Constitutional crisis spurs Cherokee reform of press freedoms

Dan Agent, editor of the Cherokee Advocate tribal newspaper, had a great story.

In 1997, after the Cherokee Judicial Appeals Tribunal -- the Indian nation's highest court -- ordered the nation's principal chief, Joe Byrd, to release his spending records, Byrd tried to fire marshals sent to enforce the order.

The newspaper wrote what Agent called a balanced report on the affair, which was sparked by a records request by members of the Cherokee Tribal Council.

After the newspaper published its next issue, which included more news about the controversy, Agent's job as was "reorganized" out of existence.

"They told me . . . I had until noon the next day to get my stuff and go home," Agent said.

Three years later, after Byrd was defeated in the next election, the crisis led to a re-examination of basic freedoms by the nation and eventually to the passage of free press and freedom of information laws that many consider a model for other tribes seeking to increase public access.

Agent returned to the newspaper, which for the first time in decades operated separately from the nation's public affairs office.

The Cherokees' move has served as a model for some of the largest and most influential Indian tribes and nations to allow greater access and more press freedoms.

"We think we've established model legislation that other tribes can look to try to get a free press," Agent said. "I've had maybe half a dozen newspaper editors talk to me [about the concept] . . . but the bottom line is you have to have leadership that believes in it."

The autonomy is crucial, according to John Shurr, chief of The Associated Press' Columbia, S.C., bureau and a member of the Cherokee Nation who has worked on its freedom of information law.

"A free press, either tribal or mainstream, is good for the people," he said. "I think it helps keep the politicians honest. I think knowledge is a great benefit for all people who have to rely on government to do something for them. I think the trend . . . is to get more tribal governments to embrace a free press and do that by passing free press acts or constitutional revisions or letting the tribal newspaper sever itself from fiscal dependency on tribal money so that it can, without the threat of having its funding cut off, do what it deems journalistically responsible."

The Cherokee experience

The Cherokee Nation comprises 260,000 citizens, half of whom live in 14 northeastern counties of Oklahoma.

For Cherokee Principal Chief Chad Smith, who defeated Byrd in 1999, the main purpose for passing free press and freedom of information laws was survival.

The Independent Press Act of 2000, which codifies the tribe's commitment to principles of free press and free speech, says that "the Cherokee Nation's press shall be independent from any undue influence and free of any particular political interest. It is the duty of the press to report without bias the activities of the government and the news of interest to have informed citizens."

Smith said the nation's "most fundamental principle is we want to be here for another 200 years. If we're going to design our government, we need to design for longevity."

Before the press act was passed, there was little to stop Byrd, the previous executive, from attempting to exert undue influence over both the courts and the press, Smith said.

"After that passed, it became clear since we have a constitutional model that we needed to add the Fourth Estate, the press, as a fourth check and balance in government," Smith said. "And so, we believed that a healthy press had value in preserving the integrity of our government for the long term. I'm not a free press purist. There's simple pragmatic value to having a free press looking over my shoulder and if I do something wrong, letting constituents know about it."

Shurr was enlisted to serve on the editorial board of the paper, which returned to its original name, Cherokee Phoenix.

He also played a major role in crafting the free press law, writing the outline of the bill, including one recommendation accepted by the council to create an editorial board to serve as a buffer between the tribal government and the newspaper staff.

"They can offer suggestions but they can't hire and fire the editor," Shurr said.

The Phoenix has printed material criticizing Smith and has not faced any form of retribution, said Agent, who noted that since he returned to the paper in November 1999, no tribal leaders have reviewed or asked to review copy.

"Chief Smith has never interfered with this publication in any way," Agent said.

While the act's application to outside journalists has not been tested, Smith said the nation has never denied outside reporters access to information that would be available to tribal news sources.

"As a matter of policy we try to give the press the things they need," Smith said. "If requests are reasonable, I don't think we've ever turned a request down."

Challenges facing tribal journalists

The March 2005 shootings on the Red Lake reservation in Minnesota demonstrated just how tenuous the relationship between the news media and American Indian tribes can be. It also highlighted the sizeable misunderstandings that exist between the two groups and how important it is for reporters to understand the community they are covering.

In 1998, the late Yakama Indian journalist Richard LaCourse wrote "Protecting the First Amendment in Indian Country," a survey of the history of press freedoms in Indian Country. He noted the problems facing tribal newspapers at the time, including "political firings before or after tribal elections; political cutoff or selective reduction of publication funds; prior censorship and removal of news story copy by political officials or administrative personnel; placing of unqualified persons on news staffs by reason of blood kinships or political loyalties; firings for editorials printed . . . exclusion of news personnel from selected governmental meetings; restrictions on press access and withholding of governmental documents from publication or broadcast . . . and even occasional death threats for materials published or known to be scheduled for publication."

Agent said matters have improved with some, but not all tribes.

"I can say in general that there are a number of tribal publications that are still subject to those things occurring," Agent said.

Agent said the efforts of the Native American Journalists Association (NAJA), as well as those of editors at various tribal newspapers, shine a light on and help eliminate such problems.

The trend toward openness

Other tribal news sources also have succeeded in providing greater openness and independence.

The Navajo Times is one of a limited number of tribal publications that is now independently financed.

"A lot of tribal newspapers and media are dependent on tribal funding to function because there's just not enough subscribers or advertisers to financially sustain an independent publication," Agent said. But financial backing from the tribe does not necessarily contribute to a slanted viewpoint, he said.

"How independent is Rupert Murdoch's Fox News? How fair and balanced are they?" Agent asked. "You can accuse any financially independent publication of having a bias as well."

Duane Beyal, editor of the Navajo Times, which circulates in Arizona, Colorado, New Mexico and Utah, said an access crisis in 1987 similar to the Cherokee story led to reform. A former chairman of the Navajo Nation who did not like the paper's coverage summoned police to shut down the paper, which did not reach its usual level of production again for a year and a half, Beyal said.

The council responded by agreeing to spin off the Navajo Times as a tribal corporation, incorporated under the laws of the Navajo Nation. The council also passed a law in the mid-1990s saying the news media should be free from political interference, Beyal said. Outside media that border the Navajo freely cover Navajo government proceedings, Beyal said.

"For us and our situation, the trend is toward more press freedom," Beyal said.

In 2003, the National Congress of American Indians endorsed a resolution favoring "Free and Independent Native Press."

Agent noted that the Al Neuharth Media Center at the University of South Dakota has trained 25 American Indian college students as newspaper reporters, editors, and photographers. A recent NAJA convention offered training as well.

Greater press freedom does not just improve the work of journalists.

"I think that governments tend to work better when they're in the sunshine, and that's true of tribal governments as well," said Mark Trahant, editorial page editor of the Seattle Post-Intelligencer.

Frank Pommersheim, professor of Indian law at the University of South Dakota School of Law, said change in access will ultimately come from the will of members.

"Tribes move forward as they get more demands from their constituents because ultimately, the demand for an open press is more effective when it comes from tribal members and Native American press groups," he said.