Muscogee (Creek) Nation

MCN Adopts Free Press Legislation for Mvskoke Media

Sarah M Donnelly

Muscogee (Creek) Nation introduces protections for tribal media

NORMAN, Okla. – The Muscogee (Creek) Nation (MCN) added free press protections for the tribe’s media division, Mvskoke Media, with the passage of a free press act.

The MCN National Council passed NCA 15-218 by a unanimous vote of 14-0 during the Sept. 26 meeting at the tribal headquarters in Okmulgee, Okla. MCN Principal Chief George Tiger signed the legislation into law Oct. 8.

The council cited access to information and a need for an independent media with stronger objective reporting by the tribe’s media department as findings of support for the amendment.

Reps. Thomas Yahola, Pete Beaver, Johnnie Greene, David Nichols, Dode Barnett, Joyce Deere, Frank Coachman, Mark Randolph, Lucian Tiger, David Hill, Robert Hufft, James Jennings and Adam Jones co-sponsored the legislation.

The department includes a semi-monthly newspaper, weekly radio and television broadcasts and graphic design and printing services.

Mvskoke Media was previously organized under the tribe’s executive branch.

Sterling Cosper, editor of the tribe’s official newspaper, the Muscogee Nation News, said the passage of the act is a positive first step toward an independent press.

“Officially confirming the fourth estate to the framework of our government is an imperative exercise in tribal sovereignty and self-governance,” he said. “We intend to perpetuate this exercise by immediately utilizing the protective provisions of this bill to fulfill its purpose of bringing fair and balanced accounts of MCN affairs to the citizens.”

Jason Salsman was named interim manager of the department earlier this year. He is also the multimedia producer and host of Native News Today, the only all-Native news format currently airing on network television in the state of Oklahoma.

“The citizens will get timely, pertinent news from credible journalists with excellent sources and documentation to back their work,” Salsman said. “The fact that the fourth largest tribe in America will fund a department to be the watchdog sends a clear, concise message that transparent government is a top priority. My hope is that many others will do the same.”

The amendment established an independent three-member editorial board, which oversees Mvskoke Media, without influence from the tribal government.

The executive branch, legislative branch and Mvskoke Media are each responsible for nominating one member to the newly established three-person editorial board. Each member will serve a three-year term.

Travis Snell and Rebecca Landsberry were confirmed as board members by tribal resolution Oct. 31 during the MCN National Council quarterly session.

As of press time, a third member has not yet been nominated.

Snell is a member of the Cherokee Nation and serves as the associate editor of the Cherokee Phoenix, the oldest Native American newspaper. The Phoenix is one of a handful of tribal media outlets with free press protections currently in place. He is a longtime member of the Native American Journalists Association (NAJA).

NAJA is a nonprofit organization educating and connecting its membership through programs that promote diversity and defend challenges to free press, speech and expression. NAJA currently has more than 500 members across the U.S., and Canada covering Native communities through local, tribal and mainstream media.

Landsberry is a Muscogee (Creek) citizen and former editor of the Muscogee Nation News. She is the current NAJA interim executive director and treasurer for the Native Health News Alliance.

Landsberry says freedom of the press empowers tribes.

“It is essential for these journalists covering stories in Native America to have autonomy and the means to hold those in power accountable to the citizens,” she said. “This historic act will continue to strengthen tribal sovereignty and is a tremendous accomplishment for NAJA members there in Mvskoke Media, the Muscogee (Creek) Nation and Indian Country.”

Cosper said the next step will be to add a freedom of information act (FOIA).

“We encourage citizens and officials alike to strengthen our role in the checks and balances system by supporting the passage of a FOIA, which will provide attributive documentation for the content of our coverage,” Cosper said.

Cosper said the department aims to ask for citizen input with adding free press language directly into the MCN Constitution, in addition to the new code of law.

“Through this, citizens would vote to add us as a functioning body of the foundational document for MCN government with their approval being the only means to reverse it,” Cosper said.

MCN is the fourth largest Native American tribe in the U.S., and includes more than 79,000 citizens across the globe. It is the third tribe in the state of Oklahoma to enact free press protections, following the Osage Nation’s passage of the Independent Press Act in 2008 and the Cherokee Nation’s Independent Press Amendment in 2009.

Oklahoma v. Hobia Cert Stage Briefing Complete

Matthew L.M. Fletcher

Here:

Petition for a Writ of Certiorari

Hobia Cert Opp

Oklahoma Reply

Lower court materials here.

Hobia Cert Opposition Brief

Matthew L.M. Fletcher

Here:

Hobia Cert Opp

Cert petition here.

Federal Court Decides Matter Involving ERISA and Tribal Court Jurisdiction

Matthew L.M. Fletcher

Here are the materials in Life Insurance Company of North America v. Hudson Insurance Company (E.D. Okla.):

16 Motion to Dismiss

18 Response

19 Reply

20 DCT Order

An excerpt:

LINA argues that tribal exhaustion does not apply to an ERISA case. The exhaustion of tribal remedies requirement was modified in El Paso Natural Gas Company v.  Neztsosie, 526 U.S. 473 (1999). In that case, the Supreme Court held that the tribal exhaustion requirement did not apply to a case involving the Price-Anderson Act, a statute with a broad preemptive scheme. LINA argues that the Northern District of Oklahoma has since held that like the Price-Anderson Act at issue in Neztsosie, ERISA preempts state and tribal court claims “related to benefit plans falling under its purview” and concluded that abstention would be inappropriate. Vandever v. Osage Nation Enterprise, Inc., No. 06-CV-380-GKF-TLW, 2009 WL 702776, at *5 (March 16, 2009 N.D. Okla.) (citing 29 U.S.C. § 1144). See also Coppe v. Sac & Fox Casino Healthcare Plan, No. 14-2598-RDR, 2015 WL 1137733 (March 13, 2015 D. Kansas). This court agrees. 

Hudson argues, however, that Vandever is not controlling in this case because suits between insurers for reimbursement of benefits paid are not pre-empted by ERISA. Hudson is correct. Complete preemption under ERISA “is limited to claims brought under § 502(a), and that provision, in turn, is limited by its terms to claims ‘by a participant or beneficiary’ of an ERISA-regulated plan ‘to recover benefits due to him under the terms of his plan, to enforce his rights under the terms of the plan or to clarify his rights to future benefits under the terms of the plan.’” Hansen v. Harper Excavating, Inc., 641 F.3d 1216, 1221-22 (10th Cir. 2011) (citing 29 U.S.C. § 1132 (a)(1)(B)).

Oklahoma v. Hobia Cert Petition

Matthew L.M. Fletcher2 Comments

Here:

Petition for a Writ of Certiorari (as filed)

Question presented:

Does Michigan v. Bay Mills Indian Community, 134 S.Ct. 2024 (2014), require the dismissal of a State’s suit to prevent tribal officers from conducting gaming that would be unlawful under the Indian Gaming Regulatory Act and a state-tribal compact when

• the suit for declaratory and injunctive relief has been brought against tribal officials – not the tribe;
• the gaming will occur in Indian country, on the land of another tribe; and

• the state-tribal compact’s arbitration provision does not require arbitration before filing suit?

Lower court materials here.

Tenth Circuit Issues Amended Opinion in Oklahoma v. Hobia

Matthew L.M. Fletcher3 Comments

Here. Like its earlier decision, today’s amended opinion concludes that the district court erroneously granted the State’s request for a preliminary injunction and held that the State’s complaint, which alleged class III gaming activities on non-Indian lands, failed to state a claim under IGRA.

The Tenth Circuit also reiterated that arbitration provisions in the state’s gaming compact effectively barred Oklahoma from suing tribal officials in federal court for purported violations of the compact. The court remanded the matter to the Northern District of Oklahoma with instructions to vacate the preliminary injunction and to dismiss Oklahoma’s complaint with prejudice.

Also, the court denied the petition for en banc review.

Panel materials are here.

Tenth Circuit Reverses Oklahoma v. Hobia Relying on Bay Mills

Matthew L.M. Fletcher1 Comment

Here is the opinion:

CA10 Opinion

Lower court supplemental briefs here.

Briefs are here.

Lower court materials here.

SCOTUS Denies Cert in Two Indian Law Cases

Matthew L.M. Fletcher1 Comment

Here is today’s order list.

The Court denied cert in Dupris v. Procter and Hicks v. Hudson Insurance.

Hicks v. Hudson Ins. Co. Cert. Petition

Matthew L.M. Fletcher1 Comment

Here is the petition:

Cert Petn

Question presented:

Whether an insurance company doing business with a federally recognized American Indian Tribe is entitled to sovereign immunity for the acts and omission it takes in furtherance of the business of insurance.

Tenth Circuit Finds Federal Question in Thlopthlocco Tribal Town v. Stidham, Orders Tribal Court Exhaustion

Matthew L.M. Fletcher2 Comments

Here is the opinion in Thlopthlocco Tribal Town v. Stidham. An excerpt:

The Thlopthlocco Tribal Town is a federally recognized Indian tribe in Oklahoma. An election dispute arose about which individuals were properly elected or appointed to govern the Thlopthlocco people. Seeking to resolve that dispute, the Tribal Town filed suit in the tribal court of the Muscogee (Creek) Nation and, accordingly, voluntarily submitted to that court’s jurisdiction.

The Tribal Town subsequently concluded it did not want to maintain its suit in tribal court and dismissed its claims. But the defendant in that suit had, by that time, filed cross-claims. Arguing that the Tribal Town’s sovereign immunity waiver did not cover proceedings on the cross-claims, the Tribal Town attempted to escape Muscogee court jurisdiction, but, in various decisions, several judges and justices of the Muscogee courts held that they may exercise jurisdiction over the Tribal Town without its consent.

The Tribal Town then filed a federal action in the Northern District of Oklahoma against those Muscogee judicial officers, seeking to enjoin the Muscogee courts’ exercise of jurisdiction. The district court dismissed the case, finding that the federal courts lacked subject matter jurisdiction, the defendants were entitled to sovereign immunity, the Tribal Town had failed to join indispensable parties, and the Tribal Town had failed to exhaust its remedies in tribal court. We conclude, however, that the Tribal Town has presented a federal question and that the other claims do not require dismissal. But we agree the Tribal Town should exhaust its remedies in tribal court while its federal court action is abated.

Here are the briefs:

Thlopthlocco Opening Brief

Stidham Brief

Thlopthlocco Reply Brief

Lower court materials here.