More than 400 tribes have some form of codified First Amendment protection written into their tribal constitutions. But are they enforced?


NORMAN, Okla. — A recent academic survey co-authored by a Native Oklahoman shows that there may be more First Amendment protections in Indian Country than originally thought.

In late September as part of the Native American Journalists Association’s annual national convention, researcher and former journalist Kevin Kemper unveiled research showing more than 400 tribes have some form of codified First Amendment protection.

“The million dollar question of course, is whether those protections are enforced,” Kemper said.

Rather than simply count a restatement of the First Amendment, Kemper and his co-author, Penn State University doctoral student Litzy Galarza, looked to see whether tribal constitutions and articles of incorporation included language that either explicitly or implicitly protects either freedom of the press or free speech, such as guaranteeing all the rights enumerated in the Indian Civil Rights Act.

The research results stem in part from federal litigation. Earlier this year, Kemper won a civil suit against the Bureau of Indian Affairs. In 2014, he filed a Freedom of Information Act request for copies of all the constitutions and articles of incorporation for the 567 federally-recognized tribes across the country.

His request was initially denied and he was instead directed to check a now out-of-date website published by the law library at the University of Oklahoma.

Along with attorney’s fees and court costs, Kemper received hundreds of pages of governing documents from tribes all over the country. However, the massive file dump does not cover all 567 federally recognized tribes, nor does it necessarily represent the most current binding documents for every single sovereign nation.

“At least one tribe redacted part of their constitution because it had sacred knowledge in there. I respect that,” Kemper said. “I don’t want to disturb that, but would respectfully suggest that tribes not put sacred things in a document that should be readily available.

“There are tribal governments who have fought the release of their own constitution to their people. I hear about them on a regular basis.”

Kemper plans to eventually publish all of the documents obtained from the FOIA lawsuit and is still seeking updated copies to supplement his cache. In the interim, a third party followed Kemper’s lead and filed a piggy back request after the suit was settled and published the documents online.

Although Kemper does not necessarily mind someone beating him to the punch for publication, he was quick to point out that he has no affiliation with the website or its setup.

“They scooped me on publishing, but I am OK with that,” he said. “I want to disseminate that information through Indian Country.

“I am grateful that the information was accessed and disseminated by others. I only caution that people understand what the data is, what it represents, what it does not represent.”