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Tribal court bans reporter from covering fraud claims

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  1. Prior Restraint
A tribal court in Michigan has issued an injunction ordering a journalist not to report on issues related to “blood quantum”…

A tribal court in Michigan has issued an injunction ordering a journalist not to report on issues related to “blood quantum” and qualifications for tribal enrollment.  

Judge Melissa Pope of the Little River Band of Ottawa Indians Tribal Court entered the injunction last month, after another judge issued a temporary restraining order in August 2008. According to Pope’s February 19 order, “Defendants and Plaintiffs shall not discuss any parties’ enrollment in the Little River Band of Ottawa Indians with respect to enrollment fraud, meaning questioning whether any of the parties are properly enrolled; status as a descendant; or blood quantum.”  

Judge Pope issued the injunction in connection with a libel case against reporter Nancy Kelsey and three other defendants. Among other allegations in their complaint, the plaintiffs claim that Kelsey “sent numerous e-mails claiming that Plaintiffs and their families have engaged in enrollment fraud and are not rightful members of this Tribe.”  

Kelsey has worked for several newspapers, including the Argus Leader in Sioux Falls, South Dakota. Currently in graduate school, Kelsey writes for Reznet, a University of Montana School of Journalism project focusing on Native American news. Though Kelsey’s statements allegedly were written in e-mail and not as part of a news story, Pope made clear that the injunction also limited Kelsey’s reporting, writing that “this Preliminary Injunction applies to Defendant Kelsey as a journalist.”  

The U. S. Supreme Court noted in 1976 in Nebraska Press Ass’n v. Stuart that prior restraints on speech are “the most serious and the least tolerable infringement on First Amendment rights.” Kelsey argued in court papers that the analysis is the same in tribal courts, writing that “[i]t is well settled that the loss of First Amendment and Indian Civil Rights Act’s free speech freedoms for even minimal periods of time constitutes irreparable harm.” Kelsey added that “the prior restraint will delay the Defendants’ ability to publish and discuss matters of immense public interest. Such indefinite delay is never permitted under the First Amendment.”  

Kelsey has asked the Little River Band of Ottawa Indians Tribal Court of Appeals to review the court’s order.