AUBURN, Maine ? Worried an escalating crisis over contempt of court charges could lead to violence, three Maine tribal councils decided to save their governors from a one-year jail term and appeal to the Maine Supreme Court.
The contempt ruling was sought by three of the country’s largest paper companies in a suit for access to tribal documents, but it is part of a broader struggle over the pollution of tribal rivers.
Tribal officials say they feared they might compromise their sovereignty by staying within the state court system, their attorney Kaighn Smith Jr. said. They were more afraid state attempts to enforce the contempt ruling could lead to inflamed passions, “and even gun battles.”
Along with the state appeal, Smith said the tribes are petitioning the U.S. First Circuit Court of Appeals to take over the case, which raises major issues of tribal sovereignty.
The ruling, obtained Nov. 9 , applied to Richard M. Doyle of the Pleasant Point Passamaquoddy Reservation, Richard Stevens of the Passamaquoddy Indian Township Reservation, and Barry Dana, who was inaugurated as governor of the Penobscot Nation just a week earlier.
“I’m not sure being a martyr is going to do anything here,” said Dana, announcing the appeal to a crowd in front of the state courthouse at the deadline for turning himself in.
The governors had until 9 a.m. Nov. 13 to report to the county jail, surrender tribal documents to the paper companies or appeal the ruling.
But Dana turned attention to the broader issue by holding up a bottle of water from the Penobscot River.
“We have a right to say what goes into our rivers,” he said.
“The paper companies have been polluting this river for well over 100 years. Their latest attempt is not to get documents. It’s to have the continued right to pollute that river.”
The case is basically a struggle by the Penobscot and Passamaquoddy tribes of northern Maine to control pollution of their rivers by upstream towns and paper mills, agree spokesmen for both tribes and paper companies.
But the protracted court battle flared into a dangerous confrontation when a state judge issued a contempt ruling over the side issue of the document request.
The paper companies demanded access to tribal records on water quality enforcement under Maine’s Freedom of Access Law. The tribes refused to comply, stating that the law didn’t apply to internal tribal matters.
Although a contempt ruling seemed certain, both sides said they were surprised by the severity of the punishment ordered by Androscoggin County Superior Court Judge Robert Crowley.
“We didn’t expect it,” said paper company attorney Matthew Manahan. “We expected it to be a little more gradual.”
Manahan, of the Portland law firm Pierce Atwood, brought the freedom of access suit in May on behalf of the Georgia-Pacific Corp., Great Northern Paper Inc. and Champion International Corp. He also is lead attorney for a larger coalition of 28 businesses and municipalities fighting the tribes over water quality control.
He said the coalition wants the federal government to delegate Maine full authority to issue pollution licenses under the Water Quality Act.
At present Maine towns or mills discharging waste water have to be licensed by the U. S. Environmental Protection Agency, making it one of only six states still under federal control, Manahan said.
The tribes want the EPA to continue licensing for the St. Croix and Penobscot Rivers, which run through and around their reservations. They charge that paper companies have too much influence with the state government.
“We can’t even eat our fish any more because of the dioxin from the mills upriver,” said Penobscot tribal member Rick Nicolar Jr. “It’s our way of life. We’ve always eaten fish out of there.”
The tribes picked up support last spring from the Department of the Interior which ruled that Maine didn’t have authority to act for tribal governments. The ruling raised another issue in hot dispute ? the extent to which tribal sovereignty was limited by the federal Maine Indian Claims Settlement Act of 1980.
The act ended a lawsuit by the Penobscot and Passamaquoddy claiming two-thirds of the state by giving them federal recognition and $81.5 million. But it also made controversial concessions on state control over the tribes.
Both Manahan and Smith home in on one sentence stating that tribes “shall be subject to all the duties, obligations, liabilities and limitations of a municipality of and subject to the laws of the state.”
Manahan argues these words make the tribes subject to the Maine Freedom of Access Law.
Smith argues that sentence continues, “provided, however, that internal tribal matters including ? tribal government shall not be subject to regulation by the state.”
“Tribal records, and pollution control are clearly internal matters, he says.
Through the summer, Smith appealed to the Federal District Court in Maine to take jurisdiction over the paper companies’ case, he said, because it involved interpreting a federal statute. But the court turned him down three times.
On Oct. 30, facing the contempt hearing in the state court, he went to the U.S. First Circuit Court of Appeals in Boston. “Tribes depend heavily upon federal court jurisdiction, often as the only means to avoid ongoing, unlawful impositions of state authority,” he argued.
It is possible, judging from deadlines for briefs, that the federal court will be ordered to step in before the Maine Supreme Court hears the case.
Manahan said he had a deadline of Dec. 26 to make his reply argument to the U.S. Court of Appeals, but added that the Maine court had not yet issued a briefing schedule.