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Raising Hell for Fun and Freedom

Steve Russell
4/1/14

I suffer what may be a delusive hope that Indians want changes in how they are treated by the US government, state governments, and tribal governments. Like the African-Americans who Dr. Martin Luther King, Jr. mobilized and the farm workers who César Chávez mobilized, Indians lack education and money. More critically, they also lack unity.

Over 50 years since the powerless in the US forced the powerful to pay attention, Indian country is still in a state of social change whack-a-mole. At any given moment, there is somebody raising hell somewhere about something, but we pay little attention to “other tribes’ business,” so we each get whacked in our turn while tribal crooks hide behind the bloody red shirt of sovereignty.

Other tribes, other nations, other peoples who stand up for self-determination should be our natural allies and our teachers. Not that their struggles can be precisely replicated, but I support the pithy observation misattributed to Mark Twain that history doesn’t repeat itself, but it does rhyme.

Within hours of Turkish Prime Minister Recep Tayyip Erdogan’s March 20 announcement of a ban on Twitter, Twitter erupted in a collective raspberry. Twitturk reported more than half a million tweets from inside Turkey in 10 hours after the ban. Turkey is the fourth largest Twitter community in the world, after the US, Britain, and Japan.

Erdogan said in a public statement, “Everyone will see how powerful the state of the Republic of Turkey is.” My Cousin Ray Sixkiller asked, “Remind me how to say ‘hack’ in Turkish?”

The first clue this was not going to work out for the government might have been when the government announced the Twitter ban on Twitter. The second clue was when the protest of the ban was joined—on Twitter-- by Turkish President Abdullah Gul. 

Anti-government protestors in these times often use Facebook to plan an action, Twitter to make it happen, and YouTube to report afterwards.

Turks have done all of that. Purported telephone calls from Erdogan (which he points out could not have been legally recorded) have been posted on social media. If they are his calls, he has called Turkish editors trying to get critical reporters fired and called his son to tell him to get rid of large sums of cash in anticipation of a police raid.

Activist Indians have communication problems that are smaller in one sense but bigger in others. Tribal governments often control tribal newspapers, but no newspaper can compete with the moccasin telegraph.

The moccasin telegraph, like Twitter, is prone to error and exaggeration, but it can get the job done on the local level if people are not wired and tribal government muzzles the government newsletter that masquerades as a newspaper.

I took a pay cut to write for Indian Country Today back when it was printed on dead trees because it was the only publication I saw wherever I went. It was Indian-centric without being tribal-centric. If it missed a story, it was for a lack of a writer in the vicinity, not disinterest. Today, it remains the closest thing Indians have to a publication of record.

The New York Times does that for the country, and it’s been a target at times for that reason. The traditional way opinion leaders make noise in the country if they can’t get an op-ed in the Times is to buy a signature ad, the bigger the better, taking a position and asking others to join.

On March 29, 1960, the Times carried a full-page signature ad titled “Heed Their Rising Voices,” soliciting funds for the criminal defense of MLK, and detailing alleged misconduct by Alabama police. Police Commissioner L.B. Sullivan sued The New York Times for libel and got a verdict from an Alabama jury that would be sufficient to quiet even the country’s publication of record: $500,000 plus costs, which would amount to over $4 million in 2014 dollars.

There were in fact errors in the ad. It said that students sang “My Country, ‘Tis of Thee” on the capitol steps, and so were expelled. In fact, they sang the national anthem. In fact, they were expelled not for singing at the capitol but for demanding service at a “whites only” lunch counter.

The ad said the entire student body had protested the arrests. In fact, only most of it protested. The ad said MLK had been arrested seven times on trumped up charges; in fact, MLK was only arrested four times on trumped up charges (at the time the ad was printed). You get the idea.

Alabama assumed it was insulated from constitutional error because it allowed truth as a defense to libel. At common law, truth was not a defense. If a published statement were defamatory, and if it damaged the plaintiff, that was a libel, without regard for the fact that the statement might have been true. The United Kingdom only established truth as a defense in the Defamation Act of 2013.

But the words of the ad were not, strictly speaking, true. The SCOTUS held that the Constitution requires “actual malice” in a libel case brought by a “public figure,” meaning that the publisher either knew the statement was not true or published with reckless disregard for whether it was true.

This has nothing to do with tribal justice systems, unless you are a tribal judge looking for how other jurisdictions deal with the matter. The Constitution does not apply.

I once advised an individual who was charged with criminal libel for an on line criticism of his chief. The tribal law was silent about whether truth was a defense, but we filed a jury demand and served notice of intent to rely on truth along with a subpoena list. The criminal libel charge was quickly dropped.

The tribal government came back with a civil libel suit, for which no jury trial was available, and got a default judgment when he could not get off work half way across the country or pay a lawyer. Raising hell may have bad consequences if tribal law allows those consequences and the tribe has no bill of rights.

Personally, I look forward to the day when tribal hell raising attracts the notice of all Indians. Most of the tribal hell raisers I’ve helped have been good people, leading me to agree with a Mark Twain quote that is not misattributed: I may want to go to heaven for the climate, but I prefer Hell for the company.

Steve Russell, Cherokee Nation of Oklahoma, is a Texas trial court judge by assignment and associate professor emeritus of criminal justice at Indiana University-Bloomington. He lives in Georgetown, Texas.

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