AUBURN, Maine - Governors of the Penobscot and Passamaquoddy tribes have been sentenced to jail for a year for contempt of court - at the request of three of the country's largest paper companies.
Observers say the Nov. 9 order by Androscoggin County Superior Court Judge Robert Crowley unsheathed a dangerous new weapon against all of Indian country.
The ruling also carried a fine of $1,000 a day.
Sentenced at the crowded morning hearing were Gov. Richard M. Doyle of the Pleasant Point Passamaquoddy Reservation, Gov. Richard Stevens of the Passamaquoddy Indian Township Reservation, and Barry Dana, newly elected governor of the Penobscot Nation.
Judge Crowley stayed his order over the weekend so they could consult with their counsel, Kaighn Smith Jr.
The contempt proceeding, giving the leaders the choice of going to jail or compromising tribal sovereignty, was "unheard of," Smith said.
The northern Maine tribes frequently have taken the paper corporations to court over pollution of the river systems running through their reservations. The legal counter-stroke now deployed by the corporations' lawyer could become a major problem for any tribe in similar fights.
The contempt charge results from requests to inspect tribal records filed in May by attorney Matthew A. Manahan, representing the Georgia-Pacific Corp., Great Northern Paper Inc. and Champion International Corp.
Manahan invoked Maine's Freedom of Access Laws (FOAL), in what Smith said was "most definitely" a ploy in a major struggle over control of water quality on tribal territory. Smith said it was a device to get the tribes into the state courts.
Tribal leaders told the paper companies they weren't subject to the FOAL. In addition, tribal bylaws prohibit access to tribal records by non-members, replied Doyle. The paper companies went to court and on Sept. 19, Judge Crowley ordered the tribes to turn over "all non-privileged documents, as well as logs of all documents claimed to be privileged" by Oct. 3.
Smith flatly refused to deliver any papers. On Oct. 3, he sent a one-sentence letter to Manahan stating, "The Tribes will not be turning over their records or any logs regarding their records to you or your clients."
Smith also rejected Manahan's suggestion that he appeal the court order, a course of action that would acknowledge the jurisdiction of the state courts.
"Do whatever you need to do," he told Manahan, an affidavit Manahan filed with the court shows.
Although the case turns on a narrow procedural matter, the stakes involve control of water quality in the vast reaches of northeastern Maine. Regulation now rests with both the state and the federal government.
State government is seeking sole authority from the U.S. Environmental Protection Agency to license waste water discharge of towns and companies. The tribes want the EPA to keep control over waters near reservations.
Smith said the present case started shortly after the Interior Department's Solicitor General issued a "bombshell" report in April saying that Maine should not be given authority over Indian lands.
The paper companies countered with what Smith called an extraordinarily broad FOAL request for all tribal documents dealing with water quality.
"The tribe is in the river," he said. "These are riverine tribes. The river in the tribe is into everything. And they were asking the tribe to produce anything and everything dealing with the river."
The legal situation is complicated by the congressional act which settled tribal land claims in 1980.
"Congress waived the sovereign immunity of the tribe," Smith said, thus allowing it to be sued. The act also said the tribes had "certain duties of municipalities," Smith said.
"That's the hook they've used to hang this on," he said. "But it's absolutely clear to us that Congress never intended the tribe to be subject to regulation and governmental control by the state as if they were creatures of the state.
"The tribe is a separate entity." he said.
The Passamaquoddys also are fighting the Great Northern Paper Co. and the Georgia-Pacific Corp. over dams on the Penobscot and St. Croix Rivers. The tribe is intervening in licensing requests the companies, represented by Manahan, have pending before the Federal Energy Regulatory Commission.
"This is definitely a sad day for Native people," said Ed Bassett, lieutenant governor of the Pleasant Point Passamaquoddy Reservation. "It's an attempt of the state of Maine to erode away whatever we have left of our sovereignty. It's like colonialism all over again."
Bassett said that the tribal government "had overwhelming support for our point of view" from tribal members.
"We have to protect our internal tribal matters," he said. "We can't have another nation interfering with our council's internal tribal affairs in what we consider an erosion of our sovereignty."
Bassett said the paper companies "are actually abusing the state court system to get what they want. What they want is for the state court to adjudicate that the tribal government is just a municipality."
Bassett appealed to Indian country for help. "We need the support of all the nations across the country to rally to our defense," he said.
A spokesman for the Champion International Corp. in Purchase, N.Y., had no comment at press time. "I'll have to call our people in Maine and find out what's going on," he said.
Dana was inaugurated Nov. 4. Facing the hearing, he said, "I'm not going to back down to the state of Maine because of the paper companies. They've done enough damage. We've a lot at state here - our whole identity as the Penobscot Nation."
Now, like every Penobscot leader for the last 400 years, Dana must maintain a balance between championing tribal sovereignty and working with Maine officials.