Sunday, February 1, 2009

The Tribe In The News: Mohegan Tribal Court Part III

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This installment of The Tribe In The Media is the third article in The Day newspaper of New London covering the courtroom controversy at Mohegan:

When Growing Up Meets Secrecy
By David Collins
The Day newspaper
February 1, 2009

The Mohegan Tribe may be hundreds of years old, but it's very much in its infancy when it comes to running a modern government, with all kinds of public works, housing, education and entitlement programs.

All that has come with the fast-lane nation building that began after the successful opening of Mohegan Sun a little more than 10 years ago.

With the growth, and now also with a downturn in business, have come growing pains.

And some of those seem apparent in a case now in Mohegan Tribal Court in which a tribal member, William Bauer, is questioning the fairness of a “good standing” disciplinary action against him. He's accused of revealing on his Web site information the tribal government wants kept secret.

In fact, prosecutions like the one pending against him are contemplated as somewhat routine in a new Freedom of Information law passed recently by the Tribal Council that both provides access to government records but also make it an offense to reveal them.

This peek-a-boo FOI law has generated enough backlash among tribal members, in an election year, that a petition to bring it to referendum has passed, according to two Web sites run by tribal members, sites that appear to be direct targets of the new press-freedom crackdown.

The folly of a government that has grown as big as the Mohegans' still trying to operate with the insularity of a family was apparent in Mohegan Tribal Court Friday, as government lawyers tried to keep under court seal information that was once posted on Bauer's Web site for weeks before he took it down.

The paperwork in Bauer's lawsuit over his disciplinary action apparently includes some of the same information he is accused of disseminating on his Web site, hence the government's agitation.

It was also still theoretically part of a public court record when I asked a clerk to look at it the week before last. But in the days it took to make arrangements to see the file, it was sealed, prompting Friday's hearing to determine whether it will remain permanently sealed.

Attorney Helen Avalos, representing the tribe's Council of Elders, said she didn't exactly consider the file a public document before it was sealed because the council would have expected a phone call if someone had asked the court to look at it.

”I'd expect that as a matter of courtesy,” she said.

This prompted a sharp rebuke from Judge Jane W. Freeman, who asserted the openness of the Mohegan Court system.

”No calls are made to anyone when someone comes in and wants to see a file,” Freeman said.

Well, not really. In fact I'm quite sure calls were made, and indeed a file was sealed, at least temporarily, after I asked to see it.

Still, Judge Freeman conducted a thorough review Friday of the legal issues related to the sealing of the file and even unsealed the parts of it that the government does not object to making public. She's asked for legal briefs on the issue before she hands down her own written decision.

I believe the Mohegans in general know the importance of maintaining an open court system, especially one that is supposed to be an alternative jurisdiction to Connecticut courts, even if some prominent government officials don't like it.

Apparently some government officials take an even dimmer view of open government.

I wonder how well they'll be able to continue to keep things under wraps and in the family as business declines and hard decisions get even more scrutiny by tribal members.

Another tribal attorney suggested Friday, in arguing to put under seal the documents that had already been made public, that the genie isn't yet out of the bottle.

I'm not so sure about that.

This Is The Opinion Of David Collins.