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Maine tribes describe Catch-22 in suit over access to papers

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PORTLAND, Maine ? The Maine Indian tribes embroiled in a legal dispute with paper companies argue they need not give the companies access to documents about water quality.

Two days after the U.S. Supreme Court declined to intervene, the Penobscot Nation and Passamaquoddy Tribe filed a motion in Cumberland County Superior Court that describes a Catch-22 for the paper companies.

The tribes argue in the motion filed Nov. 15 the state lacks authority to dictate terms under which the general public can enter their reservations. At the same time, the tribes contend the Maine Freedom of Access Act does not require them to make the documents available off the reservations.

Matthew D. Manahan, the lawyer for the paper companies, said he would not comment on matters pending before the court. The companies have 21 days to file their response.

The underlying dispute is rooted in the state's bid to become the sole overseer of wastewater discharges into Maine waters.

The tribes believe the paper companies have too much influence with state officials and want the U.S. Environmental Protection Agency to maintain its authority on tribal land.

Great Northern Paper Inc. and Georgia Pacific Corp. are part of a group that wants the documents for a lawsuit against the EPA. The suit under the state's Freedom of Access Law (FOAL) arose as part of a struggle to control the water quality of the rivers washing the Penobscot and Passamaquoddy tribal territories. But, said the tribes' attorney Kaighn Smith, it "quickly turned into a full-blown legal battle about tribes' sovereign rights."

The U.S. Supreme Court action, he said "is a setback for the tribes. Their leaders, however, remain optimistic."

"We are disappointed, but not surprised," said Richard Doyle, governor of the Passamaquoddy Pleasant Point reservation. "It is very hard to get a case before the Supreme Court. But we will be patient. We have faith that our rights as self-governing Indian tribes will, in the long run, prevail."

"This is just one step along a very long path," Penobscot Chief Barry Dana said. "I am sure that this path will eventually lead to a strong and healthy government-to-government relationship between the tribes and the state of Maine."

Richard Stevens, governor of the Passamaquoddy Indian Township reservation, said, "We are federally recognized tribes. The federal courts have determined our tribal rights before. I am sure they will again."

In the early stages of the case, all three tribal leaders faced a contempt order from a lower court that could have put them in jail for a year for refusing to turn over internal tribal documents to the paper companies. The Maine Supreme Court decision vacated the contempt order but ruled that tribal communications with other bodies, such as the U.S. Environmental Protection Agency, were subject to the state FOAL.

Three of the state's largest paper companies began the case in May 2000 by demanding tribal records on efforts to protect water quality. Financially troubled Champion was taken over by the International Paper Corp., which withdrew from the case earlier this month.

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The case was part of a broader struggle over regulation of wastewater discharges into the rivers.

The EPA was pursuing a policy of turning over enforcement to state governments, except for tribal territories. The Maine tribes wanted the EPA to keep jurisdiction over the rivers that historically were vital to their culture, arguing that the state was too much under the influence of the paper companies which in the past had polluted them with carcinogenic waste.

Although the EPA devolved most of the discharge program in Maine to the state government, it is still reserving a decision on control of tribal territories.

Part of the question is how far up-river tribal jurisdiction should extend, a matter the EPA has referred to the U.S. Justice Department.

But the paper company use of the FOAL, pursued by its Portland-based attorney and strategist Matthew D. Manahan, quickly elevated the case into a major test of the tribes' sovereign rights. The issue was vastly complicated by the Maine Indian Claims Settlement Act passed by Congress in 1983, and a companion state Implementing Act.

Although Congress expressed support for inherent tribal sovereignty, the state act imposed municipal "duties and obligations" on the tribes. In effect, the state intent was to prevent the tribes from escaping its control, except for certain internal matters, such as membership and access to tribal rituals.

The tribes tried to fight the FOAL request through the Federal District Court in Maine but were rebuffed.

After the contempt order issued by the Cumberland County Superior Court, tribal leaders reluctantly authorized an appeal through the state court system, in part to avoid violent incidents. They also appealed through the federal system, arguing both cases this February just days apart.

The Maine high court was the first to decide in May, holding that "the compromises expressed in the settlement acts established substantial limitations on the sovereignty of Maine's Indian Tribes." It did limit the FOAL request to documents exchanged with the state or federal government and returned the case to Superior Court Judge Robert Crowley.

The U.S. Circuit Court of Appeals declined to intervene, saying the case already had been decided, and the tribes filed a long-shot appeal to the Supreme Court.

"We saw this petition to the Supreme Court as a golden opportunity to resolve some difficult unsettled questions left by the Settlement Act," Smith said.

By dodging the case, the Supreme Court avoided a basic decision on the status of tribal sovereignty. It returned the issue to the mundane level of determining what documents to turn over to the paper companies, which is now in the hands of Judge Crowley.

But Smith observed that the issue may already be moot, since the corporations already had access to any relevant documents. He said the EPA has already turned over 15 feet of boxed documents to the state of Maine under the federal Freedom of Information Act.