A three-judge panel of the 1st U.S. Circuit Court of Appeals concluded that the Maine Indian Land Claims Settlement Act of 1980 trumps Indian sovereignty: ''... the explicit language of the Settlement Act establishes state authority that far exceeds what is normal for Indian tribes to which no such legislation applies.''
The tribes, through their sovereign status, have helped Maine protect its land from being used as a low-level nuclear waste depository since 1986. Without tribal protection, the state of Maine could very well be a dumping ground for nuclear waste and Maine's environment could be extremely polluted. Maine may need our help in the future, but without our sovereign status and federal recognition we would be helpless to intervene.
There is a long history between the tribes and those whom some perceive as the greatest water polluters of our time - the paper companies. The Penobscot Nation is located on an island in the Penobscot River with three paper companies to the north and three to the south. In the past, these paper companies have been permitted to discharge toxins into the river without consequence. The Penobscot Nation took matters into their own hands and hired their own experts in water testing. The results of these tests showed high levels of toxins in the water and these test results were used to hold paper companies accountable. The Maine State Department of Environmental Protection was forced to take action.
Maine now has very strict laws (even stricter than the federal laws in some respects), but tribal concern is with the enforcement of these laws. When paper companies were cited in the past for dumping, the fines have been minimal to nonexistent. When the paper companies petitioned the state to allow a ''one-stop shopping'' deal to get their dumping permit directly from the Maine's DEP rather than the federal EPA permitting process.
Maine tribes were very apprehensive with rightful concern. The state has turned a blind eye to the dumping practices of the paper companies. With the federal Environmental Protection Act in the picture, Maine tribes had to be heard and their concerns investigated before a discharge permit was issued. This extra step in the process had to be done because of the tribal federal recognition and trust status with the federal government. The paper companies knew that the tribes would take them to court over this ''one-stop shopping'' process so they filed a Freedom of Information Act complaint in state court. The state of Maine entered the case as a third party siding with the paper companies. The effect of this filing kept the issue in state court, thereby giving the paper companies a better chance to get a favorable result. A favorable result for them would erode our sovereignty. Tribes would no longer be protected under federal laws; a favorable state interpretation of the act would place us totally under state law.
The state FOIA case filed by the paper companies is infamous. On Aug. 9, 2000, Judge Crowley refused to hear the sovereignty argument and referred to the tribes as political-subdivisions of the state of Maine. (This, of course, was ludicrous, as tribal governments were in existence long before Europeans landed on the shores of this country.) He treated the tribal chiefs with disrespect. Judge Crowley actually told the bailiff to take the chiefs into custody during the hearing. The intervention of the tribe's attorneys prevented the chiefs from being physically incarcerated, however they were not free to leave. They were officially and legally placed under arrest.
This FOIA case later went to the Maine Supreme Court, where the justices found in favor of the paper companies once again but took the option of jail out of the finding and remanded the case back to Judge Crowley. The FOIA case and the judge's ruling were the beginning of the tribes' statewide campaign for clean water. The tribes held a march for clean water on May 23, 2002. They marched from Norridgewock to the Maine Statehouse steps in Augusta as they delivered the court ordered papers to state government.
In my opinion, the purpose of these court cases was to erode our tribal sovereignty and take away our ability to fight the paper companies for clean water. The paper companies did not want to pay the price to develop nonpolluting systems as paper companies have in Europe. They would much rather pay hundreds of thousands of dollars to fight the tribes for the right to pollute. This court battle for a ''one-stop shopping'' permit has been on going since 1999.
When the tribes lost their appeal in federal court, the people of Maine lost as well. The battle continues and the big companies that are allowed to pollute Maine water are continuing to do so with impunity. The Maine Indian Land Claims Settlement Act continues to be the tool used to erode our ability to protect our tribal governments and our environment. There is now one less tool in our arsenal to protect Maine's environment. It's time that the paper companies and the state stop using the Maine Indian Land Claims Settlement Act to erode our sovereign status. The congressional record states that it was never the intent of Congress to diminish our sovereignty but to protect it and enhance it. It is time for the tribes to take action to eliminate the Settlement Act.
Donna Loring is the legislative representative for the Penobscot Indian Nation in Maine. This article originally appeared in the Bangor Daily News.