Commission Sides with Tribes
Bangor Daily News Friday, February 9, 2001 By Susan Young, Of the NEWS
AUGUSTA
— The Maine Indian Tribal State Commission unanimously approved a statement
Thursday saying a Superior Court judge erred in ruling that Indian tribes are
subject to the state’s Freedom of Access law, and must turn over documents
requested by paper companies. The action came a few days before the matter is to
be heard by the state’s highest court.
It was the first time since the Maine Indian Claims Settlement Act was signed 20
years ago that the commission, which is responsible for reviewing the act’s
effectiveness, has taken a stand on a substantial and controversial issue, said
Doug Luckerman, a lawyer who represents Maine Indian tribes.
The commission’s vote runs counter to the state’s official position that
Maine’s Indian tribes are subject to the access law, which requires government
entities to make documents available to the public. “We unanimously agree that
this [court] decision does not reflect our understanding of the Maine Indian
Claims Settlement Act and its companion Implementing Act,” the commission
said. The statement will be circulated to the governor, Legislature and tribal
officials.
“It is our hope that in this context, the right of Maine’s tribal government
to make governmental decisions outside the scrutiny of nontribal members will be
upheld,” the statement concluded.
Members of the commission, which includes two state officials, said they thought
it was important to let state and tribal officials know that in this instance
they believe the documents sought by the paper companies are part of the tribal
government process and, therefore, shielded from scrutiny by outsiders.
As part of an ongoing dispute over whether the state or federal government
should regulate water quality in “Indian country,” three paper companies
that discharge treated wastewater near Indian reservations filed suit under the
Freedom of Access law to obtain copies of tribal documents that discuss water
regulation. The state intervened in the case on the side of the paper companies,
arguing that under the settlement act, tribes were like municipalities and,
therefore, subject to the access law.
Tribal officials argued that they are not subject to the act because it would
require them to turn over internal tribal documents that tribal law prohibits
them from disclosing to outsiders. A Superior Court judge disagreed and
sentenced three tribal governors to jail. An appeal was filed with the Maine
Supreme Judicial Court, which will hear arguments in the case on Tuesday.
At the heart of the issue is the fact that the state applied to the U.S.
Environmental Protection Agency to issue federal wastewater discharge permits in
order to streamline the process, which has required permits from both the state
and federal governments. The Passamaquoddy and Penobscot tribes contested the
application, saying that the state was too beholden to paper companies and that
the federal government has a special “trust” relationship with the tribes
and would do a better job of protecting their interests.
Last month, the EPA granted permitting authority to the state in all areas
except Indian country. It asked the U.S. Department of Justice for advice on how
to deal with that aspect of the issue. In voting for the statement, state
officials who sit on the commission said they wanted to stress that they did not
necessarily support the tribes’ position on the larger water regulation issue.
Evan Richert, director of the State Planning Office and a member of the
commission, said he felt comfortable taking a position that was contrary to that
of his employer because the workings of tribal government are an internal tribal
matter.
In an interview, he said it was up to the tribes to decide the degree to which
to open their government proceedings. However, he added: “It is not good
policy for a government not to open its proceedings to the light of day. But,
the settlement act gave that option to the tribes.”
While supporting the tribes’ position in this case, Richert told the
commission there would be instances when the tribes would be subject to the
Freedom of Access law, if their actions affected those outside the tribe.
Fred Hurley, the deputy commissioner of the Department of Inland Fisheries and
Wildlife, said in an interview that the deliberations of the tribes would not
affect nontribal members because it was up to the EPA to make a decision, not
the tribes. If the situation were such that the tribes were making a decision
that would affect people who did not belong to the tribes, his opinion would
have been different.
A spokesman for Gov. Angus King said the governor had discussed the statement
with Richert and Hurley and the men “agreed to disagree” on the issue. While
the commission serves an advisory role to state leadership, the access issue
will be decided by the courts, not state lawmakers, said John Ripley, the
governor’s spokesman.
The tribes were buoyed by the commission’s support.
“We’re pleased the commission is finally taking a stand on an issue that is
in conflict between the state and the tribes,” said Mark Chavaree, the
in-house attorney for the Penobscot Nation and a member of the commission.
“Hopefully, it signals that we can start working together on other issues.”
The attorney for the three paper companies that asked for the documents said the
commission’s statement was not surprising. That’s because the group has
“evolved into an advocacy body for the tribes,” said Matt Manahan of Pierce
Atwood in Portland. Manahan served on the commission from 1994 to 1996, and said
his differing point of view was not appreciated by other members.
The nine-member commission, which includes representatives of the Penobscot and
Passamaquoddy tribes as well as five nontribal members, was set up to clarify
those issues that were not settled by the 1980 act. However, most issues
involving where tribal sovereignty ends and state jurisdiction begins remain
unsettled, and the commission has long been viewed as a body that simply
gives lip service to
the idea of the state and tribes working together, without ever tackling the
controversial issues.
Commission member John Banks, the natural resources director for the Penobscot
Nation, said it was important for the panel to make a statement on the access
fight because it is one of the most important issues the body has had to deal
with.
Last month the commission decided not to file a brief with the Maine Supreme
Judicial Court in support of the Indians.