Land of the free?
By Kevin Kemper Posted Oct 1 2002
In 1968, the United States Congress passed the Indian Civil Rights Act, which guaranteed Native Americans certain First Amendment freedoms, and American courts have since ruled that the tribal governments are responsible for implementing and enforcing those rights.
Some tribes have not. They apparently feel that a free press would not properly represent tribal needs.
The Cherokee Nation, headquartered in Tahlequah, Okla., the western terminus of the tragic Trail of Tears in which several thousand Native Americans died in the 1830s, has been a case in point.
The Nation owns the tribe's principal publication — a quarterly with 100,000 circulation, the Cherokee Phoenix and Indian Advocate — and can enact regulations that control it, thus limiting the protections of the First Amendment for hundreds of thousands of American citizens.
The government has been reluctant to give up control, bringing on a complicated legal case. At one point, the editor, who was also the tribe's public-relations director, resigned both jobs in protest of the tribal control over the magazine.
A debate continues about freedom of the press for Native American tribes.
The Cherokee Nation has a measure of sovereignty within the United States, meaning that it can decide many questions for itself. However, the first Cherokee constitution only protected certain religious freedoms. The other four First Amendment protections — press, speech, assembly and petition — did not receive a single mention in the Cherokee constitution.
In an attempt to secure more press freedom for the news magazine and the Cherokee people, the Cherokee Council (the tribal legislature) passed the Cherokee Independent Press Act of 2000 and the Freedom of Information and Rights to Privacy Act of 2001. They were intended to separate the political struggles of the tribe from the editorial functions of the news magazine.
Newspapers and media experts throughout the world have praised the progress these acts make for freedom of the press for Native Americans.
But the 2000 act empowers the principal chief and tribal council each to appoint one editorial board member. Those two members appoint a third member, and all have to be confirmed by the council and chief. A change in the administration could mean a change in editors.
The law further outlines the qualifications of the editor. In many clauses, the law says that the editor, board members and paper in general must be “free from political influence.” The law provides that the editor, who is appointed by the chief, must “certify he or she will adhere to the standards of accepted ethics of journalism as defined by the Society of Professional Journalists and endorsed by the Native American Journalists Association.”
Despite the new laws, the level of press freedom has not changed much for Native Americans, said Mark Trahant, chairman of Maynard Institute of Journalism Education and former president of the Native American Journalists Association. Current NAJA president Patty Talahongva agreed, saying, “Tribal papers do not have press freedom in general.” However, they both think the new Cherokee laws are going in the right direction.
Others said the laws still do not go far enough to secure press freedom. Some said the news magazine will never be truly free until it is financially independent and otherwise autonomous from the leadership of the tribe of about 221,000 members.
Jane Kirtley, a media law and ethics professor at the University of Minnesota and a former director of Reporter's Committee for Freedom of the Press, thinks that because the Cherokee Phoenix and Indian Advocate is still owned by the Cherokee government, the news magazine cannot completely be free.
“A free press is non-government owned and non-government controlled,” she said.
However, tribal leaders say the news magazine is essential to the survival of the tribe itself.
“Freedom of the press is not an act of altruism,” said Cherokee Principal Chief Chad Smith, who campaigned on a promise to guarantee more press freedom for the tribe. “We don't do it for the romance of the free press. ... We've done this to ensure survival of the tribe, to have a strong government.”
The late Native American journalist Richard LaCourse found in a 1998 study titled “Protecting the First Amendment in Indian Country” that only 64 of 554 federally recognized tribes between 1852 and 1968 had any kind of press-freedom clause in their constitutions. There have been many stories throughout the United States about how tribal governments have fired news staffs and otherwise repressed Native American journalists.
At the Cherokee Nation, Dan Agent reportedly resigned as editor/public relations director of the tribe in 1997 under pressure from the administration of former Chief Joe Byrd. Agent has become an advocate for free press for Native Americans, founding a non-profit organization called Indigenous Peoples Free Press Foundation.
However, tribal-owned newspapers “are never going to be able to escape being a PR tool” in the sense that they promote a Native American perspective, Agent said.
Agent has vigorously spoken against what he views as efforts to muzzle the Cherokee Phoenix and Indian Advocate by certain tribal leaders in the past.
“Today’s struggle with press freedom’s much different than those hardships faced by the Cherokee Phoenix 170 years ago,” Agent once wrote in an essay advocating free press for Native Americans.
Agent returned to his old post — this time without the public relations duties — in 1999 with the administration of Chief Smith. Despite tribal ownership over the paper, the new laws do attempt to distance politics from journalism in the tribe. For instance, the editor no longer serves as or works for the public relations director.
A former editor/public relations director for the tribe scoffs at the notion that the Phoenix has freedom of the press, saying that Chief Smith and Agent are aligned politically.
“There is no such thing as freedom of the press in a tribally-owned newspaper,” said Lynn Adair, who had served as editor and public-affairs director for the Cherokee Nation between 1997 when Agent left his position and 1999 when he came back with the election of Smith. As a supporter of Byrd, Adair is a vocal critic of both Smith and Agent.
Byrd, who had been accused by Agent of suppressing the tribal newspaper during a tribal constitutional crisis, said that free-press laws “sound good,” but that free press will never occur for the Cherokee Nation until the paper “can stand on its own two feet.”
Smith said giving up tribal ownership of the Cherokee Phoenix and Indian Advocate would be impossible right now because of financial limitations but that he would support that move if the news magazine could pay its own way.
Leaders and journalists alike agree on one basic premise — they will support what they believe is in the best interest of the Cherokee in particular and Native Americans in general.
For the present time, the Cherokee Phoenix and Indian Advocate still does what the Cherokee Phoenix did in 1828 — provide a voice for news and views about Cherokee and Native American issues to anybody interested in reading them. And that voice is freer in 2002 than in 1828. It just is not yet as free as some would like for it to be.