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.


10/21/2016 04:00 PM
GROVE, Okla. – Cherokee Nation Entertainment officials are hosting two job fairs in November to help fill available positions at the new Cherokee Casino Grove. The job fairs will be held from 10 a.m. to 2 p.m. on Nov. 2 and from 3 p.m. to 7 p.m. on Nov. 14 at the Grove Community Center at 104 W. 3rd St. Attendees should bring their Certificate Degree of Indian Blood and tribal citizenship cards as well as an updated resume. Positions are available in gaming, operations, hospitality, security, maintenance and food and beverage. According to a CNE press release, Cherokee Nation-owned companies offer a comprehensive benefits package, including health, life, vision and dental insurance; a matching 401k plan, paid vacation and sick leave; and many other benefits. Native American applicants will be given preference, and all applicants must be 18 years of age or older to apply. Cherokee Casino Grove is located at Highway 59 and E. 250 Road near Tom Cat Corner and close to the popular Shangri-La Golf Club, marina and resort at Monkey Island.
10/21/2016 03:00 PM
TAHLEQUAH, Okla. – Applications for the 2017 “Remember the Removal” bike ride are available for Cherokee Nation citizens. The application deadline is midnight Oct. 28. The three-week, 1,000-mile ride in June teaches CN citizens ages 16-24 about their culture and history as they cycle the same route their ancestors were forced to walk in 1838-39 to Indian Territory, now Oklahoma. The route travels through seven states testing the cyclists’ physical and mental endurance. If selected to participate, participants would be required to take part in a physical training schedule and attend history classes. The classes will be taught during the four months of training to prepare for the ride. Participants will learn about the struggles their ancestors. The selection committee, whose members will not be related to any applicant, will review the required essays and applications submitted. It will be looking for CN citizens willing to learn more about Cherokee history and their ancestry related to the Trail of Tears. Successful applicants will be expected to interact with the public and speak to the public about their experiences on the ride. “Remember the Removal” cyclists also will be photographed, videoed, interviewed during the trip. So the committee will be looking for riders who are personable, well-spoken and would make ambassadors for the CN. Applicants must not have participated in the program before, be 16 to 24 as of Jan. 1 prior to the event and be able to pass a sport physical provided by the CN during the post-selection orientation. It is recommended participants reside inside the tribe’s jurisdiction, including the contiguous counties. Participants may have a different temporary address while away at school. If a participant lives outside the jurisdiction he or she will still be required to make all mandatory trainings and history classes in Tahlequah. Applications are online at <a href="" target="_blank"></a> and must be submitted by Oct. 28. The application requires an essay about why the applicant wants to participate, three letters of recommendation mailed or emailed to <a href="mailto:"></a> directly from the recommending party by the application deadline. Letters of recommendation should not be from CN employees, administration officials or Tribal Councilors. Letters should be from someone the applicant has worked with academically or professionally or a person they have known for a minimum of three years. For more information, call Gloria Sly at 918-453-5154 or email <a href="mailto:"></a>.
10/20/2016 04:00 PM
LITTLE ROCK, Ark. (AP) — Campaign finance reports show the Cherokee Nation gave $6 million to the group behind a casino legalization proposal that was disqualified from the November ballot, while a dog track and horse track gave more than $1.4 million to the campaign opposing it. Arkansas Wins in 2016 reported Monday the Oklahoma-based tribe made up the bulk of $6.1 million in total contributions raised for its proposal to legalize casinos in Boone, Miller and Washington counties. The Arkansas Supreme Court last week disqualified the measure. The campaign said earlier this year Cherokee Nation would run the Washington county casino if the measure passed. Delaware North, which Southland Park Gaming and Racing, donated more than $721,000 on the campaign against the measure. Oaklawn Racing and Gaming in Hot Springs donated more than $748,000.
10/20/2016 12:00 PM
STILLWATER, Okla. (AP) — The attorney for a woman charged with driving her car into spectators at Oklahoma State University's homecoming parade and killing four people says he's given a judge and prosecutors a psychologist's report on a mental evaluation of the woman. Cherokee Nation citizen Adacia Chambers has pleaded not guilty to four counts of second-degree murder and 42 counts of assault and battery in the crash that occurred Oct. 24, 2015, in Stillwater. Attorney Tony Coleman has previously indicated plans to raise the question of mental illness or insanity at Chambers' trial set for January. Prosecutors say they'll have their own psychologist examine Chambers. A motion to move the trial out of Payne County because of pretrial publicity and several other defense motions were scheduled to be considered on Dec. 6.
Senior Reporter – @cp_wchavez
10/20/2016 08:30 AM
TAHLEQUAH, Okla. – After the Cherokee Adult Choir sang the last notes of Amazing Grace, the descendants of Margaret “Peggy” Dick, a Trail of Tears survivor, gathered around her grave for photos and to say their goodbyes. Her descendants gathered Oct. 15 at the Tahlequah City Cemetery to honor their common ancestor who had traveled the Trail of Tears as an infant with her parents Ti-kah-eh-ski, known in English as Dick Easky, and her mother Patsy Tidwell. They had lived in the old Cherokee Nation at Suwanee Old Town on the Chattahoochee River in what is now Gwinnett County, Georgia. Peggy’s older siblings Nancy, Alsie, Susie, Pressha and Andrew also made the journey west to Indian Territory with the Moses Daniel detachment. David Stand of Tahlequah said he was happy to meet many new relatives among the people who came to honor their common ancestor. He added his “heart is heavy” for what his great-grandmother went through to make it to Indian Territory. Stand said he knew very little about his grandmother other than what his dad and aunts shared with him as a young man. He said what he now knows about his grandmother was learned recently through his daughter Robin’s research. “It’s honor and a blessing. I was humbled because I didn’t know I was going to meet all of these people who are family,” Stand said. “I feel a rebirth because I now know who my grandmother was and what she endured on the Trail of Tears.” Birth records from the old Cherokee Nation can be sparse or non-existent, but it’s believed Margaret “Peggy” Dick was born about 1838 at what is now Ball Ground, Georgia. The family had moved from Suwanee Old Town to the Ball Ground area near the confluence of the Etowah River and Long Swamp Creek because of problems with white encroachment. Her Cherokee name was Wakee, but she was frequently called “Peggy.” In the spring of 1838, U. S. soldiers began rounding up Cherokees to begin the forced removal west. After a delay during the summer, the Easky family left with the Daniel detachment on Sept. 30, 1838, from Bradley County near present-day Cleveland, Tennessee. They arrived in Indian Territory on March 2, 1839, and disbanded at Webber’s Depot in what is now Stilwell after traveling 164 days and suffering approximately 48 deaths. Robin Stand of Tahlequah is the great-great granddaughter of Dick. She said about a year ago she began researching her ancestors on, so that she could have information to share with her son and family members. Through her research she met relatives Sue and Harry Hood and Kori Carriger, another great-granddaughter. “We started digging and we started sharing back and forth. Sue and Harry did the extra steps to talk to the Trail of Tears (Association) to get the plaque put on her grave,” she said. “It’s humbling and it’s a honor, and I’m just glad I was able to participate and pull this all together for my family on the Stand side.” Stand said at least six generations of Dick’s family attended the Oct. 15 marking ceremony. She added on the Stand side of the family she was able to go back six generations and on the Dick side she went back seven to eight generations. “I’m pretty astonished by how much I’ve been able to find,” she said. In 1839, the Easkys settled in the Going Snake District of the Cherokee Nation. Dick Easky died in 1840. About 1855, Peggy married an Old Settler Cherokee, Alexander Campbell. They had one son, Alexander. Peggy’s husband died about 1857 and about 1859 she married Jack Daugherty Stand. They had one son, Robin Bruce Stand. Jack died early in the Civil War. About 1863 Peggy married Charles Dick who was of Creek and Cherokee descent. They had six children, Andrew Dick, John Henry Dick, Sarah Dick, Taylor Dick, George Washington Dick and Charles A. Dick. The Dick family farmed in what is now Adair County. Peggy Dick died on December 7, 1887 in Tahlequah and Charles Dick died on July 27, 1888. They are both buried in the Tahlequah City Cemetery. Sue Franklin Hood of Fort Worth, Texas, said her mother was of the Dick family and was born in Checotah, Oklahoma. She married her father who was in the Air Force and moved the family extensively, so she did not grow up in Oklahoma and did not get to learn about her Cherokee heritage. When she began researching her mother’s family she discovered Margaret Dick was her great-grandmother. “It was a very inspiring learning situation, and it brought me to these cousins I’ve never met before,” she said. “It’s such an amazing feeling for everyone to come together and honor this woman that went through so much.” She added she wanted the family attending the ceremony to understand that the forced removal of her ancestors is not just confined to history books, it happened to Cherokee families like theirs. Oklahoma Chapter of the Trail of Tears Association President was present at the Oct. 15 ceremony and unveiled a bronze plaque that the association had attached to Dick’s headstone. The plaque reads: “In honor of one who endured the forced removal of the Cherokees in 1838-39. The Trail of Tears Association Oklahoma Chapter.” The plaque also includes the TOTA and Cherokee Nation seals. “It’s a privilege for us as the Oklahoma Chapter of the Trail of Tears Association to mark your ancestor’s grave who came on the Trail of Tears,” Rohr told the family. “This is one of our main projects in the Oklahoma chapter, so we are very privileged and honored to be able to do this.”
Media Specialist – @cp_rgraham &
Senior Reporter – @cp_jmurphy
10/19/2016 04:00 PM
TAHLEQUAH, Okla. – The Cherokee Nation Election Commission met on Oct. 11 and approved the candidate packets and disclosure reports to be used for the upcoming elections in 2017. Candidate packets will be available on Dec. 1 and candidates can begin accepting donations on Dec. 2, according to EC officials. Also approved during the meeting, was the election calendar for 2017. Included in the calendar were the filing dates for candidates, which unlike in years past, filing for candidacy is the first Monday in February. The calendar is available online at <a href=",Maps,VotingLocations.aspx" target="_blank">,Maps,VotingLocations.aspx</a>.