In a May 8 OpEd, John Dieffenbacher-Krall laments the fact that disputes about the scope of the Maine tribes’ authority have resulted in litigation that is a “zero-sum, winner-take-all approach.” Mr. Dieffenbacher-Krall attributes that litigation, in part, to the inability of the Maine Indian Tribal-State Commission, or MITSC, to resolve such conflicts through constructive dialogue. In fact, the source of the problem is not a lack of dialogue, but an unwillingness by MITSC and the tribes to undertake such discussions with a recognition of the basic terms set forth in the agreement reached in 1980 to resolve the tribes’ land claims.

The federal and State Indian Claims Settlement Acts entered into in 1980 resolved tribal claims to more than 50 percent of the land in Maine, by paying the tribes’ more than $80 million and giving them federal recognition and the powers of Maine municipalities. In exchange, the tribes agreed to be subject to regulation by the state of Maine, except as to internal tribal matters.

The Settlement Acts expressly recite that Maine’s authority over the tribes includes regulation of water and other natural resources. At the time the Acts were approved by Congress and the Maine Legislature, the tribes’ representative testified that they understood that the state wanted its environmental laws to apply uniformly throughout the state, and all the parties to the acts wanted to avoid a “nation within a nation” model.

In the early 1990s, however, the tribes decided the 1980 settlement was a bad deal. They wanted the same level of sovereignty held by non-Maine tribes, so they sought to undermine the Settlement Acts. As a member of MITSC from 1994 to 1996, I was prevented from expressing views in support of the Acts; the MITSC effectively became a voice against the Settlement Acts.

Mr. Dieffenbacher-Krall attributes poor tribal-state relations in part to requests by “paper corporations” under the Freedom of Access Act for documents from the Passamaquoddy Tribe and the Penobscot Nation. Those documents related to the tribes’ efforts to regulate water resources of the state of Maine – including efforts to regulate nontribal members, located outside Indian Territory. The Settlement Acts do not include affects on nontribal members as “internal tribal matters” that are not subject to state regulation.

The paper companies and others were concerned that they would have to comply with requirements imposed on them by the tribes, over and above U.S. Environmental Protection Agency and Maine Department of Environmental Protection requirements, which are the most protective water quality regulations in the country. The tribes themselves have had difficulty meeting Maine’s standards. In 1990 the Passamaquoddy Tribe signed a consent agreement resolving four years of water quality violations at their wastewater treatment facility.

The tribes’ effort to regulate nontribal members was confirmed by documents produced in response to document requests, which included reference to the tribes’ “10-year goal” to “Change Jurisdiction – Obtain regulatory authority over Penobscot River tribal waters, with the ability to set water quality standards and issue point source permits (regardless of jurisdiction).” The Maine Supreme Judicial Court agreed that documents relating to those efforts are not internal tribal matters, because they affect non-Indians.

MITSC’s misplaced efforts to intervene in the water quality proceeding simply exacerbated the problem. The law is clear that state regulation applies. By interfering in the matter, MITSC contributed to an impression that the tribes were being treated unfairly, even though the tribes had expressly agreed to state regulation in 1980.

I agree that litigation is a costly avenue, both economically and emotionally, to resolve disputes generally. It is a particularly unfortunate approach when attempting to establish and maintain a long-term, mutually beneficial and cooperative relationship, as should be the situation between the tribes and the state.

Unfortunately, as I can attest having been a member of MITSC, MITSC is not the solution. Litigation has occurred not because of confusion in implementing the Settlement Acts, but because of the tribes’ desire to change the Settlement Acts, and to obtain these changes not through a candid attempt at renegotiation, but through a judicial rewrite.

Both sides could gain much from open communications and joint efforts to implement the Settlement Acts. But the baseline for such discussions must be the terms of the Settlement Acts themselves, and both MITSC and the tribes must accept that baseline before any discussion of changes to the acts can be fruitful.

Matthew D. Manahan is an environmental lawyer with Pierce Atwood LLP in Portland, and was a member of the Maine Indian Tribal-State Commission from 1994-1996. He represented the paper companies in the Freedom of Access Act litigation involving tribal water quality documents.