Wabanaki Legal News
| A publication of Pine Tree Legal Assistance |
Winter 2001
Native American Legal Briefs
--Discrimination--
--Tribal Sovereignty and Water Rights--
Table of Contents
Maine Human Rights Commission Finds Reasonable Grounds to Believe Discrimination Occurred Against Native American Child; Pine Tree Attorney Files Suit on Her Behalf in Superior Court
On December 5, 2000, Pine Tree Legal Assistance Native American Unit attorney Craig Sanborn filed a complaint in Superior Court on behalf of Diane Clement, a Shead high school student and member of the Passamaquoddy Tribe. The complaint was filed against the Town of Perry and School Union 104. The complaint states that a school bus driver discriminated against Ms. Clement. The complaint asks the Superior Court to take the following actions: to declare that the bus driver violated the Maine Human Rights Act; to prevent the defendants from discriminating against anyone because of his or her race; to award civil penalties to Ms. Clement; and to grant any other relief that the Court finds appropriate.
This suit follows an August ruling by the Maine Human Rights Commission. In its findings, the Commission found reasonable grounds to believe that the bus driver had discriminated against the student. The Commission adopted the Report of its investigator and found that Ms. Clement was made to come to the front of the bus, along with other Passamaquoddy children, and was addressed in a discriminatory manner by the bus driver.
The Investigator found that there had been a gum-throwing incident on the school bus, but that Ms. Clement was not the gum thrower. Nevertheless, Ms. Clement was required to come to the front of the bus. She and other Passamaquoddy students were referred to as the "Pleasant Point people," "you people," and "drones."
The investigator found that:
It is true that bus drivers discipline children by making them sit in the front of the bus. That may, in fact have happened to White children on [this] bus. The difference is that there has been no evidence presented that all the white children on the bus were made to move up front when one or two white children misbehaved so that they could then be subjected to a verbal dressing down with reference to their race. There is no mistaking that "you Pleasant Point people" refers to Native Americans.
The defendants did not appear before the Commission and did not file any written rebuttal to the investigator's report.
Craig Sanborn appeared before the Commission. Pine Tree has now arranged for attorneys Ivy Frignoca and Sam Rudman, of the Portland law firm Lambert, Coffin, Rudman and Hochman to handle this case from this point on
In 1999, the State of Maine asked the Federal Environmental Protection Agency to allow the State to administer the Federal Clean Water Act. Maine is one of the few states that have not had authority to administer the Act. The State's request has been strongly opposed by the Tribes in the State, especially the Penobscot Nation and the Passamaquoddy Tribe.
In mid-January, after postponing a decision on this issue a number of times, the EPA confirmed that it had officially accepted Maine's proposal to issue federal wastewater discharge permits for most of the State. The agency did not decide, however, whether the State could issue permits in "Indian country." Before deciding that issue, the EPA has asked the U.S. Department of Justice to review the matter. The EPA had already asked the U.S. Department of the Interior to look into this question. The Interior Department had recommended that the EPA keep its authority to issue permits in Indian country. The EPA's decision will be published in the Federal Register before mid-February.
Federal Jurisdiction:
As part of this dispute, three paper companies, Georgia-Pacific, Great Northern Paper and Champion International, asked the Penobscot Nation and the Passamaquoddy Tribe to turn over certain tribal papers regarding water regulation. This request was made under the Maine Freedom of Access Act. Both Tribes refused to give the papers to the companies. The paper companies then threatened to sue the Tribes in state court.
Before the suit was filed, however, the Tribes went to Federal District Court in Maine to ask for a ruling that would prevent the paper companies from going to state court. The paper companies then asked the federal court to dismiss the Tribes' complaint. In July, the District Court judge ruled against the Tribes. The Court found that there was no federal jurisdiction. Therefore, the Court could not continue to hear the case. The decision was a technical one, based on principles of federal jurisdiction. The judge did not decide whether the Tribes were required to turn over any papers.
In reaching his decision, District Court Judge D. Brock Hornby found that the Tribes could file a case in federal court only if they could show that their case was an action "arising under the Constitution, laws or treaties of the United States." This is called the "well pleaded complaint" rule. The Tribes had argued that the Maine Freedom of Access Act violated their federal right to be free of such state regulation. They based their argument in part on the Maine Indian Claims Settlement Act of 1980. Since the Tribes were relying on federal law, they claimed that their lawsuit did, in fact, arise out of the laws of the United States.
Judge Hornby noted that the United States Supreme Court has interpreted this "arising under" language very narrowly. In Judge Hornby's view, this case actually arose under the Maine Freedom of Access law. While federal law might, in fact, require that the state law not be applied in this case, the federal law issues were only a defense to the state law claim. They were not a claim "arising under" federal law.
The Tribes also argued that there was federal jurisdiction because their case was a civil action brought by an Indian Tribe and that their action arose under the Constitution, laws, or treaties of the United States. Judge Hornby decided that the same rules of jurisdiction would apply to cases brought by Indian Tribes. He dismissed the case. His decision has been appealed to the First Circuit Court of Appeals.
Freedom of Access Law:
In another related action, this time in state court, the three paper companies asked Superior Court Judge Robert Crowley to require the Tribes to turn over any Tribal papers relating to water quality. The paper companies argued that they were allowed to see the papers under the Maine Freedom of Access law. They argued that the Tribes were similar to a municipality and that, therefore, the Freedom of Access law applied to the Tribes. The Tribes opposed the paper companies. However, Judge Crowley ruled that the Tribes were required to turn over the papers. When the Tribes refused to do so, he ordered that the two Passamaquoddy Tribal Governors and the Penobscot Nation Governor be jailed for contempt of court. The sentence was delayed to allow the Governors to appeal the ruling to the Maine Supreme Court. That appeal was filed.
In reaching his decision, Judge Crowley addressed the question whether these papers should be considered to be "internal tribal matters" under the terms of the Maine Indian Land Claims Settlement Act of 1980. The language of that Act states that "internal Tribal Matters" cannot be regulated by the State. Judge Crowley found that regulation of water resources was not an internal tribal matter because water regulation affected both tribal members and non-tribal members, affected both tribal territory and non-tribal land, and directly affected an interest of the State of Maine.
Following Judge Crowley's decision to send the Governors to jail, the National Congress of American Indians passed a resolution strongly supporting the two Maine Tribes. The NCAI is the largest Tribal organization in the country.
The Aroostook Band of Micmacs and the Houlton Band of Maliseets have also opposed the request by the State of Maine for permitting authority from the EPA. Among the issues raised by the Tribes, is the question whether the State has any authority or jurisdiction at all over the lands or members of the Micmacs.
In Public Comments filed by the Tribes last summer with the EPA, the Micmacs have argued that the Maine law implementing the Micmac Settlement Act never took effect. Under the terms of the Maine law, the legislation would take effect if the Tribe submitted a certification of its agreement to the Secretary of State. A search of the Secretary of State's Office, as well as a search of the legal files by the attorneys involved in negotiating the settlement agreement, has not turned up any evidence that any certification was ever made. Without this certification, the Micmacs argue, the Maine law never went into effect. Therefore, they claim, the State of Maine has no jurisdiction over the Tribe and cannot regulate wastewater discharges on land that belongs to the Tribe.
While the United States Congress approved the Settlement Act, the Micmacs argue that Congress merely approved the agreement between the Tribe and the State. Congress did not adopt the State legislation as its own. Therefore, the Micmacs argue, even federal approval of the Settlement does not mean that the Maine law ever took effect.
The Micmacs' argument has not been ruled upon by any court of law.
