Wabanaki Legal News
| A publication of Pine Tree Legal Assistance |
Winter 2004
Native American Legal Briefs
--Internal Tribal Matters-
Table of Contents
Trial Court Did Not Have Enough Evidence To Decide That Case Involved An Internal Tribal Matter
Trial Court Did Not Have Enough Evidence To Decide That Case Involved An Internal Tribal Matter
In January of this year, the Maine Supreme Judicial Court, or Law Court, reversed a finding by the Superior Court that a case involved an internal tribal matter and should be heard in Tribal Court. The Law Court did not reject the reasoning of the Superior Court. It merely found that there was not enough evidence in the record to support the Superior Court's finding and that the Superior Court's ruling was premature.
The case involved a complaint filed by Pamela Francis against Colleen Dana-Cummings, former Executive Director of the Pleasant Point Passamaquoddy Housing Authority. Ms. Francis claimed that she had experienced a violation of the Maine Civil Rights Act, a trespass, and an illegal eviction. Ms. Francis claimed that Ms. Dana-Cummings directed several members of the Housing Authority to break into Ms. Francis' residence, remove the furnishings, change the locks and place a sign on the door stating that the residence was the property of the Housing Authority. The employees, according to the complaint, then broke Ms. Francis' door and removed much of her furniture. Ms. Francis claimed that most of her belongings were returned, but that some were damaged or destroyed.
The Superior Court, on the Motion of Ms. Dana-Cummings, dismissed the complaint, finding that the case involved an internal tribal matter. The Court stated that the dispute involved "two tribal members" and the "subject matter is tribal law and policy regarding various property issues." The Law Court, however, found that "[t]he record is not sufficiently developed to allow the trial court to make that determination." In examining the case, the Law Court found that the record did not show that the dispute was in fact between two tribal members, although the Court acknowledged that it might well turn out to be the case that the two women were tribal members. The Court also found that the record did not show that the dispute arose out of tribal law and regulations. The record did not show what kind of real property interest Ms. Francis has in her residence, if any, nor whether that interest was based on state law or tribal law. Accordingly, the Court sent he case back to the Superior Court to make those determinations. If, based on the record later developed in Superior Court, the Superior Court finds that the case actually involves an internal tribal matter, it can dismiss the case later.
On October 31, 2003, the Environmental Protection Agency announced its decision allowing the State of Maine to issue and enforce federal water pollution control permits for all non-tribal facilities with waste water pipes discharging in or near tribal territories within the State. The decision disagreed with the end result advocated by the Department of the Interior (see Wabanaki Legal News, Volume 4, Issue 2).
This decision follows EPA's 2001 decision to allow the State to issue water permits for areas of Maine not involving tribal lands. The EPA made an exception to its general ruling, however. Discharges from the Penobscot Nation's sewage treatment plant on Indian Island and the Passamaquoddy Tribe's facility on Pleasant Point will not be regulated by the State. In making this exception, EPA held that, since the customers of both facilities were all tribal members, the facilities were both owned and operated by the Tribes, and the discharges have minimal impacts in waters outside the Tribe's territories, the discharges from these two plants were internal tribal matters. As such, the State had no authority to regulate the discharges and the EPA would keep its jurisdiction. The decision did not address the Houlton Band of Maliseet Indians or the Aroostook Band of Micmacs.
In deciding that the State should be granted authority to regulate all but the two Native facilities, the EPA looked at the terms of the Maine Indian Claims Settlement Act and declared that the status of the Penobscot and Passamaquoddy Tribes was "unique in federal law." After analyzing the language of the Settlement Act, the EPA found that the Act "unambiguously granted the state adequate authority to administer the ... program in the Indian Territories."
In making its determination, the EPA acknowledged that:
Clearly, the physical setting of the southern tribes in such close proximity to important rivers and waters makes surface water quality very important to them and their riverine culture.
Nevertheless, the EPA concluded that the language of the Settlement and the Implementing Acts gave the State jurisdiction over "water and water rights." The only remaining question, then, was whether State authority in these matters would interfere with "internal tribal matters." The EPA stated that it:
recognizes that regulation of discharges into these rivers is vitally important to the southern tribes, but ...water quality in these rivers is also vitally important to the state and its non-tribal member citizens.
The EPA stated further:
Given the state's strong interest in regulating discharges to waters in Maine, the fact that all but three of the discharges to Indian Territory waters are by non-member facilities and all but two have their operations located outside of the Indian Territories by any interpretation of Indian Territory boundaries takes on great significance.
The EPA concluded that the permits were not an internal tribal matter.