Friday, March 14, 2008

The Tribes In The News Series: Transparency In Indian Governments

In the Tribes In The News Series : Attorney Helen Padilla, who worked for the Mohegan tribal government, makes statements in the following article for The Arizona Republic:

Tribes scrutinized for secret actions: As casino profits rise, so do demands for open government
Dennis Wagner
The Arizona Republic
Mar. 2, 2008

SAN CARLOS - Late last year, word spread through Apache lands like the high-desert wind: Members of the tribal council had given themselves pay raises of 30 percent and were driving around in new Humvees and other luxury vehicles bought with tribal funds.

A recall campaign started up, fueled by more rumors of dubious spending.Beverly Russell, a founder of the opposition movement known as People First, says fancy cars featuring satellite radios and hydraulic lifts were authorized in secret.

Efforts to document the expenses proved futile, however, because the community 100 miles east of Phoenix has no public-records law, said Russell, a former aide to Vice Chairman David Reede. "We are totally at the mercy of the tribal council," Russell said. Her requests for documents were ignored. "Whatever they decide is not open, they just don't release it. . . . There is no policy for anything here. It is very shocking.

"The predicament is not unique in Indian country. Among America's 561 federally recognized tribes, few have laws that ensure their members can find out about their elected leaders' business.

In many cases, the result is a strong distrust of tribal government spawned by actions that some members consider abuses of power.

In North Carolina, for example, the editor of the Eastern Cherokee band's newspaper, The One Feather, was dismissed from his job in October after writing a column critical of the tribe's failure to disclose campaign contributions to federal candidates. In Florida, police with the Seminole Tribe withheld a homicide report last year after a suspect was shot by an officer. Nationwide, efforts to obtain information on casino profits and spending have been thwarted.

Lucy Dalglish, executive director at the Reporters Committee for Freedom of the Press, said it seems incongruous that U.S. foreign policy promotes open democracies worldwide while hundreds of sovereign governments within America are able to operate in secrecy.

Dalglish wonders how tribal members can hold their leaders accountable or make informed decisions when they vote."Isn't it just remarkably ironic? It's a very autocratic system. And only those within the inner circle have a right to a voice," she said. "If I were a member of one of the tribes, I'd be continually frustrated."

Lack of transparency

Helen Padilla, director of the American Indian Law Center in New Mexico and a member of Isleta Pueblo, said tribes have a right to establish their own rules for access to records and are not subject to the federal Freedom of Information Act or state sunshine laws. Each Indian nation is unique and is governed according to traditional values, she said.

"Many tribes do not even have their laws codified," Padilla said. "You're talking about the whole concept of a free and open system when that may not be what the tribal government chooses."

Padilla acknowledged that a lack of transparency often leads to distrust and division. "It happens all over Indian country, with tribal members alleging that corruption is occurring." The concern has been magnified in the past decade with the spread of lucrative casinos on Indian reservations. Because each tribe's gaming revenues are secret, tribal members often are not told how much money is being taken in, where it is spent or whether they're getting a fair share.

That issue led to a schism last year in the small San Juan Southern Paiute Tribe of northern Arizona. Leaders voted themselves pay raises and refused to release budget information. A recall effort resulted in the formation of dueling governments, each of which claims the other was elected unlawfully.

Lee Choe, considered acting president by one faction, said his people were torn apart by secrecy and greed. "I think it's the money, the gaming money that's coming in," he explained.

In general, Native American nations do not prohibit the release of records, and many divulge budgetary documents, said John Lewis, executive director at the Inter-Tribal Council of Arizona.

Disclosure, however, is often an arbitrary decision left to the whim of those in power, Dalglish said. The result is that leaders may withhold everything, from council minutes to spending invoices.

Inclined toward secrecy

Experts on Native American law are able to point to two tribes, the Navajo Nation and the Western Band of Cherokees, with clear and effective freedom-of-information laws. The Navajo Nation's Privacy and Access to Information code makes public most records of America's largest Indian tribe, as long as privacy is not violated. George Hardeen, a spokesman for President Joe Shirley Jr., said the law rarely gets used because Navajo government is so open. "If somebody wants something, we'll give it to them," Hardeen said.

The Western Cherokees established their law in 2001 under Principal Chief Chad Smith, who co-wrote the measure.

"In my opinion, that's doing it right," said Bryan Pollard, editor at the Cherokee Phoenix newspaper in Tahlequah, Okla. "By informing people, your leadership makes them active participants in their culture and government."

Pollard said an inclination toward secrecy is understandable among indigenous people. "They've suffered so much oppression. They've become very defensive," he said. "But, in some tribes, it's reached unhealthy levels." Ronnie Washines, editor of the Yakama Nation Review in the Pacific Northwest, said there is an "understanding" within his tribe that government records are open to members, but it doesn't always pan out. Washines said he wanted to do a story on casino revenues some years ago, only to be turned down based on "technical disqualification."

Washines said he was never given a legitimate reason records were kept secret.

Calling for accountability

Mark Trahant, a Seattle Post-Intelligencer journalist who has covered Indian communities nationwide, said the truth usually leaks out even though tribal leaders attempt to create walls of secrecy.

He added that many tribal governments lack the money and sophistication to enact or follow a public-records law, but informal systems often work because openness is innate to most indigenous cultures. His Shoshone Bannock tribe in Idaho requires at least one meeting a year where members can confront leaders with questions.

Frank Pommersheim, a professor of Indian law at the University of North Dakota, said he does not know of a single Plains tribe with a public-records law. However, he sees an evolutionary process under way and believes Indian governments inevitably will become more open because tribes are gaining sophistication and members are demanding accountability.

"I think that issue is likely to come to the fore," he said. Pommersheim said casinos and financial accountability are a major factor but emphasized that money can spawn dishonesty or suspicion in any group, no matter the ethnic background. "I don't regard any of these issues as unique to Indian country," he added. "I think that is a bit dangerous."

At the San Carlos Reservation, the issue of openness came to the fore at a public meeting in November, when Chairman Wendsler Nosie Sr. was asked to explain and provide records for the pay hikes and expenses. Russell, whose group is leading a recall campaign against Nosie and most council members, said he failed to respond.

Vice Chairman Reede said the expenses were approved in his absence during a closed-door meeting. Afterward, Reede assigned his vehicle and $18,000 pay raise to community projects rather than personal use. That led to another closed meeting, Reede said, where the council abolished his office budget and eliminated his staff. Nosie did not respond to interview requests.

In a letter answering Russell's request for documents, the chairman acknowledged that Apaches have "an unquestionable right to understand (and) evaluate the conduct of (their) government."

However, he argued, specific financial information is exempt, and council discussions of such matters are confidential.While each Native American tribe has a unique culture and tradition, Reede said, a mentality of secrecy seems widespread."

I think you will see that all tribes have the same ongoing issue," he said."We are struggling with political independence, self-rule, self-determination and to create economic development," he added, but cloaking government in secrecy will only hinder progress.