Access issues

Dalton Walker was trapped between two worlds.

In one world, the member of the Red Lake Band of Chippewa watched as his community -- and specifically his high school alma mater -- was ravaged in 2005 by a mass shooting and suicide that grabbed international attention.

In another world, the student and aspiring journalist teamed with another American Indian reporter, Dana Hedgpeth of The Washington Post, to tell the story of the Red Lake tragedy.

"This was something way bigger than me, but I had a perspective that no one else had," Walker said.

Covering American Indian communities should be a lot like covering city hall, the courts or crime. But the beat is like no other.

The legal underpinnings for seeking access to meetings, records or an interview on American Indian-controlled land more resemble requesting information from Canada or France than city government or the courts.

That is because Indian tribes have rights separate and independent from the U.S. government and its constitution. And that sovereignty gives tribes the right to decide their level of press freedom -- whether to shut down completely in the media spotlight or to open their doors to scrutiny.

"It's really important to remember that you're dealing with [562] government entities that all have their own processes and codes and constitutional processes," said Mark Trahant, editorial page editor of the Seattle Post-Intelligencer. "It's so easy to think of Indian Country [as a single entity] rather than this real complex area of tiny different states."

The lessons of Red Lake

In the aftermath of the March 21, 2005, Red Lake massacre in which 16-year-old Jeff Weise killed nine people and injured seven others before taking his own life in a classroom, tension swelled between tribal leaders and journalists.

One day after the killings, tribal officers handcuffed and briefly detained two news photographers who took pictures from a moving car of a roadside memorial, which the photojournalists thought was in accordance with tribal orders not to leave the main highway that runs through town.

The tribal chairman directed all media to a parking lot outside the Red Lake Reservation's jail, a move that, despite objections from reporters, was legal.

"It's their sovereign authority to have within their territory who they want," said Robert Odawi Porter, a Syracuse University College of Law professor and a member of the Seneca Nation. "If you don't have any ability to control your own territory, then you've lost. I think this was just an internal issue. It's up to the people in that nation how they want to deal with it."

Many of the journalists who descended on Red Lake were not aware of the true meaning of tribal sovereignty or the application -- or lack thereof -- of traditional First Amendment protections on reservations.

"The media chose not to check beforehand, they just rushed over there like it's another city murder," said Duane Beyal, editor of the Navajo Times, which circulates in Arizona, Colorado, New Mexico and Utah.

Despite the legality of keeping journalists off sovereign land, local journalist Bill Lawrence, a member of the Red Lake Band, thinks the tribe's actions were unacceptable.

"That was an abuse of office, an abuse of authority, and a denial of the rights of both sides. That should never have been allowed to happen," said Lawrence, who founded the weekly Native American Press/Ojibwe News.

Louise Mengelkoch, a journalist and professor at nearby Bemidji State University in Minnesota who has written extensively about the media's actions at Red Lake, said that the "public sentiment here among non-Indians was sympathetic to what [tribal leaders] were doing."

But the tribe was not completely justified in shuttering the process, she said.

"I think when it got to the point where they were getting pretty aggressively angry towards the media, it was definitely over the top," Mengelkoch said. "Because they live in such a closed culture . . . if you don't see how others see you, you do end up going over the top because you don't have any context."

Some reporters did not face the access clampdown that some of the national media faced.

"We got more access because they know us," said Brad Swenson of The Bemidji (Minn.) Pioneer. "I guess from our standpoint, we treated it with sensitivity, too. We kind of walked around the edges and we got what we needed to get."

Walker knew when Hedgpeth called to ask for his help that reporters would soon flood his boyhood home. Some so aggressively pursued the story that they were rude, said Walker, a 2000 graduate of Red Lake High School.

"I understand that situation, but at the same time as a journalist you have to respect people, too," he said. "That just ruins it for the rest of us when you have one journalist being disrespectful or overly aggressive."

Hedgpeth watched as Walker, with strength and sensitivity, juggled the conflict between the demands of his chosen profession and the suffering of his community. But even he faced a backlash, she said.

"In general, people were sort of kind of turning against him and talking about him behind his back at times, even saying some threatening things," Hedgpeth said.

Walker also felt some of the animosity of the community toward journalists.

"I wasn't going to shy away because I was called names," Walker said. "I put the journalism . . . before everything. . . . From my perspective [the reporting] will be objective, but it will just be from a different viewpoint."

Hedgpeth, a member of the Haliwa-Saponi Tribe in North Carolina, admired the way Walker handled himself. She noted that Walker said, "If I don't cover it, someone else will, and I'm more likely to get it right."

John Shurr, bureau chief of The Associated Press in Columbia, S.C., and member of the Cherokee nation, agreed.

"It's kind of a two-way street -- the tribe has to be willing to work with the mainstream [media], and that's at least 50 percent of the problem that the Red Lake Chippewa [encountered]," he said.

Hedgpeth ultimately found ways to avoid being limited by the tribe's denial of access.

"It was miserable, it was terrible, it was especially terrible being a native reporter," she said. "At the same time, that's what got me in. I never once got to that bullpen where they were keeping reporters. I didn't have time for that."

Hedgpeth said the best result now would be for the tribe and the journalists who covered the tragedy to open a dialogue.

"If the Red Lake Tribal Council and the journalists are really smart, they will use it as an opportunity to fall on their swords and say they made mistakes," she said.

Sovereignty is the key

The 562 legally recognized tribes within the territorial boundaries of the United States are not states, nor are they subject to the laws of those states in which they exist.

U.S. Supreme Court Chief Justice John Marshall noted in 1831 that the U.S. Constitution's Commerce Clause distinctly separates regulation of states from regulation of Indian tribes.

Cherokee Nation Principal Chief Chad Smith said the "most fundamental concept of sovereignty is self-government. Our first treaty was with Great Britain in 1721. We existed before there was ever a United States in the community of governments."

But tribes are also not like foreign nations, completely independent of U.S. laws and the Constitution. The U.S. Supreme Court has called tribes "distinct political communities, having territorial boundaries, within which their authority is exclusive."

The right to exclude

When reporters are excluded from places usually considered "public," they think, often rightfully, that they are being illegally denied access. This is not the case on reservations.

"Tribes have the authority to exclude people from the reservation," said Lucy Simpson, staff attorney for the Indian Law Resource Center in Montana. "The source for that is their inherent sovereignty, rights they have from time immemorial."

The U.S. Supreme Court has held that a tribe has the power to exclude nonmembers entirely or to place conditions on their presence on reservations. As the Court noted in 2001 in Atkinson Trading Co. v. Shirley, "a tribe may regulate, through taxation, licensing, or other means, the activities of nonmembers who enter consensual relationships with the tribe or its members, through commercial dealing, contracts, leases, or other arrangements. A tribe may also retain inherent power to exercise civil authority over the conduct of non-Indians . . . within its reservation when that conduct threatens or has some direct effect on the political integrity, the economic security, or the health or welfare of the tribe."

Derived from the right to regulate is the right to keep reporters off a reservation, according to Frank Pommersheim, professor of Indian law at the University of South Dakota School of Law.

Trust land v. Non-trust land

Land on reservations can be divided into two general broad categories: trust land and non-trust land. The trust relationship is derived from individual treaties between the United States government and tribes and is based on several 19th-century Supreme Court decisions that created this framework.

The first, Johnson v. M'Intosh in 1823, institutionalized the conquest of American Indian lands and stripped American Indians of their full property rights to the lands in a decision observers agree is marked by rampant misconceptions and crude stereotypes of the American Indian population prevalent at the time.

Another case, United States v. Kagama in 1886, recognized the dependency of tribes on the federal government and their independence from states.

"One of the things that flows from those . . . cases is that . . . native people have the right of use and occupancy of those lands and that the United States as title holder has the responsibility to protect the use and occupancy of native people as well as their rights of governance," Pommersheim said. And that means that reporters may be excluded from reservations.

The First Amendment -- or something like it

Seemingly, the First Amendment's free press protections would offer some access to journalists, since Indian tribes are in part regulated by the federal government. But the constitutional protection is not as straightforward on land controlled by American Indian tribes.

In 1896, the U.S. Supreme Court ruled in Talton v. Mayes, that the Fifth Amendment's limit on the government's use of eminent domain did not affect the powers of tribal self-government, and that holding has been expanded to include other protections generally afforded under the Bill of Rights.

Congress passed the Indian Civil Rights Act (ICRA) in 1968. The law, in a section mirroring the language of the First Amendment, says that "no Indian tribe in exercising powers of self-government shall make or enforce any law prohibiting the free exercise of religion, or abridging the freedom of speech, or of the press, or of the right of the people peaceably to assemble and to petition for a redress of grievances."

The most significant case to interpret the Indian Civil Rights Act is Santa Clara Pueblo v. Martinez, in which the Court ruled in 1978 that the act should not interfere with tribal sovereignty.

"The Supreme Court ruled . . . that the enforcement of the Bill of Rights would be up to the tribe," Trahant said. "So the same institution that might be thwarting [press freedoms] would also be judging [whether violations occurred]."

That key decision also demonstrated the deference to tribal courts in many matters, said professor Steven J. Gunn, who teaches American Indian law at the Washington University School of Law in St. Louis.

"What the Supreme Court said was that . . . the Court will construe narrowly statutes that affect Indian rights of self government," Gunn said. "The Indian Civil Rights Act is an act that limits or restricts the powers of tribes, so the court construes it narrowly and interprets it liberally in favor of the Indians."

Lawrence said the high court's ruling "emasculated the ICRA," in part because lawsuits from reporters against a reservation for a violation of press freedoms protected under ICRA would be heard in the tribal judicial system, with very little chance of an appeal to the federal court system.

"To go into a tribal court and win is virtually impossible," Lawrence said of his experiences. "They're controlled by the governing administration."

How tribal courts operate

Which legal matters are handled by tribal courts, as opposed to state and federal courts, depends on the tribe's sovereignty, its laws and its judicial decisions. When a non-Indian is involved in litigation, even more jurisdictional issues arise, Simpson said.

State law would generally not apply to legal proceedings involving only American Indians that relate to activities on a reservation.

The issue is more complex when a state claims authority over the conduct of non-Indians on a reservation; in such cases, courts look to relevant treaties and statutes and consider them in the context of the goal of promoting sovereignty and independence.

Because of their sovereignty, tribes are not required to adhere to the traditional notions of separation of powers among executive, legislative, and judicial branches, although most do. According to Gunn, the most common form of tribal government is one organized under the Indian Reorganization Act. The act, passed in 1934, allowed tribes to reorganize their governments and consolidate their land bases. It also provided a boilerplate constitution written by the Department of Interior from which tribes could develop their own supreme law, and 172 tribal governments adopted such a constitution, which institutionalizes executive, legislative, and judicial branches.

Many tribes have since amended their constitutions to promote greater separation of powers, according to Gunn. "The dominant trend is to create a [greater] separation of powers and greater judicial independence," he said.

Tribal courts have their greatest power when they are judging matters involving tribal members. Mark D. Rosen, in the Fordham Law Review, cited the 1996 Navaho court ruling Navajo Nation v. Crockett to show that Navajo tribal courts have used Navajo common law rather than federal common law to interpret free speech rights. Thus, the Navajo courts speak of freedom with responsibility, which can place content-related limitations on speech, Rosen wrote.

There were 511 tribal courts -- created either by tribal constitution or by an act of a tribal legislative body -- in the U.S. at the turn of the century, according to Rosen.

His study of reported tribal court decisions shows that the First Amendment has been interpreted in similar though not identical ways to federal court standards. In Chavez v. Tome, a Navajo appellate court overturned a trial court requirement that a newspaper print a retraction for an article found to be libelous, noting the "right of the press to be free of governmental intervention. . . . A responsible press is desirable, but it cannot be legislated by the Navajo Tribal Council or mandated by the Navajo courts."

The court determined that when an article was found to be libelous, damages can be assessed but a newspaper cannot be forced to print a retraction, according to Rosen's article.