Quill — July/August 2012
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Rebecca Tallent

As a federal shield law languishes, sovereign American Indian tribes begin to grant protections for their native journalists.

Tahlequah and Pawhuska, Okla., are 120 miles apart and are homes to very different American Indian tribes. The Cherokee Nation of Oklahoma is based in Tahlequah, and the Osage Nation is headquartered in Pawhuska.

Both tribal communities, acting independently, have recently passed shield laws, creating the first such reporter’s privilege laws for native journalists. Forty-nine states and the District of Columbia have shield laws or similar judicial protections for journalists. There is still no federallevel shield law, despite years of advocacy from journalism groups, including SPJ.

As sovereign nations, American Indian tribes can have a free press only if the language is specifically added to the tribe’s constitution or through a legislative act. The First Osage Nation Congress amended the tribe’s Independent Press Act of 2008 to provide tribal journalists protection from political influence on April 6, 2011, and the amendment was signed into law on April 12, 2011, by Principal Chief John D. Red Eagle.

The Cherokee Nation Tribal Council passed a separate shield law, the Cherokee Nation Free Press Protection and Journalists Shield Act, on April 16, 2012, to complement the Independent Press Act of 2000, and it was immediately signed into law by Principal Chief Bill John Baker. The Cherokee law specifically provides for the right to shield journalists’ notes and sources from disclosure in tribal proceedings.

Shannon Shaw, editor of the Osage News, said she thought the Cherokees had a shield law in their original Independent Press Act, a law mimicked when the Osage Tribal Council created its free press act. In the 2011 amendment, she said, the idea of protecting a reporter’s source is considered part of journalists doing their jobs. The amendment does not contain specific language for protecting sources.

“It was proactive journalism on behalf of our Osage Nation Editorial Board,” Shaw said. Tribal journalists “approached one of our Congress members, explained why we needed it, and the legislation was formed and passed.”

Cherokee Phoenix Executive Editor Bryan Pollard said a case came before the tribal appeals board in January for which he and a reporter received a subpoena, and he discovered neither the Independent Press Act nor state law would protect them in tribal court. Pollard said he talked with Cherokee Phoenix Editorial Board Chairman John Shurr, who encouraged him to write the bill. Pollard then approached Tribal Council member Chuck Hoskin Jr. about sponsoring the bill, and he agreed it was a necessary piece of legislation. Pollard wrote the initial draft of the law, and then Hoskin made a few changes and took it through the council process.

“I went straight from the Oklahoma law,” Pollard said. “Just on my reading, it hit all the necessary points that would protect us from being dragged into unnecessary proceedings. Now, if we do something libelous, we will have to go to court. It’s not an absolute protection. We have to have the checks and balances.”

Oklahoma state law defines a journalist as “any person who is a reporter, photographer, editor, commentator, journalist, correspondent, announcer, or other individual regularly engaged in obtaining, writing, reviewing, editing, or otherwise preparing news for any newspaper, periodical, press association, newspaper syndicate, wire service, radio or television station, or other news service. Any individual employed by any such news service in the performance of any of the above mentioned activities shall be deemed to be regularly engaged in such activities.”

The Cherokee law mirrors the same language defining a journalist, but defines the jurisdiction to Cherokee Nation proceedings or courts and specifies the right of nondisclosure of any unpublished information “obtained or prepared in gathering, receiving or processing of information for any medium of communication to the public; unless the court finds the party seeking the information or identity has established by clear and convincing evidence that such information or identity is relevant to a significant issue in the action and could not with due diligence be obtained by alternate means.”

In the Osage amendment, the law only protects the Osage News staff members, journalists who work for the official newspaper of the nation, and prohibits members being fired for doing their job. The Cherokee law protects all native journalists who are reporting for the Cherokee Nation or Cherokees who work for other news organizations should they be subpoenaed into Cherokee tribal court.

The first test of the Cherokee law is expected later this year if the original case, which was dismissed by the appeals board, is re-filed in the state’s district court.

David Cuillier, SPJ national secretarytreasurer and past FOI Committee chairman, said he thinks a native shield law is “great,” but he is concerned about the definition of the term “journalist” in the law.

“I don’t think it’s ideal,” Cuillier said of the Cherokee law. “If a government really values a shield law and the ability to report freely, it should apply to all. I think the definition of journalist is always going to be tricky, and this has the potential of conflict. It really applies (only) to established media, not someone doing citizen journalism on tribal property.

“What if some group develops a citizen journalist’s group and they are doing the same journalism as the traditional media? They should be given the same protection as the Cherokee Phoenix. Journalism is journalism.”

But Pollard said he is pleased with both the shield law and the Cherokee Nation’s attitude toward a free press.

“I’m really proud of two things about the law,” he said. “One, that we are the first Indian nation to implement a shield law and, two, it is another validation of the Cherokee values for that independent voice in the media. Cherokee citizens support the Phoenix and support the news we are bringing to them that is free of political influence, news that is free and unbiased.”

Shaw said the Osage law reflects the original Cherokee press law and that her office is looking at a new model that will further their independence from the three branches of her tribe’s government.

“Currently our press law, and I feel the Cherokee’s press law, relies on a cooperative chief, which doesn’t always work,” she said.

Under tribal law, tribal councils can change laws that best benefit the current administration. Although the Indian Civil Rights Act of 1968 provided a venue for all 564 federally recognized tribes to have a free press, it has only been since the establishment of the Cherokee Independent Press Act of 2000 that eight tribes have actively sought legislation for a free press made possible by the 1968 act.

“If a tribe has an independent press funded by their government officials, they need a shield law,” Shaw said. “All journalists, in Indian Country or not, benefit from shield laws. There are many horror stories in Indian Country of entire staffs being fired.”

Pollard praised Shaw’s work and said he is talking with the Muscogee (Creek) Nation about the possibility of adding a free press act, freedom of information act and shield law, but he also cautioned that the free press act must come before a shield law.

“It is important to note the (Cherokee) shield law came 12 years after the Independent Press Act, and many tribes have yet to enact a statute to protect their press, particularly the press that is funded by the tribe,” he said. “Really, having an independent press has to come first, then FOIA — a lot of tribes need to have these first. When I talk with other tribes, I stress they need the press act first, then if they want a discussion beyond that, we talk. But if they can’t practice independent journalism, then a shield law is premature.”

Cuillier said he is happy to see all the new press laws being enacted in Indian Country.

“Maybe this can teach Congress a thing or two,” Cuillier said. “The federal legislation is so bogged down, and I don’t think they are looking at what the states or tribes are doing. I think this shames Congress. I think there is a good purpose here, and the fact Congress is so resistant is sad.”

On the national debate, Pollard said he supports a national shield law to help journalists cultivate good sources and practice good journalism

“I wasn’t thinking of the national debate when this came about; it came about because of a situation,” he said. “If there is a ripple effect, I hope it encourages other Indian nations to further their efforts for a free press. To be good, we must cultivate good sources. A shield law is part of the trust. The only way you can protect your sources is a shield law. A shield law is a protection of sources that goes directly to the development of trust with the sources. If we don’t have the trust, we can’t get access to quality information for our stories.”

Shaw said she is glad to know the Cherokees have an official shield law in place.

“I have friends on their staff, and it gives me some peace knowing they’re protected from the whims of tribal officials,” she said. “And as for free press laws in Indian Country, I wish every tribe had them. All tribal officials need to be held accountable for their actions, and native people deserve an accurate and fair account of their governments, culture and lives of their people.”