Commission sides with tribes Requirement to turn over documents to paper companies at issue

AUGUSTA – The Maine Indian Tribal State Commission unanimously approved a statement Thursday saying a Superior Court judge erred in ruling that Indian tribes are subject to the state’s Freedom of Access law, and must turn over documents requested by paper companies. The action came a few days before the matter is to be heard by the state’s highest court.

It was the first time since the Maine Indian Claims Settlement Act was signed 20 years ago that the commission, which is responsible for reviewing the act’s effectiveness, has taken a stand on a substantial and controversial issue, said Doug Luckerman, a lawyer who represents Maine Indian tribes.

The commission’s vote runs counter to the state’s official position that Maine’s Indian tribes are subject to the access law, which requires government entities to make documents available to the public.

“We unanimously agree that this [court] decision does not reflect our understanding of the Maine Indian Claims Settlement Act and its companion Implementing Act,” the commission said. The statement will be circulated to the governor, Legislature and tribal officials.

“It is our hope that in this context, the right of Maine’s tribal government to make governmental decisions outside the scrutiny of nontribal members will be upheld,” the statement concluded.

Members of the commission, which includes two state officials, said they thought it was important to let state and tribal officials know that in this instance they believe the documents sought by the paper companies are part of the tribal government process and, therefore, shielded from scrutiny by outsiders.

As part of an ongoing dispute over whether the state or federal government should regulate water quality in “Indian country,” three paper companies that discharge treated wastewater near Indian reservations filed suit under the Freedom of Access law to obtain copies of tribal documents that discuss water regulation. The state intervened in the case on the side of the paper companies, arguing that under the settlement act, tribes were like municipalities and, therefore, subject to the access law.

Tribal officials argued that they are not subject to the act because it would require them to turn over internal tribal documents that tribal law prohibits them from disclosing to outsiders. A Superior Court judge disagreed and sentenced three tribal governors to jail. An appeal was filed with the Maine Supreme Judicial Court, which will hear arguments in the case on Tuesday.

At the heart of the issue is the fact that the state applied to the U.S. Environmental Protection Agency to issue federal wastewater discharge permits in order to streamline the process, which has required permits from both the state and federal governments. The Passamaquoddy and Penobscot tribes contested the application, saying that the state was too beholden to paper companies and that the federal government has a special “trust” relationship with the tribes and would do a better job of protecting their interests.

Last month, the EPA granted permitting authority to the state in all areas except Indian country. It asked the U.S. Department of Justice for advice on how to deal with that aspect of the issue.

In voting for the statement, state officials who sit on the commission said they wanted to stress that they did not necessarily support the tribes’ position on the larger water regulation issue.

Evan Richert, director of the State Planning Office and a member of the commission, said he felt comfortable taking a position that was contrary to that of his employer because the workings of tribal government are an internal tribal matter.

In an interview, he said it was up to the tribes to decide the degree to which to open their government proceedings. However, he added: “It is not good policy for a government not to open its proceedings to the light of day. But, the settlement act gave that option to the tribes.”

While supporting the tribes’ position in this case, Richert told the commission there would be instances when the tribes would be subject to the Freedom of Access law, if their actions affected others.

Fred Hurley, the deputy commissioner of the Department of Inland Fisheries and Wildlife, said in an interview that the deliberations of the tribes would not affect nontribal members because it was up to the EPA to make a decision, not the tribes. If the situation were such that the tribes were making a decision that would affect people who did not belong to the tribes, his opinion would have been different.

A spokesman for Gov. Angus King said the governor had discussed the statement with Richert and Hurley and the men “agreed to disagree” on the issue. While the commission serves an advisory role to state leadership, the access issue will be decided by the courts, not state lawmakers, said John Ripley, the governor’s spokesman.

The tribes were buoyed by the commission’s support.

The attorney for the three paper companies that asked for the documents said the commission’s statement was not surprising. That’s because the group has “evolved into an advocacy body for the tribes,” said Matt Manahan of Pierce Atwood in Portland. Manahan served on the commission from 1994 to 1996, and said his differing point of view was not appreciated by other members.

The nine-member commission, which includes representatives of the Penobscot and Passamaquoddy tribes as well as five nontribal members, was set up to clarify those issues that were not settled by the 1980 act. However, most issues involving where tribal sovereignty ends and state jurisdiction begins remain unsettled, and the commission has long been viewed as a body that simply gives lip service to the idea of the state and tribes working together, without ever tackling the controversial issues.

Commission member John Banks, the natural resources director for the Penobscot Nation, said it was important for the panel to make a statement on the access fight because it is one of the most important issues the body has had to deal with.