High court in Maine rejects plea of inherent sovereignty

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AUGUSTA, Maine - Disappointed Maine tribes are deciding whether to appeal their case to the U.S. Supreme Court after the highest state court rejected their claim of inherent sovereignty.

A closely watched decision from the Maine Supreme Judicial Court May 1 appeared to strike a compromise between the tribes and three paper companies suing for access to their documents. But tribal lawyers say the argument struck at the heart of the tribal claims.

The high court vacated a contempt order that had threatened three tribal governors with a year in jail and it recognized a limited exemption for tribes from the state's Freedom of Access Law.

But the court refused to recognize the tribes' claim to sovereign status. It declared they had the role of municipalities under state control.

"We're clearly not happy with this decision," said Richard Doyle, governor of the Passamaquoddy-Pleasant Point reservation. In a press conference on the capital steps, he called the decision "just another way of eliminating the tribes, destroying the tribes, undermining the very existence of Native people here."

Leaders of the Maine tribes were in the capital to celebrate Wabanaki Awareness Day, a recognition of their culture.

The question of sovereignty was the core of the dispute between the paper companies and the Penobscot and Passamaquoddy tribes last year in maneuvering over enforcement of the federal Clean Water Act. In support of a state effort to take over a wastewater discharge permitting program from the Environmental Protection Agency, the paper companies demanded a broad range of documents from three tribal governments.

When the tribes refused to comply, the companies sought a court order against Governors Doyle, Richard Stevens of the Passamaquoddy - Indian Township Reservation and Barry Dana of the Penobscot. The contempt order included a $1,000-a-day fine for each day documents were withheld. The order was stayed while the tribes appealed to the Maine Supreme Judicial Court.

The tribes argued their internal affairs were protected from outside intrusion by their inherent sovereignty and the terms of the Maine Indian Claims Settlement Act of 1980.

The Maine high court agreed that some tribal documents were exempt from the Freedom of Access Law, but only when the tribes "were engaged in the deliberative processes of self-government." The law did apply when the tribes communicate and interact with other governments," the court said

Kaighn Smith, attorney for the tribes, said the most damaging feature of the ruling was its rejection of the sovereignty claim derived from the tribe's historic existence, a basic feature of American Indian common law. The court held that the status of Maine tribes derived entirely from the federal 1980 Settlement Act and a companion state Implementing Act ratified by Congress.

Smith said that this decision ignored rulings in the U.S. First Circuit Court of Appeals. "The tribes feel the Maine Supreme Court overlooked some fundamental arguments they made."

He said the tribes were mulling over two courses of action. One was to file an appeal to the U.S. Supreme Court. The second was to await the result of a parallel case under consideration by a First Circuit panel of judges. Both the Maine Supreme Court case and the U.S. Appeals Court case were argued within a week of each other in February.

The Maine judges sent the paper company suit back to the lower court. It ordered Judge Robert Crowley of the Cumberland County Superior Court to decide which documents should be turned over and "allow the tribes a reasonable period of time to voluntarily comply with the court's restructured order."

Judge Crowley was the author of the original contempt citation.