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Wednesday, 26 August 2015 14:41

Native American journalists face unique issues when it comes to free press

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coverJoe Martin had never worked for a newspaper or owned a handgun when he took the reins of the tribally owned Cherokee One Feather in 1995. 

But when the first changed, so did the second. Then a 26-year-old whose only job experience since graduation from college was as a cage cashier at the casino, Martin found himself fast-tracked to a steep, steep learning curve.

“I’ve gotten death threats here and there,” he said. “I don’t know how many times I’ve had somebody say they were going to go to the chief or council and make sure that I got fired.”

Eventually, he did get fired. Martin hasn’t worked for The One Feather since 2007. 

He started to stir up controversy well before then, however. An Auburn University grad in public relations and journalism, Martin was hired by former Principal Chief Joyce Dugan with strict instructions to act like a journalist. Soon after his hire, he drew criticism for a piece he wrote about a former chief’s lawsuit against the tribe. Then, Martin wrote an editorial that he characterizes as “in the vein of Jonathan Swift,” which satirically suggested solving a controversy surrounding Harley rallies by kicking out the bikes. That angered a good many business owners. Then there was the “routine” cops and courts reporting that becomes more complicated in a close-knit community where ties of blood and friendship are thick. 

“I heard from plenty who felt I should not be printing things like their sons raping an 11-year-old girl,” Martin said. 

But the stage for the events that led to Martin’s termination wasn’t really set until 2003, when the newly elected Principal Chief Michell Hicks reorganized the newspaper to become part of the marketing and promotions department. That’s when a new column called Rants and Raves appeared in the paper — a development that Martin said was the suggestion of his boss, the marketing and promotions director at the time. The column printed tribal members’ anonymous comments on whatever was happening around Cherokee, and it became immensely popular. 

Martin says he wasn’t a fan of the idea, because he believes that if someone wants to publicize an opinion they should be willing to sign their name to it. However, in retrospect he can see that Rants and Raves turned out to be incredibly valuable. 

“It turned out to be probably the best thing that ever happened to that paper, because for one it got people to comment,” Martin said. “People were afraid to criticize Tribal Council and the chief because they feared retaliation, and all of a sudden there’s this forum where they can do that.”

As it turned out, many of the called-in comments were less-than-favorable toward Hicks, who in September of 2007 was elected to a second term. After the election, he issued an executive order to end the Rants and Raves column. 

The final straw came when Martin criticized Hicks’ action in the Asheville Citizen-Times. 

“Following that column coming out, I get this notice that I’m going to be transferred out of the paper to this job that looked like it was just made up on the spot,” Martin recalled. 

The job was manager of Dora Reed Children’s Center, the tribal daycare. Martin had no work experience in that field. At the time, he wasn’t even a father. 

“I knew what it was,” Martin said. “I talked to my lawyer, and he said basically to make them fire me.”

Martin filed a wrongful termination suit against the tribe, eventually settling. He cited lack of confidence in getting a fair trial as reason for not going through the whole process. Martin tried starting an independent paper soon after things fell apart at The One Feather, but the timing was all wrong — it was 2008, and his start-up publication was just one of many victims of the recession. Since then, he’s done some other newspaper work and for a time reported for The Cherokee Scout, but today, he’s a stay-at-home father of one — with a second on the way — enjoying a quieter life than he had as editor of The One Feather.

“Kids give you enough gray hair,” he joked. 

 

Cherokee and the First Amendement

While it might not be hard to believe that a person about whom less-than-flattering words are being written would want to keep undesirable press at bay, what’s harder to understand is exactly how a journalist at a newspaper in North Carolina could be fired for doing what any newspaper editor in any state in this nation would be perfectly within his rights to do. 

The question is complicated by the fact that, while Cherokee is geographically located in North Carolina, it’s not actually part of the state. Like all other federally recognized Native American tribes, The Eastern Band of Cherokee Indians is a sovereign nation. That means that it makes and enforces its own laws, so the fact that the Constitution of the United States of America guarantees all citizens the right to a free press and free speech doesn’t have any bearing on how things work on the Qualla Boundary. 

All that would explain why Martin’s story was able to play out like it did if not for the fact that Cherokee does, in fact, have laws on the books that mirror the language in the First Amendment. 

The Free Press Act of 2006 — notably, the year before Martin left The One Feather — states that it is “imperative” to ensure that “tribal publications have the autonomy and independence to report honestly and objectively.” It references the Eastern Band of Cherokee Indians’ adoption of the Federal Indian Civil Rights Act of 1968, which states that no Indian tribe shall make laws that, among other things, “abridge the freedom of speech, or of the press.” It establishes The One Feather as the tribe’s newspaper and asserts that Cherokee’s press should be “independent from any undue influence and free of any particular political interest.” The press should “report without bias the activities of the tribe, the tribal government, and any and all news of interest to have informed citizens.” 

All of that sounds pretty black-and-white. It would be unheard of for a reporter at any American newspaper protected by the identical First Amendment right to free speech to be fired or kicked out of a meeting or denied access to records just because somebody in the government didn’t like what they were reporting. 

So why are things different in Cherokee? And how does the situation there compare with that of the hundreds of other federally recognized tribes in the United States? 

 

The source of conflict

In the world of media, newspapers covering Native American lands are curious creatures. They exist to serve a population of people, usually in a low-population-density area, united by their heritage as much as by their mailing address. The result is a rather limited pool of readers, and it’s often difficult or impossible for a newspaper serving such a population to stay afloat through the traditional means of subscriptions and advertising. 

“Most of the time it’s actually the tribe itself — the government — that is subsidizing the operation of the newspaper,” explained Bryan Pollard, vice president of the Native American Journalists Association and editor of The Cherokee Phoenix in Oklahoma. “You can see the inherent conflict there.”

In this situation, the tribe recognizes the value of having a community newspaper but realizes that such a business would fold pretty quickly if left to market forces. So, the tribe foots the bill for the publication, ensuring financial stability but creating a situation in which the very organization the newspaper is tasked with watchdogging is the one cutting its employees’ checks and holding ultimate sway over hire/fire decisions. 

“If you have a government that’s funding the media, then many times you will have elected officials that believe that they should have a say in what is and is not published,” Pollard said. 

There are ways to guard against that. A common tactic is to establish an editorial board that acts as a buffer between the newspaper’s employees and tribal executives. This board should have the power to set editorial policies and hold hire-fire power over the newspaper editor; in effect, the board should do the job that a publisher would do at a typical newspaper. 

That’s close to how things are set up in Oklahoma’s Cherokee Nation, which Pollard’s newspaper — the first Native American-owned paper in the country, which was first published in north Georgia in 1828 — covers. The five-member editorial board is made up mainly of appointees of the chief and tribal council, three of whom must have experience in publications, while the other two must have business management experience. The board sets policies surrounding editorial content and advertising, and if the editor’s job becomes open — editors can be fired only for cause — it recommends a replacement for the principal chief to approve. 

“For the most part I have felt free to publish whatever stories we feel like we needed to publish, including stories that are critical of the government, and we have done that,” said Pollard, who has held his post for nearly nine years.

The Eastern Band of Cherokee Indians also has an editorial board, and much of the language in the ordinance establishing it is identical to that in the Cherokee Nation ordinance. But differences exist, and the differences are significant. 

For instance, the Eastern Band ordinance doesn’t stipulate qualifications for editorial board members. Pollard believes it’s vital that board members be required to have some kind of experience managing a newspaper. 

“If you have an editorial board and you put your brother Jeff on it who doesn’t have a lick of journalistic experience, well guess what? You’re probably not going to get real strong independence out of him,” Pollard said. 

But in choosing a board, the Cherokee Nation has a lot more people to choose from than the Eastern Band. About 100,000 enrolled Cherokee Nation members live in Oklahoma, with about 330,000 enrolled members total. Compare that to somewhere around 15,000 enrolled members of the Eastern Band. Which begets the question: if the law were changed to require board members to have journalistic experience, would it even be possible to fill all the seats?

“I think it would be a stretch to find a tribal member who would also be a journalist and serve on it,” said Martin. 

There are other options, though, Pollard pointed out. What if all board members weren’t enrolled in the Eastern Band? 

“I think if they’re going to have a serious, independent board, then having someone with a strong sense of ethics is more important than necessarily having a citizen,” he said. “They could just open it up to all Cherokees, because there’s three Cherokee tribes and between the three tribes there’s plenty of experienced journalists.” 

So who is on The One Feather’s editorial board now? 

The answer to that question points to another one of Pollard’s major concerns with the Eastern Band’s free press law. The editorial board is simply made up of The One Feather staff members and the tribe’s director of marketing and communications — that person is the editor’s boss. 

“That seems like a very obvious conflict to me, because then you have people who may fear for their jobs also setting the editorial direction of the paper,” Pollard said. “To me, that’s just asking for political influence.”

 

An old story

It would be hard to find somebody with more stories to tell about life as a Native American journalist than Tim Giago. A member of the Oglala Lakota tribe in South Dakota, Giago got his start with the Rapid City Journal before leaving to launch his own paper, The Lakota Times, to cover his native Pine Ridge Indian Reservation. His professional accomplishments have been many, among them founding the Native American Journalists Association, on whose board Pollard serves. 

Upon hearing about The Smoky Mountain News’ troubles gaining access to Cherokee Tribal Council meetings — SMN is required to request approval each time it attends a meeting and has been kicked out of two of them, once with a police escort — he just laughed.

“That sounds like an old story to me,” Giago said. “I’ve been thrown out of Tribal Council meetings many times too.”

That’s not the most formidable challenge that the 81-year-old faced in his decades as a journalist. 

“I had my windows shot out three times. The newspaper was firebombed in December of ’82,” Giago, now retired, recalled from his home in South Dakota. “I came out of my car to go to work one evening and they shot a bullet right through my windshield and just past my head. So yeah, we had some hazardous times back in those days.”

All that, and Giago’s newspaper wasn’t even tribally owned. The whole reason he’d started it was because “I knew if I had a tribal newspaper I’d never be able to write some of the strong editorials and be critical of the tribal government as I have for the past 34 years,” he said. 

So why, even with legislation in place guaranteeing freedom of the press and without the inherent conflict of interest that arises when the watchdog of the government is owned by the government, did Giago face so many challenges as a journalist?

“It all comes down to leadership,” he said. 

During the decades he’s worked in journalism, Giago’s dealt with chiefs who were hostile to free press and opposed him at every turn. He’s also worked with leaders who recognized its value. After his building was firebombed in the 1980s, for example, the tribal president at the time called a special meeting of Tribal Council to declare that any attack on Giago’s paper would be considered an attack on the tribe. 

Each tribe is unique in its governmental structure, its network of laws and policies, but in nearly all cases it’s true that the tribal leadership has tremendous influence over how business is carried out, which laws are enforced and which laws are ignored. 

 

Speculation on the future

When it comes to free press — giving the newspaper license to print whatever it wants — that power structure can cause issues. 

“You’re asking them to relinquish that control,” Pollard said. “I could sincerely understand a reluctance to do that, and I think that’s when it really becomes incumbent upon the people of the tribe to express their desire to their elected officials to take real action when it comes to enacting a free press.”

“When a group of citizens organizes and they represent a certain number of people, a funny thing happens,” Pollard continued. “Elected officials suddenly start paying attention. Regardless of what laws are currently on the books, if the Eastern Band citizens do not feel like they have a free press, then they need to make their voice heard through action. They need to push the issue. They need to make it clear to elected officials that’s something that they value.”

Giago is a bit less optimistic about the likelihood that leaders used to complete power would give up that privilege. He sees the next generation as the greatest hope for developing a free press and advocates for an increased emphasis on educating children about the importance of a free press and involved citizenry. Some of those children, he reasons, will then grow up to become leaders who value free press and citizens who demand it. 

“That’s the only way things are going to change,” he said. 

Pollard disagrees, arguing that there’s room for things to change now if people speak out and demand that their leaders honor those First Amendment-style rights. 

“I wouldn’t go so far as to say you give up on us old guys,” he said. “There are a lot of mature journalists in Indian country. We want to do good, independent reporting and we understand the value of it, but we’re not all in the same situation. Some of us, like me, have more freedom, but there are others who — they just don’t.”

 

Issues with enforcement

For the Eastern Band, part of the issue stems from how the law is enforced — or at least how it’s perceived to be enforced.

In Cherokee, laws are passed by the elected Tribal Council. They are carried out by the principal and vice chiefs, also elected. But disputes are adjudicated by the Cherokee Tribal Court, whose judges are appointed by the principal chief with confirmation by Tribal Council. The principal chief also has ultimate hire/fire power over all other tribal employees, the tribal government being by far the biggest employer on the Qualla Boundary.

Fear of conflict of interest on the judge’s part, Martin said, was a significant factor in his decision to settle on his wrongful termination case after he left The One Feather. He said he didn’t feel like Chief Hicks would have allowed the judge to make a fair decision.

Bill Boyum, Tribal Supreme Court Chief Justice, didn’t work for Cherokee’s court system when Martin’s case was filed and said he hasn’t dealt with a freedom of the press suit before in Cherokee. But he believes that the court system now has a much deeper bench of experienced judges — some of whom live in the community and some of whom do not, allowing for a more detached decision when conflict of interest is a concern — and is of at least equal in quality to the state court.

“The number of years of experience is four times what it was eight years ago,” he said.

However, he concedes that Tribal Court is still working to overcome a sometimes negative perception.

“In reality, perception overshadows reality sometimes,” he said.

There’s another issue, too — tribal immunity. If someone felt like the State of North Carolina, for example, had violated her rights in some way, that person would be able to sue the state. Not so in Cherokee. Though it can choose to waive that right, by default the Eastern Band is immune from lawsuit. So, even if a tribal member felt like her government was not honoring the law as written, she would not necessarily be able to sue the government she believed to be violating her rights.

“The tribe can always amend its laws and waive sovereignty that the Cherokees have to a small degree,” said Rob Saunooke, the attorney who represented Martin during his lawsuit.

But as far as a wholesale waiver that would allow someone to file a lawsuit whenever they felt the urge? That’s a bit trickier, said Saunooke, an enrolled member who now lives in Florida. 

“The fear is if we waive sovereign immunity, Indians will benefit from it but so will non-Indians,” he said.

 

Family, community and the news

Indian tribes are different from other newspaper coverage areas in that they’re not just another county, another town, separated from the neighbors by arbitrarily drawn political lines. Indian tribes are their own nations, pockets of culture thousands of years old. On the Qualla Boundary, for example, everybody who’s enrolled traces ancestry back to someone whose name is on the 1924 Baker Roll, a census of the Eastern Band of Cherokee people alive at the time. Many enrolled members are related to each other through some tie of marriage or birth from the last 100 years — it’s a community of blood, as well as geography. 

That can further complicate things when it comes to reporting the news.

“Me and my brother grew up and we beat each other up every single day, but don’t you dare let someone else jump on him,” said Councilmember Brandon Jones by way of explaining the dynamic. 

“We can fuss and fight and not get along, but then when something happens and there’s an outside opinion versus the Eastern Band, we all come together.”

On the one hand, people deserve to know what their government is up to. But would you want to publish your family secrets for anyone to read? For many in Cherokee, that’s a hangup when it comes to endorsing a free press — does giving media free rein equate to exposing what is the equivalent of family business for public consumption? 

“We all have to live in the same community,” Jones said. “We live together, we work together. It’s a tough lifestyle. It’s different than most communities for a lot of cultural reasons.”

But by the same token, when there’s something to talk about, people will talk. In lieu of a newspaper able to do investigative reporting, some tribal members have turned to Facebook as a forum to voice their opinions. Pages like Cherokee Rants and Raves and the closed group Tsa-La-Gi Voice have provided a place for Cherokee people to swap rumors, share thoughts, post government documents and generally connect on the issues they care about. 

One chorus that’s resounding in these forums is overall dissatisfaction with The One Feather. It’s accused of being a voicebox for the chief, a happy-news-only paper. Read through the opinion pages, and you’ll be hard-pressed to find a letter to the editor whose headline doesn’t contain the words “thank you” or an editorial that wrangles with some recent decision of Tribal Council or action of a tribal executive. 

When Tribal Council passed itself a hefty raise last year — effective immediately, though many pointed to a section of the tribe’s Charter and Governing Document that states raises for council can’t go into effect until after the next election — no headline popped up in The One Feather. Not when the budget containing the raises was adopted in October, or when the issue prompted lengthy debate in council chambers during the November and December meetings, or when a coalition of tribal members threatened councilmembers with a lawsuit in April.

However, it’s perhaps not fair to say that The One Feather isn’t making an effort. For example, during the 2011 chiefs election, not one front page in the month leading up to the election mentioned the race, unless you count a reminder on the Sept. 1 cover to go vote. Contrast that with this year’s Aug. 13 cover, which features a large headline about the chief and vice chief debates The One Feather hosted with the Junaluska Leadership Council — the questions asked there could not be classified as softball — and an article detailing Tribal Council candidates’ platforms and summaries of the most recent Tribal Council and budget council sessions. 

 

Moving on

Recent issues aside, Cherokee’s overall track record with regard to free press is anything but a cautionary tale. Cherokee is the only Native American language to have a written language, and the Cherokee Phoenix, of which Pollard is editor, was the first newspaper in the United States to be published by Native Americans. 

“Cherokee history will reflect that journalism is important to our people,” Councilmember Teresa McCoy said during the Aug. 6 Tribal Council meeting as councilmembers debated whether to allow The Smoky Mountain News to sit in the council chambers. “Knowledge and education and the right for us to inform ourselves about our government have existed for millennia.” 

McCoy, who sponsored the Eastern Band’s Free Press Act of 2006, has long been a supporter of a free press and allowing non-tribal media access to government affairs. 

“Free press is what it is,” she said at the same meeting. “It can be the best friend or the worst nightmare to an elected person. But people deserve to get the news, decide what they think and move on.”

For Pollard, the moving on is key. His newspaper writes about the government, sometimes critically, but that’s not all the Phoenix does. The paper includes stories about Cherokee artists, entrepreneurs, culture, language — the kinds of stories that readers have expressed a desire to read. Because the newspaper isn’t focused so much on the tug-of-war between government desires and journalistic ethics, Pollard said, staff can focus more energy on stories that show the soul of the Cherokee people. 

“One of the greatest misdeeds of a tribal press that’s being controlled by the government is that it forces the members of that tribal media to turn their ear only to the elected officials, and they turn it away from their people,” Pollard said. “When you’re free to report in a way that is truly independent, then you naturally turn your ear toward your people, toward your readers. You are able to listen to what they want, the stories that they would like to see, and that guides your reporting.”

When a newspaper is free to practice journalism, another thing happens, as well, Giago said. That newspaper gains respect in the wider community and can advocate for the tribe it covers. 

“You have to have a newspaper that can stand up for something, and a lot of the tribal newspapers don’t,” he said. Instead, they’re just concerned about where the line is, if they’re about to cross it and what might happen to their job if they do. 

One of Giago’s proudest accomplishments is convincing the state of South Dakota to get rid of Columbus Day, an October holiday honoring the Italian explorer who stumbled upon Central America in his quest for India — enslaving and killing many Native Americans along the way. 

“My newspaper challenged the government of South Dakota to do away with Columbus Day and replace it with Native American Day,” he said. “It went before the legislators, and now South Dakota is the only state in the nation that celebrates Native American Day. And it was my little newspaper that did it.”

The road to free press is an evolution. There have to be people who demand it, a leadership that will allow it to take hold and the growth of expectation among readers — tribal members — that access to information is a right. 

That happens one voice at a time, one word at a time, one ballot at a time. 

“People have much more power than they give themselves credit for,” Pollard said. 

(Current One Feather editor Robert Jumper expressed interest in commenting on this story, but a request for permission to interview that he submitted to his superior more than a week before deadline was not returned. A request for interview sent to Principal Chief Michell Hicks’ office was not returned.)

 

 


Election Day is coming

By the end of the day Sept. 3, the Eastern Band of Cherokee Indians will have a new chief, vice chief and Tribal Council. 

Polls will be open from 6 a.m. to 6 p.m., with in-office absentee voting available through 4:30 p.m. Friday, Aug. 28, at the Ginger Lynne Welch Complex on Acquoni Road. 

EBCI Board of Elections, 828.359.6361. 

Where they stand

As the highest executive, the principal chief has the most influence over freedom of the press — and innumerable other issues — in the Eastern Band of Cherokee Indians. The three candidates for the office have expressed their feelings on the issue, whether in interviews with The Smoky Mountain News or on stage at a debate recently hosted by The Cherokee One Feather. 

• Patrick Lambert: “I don’t think someone should be intimidated by writing a hard-hitting story that is truthful about their boss.” Lambert says he believes in the value of a free press and would want to reorganize The One Feather to be a separate entity, similar to the set-up of The Cherokee Boys Club or The Museum of the Cherokee Indian, to protect it from political influence. 

• Tunney Crowe: “I would like to see it set up to where enrolled members were the only ones that had access to our Tribal Council meetings.” Crowe said he believes in free press and agrees that tribal members should have access to any information they want. However, he fears that allowing information about budgets and projects out into the non-enrolled community would harm the tribe’s interests. 

• Mary Crowe (write-in): “We have a constitutional right of freedom of expression, and we have a constitutional right to freedom of the press.” Crowe said she would want to look at any policies and procedures relating to free press and consider what changes should be made to make it a reality. 

Work toward independence

The Native American Journalists Association has put together a list of ways that Indian tribes can improve their newspapers’ independence. The list is available at www.naja.com/sites/naja/uploads/images/11_essential_tools_for_independent_tribal_press.pdf.

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