Guest Post: Suing BIA For Tribal Constitutions

As a researcher, author, and lay advocate for Native American rights, I need access to the constitutions and articles of incorporation of the 566 federally recognized indigenous tribes in the United States.

My goal is to organize and post these documents online so that tribal members, other researchers, and visitors to tribal lands can know and understand the law.

I made my first request to Bureau of Indian Affairs for these records a few years ago. I was denied, and, at the time, did not challenge BIA’s response.

On Dec. 1, 2014, I made a new request (Exhibit A) for the records under FOIA.  This time, the agency said (Exhibit B) it searched for records but found none that were responsive. My attorney then filed an administrative appeal (Exhibit C) on Jan. 29, 2015.

In it, he makes it clear that BIA did not conduct an adequate search. The appeal notes that, among other things, BIA is required by law to maintain the documents in question. The agency never responded.

So on May 26, 2015, my attorneys — Matthew E. Kelley (Ojibwe) and Chad R. Bowman of Levine Sullivan Koch & Schulz — filed suit in  federal district court in the District of Columbia against the Department of the Interior, which encompasses BIA. In the complaint, we allege violations of the Freedom of Information Act for failure to conduct a reasonable search and make the records available.

I encourage transparency in and about Indian Country, so my basic premise is that we have to know what the tribal laws are so we can respect and obey them. One of my primary aims, ironically, is to quantify how many tribal constitutions or articles of incorporation explicitly protect freedoms of press, speech, and information, as I’m working on a book and other research about the law and ethics of journalism in Indian Country.

Those with questions are welcomed to contact me at 520-903-4461 or kevinrkemper@hotmail.com.

This post was written by Kevin R. Kemper, Ph.D., LL.M. (Choctaw/Cherokee). Kemper is not licensed to practice law.

To contribute to foiaproject.org, contact Greg Munno at 315.443.3613 or gjmunno@syr.edu.