PAWHUSKA, Okla. – An Oklahoma tribal newspaper’s legal fight for records access is throwing Native American press issues back in the spotlight.

The Osage News is in the middle of a civil lawsuit against Principal Chief John Red Eagle’s office for not responding to a request for a copy of the tribe’s contract with Rod Hartness, a non-Osage pipeline consultant. The complaint is among 15 other allegations against the chief that will be investigated by a select Congressional committee next month during a special session.

The tribe’s Open Records Act allows for 10 days to either provide the record, request additional time or explain in writing why the request cannot be fulfilled. Requests that do not receive any kind of response within 35 days can be brought before tribal court. Red Eagle’s attorneys maintain that since the newspaper receives tribal funding, its employees are government employees and are therefore ineligible to request records under the Osage Open Records Act.

Regional and national news outlets, as well as professional organizations have reached out to the newspaper to show their support for its lawsuit, including the Native American Journalists Association, which launched a legal aid hotline for reporters Friday during its national convention.

By contacting the hotline, NAJA members without current legal representation seeking assistance with pre-publication issues or freedom of information requests can receive free legal advice from attorneys. The organization is also launching a free online legal resource room later this year that will offer articles, links and material highlighting issues such as freedom of information, defamation, broadband regulation, privacy, protection of sacred knowledge and sites, as well as other media-related issues at no charge to any journalist covering Indian Country.

The hotline’s intake liaison, research fellow and University of Arizona assistant professor of journalism Kevin R. Kemper, says that although more tribes are including First Amendment protections in their constitutions and more freedoms are being afforded to reporters, there is still work left to be done when it comes to transparency and press independence.

“Tribal law says one thing, but tribal leaders sometimes do another thing, which is why we need a free press to call them out on it,” Kemper said.

A lay advocate in the Pascua Yaqui tribal court system, Kemper is not licensed to practice law in a state jurisdiction but conducts research in media law, including the legal aspects of being a journalist in Indian Country.

Despite the advances in press access, such as the implementation and enforcement of tribal Sunshine laws, he sees many of the access issues being better solved through media outlets earning complete financial independence from the tribes they serve or by more peaceful, less expensive methods, including mediation.

“That’s how we’re going to get greater free press access – through healing and forgiveness – rather than everyone fighting,” Kemper said. “We need to build bridges between reporters and tribal leaders. It’s been almost 200 years (since the publication of the first tribal newspaper) and you’re telling me we’re having some of the same stupid problems?”

That first tribal newspaper, the Cherokee Phoenix, is still in circulation and publishes a monthly edition from the tribe’s headquarters in Tahlequah, Okla. Its executive editor, Bryan Pollard, maintains that a newspaper’s revenue source does not dictate what documents it can legally access.

“The argument on its face is ridiculous,” he said. “To say that a journalism organization does not represent the needs of the public is silly.”

Like the Osage Nation, the Cherokee Nation has an Independent Press Act and codified Sunshine laws, including what is thought to potentially be the first shield law in Indian Country, protecting journalists from naming a story’s sources in tribal court. Similar to the Osage News, the Cherokee Phoenix also receives government funding to cover its operational costs, with about 70 percent of the newspaper’s budget coming from the tribe. However, Pollard said money has not been listed as a reason to deny one of his reporter’s records requests.

“We’ve only been denied on a handful of requests that we’ve submitted in the last two years,” he said. “Typically, when we are denied a request, the administration will respond citing the section of the FOIA that exempts them from responding in whatever way. Although we’ve been declined on a few occasions, the reason for the decline is stated.”

Arguments resume in the Osage News’ lawsuit on Aug. 8. In the interim, Pollard and many other tribal reporters are left to ponder whether Red Eagle’s argument would carry any weight with their own tribal court.

“At Cherokee Nation, frankly, I’m not sure that that type of argument would have much traction,” Pollard said. “The Cherokee Phoenix has a long history of representing the people’s need for information from their government. I think that if the administration were to go before our courts and say ‘We pay them, so we don’t need to give them information,’ the political consequences would outweigh whatever the legal remedy would be. I think there would be a public outcry over something like that.”

Principal Chief John Red Eagle (right) and his attorney Kirke Kickingbird (left), defend his pipeline consultant Rod Hartness from a congressional committee Jan. 30. The Osage News requested a copy of the Hartness contract the next day.

Photo by Benny Polacca | Courtesy Osage News | www.osagenews.org