Access to records, meetings a struggle in Indian Country

When Bill Lawrence sought access to state audit information about American Indian-run gambling operations in Minnesota, he ran into legal barriers.

In addition to making claims of tribal sovereignty, the tribes asserted the information was exempt from release as a trade secret and further argued that the state should defer to federal law, which exempts such material.

The Minnesota Court of Appeals eventually ruled in favor of Lawrence, publisher of the Native American Press/Ojibwe News in northern Minnesota, who intervened in the tribe's lawsuit against the state of Minnesota.

Lawrence's victory was a rarity.

State public records laws
do not apply

Normally, there would have been no question that a journalist could not get access to tribal records. State freedom of information laws do not apply to records of American Indian tribes, legal scholars and other observers agree.

Less certain is whether records that involve cooperation, contracts or other interactions between tribes and either the state or federal government are public. Lawrence's case is one of a limited number that have examined the issue.

Leaders of tribal publications believe opening records and providing access would improve understanding of and respect for tribal government.

"If you keep open records and you make them public, there's no reason for people to be suspicious," said Dan Agent, editor of the Cherokee Phoenix.

In addition to the Minnesota court ruling in Lawrence's case, Washington state courts have recognized a right to such information under state public records laws. And some access to federal documents involving tribes have been obtained through the federal Freedom of Information Act.

There are 408 Indian gaming operations within the territorial boundaries of the United States, of which 226 are full-fledged casinos, according to the National Indian Gaming Association.

In 1988, Congress passed the Indian Gaming Regulatory Act, which requires tribes to enter into compacts with states to engage in certain gambling activities. Various tribes in Minnesota, including Prairie Island, the Mille Lacs Band of Ojibwe, and the Red Lake Band of Chippewa Indians entered into compacts with the state, and the state's Department of Public Safety was placed in charge of overseeing the state's interest in such operations. The department sought and obtained financial statements from Prairie Island and Mille Lacs, information the tribes believed would not be disclosed to the public.

Lawrence first asked for the data related to Red Lake, but the department denied the request so he requested and received an advisory opinion from the state Department of Administration concluding the data was public under the state's Government Data Practices Act.

Lawrence sought the same information for Prairie Island and Mille Lacs, and the tribes sued to have the information declared non-public.

One roadblock occurred when a federal district court in Minnesota concluded such audits were not public data under federal law. Despite the ruling, the state appellate court concluded in 2003 that the federal law did not preempt state law in this case, and that the audits were not wholly trade secret information. Any trade secret information included in the documents could be redacted, the court ruled in the case.

In The Confederated Tribes of the Chehalis Reservation v. Johnson, Washington's highest court in 1998 ordered the release of similar information about American Indian-run gambling operations.

"The information does not, as the Tribes suggest, deal solely with the conduct of tribal government, with no relation to state governmental processes," the court ruled. "The Gambling Commission negotiates, renegotiates and enforces the compacts on behalf of the citizens of Washington. Also, it is involved in distributing the community contributions to governmental agencies which are affected by the Tribes' gambling operations. In order to fulfill its obligations in this regard, the Gambling Commission must rely on and use the information contained in the records requested. The records relate to the conduct of the Gambling Commission and to its governmental functions. Therefore, the records are 'public records' within the scope of the public records act."

Access to certain gambling records held by a state agency has also been granted by a lower court in New York.

The key to the court victories is that the records are not construed as tribal records but instead as state records related to the compacts, or contracts, that the states enter into with tribes allowing gambling operations.

There is at least one example of a state open records law being applied directly to tribes, but this decision was due to "a framework that is unique to Maine," according to a 2001 ruling by that state's high court.

Agent said information about Cherokee gaming should be and is open to the public under tribal practice and law.

"It's a matter of public record how much money is made and how it's expended," Agent said. He questioned decisions to shutter access to such records.

"Whenever you don't provide information willingly or you try to keep something from the public, then that results in suspicion," Agent said. "We know that it's better to just get the information out there and avoid as much spin as possible. You're going to be better off in the long run."

Federal records

Communications between Indian tribes and the federal government are not excluded from the federal Freedom of Information Act, after the U.S. Supreme Court's ruling in Department of Interior v. Klamath Water Users Protective Ass'n in 2001 that tribal comments on a federal agency decision-making process were not private merely because of the trust-trustee relationship between the federal government and the tribe.

Frank Pommersheim, a professor of Indian law at the University of South Dakota School of Law, said despite the Supreme Court ruling, it remains unanswered whether certain tribal documents that relate to federally funded projects would be considered public documents or internal tribal documents.

What is clear is that state freedom of information laws would not apply to purely tribal documents.

"The state of Minnesota has access rules and so does the federal government," said Brad Swenson, political and opinion page editor of The Bemidji Pioneer. When it comes to access to reservations in Minnesota, he said, "you are kind of at their beck and call."

Other courts have not been as sympathetic to such claims. When Arizona provided compensation to Indian tribe members for highway access, the check distribution list related to the transaction was not a public record. "Arizona has no control over a disbursement of tribal or federal funds to Indian beneficiaries," the Supreme Court of Arizona ruled in Salt River Pima-Maricopa Indian Community v. Rogers.

Meetings

Access to meetings of American Indian tribal government can also be denied without recourse because state open meetings laws do not apply.

Swenson said in his experience covering tribes in Minnesota, any time council members want to talk about something they do not want the public to hear, they kick out the public and close the door, without explanation and without legal recourse.

Lawrence agreed, noting there is a difference in access for tribal members versus non-members.

About 10 years ago, Lawrence said, one of his reporters was cited with trespassing and spent several hours in jail after trying to cover a tribal executive committee meeting in Mille Lacs, Minn. Lawrence's paper fought the matter in the tribal courts, and eventually a federal judge ruled that the tribal police had the authority to make the arrest.

"I [as a tribal member] can go to tribal council meetings for my tribe, whereas … they have and probably would not allow [non-tribal members] to sit in on their meetings," Lawrence said.

Louise Mengelkoch, a journalist and professor at Bemidji State University in Minnesota, said in her work she often encountered a double standard in access.

"They're always glad to let you cover the presentational public events or let you reprint their press releases, but when it comes to opening tribal financial records or covering tribal meetings, that's what is harder to do, and that's got to be challenged," she said.

Tribal court proceedings are another problem. When Mark Trahant of the Seattle Post-Intelligencer was at the Navajo Times, the newspaper tried to make access to such proceedings routine, "and it was just really difficult because no one pressed and there was no good process for it."

There are also less obvious methods of keeping journalists out, Lawrence said. Tribes, rather than denying a reporter access, will occasionally find out a reporter is planning to attend and then reschedule the meeting, he said.

Since tribes generally control the amount of access they choose to provide to journalists, changes will need to come from the inside, observers agree.

One positive step was the Cherokee nation's passage of open records and open meetings acts, based on a model developed by John Shurr of The Associated Press, who has been freedom of information chairman with the South Carolina Press Association for two decades.