Indians
back in court to challenge access law
By
Susan Young, Of the NEWS Staff
Bangor Daily News Feburary 8, 2001
Three
tribal governors who avoided jail time in a legal battle with paper
companies last fall will be
back in court this week and next as the debate over the sovereignty of Indian tribes in Maine regains the
judicial spotlight.
Friday,
attorneys for the tribes and paper companies will argue in front of the 1st
Circuit Court of
Appeals
in Boston about whether a state or federal court is the proper venue for the
debate on whether
the
tribes are subject to Maine’s Freedom of Access Law.
Next
Tuesday, a state hearing on whether the tribes are subject to the same law will
be held at the Maine
Supreme
Judicial Court in Portland.
While
legal arguments will be about jurisdiction and access to documents, there are
several layers to the
debate
that centers on where tribal self governance ends and state jurisdiction begins
in light of the
20-year-old
Indian Claims Settlement Act.
The
backdrop for the legal contest is a fight about whether the federal or state
government should
regulate
water quality in and around the lands of the Penobscot and Passamaquoddy tribes.
Intermingled
with that debate is one about whether the tribes should be compelled to provide
documents
to
three paper companies under the Maine Freedom of Access law.
At
the heart of the matter is whether Maine’s Indians can retain their culture,
which includes fishing
from
water that is not polluted, say tribal officials.
“We
didn’t sign away a culture with the land claims settlement act,” said Rick
Doyle, governor of the
Passamaquoddy
Tribe at Pleasant Point.
Neither
did they sign away their right to govern themselves without outside intrusion in
the form of
freedom
of access requests for tribal information, tribal officials said Wednesday in a
meeting with
Bangor
Daily News editors and reporters.
The
fight began in 1999 when the Maine Department of Environmental Protection
applied to the U.S.
government
to issue federal wastewater discharge permits under the Clean Water Act.
Forty-four other
states
already issue the federal permits in order to streamline the process. In Maine,
dischargers had to
get
permits from both the state and federal governments.
Maine’s
application was contested by three of the state’s Indian tribes — the
Penobscot Nation, and
the
two branches of the Passamaquoddy Tribe, at Pleasant Point and Indian Township.
The tribes asked
that
the U.S. Environmental Protection Agency retain permitting authority in
“Indian country,”
because
they said they believe the state has been too lax with polluters, many of them
paper companies.
In
addition, the tribes said, the federal government has a special trust
responsibility to the Indians that
the
state does not have.
“Maine
DEP has a terrible record in protecting the waters of the Penobscot River
watershed,” said
John
Banks, natural resources director for the Penobscot Nation. The DEP failed to
consult with the
tribe
when Lincoln Pulp and Paper, which discharges wastewater into the Penobscot
River, asked to
revise
its state permit because the department did not consider the tribe to be an
abutting landowner,
Banks
said Wednesday. The tribe believes its land extends northward from Indian Island
up both
branches
of the Penobscot River to its origin.
“They
are protecting the paper companies,” Banks said of the DEP.
Last
month, the EPA granted Maine permission to issue the discharge permits in most
of the state, but
delayed
a decision on what to do in Indian country. The agency said it would ask the
federal
Department
of Justice to review the situation and provide guidance on how EPA should act.
In
the other states, EPA retained permitting authority in Indian lands, but no
other states have a law like
the
Maine Indian Claims Settlement Act of 1980. That law said tribes were to be
treated as subdivisions
of
the state and not sovereign nations, although they retained jurisdiction over
“internal tribal matters.”
Shortly
after the tribes contested Maine’s application, a coalition of municipalities
and companies that
discharge
wastewater into rivers that flow through or near Indian reservations began
seeking
information
about the relationship between the EPA and the tribes. Last May, they filed a
Freedom of
Access
request to obtain documents that detail discussions between EPA and the tribes
about
environmental
regulation.
The
tribes refused to comply with the request, saying that water quality is an
internal tribal matter and
that
tribal law prohibited the sharing of minutes from tribal council meetings with
outsiders.
Three
paper companies — Great Northern Paper Inc., Champion International Corp. and
Georgia
Pacific
Corp. — went to court to get the tribes to turn over the documents.
Again
the tribes refused. In mid-November, Superior Court Judge Robert Crowley found
three tribal
governors
to be in contempt of court for not turning over the documents. He sentenced the
men to jail
unless
they appealed his ruling.
Three
days later, the tribes appealed to the Maine Supreme Judicial Court, which will
hear arguments in
the
case next Tuesday.
Lawyers
for the tribes will argue that making the tribes subject to the Freedom of
Access law will result
in
an unwarranted state intrusion into Indian affairs.
“The
tribes have a protected right not to be subject to this type of government
regulation,” said Kaighn
Smith
of Drummond Woodsum and MacMahon in Portland.
He
said internal tribal matters include determining who has access to tribal
government and its
decision-making
process.
Making
the tribes subject to the freedom of access law is like allowing “a person,
from Kittery to
Caribou,
to walk onto the reservation” and ask for documents or to attend tribal
meetings, Smith said.
Paper
company attorneys, on the other hand, will argue that the issue at hand —
water quality regulation
—
is not an internal tribal matter and that the tribes are subject to the access
law as they are to other
state
laws.
Their
ultimate concern, said Matt Manahan, a lawyer who represents the paper
companies, is that the
tribes
will seek to regulate nontribal entities, including paper companies.
“We
would have no input into tribal decisions,” he said Tuesday from his office at
Pierce Atwood in
Portland.
In addition, the tribes would not balance concerns, such as jobs, against the
need for a clean
environment,
he said.
Tribal
officials said Wednesday they have no interest in issuing permits themselves.
Manahan
said the paper companies filed the Freedom of Access request because they
believe the tribes
and
the EPA have signed agreements that discuss the tribes’ efforts to develop
regulatory programs.
He
points to agreements signed in 1999 by the tribes and EPA officials that say the
two entities will
work
together to see that tribal environmental goals, such as protecting water and
air quality, ensuring
safe
homes and schools, and minimizing pollution from tribal activities, are met. The
agreements
stipulate
that both the EPA and tribes will endeavor to keep communications on these
topics
confidential.
Tim
Williamson, an attorney with the EPA in Boston, said such agreements are typical
of those his
agency
has with other tribes across the country. He said they simply are agreements to
work together.
To
this end, the EPA provides grant money to the tribes for projects such as water
quality monitoring.
The
confidentiality clause was added to ensure that the agency and tribes can have
frank discussion,
much
like when the agency enters into enforcement negotiations with an entity that
has broken
environmental
laws and a penalty is being discussed, Williamson said.
If
it was determined that any information generated as a result of the agreements
was subject to the
federal
Freedom of Information Act, those documents would be turned over, Williamson
said.
On
a different track, the tribes are continuing their appeal to the federal court
system Friday to take over
the
case because, they argue, the federal government has a responsibility to protect
the nation’s Indian
tribes.
U.S.
District Court Judge D. Brock Hornby rejected that argument and returned the
case to the
Androscoggin
County Superior Court. The tribes appealed his decision to the 1st Circuit Court
of
Appeals
in Boston. Arguments will take place Friday.
The
paper companies will argue that the Maine Freedom of Access act and the
implementing act that
accompanied
the settlement act both are state laws, so the fight over their meaning belongs
in state
court.
Attorneys
for the tribes will encourage the federal court system to take control of the
case because
Congress
gave the tribes the right to govern themselves. Allowing people to get
information about tribal
government
meetings by using the freedom of access law violates that right.
“The
tribes have a federally protected right to be free from the imposition of the
Maine Freedom of
Access
law,” Smith said.
If
the 1st Circuit court agrees it is a federal issue, the case will be returned to
Judge Hornby in Portland
for
him to decide.
The
outcome of the legal debates could depend on which court rules first. If the 1st
Circuit rules the
issue
is a federal one, it could stop the Maine Supreme Court from issuing a ruling in
the state case.
But,
if the Maine court rules first, its decision could become meaningless if the
federal court decides the
issue
is one for the federal courts.
The
paper companies have asked the Maine Supreme Court to expedite its deliberations
on the matter,
which
means a decision could be issued within a matter of weeks, Manahan said.
The
tribes asked the 1st Circuit Court to expedite their appeal. “If they see it
as a no-brainer, as we do,
it
could be a matter of weeks,” Smith said of the federal court’s decision.
Otherwise, it could be
months
before a ruling is issued.
Either
way, the case could end up before the U.S. Supreme Court.
“We
can’t give this up,” Penobscot Nation Governor Barry Dana said of his
tribe’s fight, which he
views
as a fight to maintain tribal culture and to ensure a clean environment for
future generations.