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Penobscots of Maine sue in federal court

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INDIAN ISLAND, Maine - Standing by the river that envelopes the principal Penobscot Indian Nation reservation, tribal leaders and allies announced March 15 they have filed a federal court appeal of an Environmental Protection Agency decision that they said sacrificed tribal sovereignty to the interests of large-scale water polluters.

The suit in the First Circuit Court of Appeals in Boston, Mass., is a new phase in a five-year running battle involving not only waste discharges in the waterways of the state's two large riverine tribes, the Penobscot and the Passamaquoddy, but the basic legal status of the tribal governments themselves.

The EPA action, Penobscot Indian Nation Chief Barry Dana, told the press conference, "is another example of the continued lack of respect and recognition of tribal sovereignty, both in Maine and across the nation. As a sovereign people, we have no choice but to fight this ruling to protect our resources and our way of life."

After intense lobbying and long delay, the EPA ruled in October 2003 that it would give the State of Maine control of wastewater discharge permits for almost every entity in the state, with the exception of the Penobscot tribe's water treatment plant on Indian Island. The ruling involved the National Pollution Discharge Elimination System (NPDES), which the federal government has been gradually devolving to state agencies. But in every other state, the EPA has kept authority over NPDES permits affecting tribal land, citing its trust responsibility for sovereign Indian governments.

In the Maine decision, which followed protracted litigation between the tribal governments and a coalition led by large paper companies, EPA regional administrator Robert Varney cited the unique legal situation created by the 1980 Maine Indian Claims Settlement Act. State courts have interpreted the federal act and a state Implementing Act as limiting the scope of tribal self-government to "internal tribal matters" not involving non-Indians. The act applies to the Penobscot Nation and the two reservation governments of the Passamaquoddy people.

This EPA decision, said Dana, reversed a ruling by the Department of Interior solicitor in 2000 upholding the EPA's jurisdiction over Maine's extensive Indian territories. According to the Interior opinion, the EPA retained a "trust responsibility" to Maine tribes. In the first round of the NPDES devolution in 2001, the EPA reserved control over discharges in "Indian territory," and the bureaucratic issue appeared to be how much of the watersheds of the Penobscot and St. Croix rivers should be considered part of Penobscot and Passamaquoddy country.

The reversal also followed the resignation of former EPA head Christie Todd Whitman, who had spoken publicly in support of the "government-to-government" relation between the U.S. and Indian tribes. The national press has reported extensively on power struggles within the EPA in which industry lobbyists overturned environmental regulations on other issues, but Whitman has not given interviews about the cause of her departure.

The state government recently sued to take control of the tribal treatment plant on the Penobscot reservation.

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During the press conference, the Penobscots released an 18-page report detailing conflicts with the state over pollution of the Penobscot River, which flows around the large island in Old Town, Maine, which is home to many in the tribe and to its government offices. According to the report, when Dana was a teacher of traditional Wabanaki crafts in 1994, he had to move his class away from the river because students were getting headaches and skin rashes from pollution from a nearby paper mill.

At the time, a wood-pulp bleaching process at a kraft paper mill upstream produced dioxins and dioxin-like substances, one of the most dangerous causes of cancer and reproductive problems known to the EPA. The process was since abandoned, but fish in the river still show high levels of dioxin, which accumulates in fatty tissue and doesn't break down. Signs along the river still warn against eating more than two meals a month of fish taken from that stretch.

According to the report, written by Julia Bayley, the state feared that Penobscot demands for clean water, and edible fish, would impose too high a burden on the industries in the tribal watershed. The state has resisted Penobscot-sponsored legislation making "subsistence fishing" a designated use of Maine's rivers. The EPA, and even the state Department of Environmental Protection, has acknowledged that the Penobscot Tribal Natural Resources department is highly sophisticated with, in the words of a DEP memo, "high quality in both field and lab work." The tribe takes weekly samples at 80 points along the river, more than 90 times the frequency of state monitoring.

For its part, the tribe charges that state enforcement is compromised by the political power of the paper industry. The report gave as an example multiple violations, more than 300 at one mill over six years, which were lumped into a single consent agreement. Chief Dana characterized the subsequent $5,000 fine as a minimal cost of doing business for the industry.

According to Dan Kusnierz, manager of the Penobscot water resources program, the Nation's "unique interests within the Penobscot River are not met by Maine's water quality standards, nor by its management programs or enforcement practices."

After an invocation by tribal elder Butch Phillips, the press conference featured statements by Dana, Brenda Commander, chief of the Houlton Band of Maliseet Indians, Robert Newall, governor of the Passamaquoddy Tribe at Indian Township and Donna Loring, the Penobscot representative in the Maine House of Representatives. Non-Indian support came from the Maine Coalition for Tribal Sovereignty (MCTS), represented by its chairman John Frachella, the Maine People's Alliance, Maine Rivers and the Natural Resources Council of Maine.

Frachella said his group of 23,000 members supported Penobscot jurisdiction for water quality control, "because that is in everyone's best interest.

"Who can best monitor and control pollution in Indian waters," he asked, "a state agency in Augusta that's arm is being twisted by paper company money, or a Nation of people (with state-of-the-art technological resources) who live in the very middle of this river? The MCTS consider it a no-brainer."