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  1. Freedom of Information
From the Summer 2001 issue of The News Media & The Law, page 39.

From the Summer 2001 issue of The News Media & The Law, page 39.

In March, the U.S. Supreme Court unanimously decided that tribal comments submitted to the Department of the Interior to influence water right adjudication or allocations are public under the federal Freedom of Information Act. (Department of the Interior v. Klamath Water Users Protective Association)(See NM&L Spring 2001).

Since this opinion, two courts have used this case to support access to tribal records held by government agencies.

American Indian access law can present treacherous terrain for a reporter, with myriad economic, property, governing and social issues overgrowing the historical path of the United States’ relationship with the tribes. The federal government holds all American Indian land in trust with the tribes as the beneficiaries and consequently it often confers with tribes when deciding what to do with the land and other tribal entitlements, such as water rights. In many instances, this relationship finds American Indian tribes acting in a quasi-governmental capacity.

Additionally, tribes have unusual relationships with state government. State governments often provide services to reservation land and often own property rights to other land occupied or used by tribes. The inter-relationships raise questions about the applicability of the federal FOI Act and state open records laws to tribal documents.

In March, a federal district court in Colorado ordered disclosure of tribal documents, submitted to a federal agency, relating to the computation of royalties paid to the Jicarilla Apache Tribal Reservation for oil and gas drilling on the tribes’ land. The court decided that the agency could not withhold documents submitted by the tribe to the agency because the Klamath court had found no “Indian trust exemption” to the federal FOI Act. (Merit Energy Company v. United States Department of the Interior)

Additionally, a state supreme court has noted Klamath in a decision involving access to similar tribal records. On May 1, the Supreme Judicial Court of Maine held that the Maine open records law applies to tribes while they are interacting with other government agencies in their capacity as a municipal government, but it does not apply to tribes when deciding internal tribal matters.

Great Northern Paper, Inc., and Georgia-Pacific Corp., which operate paper mills along the Penobscot and St. Croix rivers, in May 2000 sought access to tribal documents and minutes of internal tribal meetings about the tribes’ effort to convince the Environmental Protection Agency that the state government could not regulate water within reservation property. An EPA decision that Maine could not regulate water on tribal lands could affect the companies’ rights to discharge treated wastewater from their paper mills.

When their requests were denied, the companies appealed the denial to the Superior Court for Cumberland County, which ruled for the companies without a trial. The tribes then appealed.

Maine’s Settlement Acts, congressionally ratified state laws that settle tribal relationships with the state, call for treatment of tribal governments as municipalities under state law. For instance, they would be subject to tort and contract lawsuits just like any other Maine municipality. However, the tribes argued that under the Settlement Acts, the tribes retain a right to self-governance allowing them some leeway to act outside the bounds of some laws that govern municipalities. They said that their right to self-governance, combined with an express provision prohibiting state regulation of “internal tribal matters,” meant that the state open records law did not apply to documents and minutes of internal tribal decision-making processes.

The court noted that the tribes did not argue that their documents were protected from disclosure under the federal FOI Act because Klamath barred such an argument.

The companies viewed the Settlement Acts differently. Under express terms of the law, the tribes were treated as municipalities except when dealing with “internal tribal matters.” That is a narrow exception, they claimed, and it does not remove the tribes from the state’s open records laws. The companies argued the exception covers “issues of historical cultural importance, such as tribal membership” and not documents submitted to other government organizations, like those at issue in the case.

Because the Settlement Acts did not expressly address the issue, the court relied on legislative history to determine the extent to which Congress and the state legislature intended tribes to be treated like municipalities. The Settlement Acts were created in order to settle a long-standing dispute between Maine and the tribes over land rights and the extent of control the state had over the tribes. In order to meet in the middle, the tribes gave up some of their claims to land and the state put restraints on its ability to govern the tribes.

The court noted that one of those parameters appears in committee reports of the House and Senate. These reports indicate an intent by Congress not to interfere in internal tribal decision-making. Therefore, the court wrote that neither the public nor the state has a right under the Settlement Acts to be involved in the internal decision-making process of the tribes and that “the methods used to reach the decisions, along with the documents generated in the process, were within the Tribes’ authority to create, without interference from the state or public.”

In determining whether the documents requested were “internal tribal matters,” the court looked at factors used by a federal court, including the nature of the dispute, the interests of the state, prior legal understandings and the effect of the documents on nontribal members. Applying these factors, the court decided that the moment these minutes or documents are submitted to a government agency outside the tribe, they are no longer “internal tribal matters,” and must be disclosed under the state’s open records act. The court remanded the case to the lower court to determine which documents were submitted to outside government agencies and were, therefore, open to public inspection. (Great Northern Paper, Inc. v. Penobscot Nation) — CC