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Wednesday, December 3, 2003

The state of Maine has the authority to regulate water pollution within the reservations of two tribes, the Environmental Protection Agency announced last month.

Rejecting the Department of Interior's position on the issue, the EPA approved the state's pollution program to cover lands held in trust for the Penobscot Nation and the Passamaquoddy Tribe. Citing the federal law that settled the tribes' land claims and granted them federal recognition, officials said the tribes lack exclusive jurisdiction to regulate certain activities affecting their reservations.

"EPA does not agree with the DOI opinion that the southern tribes' area of exclusive jurisdiction over internal tribal matters reaches so far as to preclude the state from regulating any discharges to water in the southern tribes' Indian Territories," officials wrote in a November 18 Federal Register notice.

The decision comes after more than two years of internal deliberations. At the start of the Bush administration in January 2001, EPA officials approved the state's program but exempted tribal lands in order to examine the question of jurisdiction.

In the meantime, the tribes were engaged in a series of legal battles with non-Indian paper companies whose activities directly affect tribal lands. After a series of state and federal rulings, the Maine Supreme Court forced the tribes to turn over internal documents to the companies. The tribes, in effect, were subject to the state's public records laws.

The EPA said those court decisions did not play a major role in its analysis of tribal-state jurisdiction. Instead, officials looked to the Maine Indian Claims Settlement Act (MICSA) of 1980. They agreed with the state in concluding that the law gives the state the authority to regulate water pollution on Penobscot and Passamaquoddy lands.

The same is not true elsewhere in the U.S., where states generally lack power over Indian lands. In fact, EPA has recognized the right of tribes to develop their own water, air and other environmental standards and programs.

Throughout the dispute, the Interior Department upheld that view. In a May 2000 legal opinion, DOI attorneys wrote that MICSA has the effect of strengthening tribal jurisdiction "rather than destroying the sovereignty of the tribes."

But EPA disagreed with DOI's interpretation and said the state has a "strong interest in regulating discharges to waters in Maine." Even though two rivers -- the Penobscot and the St. Croix -- flow into tribal lands, officials said discharges from them do not qualify as "internal tribal matters" that would normally be free from state control.

"EPA recognizes that regulation of discharges into these rivers is vitally important to the southern tribes, but ... water quality in these rivers is also vitally important to the state and its non-tribal member citizens," the decision stated.

In total, 21 facilities that require permits under the National Pollution Discharge Elimination System (NPDES) were at issue in the dispute. Several belong to the paper companies that the tribes were battling.

Two of the facilities are tribal wastewater systems. The EPA said discharges from these facilities qualify as "internal tribal matters" and would not be subject to the state program.

Also not included are lands held in trust for the Houlton Band of Maliseet Indians and the Aroostook Band of Micmacs. EPA said these "northern tribes" will remain under federal protection.

Relevant Documents:
EPA Federal Register Notice | PDF version

Relevant Links:
National Pollution Discharge Elimination System - http://cfpub.epa.gov/npdes
Penobscot 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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Maine tribes march for sovereignty (5/24)
Maine tribes to hand over documents (5/21)
Maine tribes cite industry pressure (5/13)
Maine tribes agreed to state oversight (4/12)
Supreme Court declines tribal cases (2/20)
Today's actions by Supreme Court (2/19)
Supreme Court docket shaping up (2/19)
Supreme Court declines tribal cases (2/20)
Supreme Court rejects tribal privacy case (11/14)
EPA foresees long battle over tribal water authority (11/14)
Maine tribes lose paper case appeal (6/21)
Maine tribes want document case reviewed (5/17)
US sues to compensate Penobscot Nation (5/3)
Tribes ordered to release some documents (5/2)
Court rejects challenge to tribal authority (4/17)
Maine tribes await EPA decision (4/17)
Go directly to jail, do not collect sovereignty... (2/7)
Leaders pledge support of Maine tribes (11/17)
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