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Maine's Second-Class Indians: Betrayed by EPA

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Maine and Texas have this much in common: both states treat Indian people
like second-class citizens. Neither wants to respect the inherent sovereign
rights of tribal governments.

Admittedly, in each of these two states, tribes have at times sold
themselves short of inherent sovereignty in land claims and recognition
agreements that used language opening the door to state contentions of
jurisdiction over Indian lands. Nevertheless, a truly fundamental hostility
and dismissal of Indian-defined issues is at play. We have commented on the
Texas situation before, where the economic future of the Isleta del Sur,
the Kickapoo and the Alabama-Coushatta are held at bay by a state
government policy of complete hostility toward tribal sovereignty. We will
return to that topic in the coming weeks. Here, let us consider Maine.

A struggle of epic proportion has taken shape in northern Maine, where the
leaders of the Penobscot Indian Nation are trying everything in their power
to protect their river and watershed against a highly toxic lumber and
paper milling industry, reinforced by state government anti-tribal forces.
The mills are continuing to pollute and could completely destroy the tribal
natural resources and ways of life.

The Maine Indian case is a classic that has been well reported in these
pages by Associate Editor Jim Adams. As primary harvesters of natural
resources, tribal people hunt and fish and consume directly the products of
nature. The way of life demands a higher standard of cleanliness in the
waters, animals and fish. According to a report released by the Penobscot
tribe recently, wrote Adams, the state feared tribal quality demands for
clean fish and water would be too high for the industries that impact the
tribal watershed.

For more than five years Maine tribes, in this case the Penobscot, have
battled to have their say on wastewater quality regulations over their
ancestral rivers. Conducting their own scientific studies, Maine tribes
have consistently monitored the impact of regional industries, particularly
the paper mills, on their tribal waters. The Penobscot, who continue to
carry on traditional ways, have for years attempted to legally designate
"subsistence fishing" as a protected use of Maine's rivers. The state and
the timber industries have fought this tooth and nail. The tribe has also
responded by setting up a superb Penobscot Tribal Natural Resources
department, with an 80-point pollution monitoring system that far surpasses
the state's systems within the tribal watershed. The tribes have loudly
denounced the hundreds of environmental violations of improper discharge by
industries that result in only minor fines by the state agencies.

In many parts of Indian country, tribal governments and even non-profit
organizations have employed tribal sovereign powers to legislate and
enforce stringent environmental regulations. Everywhere else in Indian
country, citing its trust responsibility with sovereign Indian governments,
the EPA has kept authority over permits that affect tribal lands. It gets
convoluted in Maine. The Maine tribes were soundly betrayed by the EPA in
October 2003, when despite its mandate as a federal agency charged with
trust responsibility to protect tribes from states, EPA relinquished its
power over wastewater discharge throughout Maine's extensive Indian
jurisdictions to the state. A 2000 ruling by the Department of Interior
that upheld the EPA's right to jurisdiction in Maine's Indian territories
was reversed by this the EPA decision to give away tribal rights.

Why did the EPA let Maine go its own way to police the most powerful
corporations in the state? Why cut the Native governments off at the knee,
leaving the Native peoples dangling in unending pollution?

This serious breach of the trust responsibility doctrine by a federal
agency must be challenged and is being challenged. The Penobscot, for one,
are appealing the ruling by the EPA. Again, no doubt the concessions around
the claim and recognition agreements are a stumbling block. Maine's
Implementing Act is considered the one of the worst cases of Indian
concessions to state control. It was passed to fill in the blanks shortly
after Congress passed the 1980 Settlement Act with the Penobscot and
Passamaquoddy tribes to end their land claims and grant federal
recognition. Legal scholars cite this law as the epitome of a bad deal for
tribal sovereignty. After all, why seek federal recognition in the first
place if the end result simply cedes tribal jurisdiction to the state?

The crucial language in the Implementing Act, which has caused serious
damage to the two tribes, subjected the Penobscot Tribal Nation and the two
reservation governments of the Passamaquoddy Indians "to all the duties,
obligations, liabilities and limitations of a municipality ... provided,
however, that internal tribal matters ... shall not be subject to
regulation by the State."

Nevertheless, the Penobscot have a serious claim to environmental
stewardship based on their indigenous long-term inhabitation of place. They
are pitted against a range of paper milling operations, including Great
Northern Paper Inc., Georgia-Pacific and Champion International Corp.,
three of Maine's largest paper companies.

The Penobscot are joined by a coalition of organizations devoted widely to
prevail on the need to clean up the rivers affected by the highly-toxic
paper-milling. In 2001, the U.S. itself launched a claim against Lincoln
Pulp and Paper for up to $60 million in harm caused to the Penobscot River
and the land-based Penobscot Nation from polluted discharges, including the
cancer-causing dioxin. We salute the Penobscot and other Maine. Indian
leaders who are fighting the good battle to assert their Indian sovereignty
over the expected quality of environmental health. All of Indian country
should take note and support the Maine tribes as strongly as they can.

By the way: former EPA head Christie Todd Whitman, who supported
tribal-federal relationships publicly, resigned before the negative
decision by the EPA. We encourage Ms. Whitman to come forward and assess
for us why the EPA betrayed the Maine tribes, instead of continuing to
support Indian jurisdiction over its natural world resources, as the first
and best line of ecological defense across the whole United States.