Broadman on Tribal Libel Laws

From ICT:

People slander each other everywhere—without regard for territorial boundaries. But the legal treatment of such speech differs drastically depending on whether tribal or non-tribal laws apply. Tribal courts sometimes treat reputational torts like slander and libel, structurally, like their non-tribal counterparts, generally requiring proof of fault, falsity and harm. For instance, in many ways the Little River Band of Ottawa Indians defamation statute mirrors the standards of proof and structure of non-tribal defamation. (“Protection Against Defamation Act of 2006,” PDF) On the other hand, at least one tribal court has recognized a traditional cause of action for defamation under tribal law, complete with novel privileges and standards. As media interests increasingly collide with tribal governmental and commercial interests, tribal laws on expression will be tested. The results, as shown in a recent case from the Ho-Chunk Nation courts, will test the ongoing viability of defamation law in Indian country.

Libel and slander are curious species of lawsuits since they involve a person writing or speaking his mind. In non-tribal courts, plaintiffs who are public figures face a high burden of proof. But because U.S. Constitutional standards are not imported into tribal defamation law, speech laws take on very different shapes in Indian country. In 2008, an ordinance passed and quickly rescinded by the Tribal Business Counsel of the Chippewa Cree of Rocky Boy’s Reservation in Montana made it a crime to defame a tribal official. And last month, a Ho-Chunk Nation Trial Court applied a tribal military veteran’s privilege that, as it is recognized, existed nowhere besides Ho-Chunk.

In a careful treatment of tribal-specific defamation law, the Ho-Chunk Trial Court recently held inGardner v. Littlejohn that a “veteran privilege” existed, protecting certain defamation defendants from liability (see the opinion at the invaluable Turtle Talk—“Ho-Chunk Trial Court Decides Defamation Claim under Tribal Customs and Traditions”—edited by the Indigenous Law and Policy Center at Michigan State University College of Law). The court noted that although it “does not exist in any other jurisdiction,” the Ho-Chunk veteran privilege resembles that possessed by legislators, which shields certain legislative speech.

The suit stemmed from an Indian military veteran’s criticism of a tribal health department employee and an incorrect statement that the plaintiff had been terminated from employment. Typically, public officials suing their defamers must prove knowing or reckless falsehood. InGardner, had such a rule been applied and had defendants simply negligently defamed the plaintiff, no liability would exist.

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