Fall 1996

Superior Court Rules
on Penobscot Employment Discrimination Case

A case involving a terminated Community Health nurse and the Penobscot Indian Nation was recently decided by Superior Court Justice Donald Marden on July 25, 1996. In Fellencer v. Penobscot Indian Nation a white nurse claimed that she was fired because of discrimination. She was replaced by a Native American nurse as Community Health Nurse/Program Coordinator. In the fall of 1994, she filed a discrimination case with the Maine Human Rights Commission and the federal Department of Labor. She did not however, bring her case to the Penobscot Tribal Court.

In late July Judge Marden ruled that Ms. Fellencer would be allowed to file her racial discrimination suit under the Maine Human Rights Act (MHRA) against the Penobscot Nation. The court decided that the Maine Human Rights Act does apply to the Nation because of the Maine Indian Claims Settlement Act. Judge Marden ruled that the Penobscot Nation is to be treated like a city or town subject to liability under the MHRA. This ruling, which appears to conflict with federal law governing tribal sovereignty, allows the plaintiff to bring the discrimination case in state court. Ms. Fellencer also sought punitive damages against the Penobscot Nation. Judge Marden dismissed that count of the action and one other count. The state court case against the Penobscot Nation is pending.

Kaighn Smith, the attorney for the Penobscot Nation, is working to reverse the decision. He is an attorney in private practice in Portland. Attorney Smith is convinced that the ruling is wrong and will be overturned. When asked about Judge Marden's ruling he replied "[t]he Maine Tribes have the forum for these cases; in this case these forums were ignored." Attorney Smith also acknowledged that "[t]he Penobscots have the ability to resolve these matters internally. Those are the means for dealing with these cases. The solutions are not to be imposed from the outside."

On appeal, Attorney Smith will argue that the ruling goes against a Supreme Court case that established the principle of "internal tribal matters." He will also argue that imposing the MHRA upon the Penobscot Nation "creates state regulation of internal tribal affairs." Finally, when asked what damage would be done if the ruling were not reversed he replied, "it will be just another broken treaty between the U.S. and the Indian Nations."