You Have to EARN Access: A Case Study of Arizona Tribes and Reporting about Indigenous Religion...

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Reporting about Indigenous Religion around the Pacific RimYou Have to EARN Access: A Case Study of Arizona Tribes and

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Article

You Have to EARN Access: A Case Study of Arizona Tribes and Reporting about Indigenous Religion around the Pacific Rim

Kevin R. Kemper

AbstractBecause some of the 22 American Indian tribes in Arizona define various spaces through clear laws and policies to control whether religion, culture and other private matters are accessed and reported, journalists have to ‘EARN’ access to any spaces if they want to avoid legal liability or other constraints. This applied research article outlines and explains updated legal requirements in Arizona and their practical applications for covering religion around the Pacific Rim. To ‘EARN’ access, journalists must ‘educate’ themselves about these spaces or boundaries, ‘appreciate’ why and how those spaces have been created, ‘reciprocate’ as much as possible with the tribes and ‘negotiate’ when their professional ethics conflict with tribal demands. This approach has universal application to coverage of any religion, as many people around the world expect privacy and respect for the most sacred in their lives. Journalists often are more effective with gaining access to the sacred when they build relationships before they demand rights.

KeywordsReporting indigenous affairs, religion reporting, American Indian tribes, journalism training, research protocol

Introduction

One morning in 2006, while conducting some background research into local tribal laws as they relate to journalism, I called the attorney

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general’s office of an American Indian tribe in Arizona, asking if it had a law about access to information (Personal communication, 2006). Nothing was online at the time, and nothing was available at the tribe’s law library. However, the courteous clerk directed me to an attorney representing a key tribal official, who then told me something completely foreign to anything I had ever heard in decades of experience in Indian Country as a journalist or journalism educator: ‘We have a law about open records, but it is secret,’ said the attorney, who then promised to ask for permission to provide a copy of the ‘secret’ law about ‘open’ records (Personal communication, 2006).

Indeed, the attorney provided a copy within a few days. That law about ‘access to records’ instead was a research protocol, now fairly common to regulate academic researchers, especially among indigenous peoples (Chilisa, 2012; Grenier, 1998). The earlier protocol, now suspended while that tribe develops a new one, had demanded that researchers would, among other things, allow tribal officials to review and approve manuscripts before they are published, and also to at least share if not transfer intellectual property rights to the tribe (original on file with author). Why would they be so secret? Do they have something to hide? Yes, but we are discussing something more important than even potential corruption. They want to protect that which is most sacred to them, which is a universal impulse.

Arizona is very near the northern tip of the Gulf of California, which is part of the Pacific Ocean, and thus the Pacific Rim. The 22 tribes in Arizona have their unique laws and political relationships with each other and the state and federal governments in the United States (US), which are different than the laws and relationships of Aboriginal peoples in Australia, New Zealand and so many other countries around the Pacific Rim. Yet, their desires to protect their religious privacy are common to others around the world. No one wants just anyone going without permission to the most precious parts of their lives.

Yet, a journalist being told to follow a research protocol like that, especially when there have been serious questions about whether applying institutional review board rules to journalism is constitutional, would be disconcerting to many journalists (see Dash, 2007; Kerr, 2006; Society of Professional Journalists [SPJ], 1996). Some tribes in the US proceed with those kinds of policies, perhaps thinking their sovereignty justifies those kinds of rules, despite some vague federal requirements like the federal Indian Civil Rights Act of 1968, 25 U.S.C. §§ 1301–03,



A Case Study of Arizona Tribes 3


that tribes must protect liberties like freedom of the press in Indian Country. And, ‘Indian Country’ in the US generally means land reserved by the federal government for tribes, with some exceptions (18 U.S.C. § 1151).

While this particular tribal research protocol has been suspended and is now under revision, a lesson that clearly emerges is that tribes sometimes conflate journalism, research and other information gathering into the same rules and regulations, which restricts flow of information, rightly or wrongly. I know of other specific examples of how tribes attempt to apply research protocols to journalists—including to my own work. This creates confusion about how to cover religion and other sensitive topics around the tribal reservations. This conflation of journalism with other information gathering reflects both the tensions between Western and indigenous worldviews: traditional tribal beliefs would say that all has a unified sense of the ‘sacred’, when Western thinkers might categorize and divide things (Beck et al., 1992). Scholars like Chilisa (2012, pp. 1–2) argue for the decolonization of Western research about indigenous peoples so that indigenous knowledge is honoured. All around the Pacific Rim, indigenous peoples struggle for privacy, autonomy and respect.

American Indian tribes in Arizona have set boundaries upon journalism and other information gathering as resistance to ongoing colonialism and invasion to protect sacred spaces like religion. This especially is true when it comes to guarding traditional religious knowledge and practices. In palpable and personal ways, certain members of Arizona tribes are angry, and their attorneys and government officials use laws and regulations as protection against information gatherers in Indian Country to defend tribal culture and sovereignty. Tribal religion, culture, archaeological remains and so much more have been assaulted by information gatherers who come to reservations to take without permission and leave, without even thinking about how that might affect tribes. Even wellmeaning information gatherers make cultural mistakes that lead to further misunderstandings and anger.

The research questions generally ask how and why American Indian tribes in Arizona have set boundaries and created spaces about reporting about religion and other sacred matters, and then how journalists can gain appropriate access. The implications require guidance for journalists in Indian Country in Arizona, throughout the Pacific Rim and beyond. Because some of the 22 American Indian tribes in Arizona define various



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spaces through clear laws and policies to control whether religion, culture and other private matters are accessed and reported, journalists have to ‘EARN’ access to any spaces if they want to avoid legal liability or other constraints. This thesis should be clear after reading this brief summary of the numerous creative and strategic ways that tribal governments and attorneys have created to deal with the onslaught of information gatherers—whether they be private investigators, academic researchers or even journalists and photographers.

To ‘EARN’ access, journalists must ‘educate’ themselves about these spaces or boundaries, ‘appreciate’ why and how those spaces have been created, ‘reciprocate’ as much as possible with the tribes and ‘negotiate’ when their professional ethics conflict with tribal demands. It is not possible for a journalist to follow all of the dictates of the profession and of the tribes at the same time, so strategic compromises must be made. You do what you can do.

It is very important to emphasize how this article functions both as a resource for journalists and journalism educators and as a beginning point for discussions and negotiations with tribes, who have the sovereignty and authority to set these spaces about who can and cannot gather information about their religion, culture and other private matters. Rather than being a diatribe against the tribes, this article respects current conditions and raises important questions that journalists and tribes must answer about access and freedoms of the press and information, if these conflicts are to be resolved. While this article does not examine or discuss the laws and customs of other indigenous tribes around the Pacific Rim, universal principles can be derived from this case study of tribes in one state of the US.

Cultural Hybridity, Sacred Spaces and Reporting Religion

My theoretical framework borrows ideas from other scholars about postcolonialism and cultural hybridity and then spaces within those hybridities, to think practically about how journalists might cover issues like religion, especially religion that is not in the mainstream. The presupposition and ethical norm is that the rights of the minorities need to be protected in this process.





To understand the process of colonization and postcolonial resis tance, we need to be as simple as possible in the beginning. As history and experience have established, Europeans have invaded the Americas (colonialism) and the Native peoples have fought back (postcolonial resistance). And, when these cultures have encountered each other, new culture have grown and evolved. More specifically, Brown (2003, pp. 11–42) has told stories about how tribes like the Hopi in Arizona have been invaded and insulted by people who would barge into sacred dances—even inside sacred structures called kiva—to record what they saw. These colonizers appropriate and usually monetize what they take, so Brown explains how these incidents result in issues about ownership and control—and the tribes usually lose in those conflicts. Even as recently as 2013, the Hopi Tribe was unable to stop the sale of sacred Hopi masks in France (Mashberg, 2013). In a report by The New York Times, a quote by the Hopi Chairman, LeRoy N. Shingoitewa, gives insights into tribal concerns: ‘Given the importance of these ceremonial objects to Hopi religion, you can understand why Hopis regard this—or any sale—as sacrilege, and why we regard an auction not as homage but as a desecration to our religion.’ This applies to more than just the sale of sacred masks.

For instance, I (Kemper 2012) used ideological critiques to interact with and interpret restrictions the Hopi Tribe has put upon photography of sacred dances on the reservation. In the process, I found four types of spaces within cultural hybridity—sacred, self, shared and stolen spaces (Kemper, 2012, pp. 217–218). Stolen spaces are what had belonged and should still belong to the tribe, but were taken through colonization and misappropriation. These include things like symbols, art and even words and ideas. Self and shared spaces are areas where tribes might share, depending upon the situation. For instance, tribes in Arizona usually allow general access to big festivals, powwows and other public events, though there are strict rules even at those.

To me, sacred spaces are somewhat of a misnomer, because everything can be considered sacred, as some American Indians might understand sacredness, but the idea of sacred spaces is that some spaces within cultural hybridity are sacred and others are not. However, the idea of sacred spaces is that tribes have managed to save at least part of their intimate and private culture by erecting strict and nonnegotiable barriers. If this were not true, then the purposes of colonization would be fulfilled. They most certainly have not. Sacred spaces are about active resistance.



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However, my work needs to be tested and understood by new protocols and expanded beyond individual tribes. Since there are 22 tribes with some connection with Arizona and since Arizona is near the Pacific Ocean, then there are some commonalities with indigenous peoples throughout the Pacific Rim. While overgeneralization is dangerous and often stereotypical, it will be obvious how the principles apply to people around the world, regardless of ethnicity.

Again, all of that is rooted in postcolonialism and cultural hybridity, which give descriptions and interpretations of the interplay of the colonizers and the colonized or the dominant and subaltern cultures (see Bhabha, 1994/2004; Brennan, 2009; Meredith, 1998). In a fluid world with interactive global intersections, culture evolves, changes, morphs, erupts and destabilizes. Adoni et al. (2006) use cultural hybrid ity to discuss how minority groups in Israel form media and are formed by media, and then, Grixti (2006) uses cultural hybridity to interpret similar phenomenon with indigenous youth and global media in Malta. LevoHenriksson (2007) developed a provocative study of how Hopi merge global and indigenous media in their understandings of themselves and the world beyond the reservation. Thus, the concept appears to be useful for international and indigenous understandings about and applications of media. However, examining minority and majority groups in the same area might not address all of the issues of tribes in the US, which have political entities to regulate the consumption and production of media.

Those ideas about cultural hybridities and spaces within those hybridities may well describe some of the regulations tribes put upon information gatherers. And, as Saharko (2006) has detailed, it is difficult for reporters to have access in Indian Country. It is not impossible. Thus, there are more practical questions about how all of that might inform the scholarship and practice of reporting religion, especially among tribes. The most startling and pertinent observation concerning the growing literature about reporting religion is the overall absence of indigenous religious beliefs from major consideration. The obligatory lists of major religions like Christianity, Judaism, Islam and Buddhism fail to include the oldest religions in North America, which are indigenous (see Dart, 1995). Buddenbaum (1998, pp. 12, 30, 42, 53, 64) mentions indigenous religions just a few times in her primer about covering religion through journalism. In some instances, Buddenbaum, who is known widely for excellent scholarship about religion and reporting, does appear to imply





incorrectly that all of those indigenous religions are pantheistic. In fact, some are decidedly monotheistic, as even Christian missionaries have admitted (Richardson, 1981, pp. 411–415). And, Buddenbaum (1998, p. 30) claims that Native Americans, during the twentieth century, ‘were openly practicing a variety of faiths free of persecution in the climate of protection for individual rights and freedom ushered in by the civil rights protests’ even though she acknowledges how Native religious rights were curtailed in Employment Division, Department of Human Resources of Oregon vs Smith, 494 U.S. 872 (1990).

In another work, Buddenbaum and Mason (2000) appear to focus mainly on Christianity, though they mention other major religions like Judaism and Islam, as does Hubbard (1990) in a compilation of essays about reporting about religion. In a few instances, a passing reference is made to the idea of anything ‘outside institutional religion’ (Connolly, 2006, p. 16), but Native religion is not less than institu tional, but rather more than ‘institutional’. It is pervasive in indigenous society and laws, as we will see in the laws regulating access to it. This article helps to fill a large hole in the literature about journalism about religion by giving voice to indigenous ideas about religion and inviting journalists, media educators and other scholars to learn more about these religions.

General suggestions for coverage about religion appear, at first glance, to speak to issues that affect indigenous peoples. For instance, Buddenbaum (1998, pp. 191–195) suggests that journalists should:

1. prepare; 2. keep the audiences in mind; 3. think broadly; 4. honour the First Amendment; 5. practice religion journalism; 6. put religion in the religion news; 7. show. Don’t tell; 8. watch the language; 9. check carefully; and10. fight for resources.

While simple and applicable, these principles seem to be most developed for Westernminded journalists to cover Westernoriented religions, using Westernoriented laws, despite references in the literature



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to certain nonWestern religions. Performing a deconstruction and decolonization of the concepts could expand this approach. That is, the literature is unknowingly colonial. Or, from a positive perspective, we must consider indigenous expressions of how to cover indigenous peoples and their religions.

Also, it must be acknowledged that this article is written by a journalist and journalism educator for a journal about journalism and media practitioners and educators, and not for an indigenous audience. However, there is a rising, booming call from other areas of the academy—like indigenous studies—for researchers and other information gatherers to take more care to consider the wishes of those being researched (Champagne & Goldberg, 2005; Chilisa, 2012; Grenier, 1998). Another critique is that researchers often are more individually minded and indigenous peoples can be more community minded and so, human subjects regulations are necessary to address misunderstandings and unbalanced power (Champagne & Goldberg, 2005).

Finally, journalists must not underestimate the power of religion in indigenous cultures like those in Arizona. Holm et al. (2003, p. 12) build upon the work of noted scholars like Thomas to understand a Native American approach to ‘peoplehood’, which Thomas believed must include at least four elements—‘language, sacred history, religion, and land’. However, Holm et al. (2003, p. 14) prefer the term ‘ceremonial cycle’ to ‘religion’ because tribal religious practices encompass much more than worship practice. Thus, if you cover religion of indigenous tribes, you generally are touching upon everything about indigenous tribes, because everything is interconnected and part of the peoplehood of that group of people.

Methodology

This article may well be the first case study of a compilation of applic able provisions of tribal constitutions, as well as samples of pertinent statutes, regulations and protocols from 22 tribes who have at least part of their lands in Arizona. These include documents from AkChin Indian Community, Cocopah Tribe, Colorado River Indian Tribes, Fort McDowell Yavapai Nation, Fort Mojave Tribe, Fort YumaQuechan Tribe, Gila River Indian Community, Havasupai Tribe, Hopi Tribe, Hualapai Tribe, KaibabPaiute Tribe, Navajo Nation, Pascua Yaqui





Tribe, Salt River PimaMaricopa Indian Community, San Carlos Apache Tribe, San Juan Southern Paiute, Tohono O’odham Nation, Tonto Apache Tribe, White Mountain Apache, YavapaiApache Nation, YavapaiPrescott Indian Tribe and Pueblo of Zuni.

Not all tribes have constitutions. The Navajo Nation, the largest tribe in the US, does not have a written constitution. The tiny San Juan Southern Paiute also does not have a constitution. I cannot guarantee all constitutions, statutes, research protocols or cases are current or have been overturned, because legal reporting of tribal laws is not the same as the US laws. Those wanting the most uptodate information must contact the tribe in question and even then, tribal officials sometimes cannot or will not guarantee what is the prevailing law. To avoid the obvious application of the research protocols and other pertinent laws and regulations, this applied research is not human subjects research, because no interviews were conducted.

My research assistant and I closely examined select constitutions as well as samples of research protocols and other known laws to answer the primary research questions about how and why these boundaries about reporting religion have been created, and then how journalists can have appropriate access. First, constitutions were searched for any explicit or implicit references or provisions to freedom of speech, freedom of the press or freedom of information, as well as key words and concepts like sacred, sacred knowledge, cultural resources, culture, religion, elder or leader responsibilities, research and removal or exclusion from the reservation. That is, what are the legal boundaries for journalists?

Second, sample policies like research protocols, statutes and cases were sought so that we could see more details about regulations. Some protocols are like administrative regulations, while others are statutory. I know from personal experience that tribes without official ‘protocols’ still have ‘processes’ for conducting any kind of information gathering. There is reason to wonder if those tribal governments with vague processes want those processes to remain vague, so that anyone coming to the reservation is forced to go through tribal officials for any kind of access.

Finally, it must be emphasized that this applied research article does not provide legal advice or constitute the practice of law, though I am a licenced lay advocate in a local tribal court system. These are general principles to help educate journalists, photographers and other



10 Kevin R. Kemper


information gatherers as they report about religion and other sacred things among indigenous tribes in Arizona, the rest of the Pacific Rim and beyond.

Legal Background

Some, even within the US, might wonder how tribes have so much power over what happens on their reservations. The short answer is that tribes have a certain amount of regulatory and adjudicatory jurisdiction over particular matters. A better explanation goes into great detail to discuss the myriad of exceptions (Getches et al., 2011, pp. 447–664). However, that excellent discussion can be summarized for this article as follows: the US Supreme Court has recognized tribes as being ‘domestic dependent nations’ (Cherokee Nation vs Georgia, 30 U.S., 5 Peters, 1831, p.1), with:

1. ‘[I]nherent sovereignty’ to prosecute tribal members for certain crimes (Talton vs Mayes, 163 U.S. 376, 1896).

2. No jurisdiction to prosecute nonIndians for crimes (Oliphant vs. Suquamish Indian Tribe, 435 U.S. 191, 1978).

3. Some civil jurisdiction over nonIndians on reservation land, especially when those nonIndians have ‘consensual relation ships with the tribe or its members’, or where ‘conduct threatens or has some direct effect on the political integrity, the economic security, or the health or welfare of the tribe’ (Montana vs. United States, 450 U.S. 544, 1981; other citations omitted).

Therefore, in the laws of the tribes in Arizona, there are attempts to assert as much jurisdiction and authority as possible, though the cases just mentioned stand for the proposition that tribes have as much jurisdiction as the US Congress might allow.

There is a specific and salient example of the assertiveness of Arizona tribes, even in state or federal courts. The Havasupai tribe, a small group of American Indians living at the bottom of the famous Grand Canyon in northern Arizona, filed suit against Arizona State University and the University of Arizona—and thus the Arizona Board of Regents—over





allegations of research misconduct (see Kiefer, 2010; Rubin, 2004). It seems some researchers had been accused of telling the Havasupai that blood and DNA samples were taken to research diabetes when, in fact, they were taken to explore a hypothesis about increased incidents of schizophrenia among tribal members and related allegations. The universities and board settled with the tribe members out of court. Before but especially after that, tribes not only began enforcing strict research protocols, but some may have encouraged the use of them to regulate journalists coming onto reservation lands. For instance, I know of a journalism professor from another state who secured permissions from one tribe for university students to gather ‘oral histories’, but those permissions were in fact journalistic projects (Personal communi cations, 2010). While I do not judge that unnecessarily, I have serious concerns about whether this opens the door to more tribal censorship of what is said. Tribal officials have admitted privately and publicly that they may apply these protocols to all kinds of information gathering, including but not limited to journalism (Personal communications, 2006–2013).

EARN Access: Suggestions for Journalists, Photographers and Other Information Gatherers

From my personal experience, this overview of legal boundaries and some common sense, we can articulate certain principles to help when reporting about religion, culture and related issues in Indian Country in Arizona. In fact, these may well be helpful with other indigenous groups, though it would be best to deal with each tribe individually. Again, to ‘EARN’ access, journalists must ‘educate’ themselves about these spaces or boundaries, ‘appreciate’ why and how those spaces have been created, ‘reciprocate’ as much as possible with the tribes and ‘negotiate’ when their professional ethics conflict with tribal demands. This discussion is based upon the simple answers found in the research questions, and then organized according to the principles which form the acronym ‘EARN’. That word implies that access requires effort, intention and persistence, but also that the party with power is the tribe or its individual members enforcing tribal laws.



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EDUCATE Yourself about Spaces that American Indian Tribes Set: Or, Realize Sacred Space

Tribes put much more emphasis upon their sovereign powers to exclude nonmembers and control access to culture and religion than they do in protecting individual rights like freedoms of the press, speech or information. This implies that community concerns about protecting sacred space may be more important than protecting individual rights and liberties, even of those of the tribes’ own members.

Freedom of the press specifically is protected less than freedom of expression generally, though neither is universal among Arizona tribes. Of the 22 tribes, at least 20 had constitutions, but only eight of those 20 have explicit protections for freedom of the press. These include Colorado River Indian Tribes (1975), Fort McDowell Yavapai Nation (1999), Pascua Yaqui Tribe (1999), Pueblo of Zuni (1970), Tohono O’odham Nation (1986), Tonto Apache Tribe (1980), YavapaiApache Nation (1947) and KaibabPaiute Tribe (1994). That is 40 per cent of tribes with constitutions, which represents a significant number when you consider that LaCourse (1998, p. 51) found that only 64 of the US tribes until 1980 had constitutional provisions for free press.

There now are 567 federally recognized tribes and other state recognized and unrecognized tribes in the US. Almost 240 federally recognized tribes would have protections like that, if future research establishes whether this percentage in Arizona reflects a nationwide trend. Also, please note that the Navajo Nation has protected free press, even in case law, despite not having a constitution (see Navajo Nation vs. Crockett, No. SCCV1494, Navajo, 26 November 1996). Free press is stronger in Indian Country than previously thought.

Yet, other tribes without free press provisions generally protect free expression. For example, the Gila River Indian Community (1960) says the tribe will ‘preserve in ourselves the rights of selfgovernment and to provide a means for the orderly transaction of community business and the free expression of the community’. The Constitution of the Fort YumaQuechan Tribe (1936) contains some limiting language: ‘Nothing herein stated in this article shall serve to prevent the exercise of free speech and action in any matter not having to do with the deliberations of the Council’. The Salt River PimaMaricopa Indian Community (1940) decided to ‘provide for an orderly way of carrying on our business and the free expression of the tribal will’. Most of these provisions





appear to apply to tribal members, but the question remains about whether they will protect outsiders. The San Carlos Apache Tribe (1954) and the neighbouring White Mountain Apache Tribe (1993) each guarantee ‘no person shall be denied freedom of conscience, speech…’.

Since this article focuses upon coverage of religion, it is essential to note that we have not found any tribal constitution in Arizona that explicitly forbids ‘establishment of religion’, though most like the Cocopah Tribe (1994), Gila River Indian Community (1960) and YavapaiApache Nation (1947) protect freedom of religion. Even the federal Indian Civil Rights Act of 1968 does not require tribes to prohibit establishment of religion, or what Americans know as ‘separation of church and state’ (25 U.S.C. § 1302, cited in Garry et al., p. 39). This appears to be out of respect for the tribal desires to incorporate their sacred beliefs into everything they do. Because of intrusions into their space generally, the tribes have carved out very special places they still can defend—like banning photography at dances or banning journalists from reservation land. First and foremost, sacred space is verboten, off limits, never to touch, unless you have the rare permissions and invitations to enter it. Even then, the social and legal restrictions are onerous for outsiders.

To assert that power, at least 18 of 20 tribal constitutions (or 90 per cent) have similar language about exclusion or removal of nonmembers from reservation lands if those nonmembers behave in ways that could harm the tribe. The Colorado River Indian Tribes (1975), for instance, have the power ‘for the removal or exclusion from the reservation of any nonmembers whose presence may be injurious to the members of the Tribe, but this power shall not extend to the removal or exclusion of government officials’. The Hualapai (1955), in the opposite corner of Arizona, grant authority to promulgate laws, ‘subject to the approval of the Secretary of the Interior, for the removal or exclusion from the Reservation of any nonmember whose presence may be injurious to members of the Tribe’.

Perhaps the most compelling evidence of the connection among religion, sacred knowledge, research restrictions and journalism is the research protocol for the Pascua Yaqui Tribe (Title 6, Pascua Yaqui Tribal Code [PYTC]). The first provisions, as part of policy, say:

A. The Yaqui language is a gift from Itom Achai, the Creator to our people and, therefore, shall be treated with respect.



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B. Our ancient language is the foundation of our cultural and spiritual heritage without which we could not exist in the manner that our Creator intended (6 PYTC § 4110).

After extensive discussions about language and educational policies, in the context of tribal sovereignty, Title 6 regulates ‘external research, scientific investigations and study requests by nontribal individuals, groups, organizations, colleges and universities…’ (6 PYTC § 4170). Here is where serious questions really begin for journalists, because the tribe mandates ‘official sanction and approval of all proposed research, modern communications media productions and studies by the Tribal Council’. Does ‘modern communications media productions’ mean journalism, at least in an electronic format? I have not found case law or an authoritative statement that says it does, but one could argue it might.

The regulations go on and assert requirements for things like intellectual property rights and even payment to ‘Yaqui eminent persons’, as well as a public hearing. In the next section, the tribe asserts intellectual property rights, but recognizes ‘fullfreedom of speech and publication rights including the right to negotiate and retain royalties, except that the individual shall consult with the Language and Culture Commission regarding publication and productions of religious ceremonies’ (6 PYTC § 4180; emphasis added). Of note is how that section attempts to regulate ownership and use of things like ‘Sacred Objects and Ancestral Remains’ (6 PYTC § 4180 (B)(4)).

Of even more concern to journalists is the broad definition of ‘research’ in Title 8 of the PYTC, which does not name journalism but does list ‘photography’ and ‘videography’, as well as ‘other investigative disciplines or approaches as identified by the Tribe’ (8 PYTC § 7140). The bottom line is that tribes in Arizona continue to explore ways to enact strict guidelines for anyone who wants to access things, people, events and places that are especially sacred to those tribes. Sacred spaces cannot be violated.

APPRECIATE Why and How those Spaces have been Created Spaces: Or, Restore Stolen Space

This sense of sacred space comes from the soreness of stolen space. If you have taken something without permission, return it immediately





with apologies, if at all possible. For instance, the Hualapai Tribe has an ordinance regulating ‘cultural heritage resources’ that appears to focus more upon access to physical things and places:

Many cultural resources which hold significance for the Hualapai Tribe, both within the boundaries of the Hualapai Indian Reservation and on other lands traditionally used by the Tribe, have been damaged or destroyed, sometimes inadvertently and sometimes intentionally… (Hualapai Cultural Heritage Resources Ordinance, 1998, Part I, § 102(c))

As discussed earlier, the Hopi Tribe—like many others—has endured the offense of intrusions by photographers, art collectors and others into their religious observances. This is too common among indigenous tribes who are treated more like historical relics than as human beings.

The tribal constitutions also are instructive about these kinds of stolen spaces, especially when at least nine of them refer to the responsibility of tribal governments to preserve things like religion and culture. For instance, the Fort McDowell Yavapai Nation (1999) claims ‘inherent sovereignty’ so as ‘to improve, promote, and maintain [tribal] culture, customs, and independence of [tribal] people’. The Pascua Yaqui (1999) charges their government ‘[t]o protect all historic, religious, sacred, archeological and other sites of scenic or scientific or cultural interest on the Pascua Yaqui Reservation’. The Pueblo of Zuni (1970), with lands both in Arizona and New Mexico, protects ‘individual rights and free dom of religion; and to maintain [tribal] customs and traditions’. The YavapaiApache Nation must ‘protect [tribal] Indian heritage include ing [tribal] religion, customs, and language’. Therefore, the stolen spaces have resulted in strict laws, regulations and protocols to keep more stolen space from being created by journalists and others. Simply, we need to understand why the tribes are angry and assertive about these issues.

RECIPROCATE in Every Way Possible, as Long as You Maintain Integrity: Or, Respect Self-space

Shared and selfspaces have something in common—you might be able to enter those if you negotiate a mutual agreement to the extent of those spaces. As even I (Kemper 2012) found, tribes even attempt to control some of those shared spaces. They do not want to be misrepresented or



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stereotyped. Perhaps, here they go too far at times. For instance, the research protocols give a sense of how tribes want to be coresearchers, with all of the rights attached with those positions. However, journalists might find repugnant the requirements to submit work for review, and otherwise go through human subjects review normally expected of academic researchers. In the US, that could be considered to be unconstitutional prior restraint (Near vs Minnesota ex rel. Olson, 283 U.S. 697, 1931).

Reciprocity is an idea espoused by indigenous scholars based upon tribal culture about sharing and mutuality (Trosper, 2009, pp. 14–15). It is another form of expressing a ‘win/win’ mentality. The Pascua Yaqui, for instance, mandate principles like ‘mutual respect’ for research agreements (8 PYTC § 7160). Based upon that principle, I would like to suggest a compromise for journalists and tribes, after years of fighting off such requests for prior review. A standard technique for journalists is to check facts and quotes before publication. Perhaps before gaining entrance, journalists can negotiate that with the appropriate tribal leaders. Some tribes have attempted, unsuccessfully, to force me to submit research about publicly available documents for prior review, and I have offered fact checking as a solution. They refused. Therefore, it might be possible to negotiate a situation whereby tribal leaders would look at a draft of the article or book, so they could have a more complete ‘right to reply’, meaning they can raise concerns, but know that the author has the final say in what is published. This is similar to an ethical case study by the SPJ (2013) at http://spj.org/ecs6.asp, which argues for using a technique like that to ensure accuracy and editorial independence. This is in contrast to the SPJ Code of Ethics (1996), but perhaps a necessary consideration, when tribal officials are so insistent upon right of prior review.

I once spoke with a tribal attorney from another state about similar rules and concerns (Personal communication, 2013). ‘But it’s prior restraint,’ I exclaimed. ‘So?,’ the attorney responded. Tribes really no longer care about accommodating most journalists, photographers and other information gatherers who come to the reservation, hoping for a scoop about gaming corruption or photos of abject poverty. They prefer that anyone coming to them develop a relationship, and a relationship in contexts like this is often more of a dream than a reality. However, it requires patience, transparency and an understanding of the boundaries that have been set, whether we like them or not.





The lesson for journalists and journalism students is clear and simple. Share. Don’t steal. Do not be afraid to ask how it benefits the tribal people for them to share their precious and private religious beliefs. A personal anecdote illustrates this. During a reporting course where students were covering certain tribes in Arizona, I made a passing statement about how I maintain certain traditional religious practices and beliefs. ‘What are those?,’ asked an earnest student. My reply was a question. ‘So, what did you and your girlfriend do sexually the last time you had a date?’ His face turned red. ‘That’s private,’ he said. ‘And my traditional practices and beliefs are private, too,’ I said. ‘I don’t share it unless I really know and trust you.’ The entire class got the point that day.

NEGOTIATE When You Believe Something Different Would be Beneficial to All Parties: Or, Reach for Shared Space

As just discussed, reciprocity involves cooperation, and thus some level of negotiation. Ethical norms are clear that journalists must be assertive to report truth, but also be sensitive about those they cover (Goodwin & Smith, 1994). There indeed must be mutuality, which is consistent with concerns about research about indigenous peoples. As Champagne and Goldberg (2005, p. 65) argue:

Academic disciplines, universities, federal agencies, Native American studies programs, and Native nations need to negotiate common sets of rules for research in Indian country. These rules must respect Native peoples’ rights of selfgovernment and the diversity of both traditional and contemporary Native communities and cultures.

Journalists must be a part of those negotiations, if they have not been already, given developments in areas like the state of Arizona. However, it would be presumptuous and arrogant to assume that the tribes are wanting to ‘negotiate’ in every case. As Tsosie (2004, p. 171) has noted, during struggles over control of culture, there is much suspicion of ‘a compromise process between scientists and Native people’. Journal ists may not want to submit journalism to academic protocols for human subjects research or to prior review and perhaps prior restraint. Sometimes, those boundaries stop journalism cold in its tracks.



18 Kevin R. Kemper


You can ask for what you want, but expect to be told what they expect. It is not rhetorical hyperbole to say that Arizona tribal governments and members generally have been so offended with behaviour of journalists, academics, private investigators, photographers, filmmakers and other information gatherers that it may take generations before these laws soften and access becomes easier. From personal experience at practising and teaching journalism, I can say with confidence that even the clearest laws do not stop all access, especially when journalists have built respectful relationships. For instance, a student had to respect laws against photographing sacred dances by one tribe, but earned enough respect that the head dancer asked her to photograph him privately in the clothes and with the tools used in the dances. You simply teach others to have these relationships by modelling and practising them. Students learn much more by meeting people and gaining respect than by trolling the Internet, sending emails and records requests and pouting because they get no responses.

Conclusion

These are not quirky rules. Indigenous people are no different than anyone else. We want respect and privacy. Even the casual reader—especially one who might be interested in journalism, photography, research and other information gathering about indigenous tribes—would and should now have extreme caution when covering religion among tribes. As mentioned earlier, because some of the 22 American Indian tribes in Arizona define sacred spaces through clear laws and policies to control whether religion, culture and other private matters are accessed and reported, journalists have to ‘EARN’ access if they want to avoid potential legal liability or other constraints.

We cannot say that journalists are experiencing the force of all of these laws. In fact, in many private conversations, I have learned that some tribal officials want to apply these laws to journalists, but have not attempted that too often—yet. They search for ways to control the unwelcome intrusion into their religious ceremonies. Let us keep this in perspective. Few worshippers in any religion would be happy if uninvited journalists all of a sudden appeared to record sacred and private events at churches, synagogues, mosques and other religious buildings. Still, those





of us who do journalism about tribes, whether or not the topic is religion, feel that the tactics and rules by tribes can be heavy handed and arbitrary. At the same time, because of knowledge of the nature of wrongs perpetrated against the tribes, I understand why they have those rules and respect tribal sovereignty and authority.

Journalists either can obey or disobey orders to get off tribal land, or not take photographs at ceremonies or submit or not articles for review. Even if you are not detained or excluded from the reservation, you likely will make it more difficult for those of us who work with tribes regularly. Future research needs to see whether these types of rules are common among tribes in North America, around the rest of Pacific Rim and then, across the world. Some might consider whether these rules are, in fact, the most effective ways for tribes to protect themselves from cultural intrusion and misappropriation by journalists because they push against they free press. However, this article serves as instructive informat ion for journalists and a call for negotiations with tribes to work out these longstanding, understandable and serious problems. As I tell my students, when encountering conflict: ‘Build a bridge and get over it’.

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Kevin R. Kemper (Choctaw/Cherokee) is an Assistant Professor at the University of Arizona’s College of Social and Behavioral Sciences. He previously served in the UA School of Journalism, where he taught courses like Law of the Press and Advanced Reporting. Kemper, with a Ph.D. in journalism and a J.D. from the University of MissouriColumbia, also serves as research fellow and the intake liaison for the legal hotline for the Native American Journalists Association. He is an LL.M. student in the Indigenous Peoples Law & Policy Program, James E. Rogers College of Law, The University of Arizona. He is not licensed to practice law in a state jurisdiction.Email: [email protected]; [email protected]

You Have to EARN Access: A Case Study of Arizona Tribes and Reporting about Indigenous Religion...

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