Sovereignty in jeopardy

There’s a reason the paper companies really want those water-quality documents from the Penobscots, and it’s important enough to involve the Supreme Court

By Murray Carpenter

In a surreal culture clash, on a gray Thursday one year ago this week, the governors of the Penobscot Indian Nation and Passamaquoddy Tribe found themselves under arrest in a back room of the Androscoggin County Court House, about to be led off to jail.

Judge Robert Crowley had found the men in contempt of court for failing to turn over documents to three paper companies — Great Northern Paper, Georgia Pacific and Champion International — that had requested them under Maine’s Freedom of Access Act. He ordered “coercive imprisonment,” and said each tribe must pay $1000 daily until they came into compliance with the court’s order to turn over the papers.

The 60 or so Indians at the courthouse were incredulous. The chiefs of the Penobscot and Passamaquoddy tribes going to jail? For refusing to turn over information about water quality to the paper companies? The same paper companies that have been polluting the Indians’ aboriginal rivers for decades? The idea that state laws could even govern something as sensitive as the communications of tribal governments — governments that predate the United States — made the notion of Indian sovereignty seem more ephemeral than a morning river fog.

The tribes appealed the decision, the tribal governors avoided jail, several court cases ensued, and, to varying degrees, state and federal courts and appeals courts have concurred with the ruling that the tribes are bound by the state law. But this case is about more than a few stacks of paper regarding river water quality. The case is about the sovereignty of Maine’s Indian tribes, sovereignty that is constantly being challenged, revisited, and redefined. Ultimately, it is a sovereignty that may soon be debated in the country’s highest court.

The legal struggle reveals a huge ideological chasm. A few months after the court appearance, Penobscot Governor Barry Dana said the whole paper request is a charade. “I don’t think the mills’ wanting our documents is at all the issue,” Dana said. “So it was a really back door approach to get the tribe to be nothing more than another municipality. Because if that’s the case then the tribe really does not have jurisdiction over water. That’s the key.”

Others, representing the state and paper companies, say tribal leaders are simply displeased with the rights they earned in a 1980 settlement with the state.

Pierce Atwood — long representing the paper companies — has offices at One Monument Square in Portland. Drummond, Woodsum & MacMahon — currently representing the tribes — occupies a just building down the hill on Commercial Street. It seems appropriate that Tom Tureen’s office is between the two. Three decades ago, Tureen, as a young Pine Tree Legal Assistance lawyer (working there at the same time as Governor King) discovered that the Passamaquoddy Tribe’s treaties with Massachusetts and Maine had never been ratified by Congress, as required by the 1793 Nonintercourse Act, and asked the United States to bring suit against Maine on their behalf (using the same legal strategy, Tureen later helped Connecticut’s Pequot Indians gain the reservation that’s become the gambling Mecca Foxwoods at Ledyard).

The Passamaquoddy were soon joined by the Penobscot Nation and the Houlton Band of Maliseet and the tribes eventually reasserted their claims to over 12 million acres — 60 percent of the state. Opposed to the claims were the paper companies that owned much of the land in question, paper companies then, as now, represented by Pierce Atwood. A 1977 Justice Department memo called it “potentially the most complex litigation ever brought in the Federal courts with social costs and economic impacts without precedent. . . ” President Carter’s appointees thought it prudent to settle. The result was federal Maine Indian Claims Settlement Act and its state mirror, the Maine Implementing Act, enacted in 1980. The Maine tribes got $81.5 million and better definition of their rights — or so it seemed.

A congressional report accompanying the Act read, “While the settlement represents a compromise in which state authority is extended over Indian territory . . . the settlement provides that henceforth the tribes will be free from state interference in the exercise of their internal affairs. Thus, rather than destroying the sovereignty of the tribes, by recognizing their power to control their internal affairs and by withdrawing the powers which Maine previously claimed to interfere in such matters, the settlement strengthens the sovereignty of the Maine Tribes.”

The tribes took this to mean that they could go about their business as long as it was on their land and among their people. The state has a different take. It continues to contend that the tribes were never meant to remain nations within a nation.

One of the other myriad sticking points: just what is tribal land? The state feels the settlement limited the Penobscots’ reserved lands to Indian Island — the seat of the Penobscots’ tribal government — and other islands up to the confluence of the two branches of the Penobscot at Medway, about 60 miles upstream. But the Penobscot Nation believes its reservation encompasses the river itself, bank-to-bank, from Indian Island to the headwaters. In other words, the tribe feels any discharges into the Penobscot River are basically injections directly into the Penobscot Reservation.

To understand the legal case, it helps to understand the Penobscot River, the river that gave the Penobscot Nation their name, their living, and their livelihood. (A tribal document reads, “the Penobscot people take their name from the river and the river takes its name from the people.”) It’s the river that surrounds Indian Island, home to a quarter of their two thousand-plus members.

The Penobscot River’s watershed is nearly the size of Massachusetts and Rhode Island combined and runs through the heart of Maine, from Quebec to the coast. It’s a river of superlatives. The Penobscot is Maine’s largest river, and Katahdin, Maine’s tallest mountain and most sacred place to the Penobscot, is cradled between its twin branches. The bay the river feeds is one of the Atlantic’s largest, and has the most productive lobstering grounds in the world. The river has the largest Atlantic salmon run in the country (though it’s much diminished). Historically, the salmon were joined by great shoals of other migratory fishes: alewives, shad, and smelt by the millions, and striped bass by the thousands.

The fish dwindled quickly after dams — there are 116 in the basin — blocked the spawning runs. Indeed, by the fourth dam upriver at West Enfield, less than 30 miles above head-of-tide, single digit alewife counts are the norm in good years, and none have been seen in the past three years. The pre-dam alewife runs were estimated at over ten million.

The river’s also been developed and polluted in superlatives. Its west branch powers the largest privately owned hydropower system in the country — 19 dams storing 58 billion cubic feet (imagine 70 gallon jugs for every person on the planet) and powering 13 generating turbines. It has four of Maine’s largest paper mills, and some of Maine’s highest dioxin levels. River sediments adjacent to a defunct chlorine plant have perhaps the highest level of mercury contamination in the country.

Three large paper mills and many smaller wastewater dischargers pollute the Penobscot above Indian Island. The paper mills alone discharge an average of 50 million gallons of wastewater to the river every day, including 17,615 pounds of “total suspended solids,” fine particles that failed to settle out in the water treatment process.

Dioxin and PCB contamination is so pervasive that the state advises against eating more than 24 fish meals annually from the lower Penobscot River. And, due to mercury contamination, carried on the winds from smokestacks in the Midwest, children and women of child-rearing age are advised to eat half that number, of cold-water (i.e. trout and salmon) fish only. The Penobscot Nation advisories are more stringent, urging women and children to eat no freshwater fish at all, and everyone else to eat just one meal a month from the lower Penobscot. The pollution has even tainted those abundant Penobscot Bay lobsters; the state advises everyone not to eat lobster tomalley (liver) because of high dioxin concentrations.

Of course, the river’s role in commerce far predates the industrial revolution. White explorers and settlers have been seeking their fortunes in the area for at least 400 years. In 1604, the tale of Norumbega — an El Dorado-type city with huge gold nuggets littering the lanes — lured Champlain up the river as far as present-day Bangor. Then the Pilgrims, under some financial pressure after borrowing money to finance the Mayflower, used proceeds from fur-trading in the Penobscot valley to pay off their debts 14 years after arriving in Plymouth.

In treaties in 1796 and 1818, the Commonwealth of Massachusetts bought much of the Penobscot territory. The Penobscot signed another treaty with Maine 15 years later and lost even more of their lands. In short, the Penobscot Nation lost nearly all of its land, then watched as industry entirely altered the riverine ecosystem and poisoned its denizens. The fish that were staples to the Indians and early white settlers are mostly gone, and the Indians are advised not to eat the few fish that remain. Not only are the Penobscot people frustrated by the pollution, they also claim the tainted fish are violating the hunting and fishing rights they earned in the Settlement Act.

Until recently, both the Environmental Protection Agency and the state had oversight over Maine’s point source discharges — pipes leading to the state’s waters — but in early 2000, the EPA began preparing to transfer sole permitting authority to Maine, as it had to 44 other states. The Penobscot Nation petitioned the EPA to retain jurisdiction over waters affecting their reservation. The Passamaquoddy Tribe, with its two reservations along eastern Maine’s St. Croix River at the Canadian border, asked for the same treatment, as did the Houlton Band of Maliseet and the Aroostook Band of Micmacs.

In February, 2000 comments to the EPA, Penobscot Natural Resources Department Director John Banks said, “The State of Maine wants the United States to give [Maine] control over the granting of permission for outsiders to pollute our waters. This is not something that Maine has the right to control. Our reservation and its resources are of unique interest to our tribe as a separate sovereign . . . Indeed, the United States has a fiduciary obligation to preserve and protect our reservation and our unique interests in the river . . .”

The tribes feel the Settlement Act prevents Maine from interfering on their land — i.e. the river. In fact, they assert that the federal government and the EPA have a mandate to protect that river. But, when it gets down to it, they simply trust the EPA more than they do the state.

Meanwhile, over at Pierce Atwood, lawyer Matt Manahan started getting calls from his clients along the rivers with questions about the wastewater permitting changes. Soon Manahan had organized a coalition including 28 wastewater dischargers — from Houlton to Baileyville to Belfast — opposing the tribe’s request. After Manahan filed comments on behalf of the coalition, he reviewed the EPA record of other comments submitted on the wastewater permitting decision. He found some papers, public enough, that he and Deputy Attorney General Paul Stern would call “secret agreements,” because the state and paper companies had not been notified about, or asked to comment upon, the agreements. These Tribal Environmental Agreements, negotiated in 1999, outlined mutual goals between the EPA and the tribes. These documents made Manahan wonder about any further communications between the EPA and the tribes, which, he says, “may show some lack of objectivity on the part of the EPA.”

On May 10, three members of the coalition — Great Northern Paper, Inc., Champion International Corp. (now International Paper), and Georgia Pacific Corp. — sent letters to the tribes requesting tribal documents regarding water quality regulation. The comprehensive request included: “All documents in any file, whether written, mechanical, electronic, computerized, or sound-recorded, however produced and reproduced, including, without limitation, notes, records, or minutes of all meeting or proceedings of the PIN [Penobscot Indian Nation] or any of its boards, committees, subcommittees or other bodies, that relate in any way to the regulation of water resources within Penobscot Indian Territory and in adjacent waters, including, without limitation, the Penobscot River and it’s branches and tributaries.” The Passamaquoddy Tribe received a similar letter.

Specifically, the companies cited the Maine Freedom of Access Act and a portion of the Settlement Act. The tribes denied the requests, asserting they are protected by the Settlement Act, from state interference with their internal government. At issue is the portion of the Settlement Act stating that the tribes are subject to the “duties, obligations, liabilities, and limitations of a municipality,” but that “internal tribal matters” not be subject to state regulation.

So, which is it? Is tribal correspondence regarding maintaining water quality — that communication with the EPA — a “municipal obligation” or an “internal tribal matter”? This is the crucial question. Municipal obligations the state can govern, but not tribal matters.

The request for the papers by the paper companies may have seemed particularly contentious given the adversarial history between the tribes and the three paper companies. The companies have each paid recent state penalties for water quality violations. In October, 2000, Georgia Pacific was fined $87,688 for illegal discharges to the St. Croix River, and other environmental violations. In August, 1999, Great Northern was fined $37,559 for unlicensed discharges to the Penobscot River. In June 2000, Champion was fined $800,000 for falsifying water quality records. One of its mills had an entirely unpermitted discharge to a Penobscot tributary; at another, Champion had not done the mandatory testing for as much as a decade — state regulators literally found cobwebs in the sampling equipment — yet continued to submit false testing data. It was a Penobscot Nation water monitoring program that uncovered discrepancies leading to the state inspection.

On May 16, the Department of the Interior (a friendly federal agency) sided with the Indians in the matter of water-quality regulation by the EPA. In a letter to the EPA, Department of the Interior Deputy Solicitor Edward Cohen said the EPA must retain permitting authority within Penobscot and Passamaquoddy territories, and wrote, “. . . the State of Maine cannot demonstrate that it has adequate authority to administer the NPDES program within these territories.” That same day, Maine Deputy Attorney General Paul Stern filed a request for documents from the EPA, a parallel of the paper companies’ request to the tribes, under the federal Freedom of Information Act.

It seems that Atwood, the paper companies, and with them the state, want to establish the tribes’ circumscribed jurisdiction over natural resources before it gains a head of steam.

On May 18, the tribes filed suit against the paper companies in federal court saying the requests were a legal claim that threatened their right, under the Settlement Act, to be free from state regulation. Four days later, the paper companies filed suit against the tribes in state court. The state of Maine intervened on the paper companies’ side in both cases. In essence, a race was on between the paper companies, more likely to get a favorable judgment in state court, which has traditionally been more receptive to state concerns, and the tribes, who have found federal courts more responsive.

A federal judge dismissed the tribes’ case in September, saying it appeared to be a defense to a state claim, and, as such, was outside the court’s jurisdiction. The tribes appealed to the US Court of Appeals for the 1st Circuit in Boston. Also in September, Maine Superior Court Judge Robert Crowley ruled that the paper companies were entitled, under the Freedom of Access Act, to inspect and copy the tribal documents. Still, the Indians declined to deliver the documents. Eventually, the governors wound up charged with contempt that November day a year ago. Their lawyers convinced the judge to delay the incarceration through that weekend until Monday, to allow the governors to discuss the matter with their tribal councils.

The governors were in a quandary as they convened a multi-tribal council at Indian Island that Saturday. On one hand, none wanted to play the martyr by sitting in jail. On the other, they had no intention of playing into the paper companies’ hand. To the cynical, the paper companies only sought the documents in order to force a ruling. If the tribes were, as Judge Crowley ruled, treated as any municipality, then they could have no water regulation rights, and another increment of sovereignty would have been chiseled away, with, perhaps, further limitations down the road based on this precedent. An appeal seemed prudent, but the appeal itself had a catch implicit. For the tribes to appeal the judge’s ruling would be to admit that the judge had authority to rule on the case, but ruled incorrectly. The tribes felt otherwise — they did not recognize the judge’s authority to consider the documents, period.

By Monday morning, Indians from all the corners of Maine were at the courthouse steps, waving placards that read, “Tribes never gave up rights to clean water,” and “Water quality is an internal tribal matter.” The governors announced that they had filed an appeal, then held a press conference on the courthouse steps. The appeal Drummond Woodsum attorney Kaighn Smith filed for the tribes allowed some legal wiggle room; he actually appealed the court’s denial of the motion to dismiss the case. Speaking to the crowd, Smith reemphasized that the state should have no jurisdiction over internal tribal matters. “It’s extraordinary and unprecedented” for paper companies to go “rifling” through tribal government files, said Smith. “That’s never been permitted in this nation.” Smith pointed out the irony that the courthouse, the county, the river just two blocks away, bore a Wabanaki name: Androscoggin.

Penobscot Governor Dana said the paper companies are not really interested in the tribal papers, nor the issue of tribal sovereignty, they just want the continued right to pollute the rivers, a right that would be more easily exercised under the state’s, rather than the EPA’s, watch. As the impromptu rally drew to a close, Passamaquoddy Governor Doyle noted, with irony, that President Clinton had designated November Native American Month. “I’m kind of thinking,” he asked, “is this Maine’s way of appreciating us?” Then the group chanted, to the beat of a drum, for five minutes, singing a Micmac honor song, the high, wavering harmonies competing with workaday traffic noises at a busy downtown intersection.

In January of this year, the EPA decided to give Maine jurisdiction over all wastewater dischargers except those in “Indian country,” for which it deferred a decision pending a Justice Department opinion. The only non-Indian discharges included in Indian country were 19 dischargers in the Penobscot watershed, above Indian Island, including the Great Northern mills in Millinocket and East Millinocket. The EPA had not ruled that it would retain jurisdiction in Indian country, nor had it yet delegated that authority to the state (the regulatory status for Indian country is still in limbo, pending the Justice Department decision).

This May and June, back to back rulings — in state and federal appeals courts — crushed the tribes’ opposition of the paper companies’ requests. May 1, the Maine Supreme Judicial Court said the tribes must turn over most of the documents the paper companies sought (some communications, such as minutes of tribal meetings were left out). The court remanded the case to Judge Crowley, to sort out which documents the tribes needed to turn over and when. And in this state court decision, the paper companies had their legal precedent for treating the tribes as municipalities, with no control over natural resources.

“We were seeking the documents,” attorney Manahan said, “and a beneficial by-product was to get the legal precedent.”

In June, a federal appeals court, to whom the tribes had appealed the earlier federal court decision to keep the case in state court, affirmed the federal court’s decision of a year earlier, confirming that it was the state court’s decision but noting that the tribes had recourse to appeal to the US Supreme Court.

Meanwhile, the EPA staffers were steadily gathering information to meet the state’s Freedom of Information Act request. On August 2, LeAnn Jensen of the EPA signed an affidavit stating that she’d “Gathered and shipped approximately 15 feet of boxed documents to [Maine Deputy Attorney General] Stern.” The state agreed to provide the paper companies with the documents, so the companies now had access to nearly all of the documents they sought, regardless of the disposition of the continuing legal dispute.

They continue to push for those same documents from the tribes, however, because they want to hammer home their already garnered precedent.

Later in August, the tribes opted to exhaust their last legal option, petitioning the US Supreme Court to overturn the Maine Supreme Court decision. Last month, Judge Crowley said the tribes did not have to produce documents, pending the resolution of the Supreme Court case, but said they must begin to assemble the documents requested.

Throughout September and October, Pierce Atwood’s Matt Manahan and Drummond Woodsum’s Kaighn Smith were cranking out briefs to the Supreme Court. To Manahan, it’s another legal struggle rooted in the tribes’ discontent with the Settlement Act. “I think they are trying to undo what they did in 1980,” he said last week. “Since they can’t do it legislatively, they are trying to do it judicially.”

According to Manahan and Atwood, the tribes are less than thrilled with those pesky “duties, obligations, liabilities, and limitations of a municipality,” which they agreed to honor in the 1980 Settlement Act.

While some may construe this as just another in a series of cases to feel out the perimeters of the Settlement Act, Drummond Woodsum attorney Kaighn Smith, who has been working on Indian law since 1983, says this court battle is unique. “They’ve been attacked at their core in this case,” said Smith. “Never have I been involved in such a protracted fight.”

As for when this fight will end, it could be very soon. The Supreme Court justices discussed the tribes’ petition to overturn the Maine Supreme Court ruling last Friday, but have not yet decided whether to hear the case. A decision is likely later this month.

Last week Penobscot Governor Dana said he was hopeful, but not optimistic about the legal outcome of the case. “We’re like a fish out of water here, this is not our system,” he said. “Win, lose or draw, we’re not going anywhere. This is our river.”

Governor Dana said the tribes are used to the stress of the constant legal battles. “We’ve lived like that ever since Europeans came here.” But, he added, “We don’t ever plan on being comfortable with our sovereignty being diminished.”

Murray Carpenter can be reached at romy@acadia.net.