When the Bill of Rights doesn’t apply

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MOSCOW, Idaho – A problem often exists when reporters, Native or otherwise, want to obtain information from tribal offices and are told they can’t have access to that information.

Questions then arise, and comments regarding “freedom of the press” or “First Amendment to the Constitution” are brought up. The answer is very simple in that tribes are sovereign nations, and those rights that exist under U.S. law don’t necessarily apply to sovereign nations.

Rebecca Tallent, Cherokee/Irish and an assistant professor in the School of Journalism and Mass Media at the University of Idaho, has been researching this subject. She enlisted the help of a senior student, Rubell Dingman, to help. Dingman is Washoe and Western Shoshone from Nevada majoring in journalism and minoring in American Indian studies at the university, with hopes of entering law school there next fall.

The two have jointly written an article titled “Native Press Freedoms: The Tribal Legal Issues Restricting Native Media,” which is currently being considered for publication by the First Amendment Center at Vanderbilt University in Nashville, Tenn. It reviews the history and legality of why Native media are not covered under the Bill of Rights. A second article examines the press freedom acts and how they protect Native nations while still providing information to all media.

Tallent is quick to point out they are not proposing or pushing any agenda, merely pointing out the situation as it exists. “The reason I got started on it is because as a Native, I was stunned by how many non-Natives would come to me and say, ‘I tried to cover Indian country and had problems because they wouldn’t talk to me, and they should be talking to me under federal law.’

“A lot of folks don’t realize Native culture is very different from white culture, Latino culture, African culture; and different between tribes, too. I wanted to explain to reporters that there’s a big difference and they are legal as well as cultural.

“The ‘sovereign nation’ status separates us,” she continued. “For the most part that’s a good thing, but in terms of Native media it actually causes a lot of confusion. Should Native media have the right to cover whatever it wants? That’s pretty much left up to the tribes, what tribes have put into play.

“A lot of things changed with the Indian Civil Rights Act of 1968. Then the Martinez v. Santa Clara Pueblo Supreme Court case changed it again. While the ICRA says that any Native people have the right to all the freedoms granted under the U.S. Constitution, the Santa Clara case allows tribes to pick what rights they’ll allow within tribal organizations.

“We discovered the Cherokee Nation has a press freedom act. It was actually created after the Cherokees’ constitutional crisis when [Principal] Chief Chad Smith said, ‘We’ve got to find a way to streamline. We’ve got to find a way to make things fair.’ He realizes it’s important to have a free press so the citizens can understand what’s going on within their community.”

Dingman noted that only the Cherokee Nation has a press freedom act.

Tallent added that George Tiger from the Muskogee Nation had recently been interviewed and he felt it was important for Native people to have a press freedom act because it could protect both sides. Journalists, Native and non-Native, would know exactly what they will be permitted or not permitted to cover.

Tallent said that in her research, the biggest complaint she had heard was that if Native nations allow non-Natives in to cover something, it is one more chink in the armor – one more bit of information that can be used against the tribes. On the other hand, some argue that with those rules in place, reporters could be handed the rules and told, “This is our press freedom act and you must abide by it while you are on our lands.” That way, all would know what is and isn’t permitted.

“Some tribes are very interested and some tribes could care less,” she commented. Either way, each tribe has the option of doing whichever it prefers.