Supreme Court rejects tribal privacy case

WEDNESDAY, NOVEMBER 14, 2001

Two Maine tribes fighting to keep their internal documents out of the hands of private companies lost their chance to have the Supreme Court review the dispute on Tuesday.

Without comment, the nation's highest court declined to accept the case, letting stand a Maine decision decision which ordered the Penobscot Nation and the Passamaquoddy Tribe to hand over the documents. The state's freedom of information act applies to certain types of tribal communications, the Maine Supreme Judicial Court has determined.

The ruling has left tribal leaders seeking ways to protect what they believe is their sovereign right to privacy. They acknowledged yesterday's action as a setback but said they would continue to fight as long as it takes.

"We are disappointed, but not surprised," said Pleasant Point Passamaquoddy Governor Richard Doyle in a statement. "But we will be patient. We have faith that our rights as self-governing Indian tribes will, in the long run, prevail."

"This is just one step along a very long path," added Penobscot Chief Barry Dana.

The tribes' journey began as three paper companies sought access to tribal correspondence, communications and other documents related to the control over water quality on the Penobscot Reservation and two Passamaquoddy reservations. When tribal leaders refused, a state judge in November 2000 held them in contempt, fined them and ordered them arrested.

While the leaders were never actually sent to jail, the Maine Supreme Judicial Court in May upheld the right of outsiders to view the documents. When the tribes act as municipal governments, including control over environmental resources, they are subject to the state's freedom of information act, the court ruled. But when the tribes act on self-government issues, such as enrollment, the court ruled the law doesn't apply.

How the tribes will comply with the ruling is not yet known, as tribal leaders would not comment on their next step. A lawyer representing a coalition of paper companies and local governments said he doesn't know when his clients will be able to access the necessary documents, but offered to work with the tribes.

"If they don't want us to come on tribal reservation territory, we respect that," said Matthew D. Manahan, a Portland attorney. "We could look at them at their lawyer's office or any mutually agreeable location."

"It's up to the tribes," he said.

In the meantime, both sides await a ruling by the Environmental Protection Agency on whether the tribes will be able to control water quality on their reservations. Region 1 of the EPA, based in Boston, Massachusetts, is in the "middle" of its consultation work with the Department of Justice on the decision, said a government attorney.

The three paper companies who initially filed suit were Northern Paper Inc., Georgia Pacific Corp. and Champion International Corp. Champion, which has since been bought by International Paper, is no longer part of the case because the company felt it would not be affected by the issue of tribal authority, according to Manahan.

Maine Attorney General G. Steven Rowe filed a brief in the case, urging the Supreme Court to reject the tribal appeal. According the Environmental Protection Agency, the state has received 15 feet of boxed documents through the federal Freedom of Information Act regarding Indian Country programs.

But without acknowledging the state's interest in the tribal authority question, spokesperson Charles Dow expressed hope that the tribes and the coalition could work out their dispute. "The broader interest," he said, "is about Maine people working out our differences."

In addition to a Supreme Court appeal, the tribes sought review by the federal courts. The 1st Circuit Court of Appeals in June declined to resolve the debate.

The National Congress of American Indians, the nation's largest and oldest tribal organization, has supported the tribes' effort. Manahan said his coalition is interested in any correspondence the tribes may have had with NCAI or other Indian tribes or organizations.

Related Decisions:
PENOBSCOT NATION v. GEORGIA-PACIFIC CORP., No 00-2265 (1st Cir. June 20, 2001)
GREAT NORTHERN PAPER, INC., et al. v. PENOBSCOT NATION et al. (2001 ME 68)

Relevant Links:
The Penobscot Nation - http://www.penobscotnation.org
Passamaquoddy Tribe, Pleasant Point Reservation - http://www.wabanaki.com
Passamaquoddy Tribe, Indian Township - http://www.peopleofthedawn.com