Wabanaki Legal News
| A publication of Pine Tree Legal Assistance |
Summer 1998
Native American Legal Briefs
Federal District Court in Maine rules firing of Community Health Nurse not an internal tribal matter
Passamaquoddy Tribe subject to Maine marine law
Micmacs in New Brunswick lose rights to harvest timber on Crown lands
Federal District Court in Maine rules firing of Community Health Nurse not an internal tribal matter
The Penobscot Nation has been involved for several years in a lawsuit claiming that it violated the Maine Human Rights Act. The suit was originally filed by Cynthia Fellencer, a former employee of the Nation. On March 16, 1998, Judge Brody of the United States District Court in Maine rejected the Nation's request to stop Ms. Fellencer from suing.
The history of this case is a long one. Ms. Fellencer is not a Tribal member. She worked for the Nation as a Community Health Nurse/Diabetes Program Coordinator. In September 1994, the Penobscot Nation Tribal Council voted to fire her. Ms. Fellencer claimed that she was discriminated against. She filed a complaint with the Maine Human Rights Commission. That complaint was dismissed by the Commission. The Commission believed that her employment was an "internal tribal matter" that could not be regulated by the State.
Ms. Fellencer then asked the Superior Court to review the Commission's dismissal of her complaint. The Superior Court refused, but suggested that she could sue the Nation directly. Ms. Fellencer filed suit in Superior Court. She claimed that the Nation had violated the Maine Human Rights Act and had breached its contract with her.
The Nation moved to dismiss Ms. Fellencer's complaint in Superior Court. The Nation argued that the Maine Human Rights Act does not apply to the Nation. Judge Donald H. Marden denied the Nation's Motion. The Nation then sued in Federal Court to ask that Ms. Fellencer not be permitted to continue with her suit.
In the recent Federal Court decision, Judge Brody stated that the issue in this case was whether employing a Community Health Nurse was an "internal tribal matter" within the meaning of the Maine Indian Claims Settlement Act of 1980 and the Maine Implementing Act. If Ms. Fellencer's employment is an internal tribal matter, then she would not be protected by the Maine Human Rights Act. If her employment is not an internal matter, then the Nation would be governed by the Maine Human Rights Act just like any other municipality in the State. Therefore, Ms. Fellencer would be free to continue her suit in Superior court.
Judge Brody decided that, in this case, the decision to fire Ms. Fellencer was not an internal tribal matter under the Settlement Acts. First, Judge Brody stated that the Implementing Act does not necessarily give the Nation the absolute right to be self-governing or to control all internal affairs without regard for state law.
Judge Brody then decided that State law applied to Ms. Fellencer's employment by the Nation. First, Ms. Fellencer was not a member of the Nation. Judge Brody noted that the United States Supreme Court has often found that the self-governing powers of a tribe do not include attempts to regulate non-tribal members.
Second, the Judge decided that the State has an important interest in reviewing claims of employment discrimination. Refusal to apply the Maine Human Rights Act in this case would hurt that interest. Since Ms. Fellencer was not a member of the tribe and since Maine has an important interest in protecting employees from discrimination, the Nation's actions in firing Ms. Fellencer cannot be called internal tribal matters.
Judge Brody noted that not all employment decisions of the Nation can be regulated by the State. In this case, however, "the Tribal Council hired a non-member in a non-policy-making capacity for a position not traditionally associated with governance." For a full discussion of the issue of Tribal Sovereignty, please see the article titled "Tribal Sovereignty" by Mark A. Chevaree, Esq. of the Penobscot Nation.
Passamaquoddy Tribe subject to Maine marine law
In another case relating to tribal sovereignty, the Passamaquoddy Tribe suffered a set back. Thirteen members of the Tribe were charged with a range of violations, including clamming in a closed area, possessing undersized clams, and selling clams and scallops without a license. None of these alleged acts took place on the Tribe's land.
The Tribal members moved to dismiss the State's case. They argued that the Passamaquoddys have aboriginal fishing rights based on the Tribe's cultural and historical ties to saltwater fishing activities. They also argued that saltwater fishing by Tribal members is an "internal tribal matter" under the Settlement Act and the Maine Implementing Act.
In a decision issued in March, Judge Romei of the Calais District Court ruled against the Tribe. This means that the state can prosecute the members.
In his decision, Judge Romei found that the Settlement Acts did not address the question of saltwater fishing rights. He assumed that, in fact, the Passamaquoddys had aboriginal fishing rights. The question then became whether those rights had been ended by the Settlement Acts.
Judge Romei relied on the language of the Acts that stated that the Tribe "shall be subject to the laws of Maine and to the civil and criminal jurisdiction of the courts except as otherwise provided in the Act." He found that this language terminated any aboriginal saltwater fishing rights.
Judge Romei also did not accept that saltwater fishing was an internal tribal matter. He used an analysis similar to the one used in the Fellencer case. He found that the State had a strong interest in regulating fishing and that saltwater fishing is not a uniquely Indian activity. Therefore, he decided, Tribal saltwater fishing was regulated by the State.
A plea agreement has been reached with eight of the defendants. The remaining two will go to trial in July. However, the issue of saltwater fishing was addressed during the last legislative session. The Passamaquoddys were granted sustenance saltwater fishing rights. In addition, the tribe has been granted 24 lobster and 24 sea urchin harvesting licenses.
Maine Supreme Court rules prosecution in Tribal Court is not Double Jeopardy for State Court purposes
In late May, the Maine Supreme Judicial Court decided a criminal case relating to tribal sovereignty. Joseph Mitchell was charged with a misdemeanor assault in Passamaquoddy Tribal Court. He had grabbed his wife's arm during an argument and threatened her with a shotgun. Mr. Mitchell pled guilty and was sentenced. Both Mr Mitchell and his wife are Passamaquoddy Tribal members. They live on the Pleasant Point Reservation.
Mitchell was later indicted by a grand jury in the Washington County Superior Court for criminal threatening with a dangerous weapon and felony assault. The indictment was based on the same incident for which Mitchell was convicted in Tribal Court. Mitchell appealed, claiming that a state prosecution would be Double Jeopardy under the Maine and Federal Constitutions. The Double Jeopardy clause protects citizens from being prosecuted twice for the same crime.
The Maine Supreme Court said that the Settlement Acts recognized "the inherent authority of the Tribe to prosecute certain crimes that occur on tribal land." Mitchell, therefore, committed two crimes when he assaulted his wife. The first was the assault misdemeanor punishable under Tribal law. The second was the felony punishable under State law. State prosecution of Mitchell for the assault, therefore, was not Double Jeopardy.
Micmacs in New Brunswick lose rights to harvest timber on Crown lands
In October, 1997, Justice Turnbull, of the Court of Queen's Bench in New Brunswick, ruled that Crown lands and forests in that Province were owned by Native Americans. In April, his decision was reversed by the Provincial Court of Appeals.
The case began when Thomas Peter Paul, a Micmac Indian, and several other Indians cut three logs of bird's eye maple. The land had been licensed to a Canadian company to cut timber. Mr. Peter Paul was charged with harvesting the logs illegally.
At the trial, Mr. Peter Paul was acquitted. The trial judge decided that harvesting trees for commercial purposes was a treaty right granted to the Micmacs under a document called Doucette's Promises, which relates to Mascarene's Treaty of 1725. The Government appealed that decision.
On appeal, Justice Turnbull agreed that Mr. Peter Paul should be acquitted, but he did not agree with the trial judge's reasoning. Justice Turnbull based his decision on his own independent historical research of old documents, including Dummer's Treaty of 1725. The Government appealed his decision to the New Brunswick Court of Appeals.
The Appeals Court reversed the decision on several grounds. First, the Court decided that Justice Turnbull should not have decided the case based on his own historical research. By using that research, Justice Turnbull did not give the parties a chance to be heard on whether the evidence was proper.
Second, the Court of Appeals noted that prior cases had already decided that Dummer's Treaty does not apply to New Brunswick or to the Micmac Tribe.
Next, the Court went on to address the decision of the trial court judge. The Court stated that, in order for Mr. Peter Paul to have any right to harvest timber commercially, that right must be either an aboriginal right or a treaty right. The Court defined aboriginal rights as the right of native people to continue living as their ancestors had lived. Treaty rights are rights contained in official agreements between the government and native people. They are similar to contract rights.
The Court looked at Doucette's Promises to see whether Mr. Peter Paul had treaty rights to harvest timber. The Court decided that it was unclear whether commercial timber harvesting was one of the activities protected by the Promises. Since Mr. Peter Paul had not put on evidence relating to this question, the Appeals Court found that Mr. Peter Paul had not proved that he had any treaty right to harvest timber.
Next, the Court looked at whether Mr. Peter Paul had any aboriginal rights to harvest and sell timber. Again, the Court found that Mr. Peter Paul had not produced evidence to prove that harvesting timber was a Native tradition. The Court of Appeals' decision will be appealed to the Supreme Court of Canada if the $4-500,000 necessary to fund the appeal can be raised.
A number of Micmacs have been angered by the Appeals Court decision. A day of protests by Tribal members was staged in late April.
Tensions increased recently when Provincial forest rangers seized logging trucks, along with their loads, in a crackdown on Native logging. The New Brunswick government has offered to settle the case. It proposes to give Native loggers the right to cut trees on 5% of the Crown lands. It has also offered to find work for Native Indians with logging companies that hold leases on the land.
Settlement discussions are now being held. Virtually all Native logging has stopped to show that Native Loggers are serious. In the meantime, the Government warned that it will charge mills that buy Native-cut timber.
