Water Wins and Losses

Nearly four years of fighting over which government – state or federal – would oversee federal water-quality standards throughout Maine was answered again last week, with the state granted the authority. The Penobscot Nation and Passamaquoddy Tribe, which protested the state’s oversight over their territories and which had lost court case after court case related to the issue, could not have been surprised by the decision from the Environmental Protection Agency.

Maine’s Department of Environmental Protection already oversaw most of the state under the National Pollutant Discharge Elimination System (NPDES) program, perhaps the most bureaucratic-sounding name ever fought over. The question was whether the state would also have oversight for tribal territories and how those territories were to be defined. The EPA says Maine does have the authority, with only a couple of exceptions and decisions pending on trust lands for the Houlton Band of Maliseet Indians and the Aroostook Band of Micmacs.

During the NPDES fight, the tribes refused to turn over documents to several paper companies, citing tribal sovereignty. The tribes fought the document request through state and federal courts, losing at each level. The cases confirmed what sovereignty meant and how it might be applied, that is, the tribes have sovereignty for internal tribal matters such as tribal membership, tribal employees and tribal council meetings. For noninternal matters – including the regulation of natural resources – the tribes gave up their sovereignty under the 1980 Settlement Act, the courts ruled. In many ways, the water-quality fight was a protest against the constraints of those sovereignty limitations.

These are cases the state can win and will continue to win, though there is a serious question of whether this is in its best interest. The tribes must look at decisions such as this and the unified front of state government, including the current and previous governors, that opposed their major economic development plan, a casino, and wonder about the value of their circumscribed sovereignty.

State government will expect the tribes to continue to contribute to the culture and the remaining vitality of Maine, and the tribes no doubt will. But the imbalance in the government-to-government relationship as it now exists does not make for strong tribes or a strong state.