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 In 2008, an ordinance passed and quickly rescinded by the Tribal Business Counsel of the Chippewa Cree of Rocky Boy’s Reservation in Montana made it a crime to defame a tribal official.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 in Gardner 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. In Gardner, had such a rule been applied and had defendants simply negligently defamed the plaintiff, no liability would exist.
Instead, the court found that the publication at issue had in fact “defamed the plaintiff,” suggesting that perhaps under the Nation’s laws, even public officials are entitled to the lower private-person standard for fault. But the court dismissed claims against certain defendants, holding that they enjoyed a privilege from defamation suit. The privilege, it held, arose because the publishers of such defamatory communications were combat veterans, and their duty to speak on behalf of tribal members carried with it protections for such speech. The court wrote that it had specifically looked to Ho-Chunk traditions and customs, and “the cultural, engrained and embodied warrior society.” Having already asked the Nation’s separate Traditional Court whether defamation existed under tribal law, the court held that:
Warriors return to their respective community with experiences that make them valued members of their society, and maintain a duty to protect the Ho-Chunk people.
As one veteran-defendant put it, “he ha[d] a duty and a right to stand up as a warrior and voice the concerns of the people” (emphasis added). Non-tribal defamation law would have likely ignored the veteran-defendants’ particular contributions to the governmental process. In the Ho-Chunk court, however, the privilege barred suit—even though other avenues to the same result were available.
Rocky Boy’s 2008 Ordinance mirrored Montana’s criminal defamation statute, which remained on the books despite probably being unconstitutional. The Rocky Boy’s Business Council, apparently reacting to allegations of corruption, had drawn from state law, adding the enforcement mechanism of exclusion from the reservation. The ordinance made it an “offense for any person to engage in communication that harms the reputation or integrity of another.” Under the law, if slander or libel was directed against the Council or any Tribal employee, the publisher was subject to a 5-year exclusion from Rocky Boy’s Reservation and a fine of up to $5,000. (Bismarck Tribune, “Jodi Rave: Speak ill, get kicked off reservation”)
The ordinance appeared to be a direct attempt to stifle political dissent. Under non-tribal law, the rule would likely be unconstitutional since it contains no requirement that a public figure plaintiff prove constitutional malice. Even in the civil context, a public official as plaintiff who brings a suit against someone who has criticized him—especially with regard to his fitness for office—would need to show clear and convincing evidence of knowing or reckless falsity. While the Business Council rescinded the ordinance, when in place it exemplified the differing treatment of false speech in the tribal legal context.
Gardner suggests that tribal court practitioners and tribal defamation defendants should not be shy about asserting rules that actually mirror tribal law and values. If elders speak in certain ways that might be defamatory outside of the reservation, then a recognized, perhaps qualified, immunity could reflect that ideal. Tribal court treatment of defamation is a vital expression of tribal sovereignty. The Rocky Boy’s ordinance applied different rules to those living under the authority of the Rocky Boy’s Council. And the recent Gardner decision makes it abundantly clear that defamation will be treated differently under tribal law than it would be treated in state or federal court.
Anthony Broadman is a lawyer in Seattle with Galanda Broadman; his practice emphasizes issues critical to Indian country.