Authored by Reporters Committee Legal Intern Annie Cappetta and Staff Attorney Sarah Matthews
This guide provides a primer on press freedom issues on tribal lands located within the United States. Tribal law varies widely across the hundreds of Indigenous nations. Rather than address each tribal nation’s laws, this guide highlights important trends and takeaways for journalists. If you see something that needs updating, please let us know at firstname.lastname@example.org.
This guide does not replace the legal advice of an attorney. Journalists with additional questions or in need of assistance should contact the Reporters Committee’s legal hotline.
Understanding tribal governance
The United States has recognized 574 sovereign American Indian tribes and Alaska Native Villages. Sovereignty is the right of each tribe to govern itself and determine its own cultural and political identity. It includes the right to establish tribal governments, determine its nation’s membership requirements, enact laws, enforce those laws and interpret those laws according to the tribe’s traditions.
Tribal nations have set up their governments in a variety of ways, but most mirror the three-branch federal system of government, which was influenced by the political system developed by the Iroquois Confederacy. H. Con. Res. 331. Many tribes also have a type of tribal council, either in place of, or in addition to, an elected legislative branch. The Indian Reorganization Act of 1934, 25 U.S.C. § 5103, pushed tribes to reorganize their governments with a boilerplate constitution reflecting the mainstream constitutional form of republican government.
Because tribes are separate, sovereign nations, constitutional provisions limiting federal and state powers, including the First Amendment, do not directly apply to them. Talton v. Mayes, 163 U.S. 376 (1896) (holding that the Fifth Amendment does not apply to tribes); see also Santa Clara Pueblo v. Martinez, 436 U.S. 49 (1978) (noting lower court decisions that applied Talton to other constitutional rights).
Nevertheless, tribes now recognize many of the civil rights protected by the Bill of Rights as a result of the Indian Civil Rights Act of 1968 (ICRA), 25 U.S.C. §§ 1301–1304. See Part II.A. ICRA, below.
Because tribal governments have sovereign immunity, individuals cannot sue them unless the tribe has clearly waived this immunity through an express statement or law consenting to suit. Matthew L.M. Fletcher, American Indian Tribal Law 215–17 (2011).
Tribal lands include Indian reservations that the federal government has reserved for a tribe under authority of law — either through a treaty, statute, administrative action or executive order. There are 326 tribal lands considered federal Indian reservations, totaling approximately 56.2 million acres according to the Bureau of Indian Affairs — although this figure is likely to change following upcoming treaty negotiations in light of a recent Supreme Court decision, which held that the federal government never broke up a 19 million-acre Muscogee Creek reservation in Oklahoma. McGirt v. Oklahoma, — U.S. —, 140 S. Ct. 2452 (2020); Julian Brave NoiseCat, The McGirt Case Is a Historic Win for Tribes, Atlantic (July 12, 2020).
There are also other types of Indian lands beyond federal reservations, including allotted lands, restricted status lands and state Indian reservations. Bureau of Indian Affairs, Frequently Asked Questions (last visited July 21, 2020). On tribal lands that are not federal Indian reservations, the tribal government will not always have sovereign legal authority.
Allotted lands are parts of reservations that the federal government broke up to create private plots for Native American allottees and their heirs to own, starting in the late 19th century. Id. Restricted status lands are held by an individual American Indian person or a tribe and could only be conveyed to others through specific procedures with approval of the Secretary of the Interior. Id. State Indian reservations are lands held in trust by a state for an Indigenous nation recognized by the state but not by the federal government. Id.
The relationship between tribes and the federal government is based on several 19th-century Supreme Court decisions that created this framework, beginning with a trio of decisions during the Marshall Court. The first, Johnson v. M’Intosh, 21 U.S. 543 (1823), institutionalized the conquest of American Indian lands and stripped Native Americans of their full property rights to the lands in a decision that observers agree is marked by racism. In the second case, Cherokee Nation v. Georgia, 30 U.S. 1 (1831), the Cherokee Nation sought an injunction to prevent Georgia from enforcing laws depriving the Cherokee people of their rights on their land. The Supreme Court dismissed the case for lack of jurisdiction, finding that the Cherokee Nation was not a foreign state but a “domestic dependent nation” with a relationship to the federal government like “that of a ward to his guardian.” In a reversal the next year, the Supreme Court issued its third decision, Worcester v. Georgia, 31 U.S. 515 (1832), in which it invalidated a Georgia criminal law governing tribal lands, reasoning that this authority belonged exclusively to the federal government.
Fifty years later, in United States v. Kagama, 118 U.S. 375 (1886), the Supreme Court reaffirmed the dependence of tribes on the federal government and their independence from states.
The U.S. Supreme Court has also recognized that as sovereigns of these lands, tribal governments have the inherent power to exclude persons from tribal lands. See Merrion v. Jicarilla Apache Tribe, 455 U.S. 130 (1982) (“Nonmembers who lawfully enter tribal lands remain subject to the tribe’s power to exclude them.”). Exclusion is discussed in Part IV. Access, below.
Freedom of expression
Indian Civil Rights Act
A federal law, the Indian Civil Rights Act (ICRA), extends many of the civil rights listed in the Bill of Rights to citizens of sovereign tribes. The rights protected by ICRA include freedom of speech and press: “No Indian tribe in exercising powers of self-government shall — (1) make or enforce any law prohibiting the free exercise of religion, or abridging the freedom of speech, or of the press . . .” 25 U.S.C. § 1302(a)(1).
However, only the tribes themselves can enforce the rights guaranteed under ICRA. In Santa Clara Pueblo v. Martinez, the Supreme Court ruled that individuals may not enforce ICRA claims, except for habeas corpus petitions, in federal courts, reasoning that the law must not interfere with tribal sovereignty. 436 U.S. 49, 63–66 (1978). Tribal courts therefore interpret ICRA according to their nations’ own legal frameworks, not necessarily federal court precedents. Fletcher, supra, at 349 (noting that tribal courts have generally interpreted ICRA “within the framework of tribal life”) (quoting Note, The Indian Bill of Rights and the Constitutional Status of Tribal Governments, 82 Harv. L. Rev. 1343, 1355 (1969)). The Supreme Court has clarified that tribal courts are not obligated to apply the Court’s familiar frameworks for First Amendment claims like content-based restriction on protected speech, overbreadth or vagueness. Santa Clara Pueblo, 436 U.S. at 66. Instead, tribal courts can use their own legal traditions and understandings of what free expression is to decide such legal claims.
The Navajo Nation courts, for example, interpret free speech rights as having different limitations under their legal traditions than under federal traditions. Navajo Nation v. Crockett, No. SC-CV-14-94, 7 Navajo Rptr. 237, 240 (Navajo Nation Sup. Ct., Nov. 26, 1996). For example, the Navajo Nation prohibits people from reciting sacred oral traditions during specific times of the year. Id. at 240–41. The Navajo Nation courts have interpreted the right to free expression to come with the responsibility to speak with caution, respect, and honesty, and also mandates that individuals first attempt to resolve disputes through a “talking things out” process called hoozhoojigo. Id. at 241.
These are not only traditional values, but enforceable, judicially created law. In Navajo Nation v. Crockett, a former employee of the Navajo Agricultural Products Industry brought free speech claims under the Navajo Bill of Rights for being terminated after speaking up about possible mismanagement and misconduct. Id. at 237–38. The court analyzed the case and found that the Navajo Nation’s Bill of Rights protected the employee’s speech and that he had met the accompanying responsibilities under Navajo law by bringing complaints to his managers with supporting documentation before pursuing legal action. Id. at 242.
Nonetheless, many tribal judges have training in U.S. law, and tribal courts may not have as extensive precedents as federal courts, due to their smaller caseloads. Thus, many tribal courts rely on reasoning from state and federal courts to decide free expression cases. Fletcher, supra, at 349; see, e.g., Louchart v. Mashantucket Pequot Gaming Enter., 27 Indian L. Rep. 6176, 6179 (Mashantucket Pequot Tribal Ct. 1999) (noting that where no tribal “custom or tradition has been argued . . . , [tribal courts] will look to general U.S. constitutional principles, as articulated by federal and [state] courts, for guidance”).
Whether tribal courts rely more heavily on federal case law or their own may depend on whether the tribe has traditional cultural values applicable to the claim:
The most critical element that tends to guide tribal court analysis of fundamental individual rights is whether the activity at issue is a distinctly Anglo-American construct versus a traditional or cultural construct. For example, tribal courts are likely to apply federal constitutional law to decide a wrongful discharge claim or an unlawful search and seizure claim as opposed to a tribal membership claim.
Fletcher, supra, at 349. Because of the vast cultural diversity across Indian Country, tribal courts vary in how they view and interpret free expression rights. They may have adopted independent legal traditions upholding such rights or view them as Anglo-American values imposed through ICRA and therefore interpret them according to federal frameworks. While litigants should be prepared for courts to consider cultural traditions in free expression cases, especially when such rights are traditionally important values in the tribe, they may, as a general rule, expect tribal judges to view federal precedents as persuasive authority. Id. at 349.
Litigants can bring free speech cases under the tribe’s own constitution, laws (for the many tribes that have codified free expression rights), ICRA or all three. But journalists and the lawyers representing them should note that “[f]reedom of expression, in the context of indigenous peoples, is better protected when found within the people instead of coming from legal obligation to colonizing institutions.” Kevin R. Kemper, Who Speaks for Indigenous Peoples? Tribal Journalists, Rhetorical Sovereignty, and Freedom of Expression, Journalism & Commc'n Monographs, Spring 2010, at 3. Some commentators, while noting the legal obligation of ICRA, also emphasize the lack of respect for it in Indian Country, where some consider the federal law to be one of those “legal obligations to colonizing institutions.” Id. at 26 Accordingly, free speech claims may have a greater chance of success when based on the tribe’s own constitution or laws, rather than on ICRA.
Protections for freedom of expression in tribal constitutions
More than 400 of the 574 federally recognized tribes have constitutional provisions either explicitly or implicitly protecting freedom of expression. Lenzy Krehbiel-Burton, Researcher finds most tribes have First Amendment protection, Native Times (Oct. 28, 2016), (quoting Kevin R. Kemper). “The majority have either explicit or implicit protections. The fundamental problem is enforcement,” says attorney and former professor Kevin R. Kemper, who practices in indigenous peoples’ law and has a Ph.D. in journalism. Many of these provisions mirror the First Amendment because of the boilerplate provisions the federal government encouraged tribes to incorporate into their constitutions through ICRA and other laws and policies. See, e.g., Cherokee Nation Const. art. III (Bill of Rights) § 4 (“The Council shall make no law . . . abridging the freedom of speech, or the press.”); Navajo Nation Code Ann. tit. 1 § 4 (2014) (“The Navajo Nation Council shall make no law . . . abridging the freedom of speech, or of the press”); see also Krehbiel-Burton, supra.
Implicit protections grant free speech rights only by reference, such as guaranteeing all the rights enumerated in ICRA or not abridging the rights tribe members have as citizens of the U.S. or their state. Krehbiel-Burton, supra. Some nations, like the Choctaw Nation of Oklahoma, guarantee free expression both implicitly and explicitly:
Nothing in this Constitution shall be interpreted in a way which would diminish the rights and privileges that tribal members have as citizens of this Nation, the State of Oklahoma, the United States of America or under any Act of the Congress of the United States [implicit protection] . . . The right that every member has to speak, write or publish his opinions on matters relating to the Choctaw Nation shall never be abridged [explicit protection].
Choctaw Nation of Okla. Const. art. IV, § 1, 3
Some tribes’ free expression provisions have language that, on its face, is more protective than the First Amendment, such as by omitting the “state action” requirement or including rights of access. See Fletcher, supra, at 348 (citing Confederated Tribes of Warm Springs Reservation of Oregon Const. art. VII, § 2 (“All members of the Confederated Tribes may enjoy without hinderance, freedom of worship, speech, press, assembly and association.”); Comanche Indian Tribe of Oklahoma Const. art. X, § 1 (“All members of the Comanche Nation shall enjoy without hindrance freedom of worship, conscience, speech, press, assembly and association.”); Sisseton-Wahpeton Sioux Oyate Const. & Bylaws art. IX, § 1 (“[N]o person shall be denied freedom of conscience, speech, association, or assembly . . . ”)).
Freedom of the press
Many tribal constitutions have incorporated freedom of the press, especially those that have adopted boilerplate language from ICRA. Despite these legal protections, one of the biggest barriers to freedom of the press on tribal lands is tribal media’s financial dependence on tribal governments.
The Red Press Initiative, a project led by the Native American Journalists Association (NAJA) to study and advocate for press freedom in Indian Country, defines tribal media as “any platform of mass communication with content focused on tribal culture and affairs and directed primarily toward an Indigenous audience.” Tribal media includes radio, newspapers, magazines, television stations, websites and newsletters. The most widely available form of tribal media throughout Indian Country is radio, with 59 radio stations serving Indigenous communities as of 2017, up from 30 in 1998. Jodi Rave, Report, American Indian Media Today, Democracy Fund 13 (November 2018). The majority of tribal media serve areas that would otherwise be news deserts — remote places with small audiences, where the tribal media is the only available news source.
Tribal media is particularly important because of historic and continued misrepresentation of Native Americans in mainstream media. Kemper, supra. An independent tribal media provides a platform for, and elevates the voices of, Indigenous people telling their own stories in their own voices, a practice that scholars refer to as “rhetorical sovereignty.” Kemper, supra, at 6 (quoting Scott Richard Lyons, Rhetorical Sovereignty: What Do American Indians Want from Writing?, 51 Coll. Composition & Commc’n 447, 449 (2000) (“This process [of tribal media becoming financially independent] is consistent with what Scott Lyons (Ojibwe/Mdewanktankton) calls rhetorical sovereignty, or ‘the inherent right and ability of peoples to determine their own communicative needs and desires in pursuit, to decide for themselves the goals, modes, styles, and languages of public discourse.”)
News media independence
Because of this landscape, traditional forms of revenue, which are already failing mainstream news sources, are almost never enough to sustain tribal media outlets. So tribal governments usually subsidize tribal media in whole or in part. A Democracy Fund report, published by Jodi Rave of the Indigenous Media Freedom Alliance, found that 72% of tribal newspapers and radio stations were owned by tribal governments as of 2017. Rave, supra, at 13. These subsidies allow tribal media to survive. Depending on the legal structure of the funding, however, the subsidies can threaten the independence of the news outlets.
In a survey conducted for the Red Press Initiative, Bryan Pollard, John S. Knight journalism fellow and associate director of NAJA, found that only 40% of tribal media consumers felt that they had adequate access to information about tribal affairs always or most of the time. In the same survey, 32% of tribal media employees said they had to seek prior approval for stories from tribal government officials before publishing — and nearly half of tribal media consumers did not know whether the news content they were consuming required government approval or not. Tribal media employees further reported government influence, including censorship, budgetary restrictions and even harassment, because of the content they publish.
Indigenous nations have made a number of attempts, over the years, to create independent media outlets with no financial or structural support from tribes. Rave, supra. But those independent tribal news outlets face financial hardships. One of the oldest independent tribal newspapers, News from Indian Country, based on the Lac Courte Oreilles reservation, stopped publishing in 2019 after 34 years of independent news publication. Editor Paul DeMain blamed financial struggles on changes in the publishing industry in an era where news is available on the internet. Paul DeMain, 33 years of publishing: August was the last issue of News From Indian Country, News from Indian Country Today (Sept. 14, 2019). Other independent tribal media outlets face similar struggles, requiring founders to work for free or for relentless hours, convert the business into a nonprofit, and persuade skeptical funders and advertisers to support them. Rave, supra, at 7–9.
Press freedom laws, including protections for journalists’ sources and work product
A handful of tribal media have overcome the financial and logistical difficulties to achieve editorial independence with the help of press freedom laws. The Cherokee Nation and Osage Nation have been leaders in Indian Country, enacting strong press freedom laws and constitutional amendments in 2000 and 2008, respectively. 44 Cherokee Nation Code (C.N.C.) § 1–24; 15 Osage Nation Code Ann. (O.N.C.A.) §§ 12-101–12. More recently, the Muscogee (Creek) Nation and The Confederated Tribes of the Grand Ronde Community of Oregon also enacted press protections, although the Muscogee (Creek) Nation repealed its comprehensive press freedom law in 2018 before re-enacting somewhat weaker press protections in 2019 and a more fulsome restoration in 2020.
The Cherokee Nation implemented the first Independent Press Act in Indian Country in 2000. The same year, the Nation’s newspaper, the Cherokee Advocate, reclaimed its original name, the Cherokee Phoenix, embracing its roots as the first American Indian newspaper. The law established an editorial board to serve as a buffer between the tribal government and the newspaper’s editor, declaring that the board must serve “free from undue political influence.” Society of Professional Journalists, Cherokee Nation Makes Paper More Independent, 88 The Quill no. 8 (Sept. 2000). Under this structure, the paper maintains editorial independence, but the tribal government continues to be able to fund the paper and responsibly manage its budget.
The Cherokee Nation’s press freedoms expanded through further legislation in 2009 and 2012. The Nation amended the Independent Press Act in 2009, to further clarify and protect tribal media’s independence, and adopted the Shield Act in 2012 to protect journalists from having to disclose their sources or work product. The law states that Cherokee Nation proceedings cannot require journalists to disclose the source of any published or unpublished information obtained in newsgathering but provides an exception for defamation cases where the defendant has asserted a defense based on the source or content of the relevant information. 44 C.N.C.A. § 24(A)(1). The law protects unpublished work product, unless the court finds by clear and convincing evidence that the information is “relevant to a significant issue in the action and could not with due diligence be obtained by alternate means.” Id.
The Osage Nation has also adopted protections for press freedoms. It passed an Independent Press Act in 2008 and then amended that law in 2019. Its shield law, added in 2019, protects journalists from being compelled to disclose their sources or work product in most civil court proceedings, but, like the Cherokee Nation law, does not apply to the source or content of allegedly defamatory information when the journalist asserts a defense to defamation based on the source or content. 15 O.N.C.A. § 12-112. The Osage shield law does not apply in criminal proceedings, in civil cases where there is a “substantial Osage Nation interest,” or, like the Cherokee law, in cases where the party seeking disclosure shows by clear and convincing evidence that the source or work product is “relevant to a significant issue in the action and could not with due diligence be obtained by alternate means.” Id.
The 2019 amendments modified processes related to the editorial board to further protect the media from political influence and guaranteed a continued funding source for the newspaper. Lenzy Krehbiel-Burton, Amendments to strengthen the Osage Nation’s Independent Press Act signed into law, Osage News (Oct. 2, 2019).
Although the Muscogee (Creek) Nation repealed its full press freedom law in 2018, it has adopted a shield law that protects journalists from being compelled to disclose the source of any published or unpublished information obtained through newsgathering activity. 19-031 (MCNCA) § 11-202. However, like the Osage and Cherokee Nations’ laws, the shield law does not protect sources relied on by a defendant in a defamation case. Id. In addition, the party seeking the information can overcome these protections by showing with “clear and convincing evidence” that it is “relevant to a significant issue” in the case and “could not with due diligence be obtained by alternate means.” § 11-202(A)(2).
The Confederated Tribes of the Grand Ronde Community of Oregon enacted its Independent Tribal Press Ordinance in 2016. That law established an independent editorial board for the tribal media outlet, Smoke Signals; a shield law similar to the Osage Nation’s; and a commitment to allow tribal media to operate free from political influence. Confederated Tribes of the Grand Ronde Code § 111(a)–(h).
Tribes have the sovereign right to exclude persons from most tribal lands, as discussed in Part I. This practice is generally known as exclusion when applied to nonmembers, and banishment when applied to members of the tribe. Patrice H. Kunesh, Banishment as Cultural Justice in Contemporary Tribal Legal Systems, 37 N.M. L. Rev. 85, 88 n.17 (2007). Tribal courts usually interpret exclusion or banishment as a last-resort effort to protect the health and safety of tribal members, but tribes have also used exclusion for broader social control, including as a means to silence political dissent. Id. at 88–89 (describing efforts to challenge tribal decisions to banish or disenroll tribal members for political dissension); see also Monestersky v. Hopi Tribe, No. 00CV000159, 2002 WL 34463030 at **1 (Hopi C.A. June 27, 2002) (“It is well settled that the Hopi Tribe, and all Indian tribal governments, have the inherent power to exclude nonmembers as an exercise of their sovereign power in order to protect the health and safety of tribal members.”) (construing health and safety of the people liberally).
Tribal courts have interpreted the exclusion power broadly. Kunesh, supra, at 88. Tribal governments have removed nonmembers when the tribe found a threat to the health and safety of its members, even though the behavior of the nonmember was not specifically outlawed or deemed grounds for removal earlier. See, e.g., Monestersky, 2002 WL 34463030. On the other hand, some tribal governments, including that of the Passamaquoddy Tribe, have outlawed banishment. Fletcher, supra, at 359.
In any event, if a tribe banishes or excludes a journalist, she or he can challenge that decision by asserting equal protection and due process rights — both protected by ICRA and many tribes’ constitutions. See Kunesh, supra, at 89. Equal protection and due process defenses arise if the excluded person can show some liberty, such as freedom of speech or press, or property interest in remaining on the tribal lands. Kunesh, supra, at 118–19; Fletcher, supra, at 361–62. Due process rights require at a minimum that the nonmember had notice and an opportunity to respond to the exclusion. See Monestersky, 2002 WL 34463030.
Individuals can challenge exclusions in federal court, rather than tribal courts, if “the banishment order imposes a sufficiently severe restraint on the individual’s liberty interests as to constitute a detention for purposes of habeas corpus review.” Kunesh, supra, at 89; see also Poodry v. Tonawanda Band of Seneca Indians, 85 F.3d 874 (2d Cir. 1996) (holding that banished members could file federal writs of habeas corpus to challenge their banishment).
Exclusion or banishment represents the most severe restriction that non-tribal journalists reporting on tribal affairs generally face, according to Kemper. In one of the most well-known incidents, tribal authorities at the Red Lake Reservation reportedly evicted journalists who did not follow the tribe’s rules and confiscated two photographers’ cameras following a shooting on the reservation in 2005. Bob Reha, Strong emotions lie close to the surface, Minn. Pub. Radio (March 23, 2005); Response continues as Red Lake seeks to heal, Indianz.com (March 24, 2005).
Public meetings and records
Some tribes have public meetings provisions in their constitutions or laws, but they may not apply to nonmembers of the tribe. Compare Lac du Flambeau Band of Lake Superior Chippewa Indians Code § 16.102 (providing that all meetings shall be open to all members of the tribe, but nonmembers may attend only as permitted by the tribal council); with Cherokee Nation Const. art. VI § 6: (providing that all meetings of the tribal council and of its committees be open to the public, but creating broad exceptions for when meetings are allowed to go into private executive session).
Journalists who are tribe members and work at tribal media may therefore have an easier time obtaining records. For example, in the Oglala Sioux Tribe, members have access to records and council meeting minutes through their tribal media, but nonmembers face more difficulty obtaining records and access, even though there is no policy preventing it. Patrick M. Garry et. al., Tribal Incorporation of First Amendment Norms: A Case Study of the Indian Tribes of South Dakota, 53 S.D. L. Rev. 335, 361–62 (2008). According to one expert, this “may have ‘more to do with disorganization than it does with secrecy.’” Id. at 361. A non-tribal reporter stated that “it is just [a matter of] finding someone who is willing to help.” Id. at 361.
But regardless of whether a journalist is a member, establishing trusted relationships with sources who are tribe members or who work in the tribal government can help journalists learn what happens in tribal government meetings and also obtain tribal records.
State public records laws generally do not apply to tribal governments, as they are sovereign entities separate from and independent of the states. Worcester v. Georgia, 31 U.S. 515 (1832).
Some tribes have their own “sunshine” or public records laws, such as larger Nations like the Oglala Sioux Tribe of South Dakota, Cherokee, Navajo and Osage Nations, as well as smaller Nations including Wampanoag Tribe of Gay Head (Aquinnah), the Absentee Shawnee Tribe of Oklahoma, the Yurok Tribe in northern California and Pokagon Band of Potawatomi Indians. Tanner Stening, Sunshine Week: Access to tribal records irregular, Cape Cod Times (Mar. 10, 2019). The Wampanoag Tribe of Gay Head (Aquinnah), for example, has a provision in its constitution, giving members of the tribe an absolute right to review the business records of the tribe, financial balance sheets and documents relating to the administration of tribal programs. Wampanoag Tribe of Gay Head (Aquinnah) Const. art. XXI.
Even where nations have sunshine laws, officials do not always comply with those laws and sometimes withhold records improperly or delay release. But having a sunshine law is helpful for reporters seeking legal recourse for improper denial of access. For example, Osage Nation Principal Chief Jim Gray sued six members of the Osage Nation Congress after they violated the nation’s open meetings law by meeting behind locked doors and refusing access to Osage News. Shannon Shaw, Chief Jim Gray sues six members of Congress for controversial meeting, Osage News, (Nov. 2009). Despite the open meetings law, when the congressional staff director went into the meeting to alert the Congress members that Osage News wanted to enter, Congress members laughed while telling her to deny access, highlighting enforcement problems. Id.
Another way to access tribal documents is through the federal Freedom of Information Act (FOIA). Because of the relationship between the federal government and the tribes, journalists can obtain more federal documents through FOIA relating to tribes than about state governments. Matthew E. Kelley, Freedom of Information Resources, NAJA, (“[FOIA] is particularly important for Native journalists given that the federal government has more pervasive influence over the lives of Native people and the operations of tribal governments than for most other groups of citizens.”). For example, many tribes have to report some budgetary information to the federal government, and those documents track how tribal governments spend federal dollars, according to media lawyer Matthew Kelley. Additionally, some federal agencies run programs in Indigenous communities; for example, Health and Human Services runs the Indian Health Service, so journalists can obtain documents related to those programs through FOIA. To learn more about the Reporters Committee’s FOIA resources, visit www.rcfp.org/foia.
More than 300 American Indian tribal courts were in operation as of 2011, and tribal law professor Matthew L.M. Fletcher has predicted 100 to 200 more tribal courts opening in the coming decades. Fletcher, supra, at xxi. Smaller tribes tend to have a more informal court system — if any — handling a relatively small caseload or only cases on certain subject areas such as treaty fishing and hunting rights. Larger tribes, on the other hand, tend to have more formal court systems with larger dockets. The Navajo Nation’s tribal courts, for example, handle more than 100,000 cases each year. Id.
Tribal courts tend to be presumptively open, at least to the extent that state courts are open to the public. However, if a case falls into certain sensitive categories, like those involving domestic abuse, child custody or tribal child welfare services, the court may limit access. Compare, e.g., Navajo Nation Code of Judicial Conduct, Navajo Nation Supreme Court admin order no. 96-91 (November 1, 1991) (“A judge should make rulings in open court.”); with Navajo Children’s Code Rules of Procedure III, Child in Need of Supervision Proceedings, Rule 12.10 (“Hearings shall be closed to the public.”).
Some tribal courts have codified this openness. For example, since 1990, the district court rules for the Cherokee Nation have allowed the news media to record proceedings in the courthouse, provided that the recording does not interfere with the proceedings and members of the media conduct themselves professionally. In re Rules for the Dist. Court of the Cherokee Nation, No. JAT-AD-96-08, 1996 WL 33404586, at *2 (Cherokee Dec. 26, 1996). In other tribes, the courts may not have adopted such rules, but they still remain presumptively open, perhaps because many tribal judges have training in the U.S. court system, which is open to the public.
In order to challenge closure of tribal court proceeding or records, start by obtaining a copy of the tribal court code from public resources, like the National Indian Law Library, or from a tribal court official and confer with an attorney licensed in that particular tribe’s courts. For general information on objecting to court closures and the sealing of court records in U.S. courts, see the Reporters Committee’s First Amendment Handbook section on Access to Courts.
Most U.S. states recognize claims for defamation and invasion of privacy, either by statute or, more typically, the common law — the traditional court-made law that U.S. courts adopted long ago from the English standards. The common law reflects the values and customs of society for redressing wrongs. Likewise, when plaintiffs bring common law tort claims in tribal courts, the court will interpret the law according to the values and customs of the tribe.
Although libel law varies by state, typically, courts require a plaintiff to prove that the defendant published a false and defamatory statement about the plaintiff to a third party, causing injury to his or her reputation. For more information, see the Reporters Committee’s First Amendment Handbook section on Libel.
In most tribes, defamation laws tend to align with these common libel principles adopted by the states because tribal courts often look to state and federal case law for guidance. See Fletcher, supra, at 597 (citing Russell v. Grand Traverse Band of Ottawa and Chippewa Indians Election Bd., 2000 WL 35749801 (Grand Traverse Band Tribal Court 2000) (applying Michigan law to plaintiff’s defamation claims)); Jackson v. Leech Lake Band of Ojibwe Council Members, No. CV-04-113, 2004 WL 6012166, at *9 (Leech Lake Trial Div. Dec. 12, 2006) (applying Minnesota’s defamation law); Perron v. Mashantucket Pequot Tribe, No. CV-GC-1997-0186, 2002 WL 34244445, at *11 (Mashantucket Pequot Tribal Ct. July 11, 2002) (“The Court adopts the findings of its sister jurisdictions [federal courts and Connecticut state courts] that a police officer is a public official for purposes of analyzing a libel claim).
Several tribal courts have adopted the standard first set forth by the U.S. Supreme Court in New York Times v. Sullivan, 376 U.S. 254 (1964), requiring a libel plaintiff who is a public figure or official to prove a higher level of fault by the defendant than a private figure plaintiff. See, e.g., Jackson, WL 6012166, at *9; Perron, 2002 WL 34244445, at *11. Under this standard, the public figure or official must prove that the libel defendant acted with “actual malice” in reporting defamatory information. “Actual malice,” in libel parlance, does not mean ill will or intent to harm. Instead, it means the defendant knew that the challenged statements were false or acted with reckless disregard for the truth.
While many tribal courts look to state and federal law for guidance, a tribe’s unique legal traditions can also come into play, just as they can in free speech cases. See supra Part II. Freedom of Expression, see also Navajo Nation v. Crockett, No. SC-CV-14-94, 7 Navajo Rep. 237 (Navajo Nation Sup. Ct. November 26, 1996). For example, a Ho-Chunk tribal court in Wisconsin recognized a claim for libel “under the Ho-Chunk common law tradition of ‘woigixate,’ which requires that all people be treated with respect and compassion and that no one should be treated badly or demeaned because of their situation.” Gardner v. Littlejohn, No. SU 11-02, 2011 WL 11745417 (Ho-Chunk Oct. 5, 2011). The defendant asserted a “veteran” or “warrior privilege” defense, arguing that as a “Vietnam veteran and a native warrior [he] has a right to stand up and speak” to protect the Ho-Chunk people. Id. While U.S. courts have not recognized such a defense, the Ho-Chunk Nation trial court did, explaining that this privilege reflects the Nation’s customs, the ultimate source of the common law. Id. The Ho-Chunk Nation Supreme Court ultimately overturned the application of the “warrior privilege” due to a procedural problem in this particular case, but litigants could raise it in future cases in the Ho-Chunk courts. Gardner, 2011 WL 11745417.
The Gardner case suggests that journalists should consider asserting defenses to defamation that reflect the tribe’s customs and values, even if they have not necessarily been recognized before. Anthony Broadman, Tribal Libel: Defamation Law in Indian Country, Indian Country Today (Apr. 27, 2011).
Tips for reporters covering American Indian issues
Reporting on Indian country is a different game than any other beat. In light of the distinct cultural differences and historical injustices from media portrayals of Indigenous peoples, reporters should consider the following best practices when reporting on Indian communities.
Understand the specific tribe’s structure of government, laws and culture
Tribes can differ dramatically in their form of government, legal system and culture. Before reporting on a specific tribe, familiarize yourself with each and be sure to develop cultural competency.
Ask, don’t take or demand
Be respectful of tribal traditions. For example, ask for public records rather than demand them, which could risk offending tribal officials, particularly if the demand comes from a journalist who is not a member of the tribe and does not have a right to the records. Ask before photographing cultural traditions and events. Some tribes bar photography of certain events and may seize your camera if you are caught breaking those rules.
Never forget the basics
Be professional, observe ethical standards, and check names and tribal affiliations multiple times. Mainstream media often make basic mistakes like getting the name of a Nation wrong or misspelling it. If you get the basics wrong, you breach trust and will not be able to report effectively or be taken seriously. Pay attention to terminology. Following the NAJA style guide is a good baseline, but ask sources what terms they prefer and respect those preferences.
No 'man on the street' reporting
Avoid going into the town center and asking anyone you find for quotes. Find the experts. On tribal lands, people are often closely related to each other, so reporters need to understand the relationships between sources to report accurately.
Tribal sovereignty is perhaps the central community value in Indian Country. Journalists cannot report correctly on Indigenous communities unless they understand sovereignty and view issues through that lens.
Follow the five Rs: respect, relationships, responsibility, relevance, reciprocity
These values, first articulated as “four Rs” (without “relationships”) and as the necessary elements for good research within Indigenous communities, apply equally to reporting. Respect the communities you report on, create trusted relationships with sources, and fulfill a responsibility to thoroughly understand the community’s values, practices, and history. Write stories that are relevant to the community’s needs and views and give people the platform to respond and engage in a dialogue.
Empower people to tell their own stories in their own voices
Always ask people in the community what stories are underreported or misreported. Let the community tell its story in its own words, being careful not to change the narrative to make it “mainstream” or “digestible.”