Boston Globe                                                                                                                                    2/7/2001

             Maine tribal leaders 

risk jail in pollution dispute

By Matt Kelley, Associated Press
WASHINGTON (AP) In a test of tribal sovereignty, three American Indian leaders in Maine are waging a court fight to avoid jail in a high-stakes battle over paper, pollution and political power.

The Indian leaders say they're willing to be locked up rather than hand over tribal documents to three timber companies that oppose the tribes' bid for federal regulation of wastewater from paper plants.

Tribes from across the country have lined up in support of the Maine tribal leaders, who say the conflict cuts to the heart of Indian tribes' status as autonomous, sovereign governments.

''The native people of America will not go quietly on this issue,'' said Rick Doyle, governor of the Passamaquoddy Tribe at Pleasant Point in Maine. ''It's so unheard of that one nation can go and arrest the officers of another nation. It would be the most egregious breach of sovereignty anywhere in Indian Country.''
                                                                                                                                                                                    Both state officials and a lawyer for the companies say they hope it doesn't come to that. ''It's frustrating to waste their and our efforts on these chest-puffing sovereignty issues, when we should be focusing on cleaning up the rivers,'' said Brooke Barnes, deputy commissioner of the Maine Department of Environmental Protection.

In November, a state judge ordered Doyle and leaders of the Penobscot Nation and the Passamaquoddy Tribe at Indian Township to jail for violating his order to turn over the records. The judge suspended the jail terms during the tribal leaders' appeals.

The 1st U.S. Circuit Court of Appeals in Boston is to hear arguments in the case Friday, with arguments scheduled four days later in the Maine Supreme Court.

The clash centers on the Maine tribes' attempts to prevent the state from enforcing water quality standards in waters on and near the tribes' reservations.

The tribes have asked the federal Environmental Protection Agency to continue regulating pollution in tribal waters, arguing that the federal government would be stricter in fighting pollution by paper mills and other sources. State officials and the timber companies want the state to regulate water pollution throughout Maine.

Last month, the EPA ceded to Maine the power to issue wastewater permits except in areas claimed by the tribes. The EPA sent the tribal issue to the Justice Department for clarification.

Last May, three paper companies asked the tribes to turn over records of their contacts with EPA on the water pollution matter. Great Northern Paper Inc., Georgia-Pacific Corp. and Champion International Paper Corp. contend the records are public under Maine's Freedom of Access law.

Justice Robert Crowley agreed and ordered the tribal leaders jailed and fined $1,000 a day for refusing to turn over the records. The tribes appealed to the Maine Supreme Court and pursued a separate federal court case, arguing that the state records law does not apply to tribes.

Most Indian tribes outside Alaska are separate governments not subject to state control or oversight. The situation for Maine's four tribes is slightly different, however.

Maine's tribes signed treaties with the state, not the federal government, and for decades did not have a formal relationship with the federal government. The tribes staked a claim to two-thirds of Maine in a lawsuit that led to the Maine Indian Claims Settlement Act.

That 1980 federal law gives Maine's tribes a unique status, letting Maine regulate them like the state's municipal governments. However, the law says Maine cannot regulate ''internal tribal matters, including ... tribal government.''
The tribes say controlling access to documents is an internal tribal government matter. The paper companies and the state say it isn't.

''If they're seeking to regulate beyond the tribe, it's not internal,'' said Matt Manahan, the paper companies' lawyer. ''Good government would dictate that we would be allowed to see the documents related to the tribes' attempt to regulate us.''

Tribal leaders elsewhere say they fear that if the Maine tribes lose, other states will try to regulate tribes within their borders. State governments and courts generally have no power over sovereign, tribal governments.
Doyle accuses the paper companies of ''trying to get some legal precedent to keep the tribes down.'' He and the other tribal leaders say pollution from paper mills and other sources has fouled the rivers and bays they depend on for both sustenance and cultural preservation.

''Our makeup, the way we think, our consciousness, comes from living on the river,'' said Penobscot Gov. Barry Dana, whose reservation is an island in the Penobscot River. ''Polluting that river pollutes us.''

Barnes, the state environmental official, disputed the tribes' claims that the state would go too easy on the paper mills, which are Maine's largest industry.

''We've done a lot to clean up our rivers,'' Barnes said. ''More needs to be done, but to say that we're not interested in protecting the environment or not doing enough to protect the environment is hogwash.''

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