EDITORIAL: Secrecy in the age of transparency      

by Nov 28, 2016OPINIONS0 comments





Every candidate for office in Tribal elections made a point of saying that they believe in open government and the people’s right to know what is going on with regard to the handling of the community’s affairs. From Executive Office seats to Tribal Council seats, in public debates and political advertisements, we all heard the promises of a “new” transparency in government. The community would finally know how their money was being spent and who was spending it and how their elected officials conducted themselves on the community’s behalf.

Since the September 2015 election, we, the Cherokee people, have been bombarded with rumors, speculation and reports of wrongdoing, misconduct, malfeasance, deception, misappropriation and even criminal activity. One minute, you hear that forensic audits reveal questionable behavior by nameless tribal officials and the next that someone inappropriately handled the hiring and firing of tribal employees. If we try to dig deeper and identify exactly what is going on, doors shut and mouths go silent.

During a recent Tribal Council session, we learned that the hiring and firing practices of the current administration are currently under investigation by the Eastern Band of Cherokee Indians Office of Internal Audit. Little is known about the detail and scope of this investigation, but it clearly extends beyond personnel practices.

During the Council session, two tribal leaders questioned why, as a part of the investigation, their children’s education records were subpoenaed. Community members, including the Cherokee One Feather, have asked for clarification of scope. For the most part, tribal leaders will not respond to direct questions on this and will refer us to their respective attorneys, who either issue a no comment, citing an “ongoing investigation” or they simply ignore the request for information.

The Principal Chief recently held a town hall meeting in which he addressed that investigation and an investigation currently being conducted by the United States Department of Justice (DOJ). The Vice Chief was not a part of this town hall meeting, so we cannot say with certainty that it was a meeting enjoined by the entire Executive Office.

So far, one document has surfaced publicly with regard to this investigation. A letter was issued to the Qualla Housing Authority (QHA) that directed the QHA to retain any and all documents in their possession for possible inspection by the DOJ. Later, there were reports of additional documents being presented to Tribal Operations Program offices and federal agents actually entering tribal offices and retrieving “evidence”. It is unknown whether or not this was done under federal warrant or if tribal leadership simply gave the DOJ authority to enter tribal buildings and take documents and potentially electronic equipment.

In the cases of the DOJ and OIA, letters outlining the scope of at least elements of investigations have been issued either by the Tribal Council or the Executive Office. Again, requests for these documents meet with no comment or silence.

There is a portion of the Cherokee Code that grants public access to documents created by the government.  In Chapter 132, it states, “The Tribe finds that it is vital in a democratic society that public business be performed in an open and public manner. Toward this end, provisions of this Article must be construed so as to make it possible for members of the Eastern Band of Cherokee Indians, or their representatives, to have access to public records at a minimum cost and with minimum delay to the persons seeking access…Members and their representatives have a right to know the basis of the formulation of public policy. Therefore, it is the public policy of this Tribe that members shall be advised of the performance of public officials and of the decisions that are reached in public activity”.

This portion of the Code is detailed in its definition of what, how and when information may be obtained by the public. It also requires any challenges of a government entity who refuses or simply ignores requests for information to be handled by the court system (and pay the associated costs). In the case of the Cherokee One Feather (and you), that would require a tribal program to basically sue the government for information. And, since no other media has legal standing with the Tribe, when a tribal entity decides not to provide information or falls silent, there is little chance that the public will see or hear information that the government chooses not to provide.

I hope that, as we consider a constitution for our Tribe, we look at the people’s right of access to information concerning the workings of our government and our government officials. One Council member put it very well and plainly. A paraphrase of his statement is “if you are not doing anything wrong, you shouldn’t have an issue with it being public”.

Withholding information causes us to make decisions without the knowledge to make them. We have a long way to go before we truly see the promises of transparency in government fulfilled.