Maine tribes lose authority to regulate water on tribal lands

Posted: August 20, 2007

by: Gale Courey Toensing / Indian Country Today

The Penobscot and Passamaquoddy are both riverine and coastal tribes.

The tribes claim that their authority as sovereign nations takes precedence over state jurisdiction.

The court claims that the Maine Indian Claims Settlement Act of 1980 and its accompanying implementation act eliminated all tribal sovereignty and immunity except the tribes' rights over internal matters, such as choosing leaders and determining membership, even though the documents nowhere state that the tribes gave up their sovereign rights.

The ruling culminates a long-running battle between the tribes, the state and the EPA over the authority to regulate pollutants in Maine's rivers.

''In looking through the decision briefly, we're trying to assess what our next steps are,'' said Penobscot Chief Kirk Francis. ''It's a disappointing decision on a lot of fronts. We believe that it breaks down the trust responsibility relationship between the tribes and the federal government, in this case, the EPA, which has that trust responsibility with the tribes. And the whole thing leads to an erosion of our sovereignty,'' Francis said.

EPA spokesman John Millett said it wasn't clear if this ruling was the first time a court superseded the EPA's trust authority with tribes, or whether the agency would seek an en banc, or full panel, hearing.

''EPA is dedicated to protecting water quality. EPA, in consultation with the Justice Department, will review this decision to determine any appropriate next steps,'' Millett said.

The Clean Water Act authorizes the EPA to issue permits for the discharge of pollutants into navigable waters, but states can apply to the agency to issue their own permits if they meet certain requirements.

In its application, Maine asserted jurisdiction over Penobscot and Passamaquoddy lands as well as 19 off-reservation sites.

The EPA approved the state's plan to regulate water at the 19 off-reservation sites, even though some of the sites discharge into the tribes' territorial waters. But it denied state jurisdiction over discharges on tribal land.

The EPA also expressed concern that Maine might not protect water quality enough to assure the tribes' right to fish in clean, pollutant-free waters, and reserved its right to retake permitting authority under certain conditions; but the court vacated that right as well.

The 25-page ruling, written by Chief Judge Michael Boudin and supported by Senior Circuit Judge Bruce Selya and Senior Judge William Stafford from the Northern District Court of Florida, upholds the state's claim of total jurisdiction over the tribes and their lands.

''The southern tribes' [Penobscot and Passamaquoddy's] broadest claim is that their inherent sovereignty remains intact and therefore state regulatory power over their lands is exceedingly limited. The premise is mistaken: the explicit language of the Settlement Acts establishes state authority that far exceeds what is normal for Indian tribe to which no such legislation applies. In addition to Maine's explicit authority over tribal lands and natural resources, the Settlement Acts expressly divested the Maine tribes of sovereign immunity,'' Boudin wrote.

At issue is a section of the act that says the tribes are subject to the state's civil and criminal jurisdiction.

But the tribes never waived their sovereignty and immunity, and the act doesn't explicitly say that they did, argued attorney Doug Luckerman, who represents several Northeastern nations.

''The court just decided to eject the principles of federal Indian law in Maine. The whole concept that there's a three-legged stool of authority between the state, the tribes and the federal government has vanished. It's become a two-legged stool - that if the federal government delegates authority to the state, which is what Congress did because the state doesn't have any original authority to deal with tribes, what this court is saying is once that happens there is no third leg,'' Luckerman said.

The court's views of the Settlement Act ''strangles the original compromises that were made in a way that squeezes out the rights negotiated by the tribes and enhances the rights negotiated by the state. It's not what the tribes wanted and it's not what they negotiated, either,'' Luckerman said.

The problem lies in part with the act's language, which does not clearly express that sentiment, Luckerman said.

A work study group approved by Gov. John Baldacci to review the act and come up with recommendations for changes was scheduled to meet for the first time in mid-August.

''I hope the tribes truly put forward what is of greatest priority to them, and I hope the state does as well,'' said John Dieffenbacher-Krall, executive director of the Maine Indian Tribal-State Commission.

''I think if the parties come to the table with open minds and with the attitude that 'I want to truly listen to what aggrieves the other party and try to resolve that,' we can accomplish anything that's needed,'' Dieffenbacher-Krall said.

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