Many reporters do not understand the meaning of basic American Indian terms of association and governance, as well as their legal rights when covering stories on American Indian land. Below is a very brief overview.
Q: What is a tribe?
A: The U.S. Supreme Court has defined a tribe as a body of Indians of the same or a similar race, united under one leadership or government, and inhabiting a particular, although sometimes ill-defined, territory. The Seneca are a tribe.
Q: What is a nation?
A nation of American Indians is a large tribe or group of affiliated tribes acting for the time being in concert. The Oklahoma Cherokee are a nation.
Q: What is a band?
A: A band of American Indians is, according to U.S. Supreme Court precedent, a company of Indians "not necessarily, though often, of the same race or tribe, but united under the same leadership in a common design." The Red Lake are a band of Chippewa Indians.
Q: What is Indian Country?
A: Indian Country includes land within Indian reservations, dependent Indian communities, and Indian allotments for which the Indian titles have not been extinguished.
Q: In general, where do things stand for journalists in gaining access to Indian Country?
A: Tribal land is private property, and tribal leaders have the right to exclude outside journalists. State freedom of information and public meetings laws do not apply to outside journalists because tribes are sovereign nations. Tribal courts would be the source of relief if a reporter brought a "First Amendment" violation, and the tribal court could interpret the document differently than federal courts. Those interpretations may also be difficult to find, as not all tribes report their decisions, and even among those that are reported, not all decisions are published in legal reporting services.
Q: What is sovereignty, and what does it mean to a reporter in covering Indian Country?
A: American Indian tribes have the right to make their own laws, execute those laws, and have those laws interpreted by their court system, with the understanding that Congress has the power to limit this authority.
The federal government has exclusive authority over U.S. relations with Indian tribes, and states do not play a role in regulating tribes under normal circumstances.
Because of the importance placed on Indian sovereignty and self-government, Indian tribes have sovereign immunity from legal challenges.
"You can't sue a government unless the government consents to be sued," said Professor Steven J. Gunn of the Washington University School of Law in St. Louis. "Indian governments have sovereign immunity just like any other government."
This means reporters seeking to challenge a tribe's decision to exclude or questioning a potential violation of the media's rights must do so in the tribal court system, where tribal judicial officials have full power to interpret the laws' meaning.
Q: Do freedom of information laws apply to tribal documents and meetings?
A: Generally no, but in certain specific instances, yes. A document that is purely related to Indian tribal governance would not be subject to state or federal freedom of information laws. But journalists seeking information through these laws should not completely abandon hope. Several state courts have allowed state documents relating to gaming compacts with American Indian tribes to be considered public documents. The federal courts have taken a similar approach. If the document is a federal government document not subject to any exemption under the Freedom of Information Act, there is no blanket exemption simply because the document relates to American Indian affairs, according to the Supreme Court. State public meetings statutes would not apply on American Indian land, and thus the decision to exclude a reporter from a meeting is generally up to the tribe. Generally, reporters who are members of the tribe will have more success gaining access. Some tribes, including the Oklahoma Cherokee, have passed their own freedom of information acts.
Q: What is the difference between trust and non-trust land, and what does it mean for a reporters' access to a reservation?
A: Land held in trust means the actual title to the property is held by the United States, and that gives the U.S. government the responsibility to protect those property interests.
Trust land can consist of tribally controlled land or individual allotments held by American Indians. "Trust land is the surest basis for the tribe to feel most comfortable in asserting its jurisdiction," said Frank Pommersheim, professor of Indian law at the University of South Dakota School of Law. Non-trust land on reservations can be held by tribes as a whole, American Indians individually, or non-American Indians. The fiduciary responsibilities of the federal government are less extensive on non-trust lands.
Therefore, access to property on a reservation can depend on whether it is trust or non-trust land, whether it is public or private, and whether it is held by the tribe or by an individual.
"To be clear, if it's private property, no matter what use it's put to, I think the owner would have the right to exclude," Gunn said.
Q: Are decisions of tribal courts published?
A: Not comprehensively. One difficulty in determining how tribal courts have ruled on constitutional issues is the limited information available. Most do not publish their opinions and even among those that do, only 100 cases per year are reported, according to Mark D. Rosen in the Fordham Law Review.
Q: When a crime is committed on American Indian land, who is in charge of the investigation?
A: According to Gunn: "In 1953, Congress passed Public Law 280, which gave certain states criminal jurisdiction over some, but not necessarily all, Indian reservations within their borders. In these states -- commonly referred to as P.L. 280 states -- the states and tribes have concurrent criminal jurisdiction. (The federal government does not exercise criminal jurisdiction here, except in cases of ordinary federal crimes, like drug crimes, etc.) Some tribes in P.L. 280 states may not have their own criminal justice systems, deferring instead to the state criminal systems in place. Many tribes in P.L. 280 states do have their own police, etc., and they enjoy shared jurisdiction with the states. In non-P.L. 280 states, criminal jurisdiction over crimes involving Indians is shared between the federal and tribal governments. In short, tribal governments have misdemeanor jurisdiction over offenses committed by Indians. In non-P.L. 280 states, the federal government has felony jurisdiction over crimes by Indians and all jurisdiction by crimes committed by non-Indians against Indians. The states do have some jurisdiction over crimes by non-Indians against non-Indians."
Q: Does the First Amendment apply to American Indian tribes?
Yes and no. Congress required tribes to incorporate the protections of the First Amendment in the Indian Civil Rights Act of 1968. But the U.S. Supreme Court interpreted the law to say that tribes can interpret those protections according to whatever principles their own court system adopts. That means that the traditional protections understood under federal law might not apply, and bringing a challenge in a tribal court system could yield a very different result than in the federal court system.
Q: What are good sources of information?
Native American Journalists Association: www.naja.com
Bureau of Indian Affairs: www.doi.gov/bureau-indian-affairs.html
National Congress of American Indians: www.ncai.org
National Museum of the American Indian: www.nmai.si.edu
The Freedom Forum's Al Neuharth Media Center: www.freedomforum.org/templates/document.asp?documentID=13147