Law Court gives hope to Indians
Portland Press Herald 2/15/01
By
Susan Young, Of the NEWS Staff
PORTLAND
— Tribal officials were buoyed Tuesday
by the reception they received
at the Maine Supreme Judicial Court, where arguments in a case pitting them against
three
paper companies were heard.
Chief
Justice Daniel Wathen said the paper companies’
request for all Penobscot and
Passamaquoddy tribal documents relating to water quality was “overly broad” and
“absurd,” if taken to its extreme, because it could include discussion of all sorts of
irrelevant
issues such as
tribal canoe races.
When
the lawyer for the paper companies, Catherine
Connors, said she should be allowed
to
hear tribal discussions of any matters that may
affect her, Wathen snapped back: “It’s
none
of your business.”
Another
justice, Leigh Saufley, said it was clear to
her that the Legislature had said “tribal
government
is off limits” to state regulation. “It
is not the people’s business occurring
when
the tribe is governing,” she said.
The
case arose last year when three paper companies
asked the Penobscot Nation and the
Passamaquoddy Tribe for all of their documents relating to water quality regulation. The
companies — Great Northern Paper Inc., Georgia-Pacific Corp. and Champion International
Corp. — made the request after the tribes contested the state’s application to the U.S.
government to issue federal wastewater
discharge permits.
The
U.S. Environmental Protection Agency last month granted Maine’s request to
issue
federal permits in all of the state, except “Indian country.” It has asked the U.S. Department
of Justice to
help it decide what to do in this area.
The
tribes have said they want the federal government to retain permitting authority
in waters
near
their lands, because the state is too beholden to the paper companies.
The
tribes refused to turn over the documents, and the companies sued, claiming they
are entitled
to the papers under the Maine Freedom of Access law. The tribes said the access law, which says
government agencies must make their meetings and documents available to the public, does not
apply to them.
Superior
Court Judge Robert Crowley disagreed and sentenced three tribal governors to
jail and
assessed
fines of $1,000 a day against the tribes until the documents were turned over,
or his
opinion was appealed.
The
45-minute hearing Tuesday was part of the tribe’s appeal to the state’s
highest court. The
courtroom was filled to its capacity of 75 people, and nearly as many people were sent to another
room where they could hear, but not see, the proceedings.
While
attorneys for both sides cautioned against reading too much into the questions
asked by the
six justices who heard the case, the lawyer for the tribes was clearly pleased with the tone of queries
from the bench.
“I
was pleased with the questions asked,” said Kaighn Smith of Drummond, Woodsum
and
MacMahon
in Portland. He argued that the case was very simple because the state’s
Freedom of
Access
law guarantees the right of the people to have access to the workings of their
state agencies.
Tribal
government clearly isn’t a state agency for the general public.
“The
court understands our position. That’s what’s important,” Smith said.
Penobscot
Nation Gov. Barry Dana rated the proceedings a 6* on a scale of 1 to 10. He said
the
justices
asked some tough questions and the paper companies didn’t have all the
answers.
Paper
company attorney Connors of Pierce Atwood in Portland argued that the tribes
must
produce documents when tribal actions affect nontribal members.
Paper
company lawyers have said that their ultimate concern is that the tribes want
the authority to
issue wastewater discharge permits themselves in Indian territory. They fear that the tribes will,
therefore, pass regulations that affect the companies without the companies’
input.
“We
have a practical interest in seeing documents that affect us,” Connors told
the court. She
acknowledged
that there are times, when the tribes’ actions or decision do not affect
outsiders, that
tribal
government should be free from the intrusion of state government in the form of
the access act.
After
the hearing, Connors said: “We made our points. I’m sure the court will
deliberate on all the
issues.”
The
state has intervened in the case on the side of the paper companies. Assistant
Attorney General Bill
Stokes
acknowledged that it is difficult to draw a line between “internal tribal
matters” when the access
act
would not apply, and external matters when the act should come into play.
“Not
everything the tribe may do … qualifies as an internal tribal matter,” he
said.
Echoing
the sentiments of tribal leaders, Chief Justice Wathen said the case was a
complicated one,
because
“the problem with the river is that the river is a part of their culture.”
Before
and after the hearing, tribal members gathered on the courthouse steps where
“honor songs”
were
sung and some people carried signs. Tribal officials stressed that this fight
was about clean water
and
the Indians’ rights to govern themselves.
“Water
is very precious to us,” said June Ranco Lane, who grew up on Indian Island
and now lives in
Wells.
She wore a sign saying “Respect the River” around her neck.
She
said her 89-year-old mother used to drink the water of the Penobscot River.
Today, it is not safe
to eat the fish from the river, she said.
“We
are very interested in keeping our waters under our control,” she said. She
said tribal members
fear
that the paper companies will have too much control over state regulation of
water quality.
Holding
up a bottle of water from the Penobscot River, Dana said, “This is the most
sacred thing we
have
on the planet.”
After
the court hearing, he said it was clear that an Indian prophecy had come true.
The story is that
humankind
will come very close to destroying the Earth, but this terrible turn of events
will be turned
around
by the keepers of the Earth, its native people.
“We
might not have all the resources the paper companies do ... or the state does,
but we are right,”
Dana
said.
The
tribes also have argued their case in federal court. Last week, the 1st Circuit
Court of Appeals in
Boston
heard arguments on whether the matter should be decided by a federal, rather
than state, court.
The
tribes believe it is a federal issue, because the U.S. Congress gave them the
right to govern
themselves.
The
paper companies argued that the Maine Indian Claims Settlement Act and Maine
Freedom of
Access
law are at issue and that they are both state laws, so the matter belongs in
state court.
A
decision from the other court could come in a matter of weeks or it could take
six months or more
for the courts to issue their rulings.
If
the Maine Supreme Judicial Court rules in their favor, the tribes will continue
to pursue the federal
case
because they believe it is important to establish that Indian tribes have “a
key to the federal
courthouse
door,” Smith said.
He
said his clients are prepared to take either case to the U.S. Supreme Court if
necessary.