Recognizing media protections in Indian country

From the Summer 2009 issue of The News Media & The Law, page 10.

A judge issued a temporary restraining order in August 2008 against freelance journalist Nancy Kelsey that restricted what she could report. Kelsey had been named as a defendant in a defamation suit. The plaintiffs sought to curb her journalism until the trial. In February, the restraining order became a preliminary injunction.

A year later, Kelsey is still restricted in her pursuit of the story.

It sounds like a clear-cut case of prior restraint, which raises the question of how Kelsey's dilemma is possible. The answer: The story she was pursuing had to do with alleged enrollment discrepancies in the Little River Band of Ottawa Indians. The defamation suit was brought in tribal court, which is not bound by First Amendment legal precedent.

So the injunction stands, while Kelsey waits for the Little River Ottawa's court of appeals to decide a case of first impression, despite a long history of American courts refusing to uphold such orders.

The conflict

Kelsey is concerned that her free press claims will be overlooked because of the topic of her reporting. She was examining enrollment discrepancies, which is connected to the concept of "blood quantum," a particularly sensitive issue in Indian country.

"By calling it a blood quantum issue, we're losing sight of this as a free speech issue," Kelsey said of her reporting. "People are walking on egg shells."

Blood quantum is how some tribes measure whether a person is eligible for enrollment. It is calculated based on how many ancestors a person has on old tribal rolls, often dating from the 19th or early 20th centuries. Tribes set a minimum for the "quantum" of Indian heritage that a person must have in his family tree, ranging from one-thirty-second to one-half. So in a tribe that sets a one-half standard, a person one generation removed from the tribal roll would need one parent on the list; a person two generations removed would need two grandparents included.

At the time the defamation suit was filed, Kelsey was still in the newsgathering stage of her story. She was comparing documents submitted to the Bureau of Indian Affairs in 1908 with self-reported documentation given by the Little River Ottawa to the Northern Michigan Ottawa Association in the 1960s.

The Northern Michigan Ottawa Association was an umbrella group formed in the 1940s to help groups of Ottawa regain or restore their rights, including their status as federally recognized tribes. The Little River Ottawa regained their status in 1994.

Kelsey said her reporting turned up discrepancies between the sets of records, which were the subject of several e-mail messages sent out to a listserv maintained by Kelsey's co-defendant, Jolene Ossiginac. The discrepancies raised questions about the genealogy of some tribe members' ancestors.

Kelsey was about to pitch the story to Reznet News, an online news site about Indian life, when the defamation suit was filed by descendants of the people mentioned in the e-mail. Those descendants include some tribal leaders.

The e-mail messages were the basis for the defamation claim. The plaintiffs claim that an allegation against their ancestors is defamatory to the descendants because it implicates them as perpetrators of enrollment fraud, said John Kelsey, Nancy Kelsey's attorney and brother. They also claim that the content of the e-mail messages should not be considered protected speech because it is defamatory, according to records they filed with the court.

"The allegations that they made were in fact false; the speech in question is clearly protected," said John Kelsey, who is also representing Ossiginac. "The statements in this case had nothing to do with the plaintiffs."

Kelsey said the plaintiffs are attempting to use a derivative theory of libel — that allegations about ancestors implicitly attach to descendants.

Free press rights on reservations

As sovereign governments, Indian tribes are not bound by the First Amendment.

In 1968, Congress attempted to give American Indians many of the same protections found in the Bill of Rights by passing the Indian Civil Rights Act, which contains free speech and free press clauses.

But the Indian Civil Rights Act gave federal courts explicit authority only to review habeas corpus petitions against tribal governments. The U.S. Supreme Court said in Santa Clara Pueblo v. Martinez (1978) that tribes were not restricted by federal court interpretations of the same rights found in the U.S. Constitution, and the Indian Civil Rights Act. As a result, tribal courts are free to interpret those provisions as they see fit. But that doesn't leave the press out in the cold.

Many tribal governments have adopted their own constitutions that contain word-for-word replications of the free press and free speech clauses in the Indian Civil Rights Act. Or, in some cases, tribes without a constitution such as the Navajo have enacted a separate bill of rights that incorporates those protections. The combination of the Indian Civil Rights Act and tribal constitutions gives American Indian journalists some protection.

One difficulty for tribal courts is that few free press cases have been reported by American Indian appeals courts. Yet, in many instances where those courts have looked at broad free speech issues, which are more common, the courts have leaned on First Amendment principles laid out by the U.S. Supreme Court. The Navajo Supreme Court did just that in 1987, in what may be the only case of a tribal court interpreting the Indian Civil Rights Act's free press clause, Chavez v. Tome.

After looking at the U.S. court's opinion in Miami Herald Publishing Co. v. Tornillo, the Navajo court in Chavez found that a similar attempt to control what a newspaper published was barred by tribal law. In Tornillo, the Supreme Court found a Florida law that required newspapers to provide equal space to political candidates in response to editorials was unconstitutional. In Chavez, a libel judgment for $10,000 had been entered against Marshall Tome, publisher of The Navajo Nation Enquiry, and the trial court ordered Tome to publish a retraction. The appeals court overturned the order to publish a retraction because it amounted to a court interfering with the editorial process.

"Similarly, the Navajo Bill of Rights . . . and the Indian Civil Rights Act . . . [guarantee] the right of the press to be free of governmental intervention," the court wrote. "The choice of material to be printed is a protected exercise of editorial control and judgment and the government is prevented from regulating this process."

The Reporters Committee for Freedom of the Press filed a friend-of-the-court brief asking the Little River Ottawa court to follow First Amendment case law and strike down the injunction as a prior restraint.

The Little River Ottawa court has been asked to deal with several issues that are new to it, in part because the tribe's defamation statute was only recently passed. This is the first case to arise under it.

A story suppressed

Even if she is successful in fighting the injunction, the upshot of the drawn-out legal battle for Kelsey is that her story may not see the light of day. She was elected to a tribal office in the spring, and so has a conflict of interest in covering Little River tribal issues for Reznet News. But the injunction has helped her focus her attention on the free press rights of reporters who cover reservation life. She is set to graduate in the fall from the University of Nebraska-Lincoln with a graduate degree in journalism and is writing her thesis about Indian press rights.

"Since this whole case," she said, "I've been thinking about law school, thinking about other ways I can work to help preserve freedom of the press in Indian country."