Tribal news deserts thrive when citizens, media lack access to public records

Freedom of Information could enhance quality of life for Native communities

I learned the importance of sharing information with readers during more than a decade I reported on American Indian issues for Lee Enterprises. I covered national news then. Now I’m doing my best to report on local news in my home community on the Fort Berthold Reservation in North Dakota. It’s particularly difficult to gather facts in this news desert unlike other news deserts where Freedom of Information, or FOI, and Sunshine laws exist.

The First Amendment and the Indian Civil Rights Act lack agency on Native lands held in trust by the U.S. Interior Department. That’s because tribal sovereignty often trumps citizen rights. I willingly once helped outside reporters who arrived at Fort Berthold, homeland of the Mandan, Hidatsa and Arikara Nation of the Three Affiliated Tribes. I used to think any type of news is better than no news. But, when parachute journalists, Native or non-Native, land for a minute, then write hit-and-miss stories, they often do more harm. I often wonder if they have fact checkers in their publications.

Meanwhile, we need local stories told on a regular basis. The absence, however, of FOI and Sunshine laws, and open meetings held in the light of the sun, creates a challenge when trying to accurately report on tribal governments. The void of media laws — and journalism programs at tribal colleges — helps explain why I live in a news desert, “a community, either rural or urban, with limited access to the sort of credible and comprehensive news and information that feeds democracy at the grassroots level,” as defined by the Center for Innovation and Sustainability in Local Media.

As a 2021–2022 John S. Knight Community Impact Fellow, I have a team of fellows, advisors and resources to help me explore options to building a local news ecosystem. My Stanford University fellowship affords access to research a number of issues, including how a Freedom of Information Act, or FOIA, code backed by a constitutional amendment could benefit tribal citizens. As the founder and director of the Indigenous Media Freedom Alliance, www.imfreedomalliance.org, I guide the organization to advocate for press freedom and the growth of independent news operations. Here’s a Native media report I wrote for the Democracy Fund. The IMFA, which is based in Twin Buttes, N.D., publishes on buffalosfire.com.

Given FOI tools, tribal citizens, Native journalists and local media could access tribal government records. In turn, the community could take action to increase the quality of life for themselves and their families. If we had better informed communities our social, political, environmental and economic well-being would improve, and American Indians wouldn’t be perennial poverty stars of the mainstream media.

How many news stories have we read or viewed on “poverty, alcohol and drug abuse run amok” in Native communities? The go-to location for that story typically is the Pine Ridge Reservation in South Dakota. Yes, we also see widespread stories on government mismanagement. While tribal business activities deserve the light of day, more often than not, they remain masked. Those stories — like MHA Nation payday lending operations — often aren’t reported until they end up in federal court. Corruption could be avoided if there was more accountability and transparency in tribal government.

A federal grand jury investigation on tribal corruption at the Fort Berthold Reservation ended in 2020. The Justice Department later issued three indictments centered on bribery and kickbacks. Sources close to the issue expect more indictments to be forthcoming. Tribal leaders routinely use tribal sovereignty and sovereign immunity to shield the sunlight. I’ve seen MHA Nation Tribal Business Council — the governing body of the Three Affiliated Tribes — agendas where the council meets with oil companies in closed sessions.

As citizens, we are not informed how our tribal councilmen annually spend multi-million-dollar community budgets. Most of that money comes from oil revenue derived from extraction of natural resources on tribal and individual lands held in trust by the Interior Department. The local Bureau of Indian Affairs stands guard over information related to tribal and individual lands. I’m routinely told I am not a party of interest to reservation land records. But oil companies freely can access the information. In addition, our community members are not informed of the environmental dangers posed by the hydraulic fracking industry.

The lack of FOI laws on tribal lands is not unique to my tribe, the Mandan, Hidatsa and Arikara Nation. Out of 574 federally-recognized tribes in the United States, I am limited on best examples of FOIA or public records codes, but the Cherokee, Osage and Muscogee nations of Oklahoma stand tall. Here’s the Muscogee 16-page code, which was enacted on July 23, 2020:

“It is the official policy of the Muscogee Nation that all citizens shall have access to the public records of the Nation’s departments and programs, and other records including, not limited to, resolutions, ordinances, minutes, all transactions involving loans, description of tribal lands, the leasing and exchanging of tribal lands and records regarding any tribal contractor.”

Muscogee media advocates took their fight for press freedom to the highest level on Sept. 16, 2021 with overwhelming support from Native voters. In a ballot measure, 76 percent of Muscogee citizens voted to enshrine press freedom protections into the tribe’s constitution.

Bryan Pollard, a former editor of the Cherokee Phoenix and lead researcher for the Red Press Initiative is researching tribal constitutions and press freedom. In his early findings, about half of the constitutions offer “passive” press freedom, meaning the documents contain ineffectual provisions for press freedom, right of assembly and free speech.

Pollard’s findings also show the other half of constitutional provisions range from silent and deferred — typically refers to a U.S body of law — to affirmative, or protection of the highest order.

Too many Native communities function without the benefits of the Fourth Estate. If we had a viable media system in my community, it would probably be considered the “Second Estate” because the tribal business council embodies legislative and executive functions and heavily influences the judicial branch.

I am grateful for my media colleagues throughout Indian Country, including the Muscogee, Osage, Cherokee, Navajo and Grand Ronde tribes, who all have fought and worked arduously for decades to bring press freedom, media statutes, constitutional amendments, FOIA codes, public records, press ordinances and independent media operations to their own communities.

In the book “Red Prophet: The Punishing Intellectualism of Vine Deloria, Jr.” David Wilkins’ writings on Deloria are described as “a must-read for any deep examination of Indigenous legal, religious, social, and philosophical tactics.” Deloria ascribes to three pillars of tribal sovereignty, including the right to tribal self-determination, the right to sacred spaces, and the right of tribes to develop “according to the desires of the people in the tribe.”

The people I know want to be informed. Reporting on local news requires systemic change. I’m using the resources afforded by the JSK Fellowship to build a platform for tribal citizens to be heard and to be informed through access to public records. The First Amendment to the U.S. Constitution, adopted in 1791, encourages U.S. citizens to express their thoughts, ideas and opinions for a more robust society. In turn, all 50 states also have adopted FOIA laws.

If tribal leaders want to be recognized as heads of legitimate governments, they must support FOI and public record laws. If they fully embrace tribal sovereignty, they will act in accordance to the will of the people.

Jodi Rave Spotted Bear is the founder and director of the Indigenous Media Freedom Alliance. The IMFA publishes on buffalosfire.com. Jodi is a 2021–2022 John S. Knight Community Impact Fellow and a 2021 Bush Fellow for leadership ending in 2023.