Eastern tribes rally behind Maine nations
PORTLAND, Maine - Spirits of the beleaguered Maine tribal governors lifted visibly in a week of crucial court hearings on their struggle to maintain sovereignty against a challenge from the state's largest paper companies.
After several bleak months with the threat of a year in jail for contempt hanging over Penobscot and Passamaquoddy leaders, it was a week of encouraging developments. Tribal lawyers took heart from the apparent success of courtroom arguments, a Maine state and tribal commission came out in support of the tribes, leaders of Iroquois and New England Indians rallied to their side and their opponents began to make public offers of a compromise.
As the tribes presented the basic case for sovereignty in a February hearing before the Maine Supreme Court, their lawyer Kaighn Smith Jr. said, "We were pleased" by the response of the six state justices. The courtroom in Portland was jammed with members of all four Maine tribes. The turnout, Smith said, was "huge."
The hearing followed closely on a parallel petition to the U.S. First Circuit Court of Appeals in Boston, Mass., earlier in February. The outpouring of support at the federal hearing drew tribal leaders from as far away as the St. Regis Mohawk reservation in northern New York state.
Penobscot lawyer Smith said he was encouraged by the response in both courtrooms. Speaking in Portland, he said, "Questions from the bench indicated, as they did in the First Circuit, that the judges fully understood the importance of the case and understood our position."
Tribal leaders expressed hope that one court or another would end the attack on tribal sovereignty and remove the cloud over their heads.
"I feel really good," said Penobscot Gov. Barry Dana after oral arguments in Boston, "but I'm always optimistic."
Tribal Governor Richard Stevens of the Passamaquoddy-Indian Township said that the threat of the contempt sentenced "weighed heavily."
The cases stem from a request by three paper companies for tribal records on enforcement of the federal Clean Water Act under Maine's Freedom of Access Law (FOAL). Georgia-Pacific Corp., Great Northern Paper Inc. and Champion International Corp. sued the Penobscot and Passamaquoddy governors in state court after tribal governments spurned the request as a violation of sovereignty.
In November, a state judge imposed a contempt of court penalty of a year in jail for the three tribal governors and $1,000-a-day fine unless the tribes complied or appealed the case to the Maine Supreme Court. Along with the state appeal, the tribes are trying to get federal courts to intervene and uphold sovereign rights.
Both sides say the fight began over the federal Environmental Protection Agency policy of delegating some Clean Water Act enforcement to state governments. The Penobscot and Passamaquoddy tribes asked EPA to keep jurisdiction over the rivers affecting their lands, as it has in most other states with reservations. It recently gave state authority over most waste-water discharges, except for areas affecting the tribes and asked the Department of Justice for an opinion on those.
As the cases come to a head, the paper companies showed signs of faltering in the face of increasingly hostile public opinion.
Richard Doyle, governor of the Pleasant Point Passamaquoddy reservation, said Matthew Manahan, an attorney representing the paper companies, made a written offer to drop the suit. Doyle said he rejected its unacceptable conditions.
Doyle said Manahan's letter asked the tribes to promise not to seek enforcement power for themselves. "They're worried about the tribes getting regulatory authority. Our tribe doesn't have the capacity to take over regulation," he said. "We want the EPA to do it."
Doyle raised another problem with compromise. "The lower court decision would stand as a precedent. The decision says that water quality is not an internal tribal matter."
The issue before the courts is not water quality, however, but the extent to which Maine tribes can claim to be sovereign governments. The paper companies and Maine Gov. Angus King argue the tribes' standing derives from the federal 1980 Maine Indian Claims Settlement Act, which ended the Penobscot and Passamaquoddy land claims suit and gave them federal recognition. They argue, in effect, that the acts deprived the tribes of sovereignty and made them political subdivisions of the state.
The 1980 act and a subsequent state implementing act made substantial concessions on tribal sovereignty, including language saying the tribes were subject to the duties of a municipality. The lower state court declared that meant observing the FOAL.
The tribes argue, however, that Congress meant for them to retain basic sovereign powers under Indian common law. They say they gave up only the powers specifically mentioned in the 1980 act, but reserved all their other powers under an exception giving them control of "internal tribal matters." Tribal law prohibited them from releasing the requested documents, they said.
On the eve of the hearings, the tribes received a boost from the Maine Indian Tribal State Commission, a body created to mediate gray areas in the Settlement Act. In a unanimous vote, the commission said the lower court decision "does not reflect our understanding" of the two acts.
The nine-member commission has four tribal delegates and five non-Indians, including several state officials. One tribal attorney said it was the first time in the commission's 20-year history it had taken a stand on such a controversial issue.
The tribal governors drew some of their most powerful encouragement from the scene just outside the courtroom.
While waiting for the three-judge federal panel in Boston to hear the Maine case, a virtual summit of tribal chiefs and councilmen mingled in the seventh-floor hallway. Delegates came from the Akwesasne Mohawks, Oneidas, Aquinnah (Gay Head) Wampanoags, Mohegans and Narragansetts, as well as the two Maine tribes untouched by the suit, the Aroostook Band of Mic Macs and the Houlton Band of Maliseets. Matthew Thomas, chief sachem of the Rhode Island Narragansetts, brought two tribal policemen dressed like Canadian Mounties in red coats and broad-brimmed hats.
"All of Indian country should be outraged," said Alma Ransom, chief of the St. Regis (Akwesasne) Mohawk Tribe. Ransom said she left her northern New York reservation two days before to be at the hearing.