Friday, April 1, 2011

Cherokee Nation has Exemplary Open Records and Meetings

Tribes need own meeting laws Rapid City Journal - Online 03/31/2011

When federal officials from the Department of Health and Human Services last week ousted a Journal reporter from a meeting with tribal leaders to discuss Indian Health Services, the reason cited was tribal leaders requested the meeting be closed. It turns out, that reason doesn't necessarily pass legal muster.

The line between federal and tribal law regarding public records and open meetings is a murky one, with reams of inconsistent case law. In 2001, the U.S. Supreme Court ruled that information requested by the U.S. Department of Interior and turned over by Indian tribes was a matter of public record. The Federal Advisory Committee Act also requires that groups providing advice to federal agencies must hold open meetings, unless certain exemptions apply.

The fact that tribal leaders request a closed meeting isn't sufficient reason, in and of itself, to close such meetings. (especially when it involves health care!)

It's widely accepted that tribal meetings held on tribal lands are not subject to federal open meetings laws. That doesn't automatically entitle the federal government to apply the same rule whenever and wherever it meets with tribal leaders. The Journal believes our reporter should have been allowed to attend the meeting held in Rapid City.

Perhaps in response to a long list of challenges to the secretive nature of federal-tribal meetings, the Department of Interior is in the process of developing a department-wide policy for consultation with Indian tribes. Tribal leaders were given a March 14 deadline to comment on the proposed guidelines, and the public will have an opportunity to comment before the policy is finalized. The proposed policy states: "Open meetings can be used for national, regional or subject-matter specific issues." Substitute "shall" for "can," and the rule would make it clear openness should prevail.

As written, it leaves the door wide open for government and tribal officials to close the doors whenever they please. The policy also states: Where appropriate, the Bureau or Office should consider using negotiated rule making for developing significant regulations or other formal policies in accordance with the Federal Advisory Committee Act.

Without a definition of what "appropriate" means, the policy seems pointless. Instead of developing a policy that clarifies what meetings should be open, and which ones are exempt, the Department of Interior has spent more than a decade and untold sums of tax dollars developing a policy that maintains the murky lines of distinction that allow federal and tribal leaders to shut the public out.

Since the Journal reporter was ousted from last week's, we've heard complaints from tribal members who want their leaders to meet in the open.

The Cherokee nation has adopted its own open records and open meetings act based upon a model developed by a media expert.

Other tribal nations should follow their exemplary lead.