opinion. Tribal Councilor Curtis Snell on March 20 filed a declaratory judgment petition asking the court to declare lawful the two Family and Marriage Act sections Hembree opined were unconstitutional. “I don’t know at this time if it’s gone to the courthouse. I’m at odds to whether we should vote on it or not,” Tribal Councilor Dick Lay said. Tribal Councilor Keith Austin said he couldn’t vote for the legislation because the CN Constitution states “equal protection shall be afforded under the laws of the Cherokee Nation.” “Based on that alone, I can’t vote for something that denies a portion of our population a privilege or a benefit that is afforded other portions of our population,” he said. “That Constitution says equal protection. It doesn’t say equal protection for straight people. It says equal protection.” He added that he sees it as a violation of the Tribal Council oath of office to support legislation conflicting with the CN and U.S. constitutions. “If the voters came to us with an initiative petition then we would deal with that,” he said. “But for us to promote a law that is in conflict with the United States Constitution, I interpret that to mean that we are violating our oath of office.” Hembree said he wasn’t on either side of the same-sex marriage issue but on the side of the CN Constitution. He added that Walkingstick’s legislation was a legal nullity. “If you want to attempt to amend the Constitution to make gay marriage illegal, Mr. Walkingstick, I recommend that you do that. But in the resolution that you brought forward it doesn’t do that at all,” he said. “And whoever helped you draft this, Mr. Walkingstick, didn’t do it correctly.” Following the discussion, legislators voted 13-3 to table the bill with Tribal Councilors Shawn Crittenden, Lay and Walkingstick voting against. Tribal Councilor Don Garvin was absent. Kathy Reynolds-McKinley, who attended the committee meeting with her wife, said afterward that “equality shouldn’t be voted on, it should be expected” and that she and Dawn were happy to see the legislation not approved. “We don’t expect 100 percent support, but at bare minimum hope for mutual respect among tribal members,” she said. Walkingstick said the meeting “opened the eyes of our Cherokee people on our executive branch and attorney general.” “The Tribal Council has great faith in the Cherokee people and their ability to self-determine what’s right for them. It’s the Cherokee people’s tribe. I will make every effort that their voice will be heard, instead of one person or a few making the laws,” he said.
BY STAFF REPORTS
03/21/2017 12:00 PM
TAHLEQUAH, Okla. – Sequoyah High School will celebrate the 2017 3A state champion Sequoyah Lady Indians basketball team at 5:30 p.m. on March 22 at The Place Where They Play gymnasium on the SHS campus. According to an email from Athletic Director Marcus Crittenden, the public is invited to attend and celebrate “the outstanding achievements of these players and coaches.” “This is the second gold ball in three years for the Lady Indians, and the fifth in program history,” Crittenden said.
BY ASSOCIATED PRESS
03/21/2017 08:15 AM
NASHVILLE, Tenn. (AP) – President Donald Trump is paying homage to a predecessor, Andrew Jackson, with the highest form of flattery. Trump says the nation’s seventh president reminds him an awful lot of himself. The president paid a visit on March 15 to The Hermitage – Jackson’s Nashville home - to commemorate Jackson’s 250th birthday. Trump hailed Jackson as “one of our great presidents” and described some of their similarities. Trump’s team has long seized on parallels between the current president and the Tennessee war hero, comparing Jackson’s triumph in 1828 over President John Quincy Adams to Trump’s victory over Hillary Clinton last year. Trump described Jackson as a fellow outsider who pledged to represent the forgotten worker and took on the Washington establishment. “It was during the revolution that Jackson first confronted and defied an arrogant elite,” Trump said. “Does that sound familiar to you?” he asked his crowd. “Oh, I know the feeling, Andrew.” Trump said Jackson’s victory “shook the establishment like an earthquake” and talked about how he’d tried to sweep out government corruption, improve veterans’ care and impose tariffs on foreign countries to protect American workers - all things Trump pledged to do during his campaign. Trump spoke after taking a tour of the property, which included a stop at the home’s library. There, the curator told Trump that Jackson subscribed to 16 newspapers and made notes on stories about which ones he liked and disliked. On one editorial, he drew a big black “X'” to show his disapproval. “We know that feeling,” said Trump, who has been known to scrawl angry notes on reporters’ stories with a black Sharpie and send the marked-up stories back to them. Following a tour of the property the president placed a wreath at Jackson’s tomb. He stood, saluting, as taps played. Jackson has enjoyed a moment of resurgence thanks to Trump, who mused during his first days in Washington that “there hasn't been anything like this since Andrew Jackson” and hung a portrait of Jackson in the Oval Office after moving in. Historians had been souring on the slave-owning president, whose Indian Removal Act of 1830 commissioned the forced removal of Native Americans from their ancestral homelands. More than 4,000 died during their journeys west. Jackson’s standing had fallen so much that that the U.S. Treasury opted to remove Jackson from the $20 bill. But Howard Kittell, the President and CEO of the Hermitage mansion, said attendance at the museum has surged since the election. “Jackson is probably getting more media attention now than when he was president,” he said.President Trump visited President Andrew Jackson’s home in March to celebrate his birthday.
BY JAMI MURPHY
Senior Reporter – @cp_jmurphy
03/20/2017 07:45 PM
TAHLEQUAH, Okla. – The Cherokee Nation Supreme Court on March 20 heard arguments regarding Cherokee Nation citizen Randy White’s appeal of the Election Commission decision that disqualified him as a Dist. 11 Tribal Council candidate. Dist. 11 covers Craig County, northern Mayes County and northern Nowata County. Prior to appeal arguments, the court rejected two motions – one for intervention in the case by the tribe’s attorney general’s office and the other to dismiss made by the EC. Attorney General Todd Hembree said he should be able to intervene because of his responsibility to uphold the CN Constitution. However, White’s attorney, Deb Reed, said the election law (Title 26) states the EC contracts with its attorney and that no other attorney may work on its behalf. Regarding the dismissal motion, EC attorney Harvey Chaffin said Title 26 states the EC may present evidence and testimony and that it “intends the EC be made a party.” “Once they’ve made a decision it’s my job to support that decision,” he said about the EC. Reed said Title 26 does not say “shall be a party” and that the EC had made its ruling. After a recess, the court denied both motions and stated the EC was welcome to present its evidence and testimony. Attorney Curtis Bruehl – representing Chance Hayes, who challenged White’s candidacy – said, “to run (for office) you need to have Cherokee blood running through your veins.” He said the 2006 Lucy Allen v. Cherokee Nation ruling states the “only time a legal right, under Cherokee law, depends on Cherokee blood, is when a person decides to run for elected office…we rely on the blood degree findings of the Dawes Commission to make sure our principal chief and council members are Cherokee citizens by blood. This guarantees Cherokee control of government, but that government is ultimately elected by a larger and more diverse constituency of citizens.” White is Shawnee by blood but a CN citizen via an 1869 agreement with the U.S. government to adopt Shawnees. In court documents, Bruehl states White is a CN citizen by adoption but not “by blood.” He said the CN Constitution states the Tribal Council will consist of those “who are citizens by blood of the Cherokee Nation.” Chaffin said there are three types of CN citizenship – Cherokees by blood, Delaware by adoption and Shawnee by adoption. He said the Allen case sets forth the reasoning why the “by blood” be Cherokee and not just a citizen to be a candidate for office. “Cherokees want to be governed by the Cherokees,” he said. Reed said Article 6, Section 3 of the CN Constitution states “any citizen by blood of the Cherokee Nation…” can be a Tribal Council candidate. Reed has argued that the statutory definition of “citizen by blood” includes Shawnee Cherokees based on a 2007 Constitutional amendment, 1999 Constitutional Convention delegate intent and the attorney general’s representations to the federal courts. She has also stated the CN Citizenship Act requires a person to “prove back directly to an individual who is listed by blood on a base roll.” She states the act defines the “by blood base roll” to include Shawnee Cherokees for CN citizenship. “‘Base roll’ means a specific list of individuals used for determining tribal citizenship…Those final rolls by blood used for citizenship purposes are Cherokee by blood, Cherokee minors by blood, Delaware Cherokees and Shawnee Cherokees,” she stated. She added that she agrees CN citizens elect their representatives and that White is “asking for a chance to run.” After the hearing, White said he doesn’t understand the confusion because all parties “go by what the Constitution states.” “They’re all arguing the same thing, but if they meant you had to be Cherokee blood, actual Cherokee blood, then they need to write it that way and they didn’t,” he said. “We’ve had other Cherokee Shawnees and Cherokee Delaware on council before. Why now is it being challenged?” Reed said Greg Pitcher, a Cherokee Shawnee, and Wathene Young, a Cherokee Delaware served on Tribal Council previously. According to the Tribal Council’s website, Pitcher served Craig and Nowata counties, and Young was an At-Large councilor. The court said it would rule by March 28. To view court documents relating to the case, visit cherokeecourts.org.
BY STAFF REPORTS
03/20/2017 01:00 PM
CLAREMORE, Okla. – On March 25, the Indian Women’s Pocahontas Club will host its annual wild onion lunch complete with salt pork, fry bread, grape dumplings and sassafras tea. “This season brings the cleansing of the body and the thinning of the blood and fond memories of going with my daddy in his old white Ford truck. Walking through the woods alongside the running creek water until we discovered the green tips of spring peeking through the blanket of autumn leaves,” said Debra West, IWPC president. “The Indian Women’s Pocahontas Club welcomes you to share our tradition.” The lunch will be from noon to 2 p.m. at the Claremore Senior Citizen’s Center located at 475 E. Blue Starr Drive. Adult tickets are $15 and children 10 and under are $5. Tickets are available at the door. For reservations, call Ollie Starr at 918-760-7499.