Just when it seems that the legal climate is moving in a positive direction for tribes, something occurs which renews concerns over tribal sovereignty.
At issue are the federal Freedom of Information Act and Maine's Freedom of Access Law and whether tribes are covered by either. The disputes have pitted mostly private groups against tribal sovereignty, and constituted a wakeup call to tribes throughout the country that American Indian sovereignty is still considered a problem for many non-Indians.
These cases embody two important issues. The first combines non-Indian access to tribal documents and the lack of an equal playing field for American Indians as compared with mainstream business concerns. The second issue is tribal sovereignty.
In the federal case, U.S. Department of Interior vs. Klamath Water Users Protective Association, four tribes in Oregon refused to turn over documents they prepared and sent to the BIA over a water rights dispute with local farmers. The tribes claimed sovereignty.
The Supreme Court's unanimous decision said that it believed the tribes were claiming a new exemption which "is out of the question," said Justice Souter. Souter also rejected comparisons of tribes to government contractors, whose correspondence is sometimes protected under the FOIA exemption. The most ludicrous comment by Justice Souter was when he said that "unlike contractors, a tribe's communication with the government is meant to advance its own interests."
Do businesses not mean to advance their own interests in exempt communications? Such language reinforces the lack of a level playing field between businesses and the rest of us. Globalization and its adherents, especially the World Trade Organization, have moved toward greater secrecy, and a lack of real transparency. Businesses are just not held to the same standards as the rest of society, including tribes. Why aren't documents shared between tribes and the BIA considered "interagency or intra-agency" communications exempt from public release under FOIA?
The second case involves timber interests in Maine and the Penobscot and Passamaquoddy governments that resisted the transfer of federal oversight of wastewater from paper plants to the state of Maine. The disagreement centers on where the Maine Indian Land Claims Settlement of 1980 draws the line between the state's jurisdiction and the tribes' inherent power to govern themselves. Despite the quirks of the 1980 law, the issue is tribal sovereignty. The tribes are still awaiting a decision from the Justice Department, expected soon, over whether the EPA can transfer oversight to regulate water to the state in tribal lands.
Also, the tribes are waiting for a federal appeals court ruling on whether the state's high court even has jurisdiction.
With all this hoopla, where do these decisions place tribes? On the federal level, Congress could easily pass a law to cover this loophole in federal law. As Eleanor Smith said so well in her May 2 commentary in this newspaper, Congress should do so immediately. A federal law already exists to exempt communications between the United States and tribes regarding tribal trust assets from public disclosures under another federal open government law.
The trust relationship might be severely damaged if such an assault on tribal sovereignty is allowed to continue for long. The government-tribal relationship is, in part, like that between a lawyer and a client. Complete trust and confidentiality is needed to protect American Indian resources which the federal government is pledged to protect as trustee. As for the state case, it demonstrates again, as if we needed the reminder, that state governments and business interests are the main adversaries of tribal sovereignty. The federal trustee relationship is vital to the protection of tribal assets from rapacious business interests and power-hungry state officials.
This issue affects all American Indians and all tribes. Contact your federal representatives and senators and urge them to reverse the almost certain pernicious results of the Klamath decision now. American Indian sovereignty is under attack!