Native American press freedom: a developing story

Monday, August 8, 2005

In July 1997 Dan Agent learned he would be fired from his position as editor of the Cherokee Nation’s tribal newspaper — the Cherokee Advocate (now the Cherokee Phoenix and Indian Advocate). His crime? Running front-page stories that detailed allegations of misconduct against then Principal Chief Joe Byrd.

The problem Agent faced was that his employer was none other than the tribal government itself.

Most Native American reservations’ tribal governments own their tribe’s newspaper and use it primarily as a public-relations outlet. Some larger tribes, such as the Cherokee and Navajo, have moved toward greater press freedom in recent years, but many Native American journalists have learned the hard way that a free press is far from guaranteed in Indian Country.

‘I could be suspended or fired at any time’
By no means is Agent the only journalist to incur the wrath of a tribal government. And when tribal governments threaten people’s jobs, they tend to listen, especially as the tribal government often controls most of the jobs on a reservation. Unemployment is notoriously high on reservations, with estimates ranging from 40% to 80% for different tribes. According to the Center for Community Change, the overall Native American unemployment rate for 2004 was 46%.

  • In 1998, Navajo Times editor Tom Arviso Jr. survived two attempts by the tribal government to fire him for running stories about allegations against the Navajo Nation’s president, Albert Hale. The newspaper reported charges against Hale including financial mismanagement and an alleged affair with his press secretary. Ultimately, Hale resigned after an internal investigation of his financial practices, and he and his wife divorced.

    Hale has admitted that he sometimes told the Navajo Times what material to print. According to an American Society of Newspaper Editors article, Hale said, “He (Arviso) doesn’t seem to understand that this is a Navajo-owned paper. It’s part of a department. It’s not an independent operation.”

    Arviso said he had been suspended a few times, but never fired — owing, he said, to the support of the Navajo people. The people accepted his news coverage, he said, and they put pressure on their elected officials — the tribal council — who in turn pressured Hale’s administration not to fire Arviso.

    Arviso said he had not been concerned about running controversial stories, despite the consequences, as long as they were fair. “I always knew I could be suspended or fired at any time,” he told the First Amendment Center Online.

  • Paul DeMain’s job as editor of the Lac Courte Oreilles Journal, the newspaper for the Lac Courte Oreilles Ojibwe tribe, was threatened numerous times before he decided to start his own independent newspaper, News From Indian Country, in 1987.

    He drew the ire of the tribal government when he refused to allow prior review of the Journal and when he contradicted a tribal press release about an FBI investigation. The tribal government demanded that DeMain, serving in his dual capacity as public affairs official for the tribe, issue a press release from the government denying an ongoing FBI investigation into the tribe’s actions. He did so. But because he knew that FBI agents had in fact visited the tribal government offices for an investigation, DeMain, as editor of the Journal, then issued a press release of his own saying so.

  • Native American journalist Jodi Rave’s entire family suffered for an article she wrote questioning the election process of the Three Affiliated Tribes (Mandan, Hidatsa and Arikara). In an Aug. 7, 2004, column she wrote for the Missoulian, a daily newspaper in Missoula, Mont., not affiliated with a tribal government, Rave claimed her father was demoted and her mother resigned as a result of her article.

  • In July 2004 the chairman of the Three Affiliated Tribes, Tex Hall, barred all tribal employees from talking to the press after allegations of tribal government mismanagement of a herd of buffalo, which are considered sacred. Hall threatened “disciplinary action up to and including termination” if anyone spoke to the press.

  • In March 2005 journalists from non-tribal news media were corralled and denied access and information as they tried to cover a high school shooting on the reservation of the Red Lake Band of Chippewa in Minnesota. After a media uproar, the tribe lifted the press restrictions but asked for privacy for the community.

    ‘The people who pay the bills’
    Does the First Amendment apply on Native American reservations? Yes and no.

    Native American reservations are sovereign nations, so application of federal laws is tenuous. Some provisions have been adopted that theoretically convey First Amendment rights to Native American tribe members, but the crux of the issue is the ownership of the newspapers by the tribes.

    The Indian Civil Rights Act, adopted in 1968, conveys on Native Americans certain constitutional rights. Title II says, “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 the right of the people peaceably to assemble and to petition for a redress of grievances …”

    Furthermore, many Native American nations, especially the larger ones, have a bill of rights in their constitutions. Many bands of Cherokee, Navajo, Blackfoot, Chippewa, Choctaw, Sioux and Apache — all tribes among the nation’s top 10 in population — expressly provide for freedom of press and speech in their constitutions. The late Native American journalist Richard LaCourse, who studied tribes’ constitutions, by 1998 had found 64 tribes that explicitly provided for a free press, according to an article he wrote for the Columbia Journalism Review.

    So how can tribal governments control the content of tribal newspapers? It all comes back to the financial control the tribal government has over the newspaper, said David McCullough, a lawyer who practices in Oklahoma and specializes in media law and Indian law. “The First Amendment applies, but the tribe has the right to publish whatever it wants because it owns the paper,” he said.

    Michael Minnis, who also practices law in Oklahoma and specializes in media law and Indian law, concurred, saying: “The people who pay the bills control what goes in the paper. That’s not necessarily a First Amendment violation.”

    Minnis said the situation was somewhat akin to the way in which a corporation such as Rupert Murdoch’s News Corp. controls what content its media outlets publish and broadcast, although there are some obvious dissimilarities between government and corporate control.

    A 1978 U.S. Supreme Court decision made it even harder for those wanting to challenge the tribal government on a First Amendment claim. The Court ruled in Santa Clara Pueblo v. Martinez that cases covered by the Indian Civil Rights Act (which would include free speech/press claims) must be heard by tribal courts, not federal or state courts. Some journalists have questioned the freedom from political influence of these courts.

    “If you want to challenge the (tribal) government’s actions, where do you go?” Minnis asked. “The tribal court. Who appoints the judges and funds the courts? The tribal government. So your chances to win are often not too hot.”

    McCullough, however, expressed less skepticism about the tribal courts. “For the most part, I have as much confidence in the tribal courts as (in) the courts in the rest of the country,” he said. “Some, though, I wouldn’t feel too confident about my chances of getting a fair trial. But I’d say in about 90 percent I would.”

    The biggest issue with tribal press freedom, McCullough said, arises when outside news media come onto the reservation to cover a story. He has represented both tribal governments and newspapers, and he says he regularly gets calls from both asking about restrictions the tribe can impose on outside journalists. Tribes are allowed to restrict media access to information as in the Red Lake situation, he said, unless the tribe has a freedom of information act, which most do not have.

    Although he regularly advises tribes that they are allowed to deny information to journalists, he said, he does not agree with that practice. “It’s always bothered me that tribal governments never saw the need for greater openness,” he said.

    Openness is something McCullough would like to see more of, which is why he founded Freedom of Information Oklahoma in 1990 to “educate the public and elected officials about rights guaranteed by the First Amendment and to promote openness in government,” as the Web site’s mission statement says.

    McCullough also said he was concerned about many tribes’ “archaic criminal-libel laws.” Criminalizing libel is unconstitutional, he argues, and the laws are sometimes used by tribes to jail people who express views they disagree with. Depending on which source you rely on (Media Law Resource Center, American Journalism Review or the Student Press Law Center), between 16 and 19 states still have criminal-libel laws.

    Moving forward
    Recently, some tribes have moved in the direction of a free press, particularly the two tribes with the largest populations, the Cherokee and the Navajo.

    The Cherokee Nation in Oklahoma passed the Cherokee Independent Press Act of 2000, which states, “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.”

    Under the act, the Cherokee Phoenix and Indian Advocate, is overseen by a three-member editorial board. The principal chief appoints one member, and the tribal council appoints another. Those two appointees choose a third.

    In a press release after the act’s passage, Principal Chief Chad Smith, who signed the act, said, “If I’m doing something wrong, the Cherokee people need to be able to read about it in the Advocate.

    Agent said Smith’s administration asked him to return as editor of the Phoenix in November 1999 after Smith defeated Byrd, who had fired Agent in 1997, in an election. Agent credited his conflict with Byrd for increasing awareness of the need for an independent press.

    Smith also supported the passage of a Cherokee freedom of information act in 2001. “When you think about preserving our government for the next 100 years, you realize it’s good to have someone looking over everyone’s shoulder,” he told the First Amendment Center Online. “I told the paper to tell the truth — good, bad or ugly. Having an informed citizenry is a very important thing.”

    But the Phoenix is still owned by the tribal government. The Phoenix’s Web site is just a branch of the Cherokee Nation’s, and the newspaper’s phone number is an extension of the Cherokee government’s main line.

    Still, Agent insisted the setup was the “best system going for a tribal newspaper.” Right now, the Phoenix is sent to every household in the Cherokee Nation, something Agent says would not be possible if the newspaper became independent and relied on subscriptions.

    Asked if he would like to have financial independence, Agent said: “My answer is a qualified ‘yes.’ Wouldn’t anyone? But the reality is we have a lot of people to serve. We can’t serve all those people by relying on subscription. If it (financial independence) occurs, it won’t be for a long time.”

    Agent also questioned the value of “independence,” noting that many American newspapers are controlled by large corporations. “Freedom is a subjective thing,” he said. “There is a lot of economic slavery in America today.”

    Smith, asked why he hadn’t pushed for a financially independent newspaper, said, “The system we have right now seems to be working.”

    The Navajo Nation took a different approach to press freedom, establishing in 2003 the complete independence of the Navajo Times from the tribal government. Arviso took over in 2004 as CEO and publisher for the Navajo Times Publishing Co. Inc. after lobbying for years for the newspaper’s independence.

    “Before, it was like there was a cloud hanging over our head,” Arviso said. “Now, that cloud is totally gone.”

    The main reason the Navajo Times was able to obtain independence, he said, was the newspaper’s increasing financial self-sufficiency thanks to its success selling advertising and subscriptions before 2003.

    Arviso believes the Navajo Times can be a model for other tribal newspapers that want to gain independence. The two most important things to do to achieve independence, he said, are to gain financial independence, as the Navajo Times did, and to educate the people and government leaders about the benefits of having a free press. While doing this, he noted, the newspaper must practice good, ethical journalism so the government cannot discredit it as biased.

    Independence, though, is not an easy thing to attain, Arviso said. “This did not come easily or cheaply,” he said, noting instances when his car tires had been slashed and notes were slipped under his door. “We fought our battles. I know some other people who would really like to try for independence, but they’re afraid they’ll lose their jobs. It’s really sad.”

    In addition to being managing editor and CEO of News From Indian Country, DeMain is chairman of the Navajo Times Publishing Co. Inc. He said the Navajo Times had become a model other tribal newspapers should aspire to, particularly because it is at least “at great arm’s length from the politicians.”

    DeMain says his roles for the two newspapers do not create a conflict of interest because they serve different audiences — the Navajo Times focusing on Navajo issues and News From Indian Country covering a wide swath of Native American topics.

    DeMain said he hoped, like many other Native American journalists, that recent accomplishments by the Cherokee and Navajo newspapers would spur other tribes into granting greater press freedom. “I like the trend of private enterprises doing what the government shouldn’t,” he said.

    McCullough said, “I applaud the tribes that remove the paper from political control and put it in private hands.” He noted, though, that the Cherokee and Navajo tribes are the two largest in the nation and that the progress they have made is not necessarily indicative of any progress made by other, smaller tribes.

    It is unclear what the future holds for the First Amendment in Indian Country. But, Agent says, “The key is for everyone to understand that if you don’t have a free press, you don’t have a democracy.”

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