3 tribal governors continue documents dispute

INDIAN ISLAND – Governors of three of the state’s Indian tribes, who were found in contempt of court last week for not turning over documents relating to water regulation to three paper companies, will be at the Androscoggin County Courthouse at 9 a.m. today. They will not be there to turn over documents.

Superior Court Judge Robert Crowley ordered the three men to show up at the building in Auburn that also houses the county jail at that time unless they decided to turn over the documents or file an appeal of his ruling. Such an appeal would be filed with the Maine Supreme Judicial Court in Portland.

The tribal councils of the Penobscot Nation and the two branches of the Passamaquoddy Tribe met for nearly 41/2 hours Saturday evening. Three attorneys for the tribes were there for the duration of the meeting, which was held at the Penobscot Nation Community Building on Indian Island. Tribal members met in a backroom while games of bingo were played in the smoke-filled gymnasium that dominates the building.

In the parking lot, one car was covered with a banner that said “Boycott Georgia-Pacific,” a paper company that, along with Champion International Corp. and Great Northern Paper Inc., asked for tribal documents related to water regulation.

After the lengthy session, tribal governors, who had asked media representatives to come to Indian Island Saturday so they could talk to them about the meeting, said only that a decision had been made. What the decision was would be revealed at 9 a.m. today at the Androscoggin County Courthouse, they said, echoing language from Judge Crowley’s ruling ordering them to jail.

“We are not going to submit ourselves to the paper companies’ will,” said Richard Doyle, governor of the Passamaquoddy Tribe at Pleasant Point.

To do so, would be “an intrusion into our rights as a native people,” he said. “If we give in, all kinds of people will trample through our offices.”

As part of a continuing dispute over whether the state or federal government should regulate water quality in and around Indian territory, the three paper companies in May filed a request under Maine’s Freedom of Access Law for all documents the tribes have that relate to the water regulation issue.

The tribes argued that, as sovereign entities, they are not subject to the state’s freedom of information law. Despite a Sept. 18 ruling from Crowley ordering that they turn over the requested material, the tribes have steadfastly refused to do so.

At the contempt hearing last Thursday, Melissa Hewey of the Portland firm of Drummond Woodsum & MacMahon, which is representing the tribes, said most of the documents asked for, including minutes of tribal council meetings, are privileged under tribal law and cannot be turned over. She said the governors were following the laws of their tribes and doing what they had to to protect their people.

Judge Crowley rejected this argument, saying that the governors were fully capable of turning over the documents. He then sentenced Doyle, Richard Stevens, governor of the Passamaquoddy Tribe at Indian Township, and Barry Dana, governor of the Penobscot Nation, to jail – the harshest sanction he could mete out under state law. He also ordered each tribe to pay a fine of $1,000 for each day that they did not comply with his order to turn over the documents or file an appeal of his ruling.

In a separate case, in a decision issued earlier this month, the Maine Supreme Judicial Court referenced discussions that took place at a Passamaquoddy tribal council meeting. Minutes of the meeting were part of the court record in the case in which the Passamaquoddy Tribe contended that it did not have a contract with a consulting firm that sought payment of more than $40,000 for services it provided. The state supreme court ruled in the tribe’s favor.

After Saturday’s tribal council meeting, Dana, who has been governor for a week, said tribal officials had “laid out a plan of attack.” It included negotiations with the state and efforts to educate the people of Maine, Dana said.

Gov. Angus King spoke with the tribal officials by phone over the holiday weekend and urged them to consider an appeal, according to the governor’s spokesman, John Ripley.

Another attorney for the tribes, Kaighn Smith, also of Drummond Woodsum, said in court last week, that appealing Crowley’s position puts them in a Catch-22. An appeal would be a tacit acknowledgement that the tribes are subject to the Freedom of Access Law, something the tribes deny.

Underlying the legal arguments is the long-simmering debate over whether the state’s Indian tribes should be treated as sovereign nations or as subdivisions of the state, akin to municipalities. Under the Indian Claims Settlement Act of 1980, the tribes are subject to state laws except when it comes to internal tribal matters.

In this case, the tribes argue that water quality regulation is an internal tribal matter. The issue came to a head this summer after the state Department of Environmental Protection applied to the federal Environmental Protection Agency for authority to issue wastewater discharge permits on behalf of the federal government. To streamline the permitting process, more than 40 states now have such arrangements.

The Passamaquoddy and Penobscot tribes challenged the state’s application because they believe the federal government will do a better job of protecting their interests. Their position was backed up by a decision from the Department of the Interior, which has jurisdiction over Indian affairs, which said the federal government must retain authority to issue discharge permits if they affect Indian lands.

The EPA has yet to decide whether to delegate permitting authority to Maine.