Access in Indian Country

Access to Information in Indian Country

By Kevin R. Kemper

Never will I forget sitting with a group of American Indian journalism students at a tribal headquarters, where we had the honor of interviewing tribal leaders and attorneys.  I asked whether the tribe had an open records law 

“Yes,” said a leader, who explained that the tribe had problems with people getting information and “causing problems,” so tribal members who wanted to see records had to sit in an office, where a tribal leader would hold up the document for the person to see - no copies to take home or disseminate.  It was an informal policy – no written statutes or constitutional provisions about freedom of information (FOI) at that time.

That reminds me of the attorney who represented a tribe, only to be told he could not see all of that tribe’s constitution because it contains sacred knowledge.  The elders told him that he would be told what he needed to know.

Journalists who are not American Indian or Alaska Native, or at least who do not have years of experience with journalism in Indian Country, might cringe or even chuckle at these anecdotes and believe the faulty notion that tribal governments are backwards and undemocratic.

On the contrary, tribal governments function out of a complicated mix of federal mandates, tribal and non-tribal cultures, and political exigencies.  We do want to protect dissemination of sacred knowledge.  There are some things I know about the Choctaw and Cherokee that I never will print or repeat – they are too sacred. 

On the other hand, we do believe in democracy.  One must have access to public information to have democracy.  So, the Cherokee Nation has an FOI law.

Here are some basic concepts about tribes and access to information.  We invite NAJA members and others to share what they know – case law, statutes, anecdotes, etc.  If appropriate and helpful, that information will be gathered, edited, and published in this module.

Access to information is an international human right.

Article 19 of the United Nations Universal Declaration of Human Rights says:

Everyone has the right to freedom of opinion and expression; this right includes freedom to hold opinions without interference and to seek, receive and impart information and ideas through any media and regardless of frontiers. 

The U.N. Declaration on the Rights of Indigenous Peoples specifically, without question, includes that as part of the rights of indigenous peoples.

Once, I made a written public records request to a tribe, only to be ignored.  Well, that has happened more than once.  Later, I met the attorney who advised that tribe on how to respond (or not).  He said, “You wrote it as if you thought you had a right to that information.”

Maybe. Maybe not.  Often, tribal governments take the position that only members have any kind of right to tribal information.  I take the position that I have “freedom … to seek, receive and impart information and ideas through any media and regardless of frontiers.” 

Given the challenges of protecting tribes from oppression, colonialism, theft, and misappropriation, I understand why and how tribes create barriers to access.  I may not like it most of the time but I understand it.

In an applied research article in Asia Pacific Media Educator, I provide a template for how to “EARN access” for covering sacred information like tribal religion.  The template would work with how to access tribal documents, so I have adjusted it some for this article.

  • EDUCATE yourself about information boundaries that tribes set;
  • APPRECIATE why and how those boundaries have been created;
  • RECIPROCATE in every way possible, as long as you maintain your integrity;
  • NEGOTIATE when you believe something different would be benefit to all parties

You cannot get information from tribes if you are seen as destructive to that tribe.  You have to earn trust, build friendships, and collaborate.  There are times, of course, that this pushes ethical boundaries for journalists.

This is where we need your help.  Please send your ideas.

  • What are the informational boundaries for your tribes?
  • Do you have an FOI law?  What does it say?  Is it helpful?
  • What are unofficial ways you get access?
  • What are your biggest challenges?
  • How can NAJA serve you in this area?

Please send your ideas to legalhotline@naja.com.  The more we help each other, the more we grow and prosper.