Tribes to appeal 1st Circuit ruling to Supreme Court

INDIAN ISLAND – A federal appeals court’s decision to let stand a ruling by the state’s supreme court allowing paper companies access to documents of two Maine Indian tribes was “harsh and unfair,” according to a lawyer for the Penobscot Nation and the Passamaquoddy Tribe.

Tribal leaders vowed to appeal to the U.S. Supreme Court after Wednesday’s action in Boston that upheld a Maine Supreme Judicial Court decision to allow the paper companies access to tribal records relating to water quality.

“I don’t understand how state laws and corporations can have power over Native American tribes that have been here for thousands of years,” said Barry Dana, governor of the Penobscot Nation on Indian Island near Old Town.

“We asked them a federal question and they gave us a state answer,” said Rick Doyle, governor of the Passamaquoddy Tribe at Pleasant Point in Washington County.

The tribal leaders met on the banks of the Penobscot River to talk with reporters about the latest legal decision, the fifth one issued in recent months, against their cause. They did not respond to a question about whether they still would be willing to go to jail to protect their tribal records from outside scrutiny.

“We haven’t reached that point. We still have the U.S. Supreme Court as a resource,” said Kaighn Smith, a Portland attorney who represents the tribes.

Smith blasted Wednesday’s decision by the 1st Circuit Court of Appeals, saying it was “cruel” and “malicious.”

The three-judge panel in Boston said it was not necessary for them to decide jurisdiction because the Maine high court already had ruled on the dispute. Federal appeals intervention would be “superfluous” the panel said in a nine-page decision.

Great Northern Paper Co., Georgia-Pacific Co. and Champion International Corp. requested the documents in their bid to get the state’s Department of Environmental Protection to continue regulating wastewater discharges. The tribes have said they want the federal government to do it, because the state is too beholden to paper companies.

The case has expanded to involve fundamental issues, pitting Indian traditions and beliefs against corporate power.

Standing at a scenic bend in the river known as Joe P’s, Dana said Indians have a long-standing relationship with the river that involves fishing and collecting edible and medicinal plants from its banks.

“Our children play in its water in the summer. We want the freedom to wade here without worrying about the pollutants we kick up. The ultimate question is who will retain jurisdiction over this river,” Dana observed.

The appeals court action is a victory for the paper companies, who made their legal claims under the state’s Freedom of Access Law. They maintained a low-key reaction to the court news Thursday.

Catherine Connors, a lawyer for the paper companies, said her clients were “trying to progress in a constructive way” in the matter.

The issue is not worth being brought up in court, and “we think the U.S. Supreme Court will not accept it,” Connors said. “It’s unfortunate they have to keep delaying and imposing all these costs on both sides.”