In a blow to their sovereignty, a federal appeals court on
Wednesday blocked two Maine tribes from regulating water
quality on their reservations.
The Penobscot Nation and the Passamaquoddy Tribe sought
to set their own standards under the Clean Water Act.
By exercising their inherent powers, tribes across
the country are able to do so independent of state governments.
But the 1st Circuit Court of Appeals said the Maine tribes
lost those powers when they settled their land claims.
Under special acts of Congress, the state's
"authority far exceeds what is normal
for Indian tribes to which no such legislation applies," Judge
Michael Boudin wrote in the unanimous decision.
"This markedly contrasts with the status of Indian tribes in other states not
subject to the settlements acts," Boudin continued.
The 25-page decision comes in a long-running battle between
the tribes, the state and the Environmental Protection Agency.
No one fully agreed on the extent of the tribe's rights versus
the state's and the matter festered
under the Clinton and Bush administrations.
In a plan submitted to the EPA, the state asserted jurisdiction over
Penobscot and Passamaquoddy lands.
The tribes, meanwhile, said their sovereignty
protected them from state encroachment.
The EPA took the middle ground by
approving the state's plan to regulate water
at 19 off-reservation sites,
even though some of the sites discharge water into the
Penobscot and Passamaquoddy reservations.
But the agency blocked the state from regulating discharges
at two tribal-owned sites.
And EPA reserved the right to object to future state actions
that might affect tribal subsistence.
In its opinion, the 1st Circuit said the EPA was correct about
the off-reservation sites.
The court rejected the tribes' broad reading of their settlement
acts, citing Maine's "explicit authority over tribal
lands and natural resources" under the laws.
The court, however, said the EPA was wrong about the two tribal-owned
sites. Regulating water quality is not an "internal tribal matter" --
as that term is contemplated by the Maine settlement acts -- the
1st Circuit said.
"Discharging pollutants into navigable waters
is not of the same character as tribal elections, tribal membership
or other exemplars that relate to the structure of Indian
government or the distribution of tribal property," Boudin wrote.
Finally, the court said it was too early to rule on the EPA's
claim that it has a general environmental trust responsibility
to the tribes to protect their subsistence rights.
Both tribes depend on water in two rivers --
the Penobscot and St. Croix -- that will be regulated by the
"The EPA was entitled to give warning as to its enforcement intentions;
but that does not mean that the standards it proposes to employ are
independently reviewable in advance," Boudin wrote.
The ruling is the latest in a series of cases from
that have limited the sovereignty of tribes in New England.
The Penobscot Nation and the Passamaquoddy Tribe were previously
forced to release tribal council documents related
to their water quality standards because the state and
federal courts said they were subject to state laws.
Two other Maine tribes have to comply with state employment law,
the 1st Circuit said in a recent decision.
And a Massachusetts tribe and a Rhode Island tribe have lost
major sovereignty cases at the state and federal level.
(August 8, 2007)
Federal Register Notice
Nation - http://www.penobscotnation.org
Passamaquoddy Tribe at Pleasant Point - http://www.wabanaki.com
Passamaquoddy Tribe, Indian Township - http://www.peopleofthedawn.com
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