Maine Indians granted stay in document access dispute

PORTLAND – A judge agreed Wednesday to a request by Maine Indians for a stay in their high-profile legal battle involving access to documents, water quality regulation and claims of tribal sovereignty.

But Superior Court Justice Robert Crowley also said the stay order will require the Penobscot Nation and Passamaquoddy Tribe to begin assembling and indexing documents that the Supreme Judicial Court ruled they must turn over to paper companies.

Crowley spelled out the compromise at the close of a 40-minute hearing on the stay request. The tribes asked for the delay while they seek to have the U.S. Supreme Court review the decision by Maine’s law court.

Last year, Crowley cited tribal leaders for contempt for their refusal to turn over records of their communications with the state and federal governments concerning regulation of water quality.

Asserting that the dispute is at the heart of the tribes’ claim to be autonomous, sovereign governments, their leaders had expressed willingness to go to jail rather than relinquish copies of the records.

Portland attorney Kaighn Smith Jr., who represents the tribes and argued in favor of the stay, declined comment on Crowley’s compromise.

Catherine Connors, the lawyer for the paper companies who opposed the stay, was pleased that the tribes will be required to take steps to produce documents that she said her clients should have received more than a year ago.

“I’m glad we’re continuing to go forward, at least in some respects,” Connors said.

“The fact that the tribes may be trying to self-generate a crisis” is irrelevant to the document request, she told the judge, adding, “We need these documents now.”

Smith maintained that a stay was warranted to give the tribes a shot at having the nation’s highest court weigh in on what the state supreme court has characterized as an “unsettled, murky and complex” relationship between Maine and its Indians after the 1980 land claims settlement.

“It is no exaggeration to say that we are at a historic moment in tribal-state relations in Maine,” he said.

Citing public policy concerns, Assistant Attorney General William Stokes said the state was supporting the stay request.

“It goes to the very heart of the jurisdictional relationship between the state and the tribes,” he said.

A U.S. Supreme Court denial of the tribes’ request to review the case would likely come by November or December. If the court agrees to take on the appeal, a ruling is expected by the middle of next year.

The tribes have already taken the issue to the federal courts. A three-judge panel of the 1st Circuit Court of Appeals let stand the state supreme court decision last May.

In that ruling, the law court held that the state’s Freedom of Access Law applies when the tribes exercise authority as municipal governments.

Great Northern Paper Inc., Georgia-Pacific Corp. and Champion International Corp. sought the documents as part of a dispute focusing on the state’s bid to become the sole overseer of wastewater discharges into Maine rivers. The tribes prefer to maintain federal oversight because they believe the paper companies have too much influence with state officials.