Wabanaki Legal News
| A publication of Pine Tree Legal Assistance |
Summer 2001
Native American Legal Briefs
--Tribal Sovereignty
and Freedom of Access--
--Cross Border Rights--
Table of Contents
Supreme Court of Canada Rejects Akwesasne Mohawks' Claim to Duty-Free Imports
Maine Supreme Court Rules Indian Tribes Must Turn Over Certain Documents To Paper Companies. First Circuit Refuses to Intervene
On May 1 of this year, the Maine Supreme Judicial Court ruled that the Maine Freedom of Access law applied to the Penobscot Nation and the Passamaquoddy Tribe (1) when they interact with other governments or agencies and (2) when the Tribes act as if they were municipalities. The Court also put limits on when the Freedom of Access law applied. The Court said that the law did not apply when the Tribes were dealing with internal tribal matters.
This case started when the State of Maine applied to the U.S. Environmental Protection Agency for permission to issue all wastewater discharge permits in the State. The Penobscot Nation and the Passamaquoddy Tribe then asked the EPA to keep its jurisdiction over water resources within the territories belonging to the Tribes. The EPA later granted the State's application, but it has not yet decided whether to allow the State to regulate water on Tribal Territories.
While the EPA was considering the State's application, three paper companies, Great Northern Paper, Georgia-Pacific, and Champion International, asked the two Tribes to give them some documents. The companies claimed they were allowed to see these documents under Maine's Freedom of Access law.
The Tribes refused to give the documents, claiming that Maine's Freedom of Access law did not apply to them. The Tribes did offer to let the companies have copies of non-confidential records. The companies then went to Superior Court to ask that the Tribes be ordered to turn over the documents. The Superior Court agreed with the companies and ordered the Tribes to turn over the documents. The Tribes refused. The Superior Court found that the Tribes were in contempt of its order. The Tribes appealed the decision to the Maine Supreme Court and the order of contempt was stayed. A report on the Superior Court's decision appears in the Winter 2001 edition of the Wabanaki Legal News.
In deciding this case, the Maine Supreme Court noted that this was the first time that the Court had been asked to decide whether the Freedom of Access law applied to the two Tribes. The Court also noted that the Maine Indian Lands Claim Settlement, not general federal Indian law, governed the relationship between the State of Maine and the Indian Tribes. The Court, therefore, looked at the language of three acts: the Federal Settlement Act, the Maine Implementing Act, and the Maine Freedom of Access Act.
The Court reviewed the history of the Land Claims Settlement. It found that, as a result of the Settlement, both the Tribes and the State had gains and losses. The Court noted that the Tribes gained:
Approximately $81.5 million in trust monies and land;
The Court also found that the State gained:
The result of the Settlement, therefore, was that authority over Indian affairs was shared between the State of Maine and the two Indian Tribes. The Court found that, under the Settlement, the State and the Tribes would share authority in much the same way that the State shared authority with municipalities within the State. The Court then noted that many state laws that apply to municipalities also routinely apply to the Tribes. There are, however, exceptions, which the Court pointed out. For example, the Tribes, unlike municipalities, have exclusive court jurisdiction in some types of cases. They also have the exclusive power to regulate some fishing and wildlife resources inside their territories and to create Tribal school committees.
The Court concluded that, in fact, the Tribes wear many hats. Depending on the circumstances, they will be treated as a sovereign nation, a person or other entity, a business organization, or a municipal government.
The Court looked next at the Freedom of Access law and decided that the Act applied to municipalities and that there was nothing in the Act to say that it did not apply to Indian Tribes. The Court then concluded that the Tribes' action requesting the EPA to keep jurisdiction was a governmental action. Therefore, the Court found, the Tribes were acting as municipal governments.
The Court did agree with the Tribes that, under the terms of the Settlement Act, the State could not interfere with internal tribal matters. The Court raised the question, however, whether applying the Freedom of Access law to the Tribes would always interfere with internal tribal matters. The Court then defined internal tribal matters.
The Court stated that "a Tribe's own methods of convening and engaging in government will in most instances be matters 'internal' to the Tribe." In this case, the Court decided that the Tribe's internal discussions, votes, and decision-making about whether the Tribes would petition the EPA and how they would petition are all internal matters. These internal matters are not reachable by the Freedom of Access law. However, once the decisions were made and actions were taken outside of the Tribes, then these actions are no longer internal matters.
The Court ordered the Tribes to turn over documents that related to:
However, the Tribes were not required to turn over documents relating to notices or agendas from any Tribal council meetings, or any notes or minutes taken at any Tribal council meetings.
The Tribes have filed a Motion for Reconsideration with the Maine Supreme Judicial Court. The Tribes believe the Court's decision is based on a finding that the Tribes have asked the EPA to be treated like a state. The Tribes argue that, in fact, there is nothing in the record of this case to support such a finding. In addition, the Tribes have asked the Court to stay its decision so that the Tribes can appeal to the United States Supreme Court.
On June 20, the First Circuit Court of Appeals issued its decision in an appeal from a Federal District Court decision in this case. The District Court's decision was reported on in the Winter 2001 edition of the Wabanaki Legal News. The First Circuit ruled that the decision by the Maine Supreme Court effectively ended the issues brought up in the District Court case. The Court did imply, however, that, in most respects, the District Court's decision was correct.
The Tribes had brought the case in federal court, asking the judge to prevent the paper companies from going to state court. The District Court decision had focused on the question whether there was federal jurisdiction to hear that case. The judge had concluded, on technical grounds, that the Tribes had not met the "well-pleaded complaint" rule and that their case arose under Maine, not federal, law.
On May 24, 2001, the Supreme Court of Canada reversed a lower court decision that had granted the right of an Akwesasne Mohawk to bring certain goods into Canada duty-free. The lower court had ruled that there were aboriginal and treaty rights that allowed for limited duty-free imports. The Supreme Court disagreed. It stated that in order to prove that an aboriginal right existed, the evidence must show that a modern practice, custom, or tradition has a reasonable degree of continuity with customs that existed before contact with Europeans. The Court found that the evidence in this case did not prove any such customs. For a full discussion of the lower court's ruling, see the Summer 2000 edition of the Wabanaki Legal News.
