Opposition Brief — Penobscot Nation v. Great Northern Paper, Inc.

pm,

No. 01-0381 | Supreme Coun, U s

FILED

In The OCT 1 2001

Supreme Court of the United States

ee _

PENOBSCOT NATION; PASSAMAQUODDY TRIBE;

BARRY L. DANA, in his capacity as Chief

of the Penobscot Nation; RICHARD M. DOYLE,

in his capacity as Governor of the Passamaquoddy

Tribe; and RICHARD STEVENS, in his capacity

as Governor of the Passamaquoddy Tribe,

Petitioners,

GREAT NORTHERN PAPER, INC.; GEORGIA-PACIFIC

CORPORATION; INTERNATIONAL PAPER COMPANY;

and the STATE OF MAINE,

Respondents.

*

On Petition For Writ Of Certiorari

To The Maine Supreme Judicial Court

*

RESPONDENT STATE OF MAINE’S BRIEF

IN OPPOSITION TO PETITION FOR

WRIT OF CERTIORARI

o

G. Steven Rowe

Attorney General

Paut STERN

Deputy Attorney General

WittuiamM R. StoKkrs

Deputy Attorney General

(Counsel of Record)

Six State House Station

Augusta, Maine 04333-0006

Tel. (207) 626-8800

Counsel for Respondent State

of Maine

COCKLE LAW BRIEF PRINTING CO, (800) 225-694

OR CALL COLLECT (402) 342-2831

OFFICE OF THE CLERK |

]

—]

QUESTION PRESENTED

Whether application of Maine’s Freedom of Access

Act, 1 Me.Rev.Stat.Ann. §§ 401, et seq., to the Penobscot

Nation and Passamaquoddy Tribe requiring those tribes

to disclose documents provided to or received from non-

tribal governmental entities relating to certain environ-

mental issues, violates the “internal tribal matters” lan-

guage of the Act to Implement the Maine Indian Claims

Settlement, 30 Me.Rev.Stat.Ann. §§ 6201, et seq., as ratified

by Congress in the Maine Indian Claims Settlement Act of

1980, 25 U.S.C. §§ 1721, et seq.

ii

TABLE OF CONTENTS

Page

ee PUEMMERDS 6 Sa cc crececddssecvcesssess i

pF Ge Noe os) er iii

MAINE’S BRIEF IN OPPOSITION.................. 1

I ob ce hh cw hewn ccanssbcenesces 2

I. HISTORY OF THE SETTLEMENT ACTS....... 2

Il. HISTORY OF THIS LITIGATION.............. 7

REASONS FOR DENIAL OF THE WRIT........... 14

I. THE COURT SHOULD DENY THE WRIT

BECAUSE THE ISSUE PETITIONERS PRE-

SENT TO THE COURT IS NOT PROPERLY

Ee eeeE TT Terr ye err errr Tr rrr eee 15

II. THERE IS NO CONFLICT BETWEEN THE

FIRST CIRCUIT AND THE MAINE LAW

SRI 5 XE 64 Wienke and pea kene nck enneg eedeee 16

Il. THE DOUBT AS TO WHETHER A SUBSTANTIAL

FEDERAL QUESTION IS INVOLVED HERE SUP-

PORTS DENIAL OF THE PETITION. ........... 17

ee ke Peer Terry Tree PTI Pee CTT e TT Tree 18

\

iil

TABLE OF AUTHORITIES

Page

Cases

Akins v. Penobscot Nation, 130 F.3d 482 (1st Cir.

Ped ised eewawscpaccteconstiedusesscecvus 7, 12, 16

Bottomly v. Passamaquoddy Tribe, 599 F.2d 1061 (1st

Ce MEPEE sabi keeWeeanecasdandeeschtebkbucavaaaed a 3

Department of Interior v. Klamath Water Users, 532 ~

SAE GUEE pa cb Naa bs been ycasnnadnesseVeaevesepes 16

Great Northern Paper, Inc. v. Penobscot Nation, 770

pe eG | SP EEPON TT ET TET TT OT er eee eET eT 1

Indian Township Passamaquoddy Reservation Housing

Authority v. Governor of State, 495 A.2d 1189

Se Ls 8 6b 50h 6n6s bE AAAS ES SS ek en Se deneeess 3

Joint Tribal Council of Passamaquoddy Tribe v. Mor-

ton, 388 F.Supp. 649 (D.Me.), aff'd, 528 F.2d 370

hg BR Pee ees Pr ere er Pee re 2

ee Ae es ere 3

Passamaquoddy Tribe v. Morton, 528 F.2d 370 (1st

Cir.), affirming, 388 F.Supp. 649 (D.Me. 1975)....... 3

Passamaquoddy Tribe v. State of Maine, 75 F.3d 784

Ce errr errr Tee Perr Tre re > A

Penobscot Nation v. Crowley, U.S.D.C. No.

ET patos) syved ca suae bes ecabnssee skate caeel 11

Penobscot Nation v. Fellencer, 164 F.3d 706 (1st Cir.),

cert. denied, 527 U.S. 1022 (1999) ............ 7, 12, 16

Penobscot Nation v. Georgia-Pacific Corp., 106

F.Supp.2d 81 (D.Me.), reconsideration denied, 116

F.Supp.2d 201 (D.Me. 2000), aff'd, 254 F.3d 317

SER EE ae ahh ddaveedenceesuudaes costo 10, 13, 14

iv

TABLE OF AUTHORITIES — Continued

Page

Penobscot Nation v. Georgia-Pacific Corp., 254 F.3d

tg £8 Perr rere reer ee rrr e 13, 17, 18

\

Penobscot Nation v. Stilphen, 461 A.2d 478 (Me.),

appeal dismissed for want of substantial federal

question, 464 US. 923 (1983) .......c...ceces. ie ae 4

Santa Clara Pueblo v. Martinez, 436 U.S. 49 (1978).... 15

State v. Newell, 24 A. 943 (Me. 1892) ................. 3

United States v. Wheeler, 435 U.S. 313 (1978)......... 15

STATUTES

1 bde Rev. Stat. Ane. Bh S01, af O06. oon cc iccesecccass 1,9

22 Me.Rev.Stat.Ann. §§ 4701-4836 (1964).............. 3

30 Me.Rev.Stat.Ann. §§ 6201, ef seg. ...........ceecee. 2

Se BRIO, TH GI 65 ok Ko cw ccc edndcdarecrins o>

SP Pee. TS GID hadi ch ccacsecesedcoendaases 2

30 Me. Rev Stat. Amt. § GI0G(T) ou. 5. cccccncvacsces 6, 10

a ere er err Pree 5

29 USAC. & 1721, Of O09... 0660 ccecccunsccvsccesedens 2

ee Bis Se ERS s 6 6 56 n5nb 0 sled abana Gide |

Be Sees Oe SP over a Kancnddankesinen cad eeuask 6

Se eae Se ROE w eG 4 hak Sse Ske ehes beeen ”

Se Was Se I 0 5 <icknu Red onc oedane oeaknka 4,6

ae Ses IE hn a 00 daca nucdeas Gchenkend de cun 5

ee | emer Some rear 6

Vv

TABLE OF AUTHORITIES - Continued

A I ao coaches dw cp caccdtdivsavess

RN icine vs sh ana os Kdddbaeaeiin

I a aon Vivo va pioesucseovaas

OTHER AUTHORITIES

GO FE. Taree CRGAY ZG, FOOT) occ cccccscsacness

Committee Report of the Senate Select Committee on

Indian Affairs Concerning the Settlement Act,

eS ag | ee rr

Proposed Settlement of Indian Land Claims: Hearings

before the Select Committee on Indian Affairs, 96th

Cong. Vol. 1 at 101 (Letter, Interior Secretary

Andrus to Senator Melcher, Chairman, August

ps acedianenes A Pe ape nS Oe ee oy ay eee

Proposed Settlement of Indian Land Claims: Hearings

before the Select Committee on Indian Affairs, 96th

Cong. Vol. 1 at 139 (Testimony of Governor

en er re

Transcript of March 28, 1980 Public Hearing before

Joint Committee on Indian Land Claims, 28 (1980)

(Testimony of Thomas Tureen, Esq.), reprinted at

Penobscot Nation v. Stilphen, 461 A.2d at 488........

MAINE’S BRIEF IN OPPOSITION

Respondent, State of Maine, respectfully requests

that the Court deny the Petition for Writ of Certiorari

seeking review of the Decision and Judgment of the

Maine Supreme Judicial Court, sitting as the Law Court

(“Law Court”) issued on May 1, 2001, reproduced in the

Appendix to the Petition for Writ of Certiorari (“Pet.

App.”) at 1-30 and reported at Great Northern Paper, Inc. v.

Penobscot Nation, 770 A.2d 574 (Me. 2001). At the outset, it

is critical to have a clear understanding of the contro-

versy and decisions below.

The Law Court construed the federal and state stat-

utes that memorialized the settlement between the Maine

Tribes, the United States and the State of Maine, conclud-

ing that Maine’s Freedom of Access Act, 1

Me.Rev.Stat.Ann. §§ 401, et seq. “does not apply to the

Tribes’ internal governmental proceedings” and therefore

held that the Tribes were not required to turn over notes,

agendas, minutes and other “internal” tribal documents.

(Pet. App. at 32-33.) The Law Court, however, also found

that “[w]hen the Tribes, in their municipal capacities, act

or interact with persons or entities other than their tribal

membership, such as the state or federal government, the

Tribes may be engaged in matters that are not ‘internal

tribal matters.’ ” (Pet. App. at 29.) In the specific context

of this case, the Law Court required the Tribes to produce

documents sent to or received by the state and federal

government related to certain environmental issues. (Pet.

App. at 32.)

The Law Court did not decide, and neither the pri-

vate parties nor the State of Maine pressed, any right to

intrude onto or into the Tribes’ reservations under

Maine’s Freedom of Access Law. Because such an alleged

intrusion appears to be at the heart of the Petition for

Writ of Certiorari, the Petition should be denied.

STATEMENT OF FACTS

I. HISTORY OF THE SETTLEMENT ACTS.

During the 1970’s, the Penobscot Nation and the

Passamaquoddy Tribe pursued claims to nearly two-

thirds of the landmass of the State of Maine. See generally

Joint Tribal Council of Passamaquoddy Tribe v. Morton, 388

F.Supp. 649 (D.Me.), aff'd, 528 F.2d 370 (1st Cir. 1975); see

also Bottomly v. Passamaquoddy Tribe, 599 F.2d 1061 (1st Cir.

1979). In 1980, after what the First Circuit described as

“years of strife,” the Federal Government, the Tribes, and

the State of Maine negotiated a comprehensive settlement

of the claims. Passamaquoddy Tribe v. State of Maine, 75 F.3d

784, 787 (1st Cir. 1996). The settlement is embodied in a

state legislative enactment known as “An Act to Imple-

ment the Maine Indian Claims Settlement” (the “State

Implementing Act”) found at 30 Me.Rev.Stat.Ann.

§§ 6201, et seq., and the Act of Congress known as the

“Maine Indian Claims Settlement Act of 1980” found at 25

U.S.C. §§ 1721, et seq. (the “Federal Settlement Act”). The

Penobscots and Passamaquoddies specifically agreed to

this settlement.

The Settlement and Implementing Acts, as under-

stood and intended by Congress, the Maine Tribes and

the State of Maine, were sui generis. Since Maine’s entry

into the Union in 1820, the federal government rejected

and refused any responsibility for the Maine Tribes. 25

U.S.C. § 1721(a)(9). Thus, the State actively regulated the

affairs of Indians within its borders for over 150 years,

creating hundreds of laws that specifically related to the

protection and regulation of the Tribes. See, e.g., 22

Me.Rev.Stat.Ann. §§ 4701-4836 (1964) (detailing rules and

regulations that applied to the Tribes) repealed in sub-

stantial part by the Maine Implementing Act, P.L. 1979,

ch. 732; Passamaquoddy Tribe v. Morton, 528 F.2d 370, 374

(1st Cir.), affirming, 388 F.Supp. 649, 652-53 (D.Me. 1975).

The Maine Tribes were not recognized by the state or

federal government in any official or “political sense.”

State v. Newell, 24 A. 943, 944 (Me. 1892); see also Indian

Township Passamaquoddy Reservation Housing Authority v.

Governor of State, 495 A.2d 1189, 1190 (Me. 1985). There

was no established tribal sovereignty, and Indians resid-

ing within Maine’s borders were subject to the general

laws of Maine like “any other inhabitants” of Maine. State

v. Newell, 24 A. at 944; Murch v. Tomer, 21 Me. 535, 537

(1842). Not until the 1970’s did the federal courts con-

clude that the Maine Tribes retained attributes of sover-

eignty. Bottomly, 599 F.2d at 1061; Morton, 528 F.2d at 380.

These new conclusions spurred the Tribes, the federal

government and the State of Maine to resolve the Tribes’ _

land claims as well as their jurisdictional relationship.

The Settlement and Implementing Acts were

“designed to transform the legal status of the Maine

Tribes . . . and to create a unique relationship between

state and tribal authority” (Passamaquoddy Tribe v. State of

Maine, 75 F.3d at 787), and were intended to definitively

resolve land claims and jurisdictional disputes. Penobscot

Nation v. Stilphen, 461 A.2d 478, 487-89 (Me.) (McKusick,

=

C.J.), appeal dismissed for want of a substantial federal ques-

tion, 464 U.S. 932 (1983). During the negotiations leading

up to the ultimate settlement, Maine consistently took the

position that it would never accept the concept of a

“nation within a nation” and that state law should apply

to the Indians as it does to every citizen in the state.

Proposed Settlement of Indian Land Claims: Hearings before

the Select Committee on Indian Affairs, 96th Cong. Vol. 1 at

139 (Testimony of Governor Brennan, July 1, 1980).

The Federal Settlement Act ratified and confirmed

the jurisdictional relationship between the Tribes and the

State. The Tribes, their members, natural resources and

land “shall be subject to the civil and criminal jurisdiction

_ of the State, laws of the State, and the civil and criminal

jurisdiction of the courts of the State, to the same extent

as any other person or land therein.” 25 U.S.C. § 1725(a).

Congress went on to specifically subject the Tribes “to the

jurisdiction of the State of Maine to the same extent and

in the manner provided in the Maine Implementing Act

and the Act is hereby approved, ratified and confirmed.”

25 U.S.C. § 1725(b)(1). The fundamental cornerstone of

the settlement is contained in the Maine Implementing

Act, as follows: |

Except as otherwise provided in this Act, all

Indians, Indian nations and tribes and bands of

Indians in the State, and any lands or other

natural resources owned by them, held in trust

for them by the United States or by any other

person or entity, shall be subject to the laws of the

State, and to the civil and criminal jurisdiction of

the courts of the State to the same extent as any

other person or lands or other natural resources

therein.

30 Me.Rev.Stat.Ann. § 6204 (emphasis added). This provi-

sion is the foundation of the relationship between the

Tribes and the State of Maine. The Tribes “adopt[ed] the

laws of the State as their own to the extent provided in”

the Maine Implementing Act (30 Me.Rev.Stat.Ann.

§ 6202), and agreed to be subject to suit in the courts of

the State “to the same extent as any other entity or person

in the State.” 30 Me.Rev.Stat.Ann. § 6206(2); see also 25

U.S.C. § 1725(d)(1) (Maine Tribes “may sue and be sued

in the courts of the State of Maine and the United

States”).

Pursuant to the State Implementing Act, the Tribes

have all of the powers, rights, and immunities, as well as

all the duties and obligations of municipalities in Maine

subject to the specific exception that “internal tribal mat-

ters” are exempt from regulation by the State:

Except as otherwise provided in this Act, the

Passamaquoddy Tribe and the Penobscot

Nation, within their respective Indian territo-

ries, shall have, exercise and enjoy all the rights,

privileges, powers and immunities, including,

but without limitation, the power to enact ordi-

nances and collect taxes, and shall be subject to

all the duties, obligations, liabilities and limita-

tions of a municipality of and subject to the laws

of the State, provided, however, that internal

tribal matters, including membership in the

respective tribe or nation, the right to reside

within the respective Indian territories, tribal

organization, tribal government, tribal elections

and the use or disposition of settlement fund

income shall not be subject to regulation by the

State.

30 Me.Rev.Stat.Ann. § 6206(1). This “innovative blend of

customary State law respecting units of local government

with a recognition of the independent source of tribal

authority, that is, the inherent authority of a tribe to be

self-governing,” was recognized as being “original” in its

treatment of the Penobscot Nation and the Passama-

quoddy Tribe in their relationship to the State of Maine.

Committee Report of the Senate Select Committee on Indian

Affairs Concerning the Settlement Act, S.Rep.No. 96-957 at

29 (1980). According to the Penobscot Nation’s counsel at

the time, the governmental relationship between Indians

and non-Indians was “unlike that which exists anywhere

else in the United States.” Transcript of March 28, 1980

Public Hearing before Joint Committee on Indian Land Claims,

28 (1980) (Testimony of Thomas Tureen, Esq.), reprinted at

Penobscot Nation v. Stilphen, 461 A.2d at 488.

The unique relationship created by the State Imple-

menting Act was expressly approved, ratified, and con-

firmed by Congress. 25 U.S.C. §§ 1721(b)(3) and

1725(b)(1). Indeed, Congress went even further to empha-

size the preeminent place state law occupies in the settle-

ment and in the relationship between the Tribes and the

State of Maine. The Federal Settlement Act provides that

the laws and regulations of the United States that are

generally applicable to Indians, are not applicable to the

Passamaquoddy Tribe and Penobscot Nation insofar as

such federal laws or regulations “affect or preempt the

civil, criminal or regulatory jurisdiction of the State of

Maine.” 25 U.S.C. § 1725(h). Moreover, any federal laws

enacted after October 10, 1980 (the effective date of the

Federal Settlement Act) that would effectively preempt

the application of the laws of the State of Maine, do not

apply within the State of Maine unless specifically and

| expressly made applicable to the State. 25 U.S.C.

§ 1735(b); see generally Passamaquoddy Tribe v. State of

Maine, 75 F.3d at 787. The “Settlement Act . . . submitted

the Passamaquoddies, Penobscots, and the tribal lands to

the State’s jurisdiction,” and “gave the State a measure of

security against future federal incursions upon these

hard-won gains.”! Passamaquoddy Tribe v. State of Maine,

75 F.3d at 787; see Akins v. Penobscot Nation, 130 F.3d 482,

484-85 (1st Cir. 1997) (nation is subject to the laws of

Maine with very limited exceptions); Penobscot Nation v.

Stilphen, 461 A.2d at 482 (“internal tribal matter” is a

“narrow sphere”); see also Penobscot Nation v. Fellencer, 164

F.3d 706, 708 (1st Cir.), cert. denied, 527 U.S. 1022 (1999).

Il. HISTORY OF THIS LITIGATION.

The present petition has been submitted in the con-

text of an effort by the Maine Tribes to assert environ-

mental regulatory authority, both inside and outside of

their territories. In particular, the State of Maine has

requested from the federal Environmental Protection —

Agency (“EPA”) permitting authority under the National

? At the time the Federal Settlement Act was considered by

Congress, the Secretary of the Interior understood that the

settlement was intended “to effectuate the broad assumption of

jurisdiction over Indian lands by the State of Maine.” Proposed

Settlement of Indian Claims: Hearings before the Select Committee on

| Indian Affairs, 96th Cong. Vol. I at 101 (Letter, Interior Secretary

Andrus to Senator Melcher, Chairman, August 8, 1980).

Pollutant Discharge Elimination System (“NPDES”) pro-

gram for the entire state. The EPA is the federal entity

that has the power to delegate NPDES authority to a

state. 33 U.S.C. § 1342. The Maine Tribes and the federal

Department of the Interior, however, have opposed that

delegation, suggesting that general trust considerations

require that the Tribes, either directly or indirectly, have

environmental regulatory authority regarding their terri-

tory as well as watersheds affecting them.” Indeed, the

Penobscot Nation presented to the EPA a list of numerous

off-reservation facilities the Tribe could control if NPDES

authority over Indian territory is carved out for the

Tribes.

EPA has issued a partial decision delegating to Maine

permitting authority over all parts of the State except for

“Indian Country.” 66 F.R. 12791 (February 28, 2001). A

decision on the status of Indian Country was, and

remains, delayed pending an opinion from the Depart-

ment of Justice. Id. at 12792-93.

During the NPDES decision-making process, Great

Northern Paper, Inc. and other private non-Indian parties

(the Respondent-Companies) and the State of Maine dis-

covered “Tribal Environmental Agreements” between the

EPA and the Maine Tribes. The EPA confirmed that the

2 The Tribes, the Department of Interior, and the State of

Maine disagree on, inter alia, the boundaries of the Indian

reservations in Maine as well as the nature of the trust

relationship between the federal government and the Maine

Tribes under the Settlement and Implementing Acts.

3 It is likely that-any final decision by the EPA will be

appealed to the courts.

aaa a

State had never been apprised of such agreements and had

no input into them. The Agreements appear to attempt to

| resolve many of the underlying issues of trust respon-

| sibility and tribal sovereignty in a manner with which the

| State of Maine disagrees. Contained in the Agreements is a

“confidentiality” provision requiring the parties, including

the EPA, to treat all communications as confidential and to

use their best efforts not to reveal them.

| This discovery prompted the Respondent-Companies

to serve a Freedom of Access request under Maine law

seeking various documents from the Tribes regarding

| their environmental efforts. The Maine Freedom of

Access Act has a variety of components, including access

to documents and open meetings. 1 Me.Rev.Stat.Ann.

§§ 401, et seq. Neither the Federal Settlement Act, the

State Implementing Act, nor the Maine Freedom of

Access Act specifically addresses the applicability of the

Freedom of Access Act to the Tribes. The Tribes

responded to the request-by asserting that the Maine

Freedom of Access Act does not and cannot be applied to

them because, they claimed, the circumstances under

which the Tribes disclose documents belonging to them

involves an “internal tribal matter.” The State of Maine

did not make any request for documents from the Tribes

but did serve a Freedom of Information Act request upon

the EPA for documents relating to its relationship with

the Tribes.

The Tribes and the Respondent-Companies then each

filed suit. On May 18, 2000, the Tribes filed an action in

j the United States District Court for the District of Maine

seeking to enjoin the Respondent-Companies from using

the Maine Freedom of Access Act against the Tribes.

SN,

10

Penobscot Nation v. Georgia-Pacific Corp., 106 F.Supp.2d 81

(D.Me.), reconsideration denied, 116 F.Supp.2d 201 (D.Me.

2000), aff'd, 254 F.3d 317 (1st Cir. 2001). Four days later, on

May 22, 2000, the Respondent-Companies filed a Free-

dom of Access Act complaint pursuant to Maine law in

the Maine Superior Court. The State of Maine became an

intervenor in both the federal and state lawsuits.

On July 19, 2000, the District Court dismissed the

Tribes’ complaint under the well-pleaded complaint rule.

Penobscot Nation v. Georgia-Pacific Corp., 106 F.Supp.2d 81.

The Tribes’ motion for reconsideration was also denied

by the District Court. Penobscot Nation v. Georgia-Pacific

Corp., 116 F.Supp.2d 201. The Tribes filed a timely appeal

of that decision to the Court of Appeals for the First

Circuit.

On September 18, 2000, after the United States Dis-

trict Court had dismissed the Tribes’ federal complaint,

Justice Robert E. Crowley of the Maine Superior Court,

following full briefing and argument, found that the

Tribes may be subject to the public records provisions of

the Maine Freedom of Access Act and that the particular

documents sought by the Respondent-Companies did not

involve or implicate any “internal tribal matter” within

the meaning of 30 Me.Rev.Stat.Ann. § 6206(1). (Pet. App.

at 67-76). The court required the Tribes “to turn over all

non-privileged documents as well as logs of all docu-

ments claimed to be privileged no later than 14 days from

the date of this Order.” (Pet. App. at 76).

The Tribes, however, failed and refused to comply

with the order in any way and did not appeal it prior to

the expiration of the 14-day period. The Respondent-

11

Companies then moved for the entry of final judgment

and for contempt. The State, as an intervenor, took no

position on the contempt motion. Final judgment was

entered by the court. An evidentiary hearing on the

motion for contempt was scheduled for November 9,

2000. The Superior Court, however, indicated that all

proceedings related to that motion would:be stayed if the

Tribes appealed to the Maine Law Court.

On October 31, 2000, the Tribes and their leaders filed

another complaint in the United States District Court, this

time against Justice Crowley seeking to enjoin him “from

in any way compelling the Tribes to submit to” the Maine

Freedom of Access Act. Penobscot Nation v. Crowley,

U.S.D.C. No. CV-00-222. The District Court (Carter, J.)

denied the Tribes’ request for relief, and shortly thereaf-

ter, the Tribes dismissed the action without prejudice.

On November 9, 2000, a contempt hearing was held

before Justice Crowley. The Tribes had made no effort to

comply with the court’s order of September 19, 2000 and

had not filed an appeal to the Maine Law Court, giving

no indication that they would do so. Following an evi-

dentiary hearing, the Superior Court found the Tribes and

their leaders in contempt and ordered coercive imprison-

ment and fines, all of which the Superior Court agreed to

stay during any appeal to the Maine Law Court.

Finally, the Tribes filed a timely appeal to the Maine

Law Court. Following oral argument and full briefing, the

Maine Law Court issued its Decision on May 1, 2001 (Pet.

App. at 1). The court found that the Federal Settlement

Act, the State Implementing Act, and the Maine Freedom

of Access Act, did not provide specific language dealing

12

with the applicability of the Freedom of Access Act to the

Tribes. The court therefore looked to the legislative his-

tory of the Federal Settlement and State Implementing

Acts, and recent explications of the meaning of the phrase

“internal tribal matters” by the First Circuit in Akins v.

Penobscot Nation, 130 F.3d 482 (1st Cir. 1997) and Penobscot

Nation v. Fellencer, 164 F.3d 706 (1st Cir.), cert. denied, 527

U.S. 1022 (1999).

The court applied the analysis suggested by those

cases, contemplating consideration of five factors, and

concluded that in general the Maine Freedom of Access

Act “is not ordinarily applicable to the methods and

actions by which the Tribes engage in self-governance,”

and in addition would not apply where the Tribes act in

their “corporate or other nongovernmental capacities.”

(Pet. App. at 27-28). The court did not determine the “full

parameters of the instances where the [Maine Freedom of

Access] Act will not apply to the Tribes,” but did find that

“internal tribal matters” include the deliberative proc-

esses of self-governance (including internal discussions,

votes, and methods to reach decisions along with docu-

ments generated in the process) and that application of

the Freedom of Access Act to such “internal tribal affairs

would constitute an impermissible imposition of state

laws on the Tribes’ exclusive right to regulate their ‘tribal

government.’ ” (Pet. App. at 27-28).

On the other hand, the Law Court ruled that when

“decisions made in the course of tribal governance find

their way to actions and interactions with others outside -

of the Tribes . . . the Tribes will ordinarily be deemed to

have moved outside of internal tribal matters.” (Pet. App.

at 29.) The Law Court concluded further that the “effort

13

of the Tribes to obtain a position on a par with state

government regarding the regulation of water quality”

( would have a direct effect outside of the Tribes and that

| some documents related to that effort “are not internal

i tribal matters.” (Pet. App. at 29). Because the “relation-

ship between the State and the Tribes regarding the regu-

lation of water quality within the State is a matter of

legitimate interest to the citizens of Maine,” “the Tribes’

communications with the federal or state government in

the context of their water quality authority are not mat-

ters internal to the Tribes, and are subject to the public

records provisions of the Freedom of Access Act.” (Pet.

App. at 29-30). The court vacated the judgment of con-

tempt, and remanded the matter to the Superior Court for

further proceedings consistent with the opinion.

On June 20, 2001, the Court of Appeals for the First

Circuit affirmed the United States District Court decision

on res judicata grounds. Penobscot Nation v-Georgia-Pacific

Corp., 254 F.3d 317 (1st Cir. 2001). The First Circuit recog-

nized that the Maine Tribes “occupy a status, and are

subject to a legal framework, that is atypical.” Id. at 320.

That court correctly observed that “the State of Maine, as

part of the settlement, obtained legal authority over the

Tribes exceeding the usual state authority over Native

American tribes. The Tribes were for most purposes ‘sub-

ject to all the laws of the State of Maine,’” and are

generally “made subject to suit in state courts.” Id. (quot-

ing 25 U.S.C. § 1721(b)(4)). The First Circuit discussed,

without deciding, whether there was a federal claim cog-

nizable in the Settlement and Implementing Acts. Id. at

| 322-23. Because the Maine Law Court had full jurisdiction

to decide the issues raised in this litigation and did so,

a E.,

14

the Court of Appeals found it unnecessary to resolve the

federal claim question, since well-established principles

of res judicata applied. Id. at 323-24.

On remand in the state court, the Tribes have sought

a stay, which the State of Maine has supported. The

Superior Court has proposed an order staying the actual

production of documents pending consideration of this

petition by this Court, but requiring the Tribes to identify

and assemble for production and review those documents

the Law Court described as being subject to the Maine

Freedom of Access Act. -

REASONS FOR DENIAL OF THE WRIT

There is no compelling reason for the Court to review

the Maine Law Court’s decision in this case. First, the

proposed issues presented by the Petition were not

resolved by or disputed before the court below. The Law -

Court below did not mandate, and neither the Respon-

dent-Companies nor the State of Maine as intervenor

have sought, intrusion onto or into the Tribes’ reserva-

tions. In any case, the issue presented is not one of

nationwide impact. Second, there is no conflict between

the First Circuit and the Maine Law Court on the factors

to be considered in determining whether a particular

matter is an “internal tribal” one, or that the Maine State

courts have jurisdiction to resolve such issues. Indeed,

the federal and state courts are in agreement on these

issues. Finally, it remains unclear whether there is a sub-

stantial federal question here, and without a resolution of

that issue below, it is premature to grant this petition.

eee ee rrr ae

15

I. THE.COURT SHOULD DENY THE WRIT BECAUSE

THE ISSUE PETITIONERS PRESENT TO THE

COURT IS NOT PROPERLY FRAMED.

The Petitioners’ “questions presented” are couched

in terms of physical “entry into the Tribes’ reservations”

and the “public’s intrusion into the reservations.” Peti-

tion at i. The Maine Law Court’s deeision, however, is

devoid of any finding, conclusion or even hint, mandat-

ing entry into the reservations by the public. On the

contrary, the Law Court held that “the Tribes’ internal

discussions, votes, and decision making . . . are processes

entirely internal to the Tribes” and “[nJeither the State

nor the general public has the right to be involved in, or

sit in on, that internal decision-making process.” (Pet.

App. at 28). Simply put, there has been no holding by the

court below that the general public, or for that matter the

State, can intrude upon the reservation to attend tribal

functions or obtain any documents. Moreover, neither the

Respondent-Companies nor the State of Maine have

argued for such a result. The Respondent-Companies

have sought only access to the available documents, at a

location of the Tribes’ choosing. The issue proffered by

the Tribes is one that has not been raised before or

decided by the court below, and thus should not be

reviewed by this Court.

Moreover, the issue presented is not one of nation-

wide import, because it has no impact elsewhere. The

relationship between the Tribes and the State of Maine

was confirmed by Congress. See Santa Clara Pueblo v.

Martinez, 436 U.S. 49, 56 (1978) (tribal rights are subject to

the plenary authority of Congress to limit the sovereignty

and rights of the Tribe); United States v. Wheeler, 435 U.S.

16

313 (1978) (tribal sovereignty may be eliminated by stat-

ute). The meaning of the phrase “internal tribal matters”

as used in the unique Federal Settlement and State Imple-

menting Acts, and whether it applies to a document

request under Maine’s Freedom of Access Act, has no

effect outside of Maine. Compare, Department of Interior v.

—__Klamath Water Users, 532 U.S. 1 (2001) (determining Fed-

eral Freedom of Information Act’s general applicability to

tribal documents).

II. THERE IS NO CONFLICT BETWEEN THE FIRST

CIRCUIT AND THE MAINE LAW COURT.

In a series of decisions, the Court of Appeals for the"

First Circuit has provided a calculus to be used when

determining whether the “internal tribal matters” exemp-

tion applies to a particular circumstance. That court sug-

gests consideration of such factors as: (1) whether only

tribal matters are regulated; (2) whether only tribal lands

are at issue; (3) whether only the tribes’ ability to regulate

its natural resources is involved; (4) whether the interests

of the State of Maine are implicated or impaired; and (5)

consistency with prior legal understandings. Penobscot

Nation v. Fellencer, 164 F.3d at 709; Akins v. Penobscot

Nation, 130 F.3d at 486-87. The Petitioners specifically

urged the Maine Law Court to apply those factors, and

that court did so. (Pet. App. at 88).

In applying the Akins/Fellencer factors, the Maine Law

Court struck the appropriate balance by recognizing that

the Maine Tribes may act “internally” as Tribes and may

“alse exercise governmental power more broadly by affect-

ing non-tribal members. When the Tribes act internally as

17

Indian Tribes, the Maine Freedom of Access Act has no

application. When, however, the Tribes interact with non-

tribal members or entities, they are subject to the obliga-

tions and duties of a municipality in Maine, including, in

limited circumstances, certain requirements of the Maine

Freedom of Access Act. This very balance is precisely

what makes the jurisdictional relationship between the

Maine Tribes and the State of Maine so unique and “origi-

nal.” And that balance is precisely what was contem-

plated by the historic Federal Settlement and State

Implementing Acts.

The First Circuit and the Maine Law Court agree that

the Maine Law Court has the jurisdiction, under the clear

language of the Federal Settlement and State Implement-

ing Acts, to interpret those Acts and, specifically, to

resolve the issues raised in this litigation. Penobscot

Nation v. Georgia-Pacific Corp., 254 F.3d at 320; Great North-

ern Paper, Inc. v. Penobscot Nation, at Pet. App. at 6, n.3.

The First Circuit applied res judicata principles acknowl-

edging the Law Court’s jurisdiction to decide the case. In

short, there is no conflict.

III. THE DOUBT AS TO WHETHER A SUBSTANTIAL

FEDERAL QUESTION IS INVOLVED HERE SUP-

PORTS DENIAL OF THE PETITION.

Previously, this Court has dismissed a petition for

writ of certiorari relating to the interpretation of the

Maine Implementing Act for want-of a substantial federal

question. Penobscot Nation v. Stilphen, 461 A.2d 478 (Me.)

(McKusick, C.J.), appeal dismissed for want of substantial

federal question, 464 U.S. 923 (1983). On the precise issue

18

of whether the “internal tribal matter” exception applies

in this particular situation, the First Circuit itself has

raised doubts as to whether a federal question or claim is

involved. Penobscot Nation v. Georgia-Pacific Corp., 254 F.3d

at 321-23. This cteates yet another cloud on the presenta-

tion of this case, supporting denial of the writ.

¢

CONCLUSION

For the reasons discussed above, the Petition for Writ

of Certiorari should be denied.

Respectfully submitted,

G. STEVEN ROowE

Attorney General

PAuL STERN

Deputy Attorney General

WILLIAM R. STOKES

Deputy Attorney General

(Counsel of Record) °

Six State House Station

Augusta, Maine 04333-0006

Tel. (207) 626-8800

App. 1

MAINE FREEDOM OF ACCESS LAW

1 Me. Rev. Stat. Ann. §§ 401 & 408

§ 401. Declaration of public policy; rules of construction

The Legislature finds and declares that public pro- .

ceedings exist to aid in the conduct of the people’s busi-

ness. It is the intent of the Legislature that their actions be

taken openly and that the records of their actions be open

to public inspection and their deliberations be conducted

openly. It is further the intent of the Legislature that

clandestine meetings, conferences or meetings held on

private property without proper notice and ample oppor-

tunity for attendance by the public not be used to defeat

the purposes of this subchapter.

This subchapter shall be liberally construed and

applied to promote its underlying purposes and policies

as contained in the declaration of legislative intent.

§ 408. Public records available for public inspection \

Except as otherwise provided by statute, every per-

son shall have the right to inspect and copy any public

record during the regular business hours of the custodian

or location of such record; provided that, whenever

inspection cannot be accomplished without translation of

mechanical or electronic data compilations into some

other form, the person desiring inspection may be

required to pay the State in advance the cost of transla-

tion and both translation and inspection may be sched-

uled to occur at such time as.will not delay or

inconvenience the regular activities of the agency or offi-

cial having custody of the record sought and provided

App. 2

further that the cost of copying any public record to

comply with this section shall be paid by the person

requesting the copy.

STATE IMPLEMENTING ACT

\

30 Me. Rev. Stat. Ann. § 6202

§ 6202. Legislative findings and declaration of policy

The Legislature finds and declares the following.

The Passamaquoddy Tribe, the Penobscot Nation and

the Houlton Band of Maliseet Indians are asserting claims

for possession of large areas of land in the State and for

damages alleging that the lands in question originally

were transferred in violation of the Indian Trade and

Intercourse Act of 1790, 1 Stat. 137, or subsequent reen-

actments or versions thereof.

Substantial economic and social hardship could be

created for large numbers of landowners, citizens and

communities in the State, and therefore to the State as a

whole, if these claims are not resolved promptly.

The claims also have produced disagreement

between the Indian claimants and the State over the

extent of the state’s jurisdiction in the claimed areas. This

disagreement has resulted in litigation and, if the claims

are not resolved, further litigation on jurisdictional issues

would be likely.

The Indian claimants and the State, acting through

the Attorney General, have reached certain agreements

which represent a good faith effort on the part of all

parties to achieve a fair and just resolution of those

App. 3 S

claims which, in the absence of agreement, would be

pursued through the courts for many years to the ulti-

mate detriment of the State and all its citizens, including

the Indians.

The foregoing agreement between the Indian

claimants and the State also represents a good faith effort

by the Indian claimants and the State to achieve a just

and fair resolution of their disagreement over jurisdiction

on the present Passamaquoddy and Penobscot Indian

reservations and in the claimed areas. To that end, the

Passamaquoddy Tribe and the Penobscot Nation have

agreed to adopt the laws of the State as their own to the

extent provided in this Act. The Houlton Band of Mal-

iseet Indians and its lands will be wholly subject to the

laws of the State.

30 Me. Rev. Stat. Ann. § 6204

§ 6204. Laws of the State to apply to Indian Lands

Except as otherwise provided in this Act, all Indians,

Indian nations, and tribes and bands of Indians in the

State and any lands or other natural resources owned by

them, held in trust for them by the United States or by

any other person or entity shall be subject to the laws of

the State and to the civil and criminal jurisdiction of the

courts of the State to the same extent as any other person

or lands or other natural resources therein.

\

30 Me. Rev. Stat. Ann. § 6206(1) & (2)

§ 6206. Powers and duties of the Indian tribes within

their respective Indian territories

App. 4

1. General Powers. Except as otherwise provided in

this Act, the Passamaquoddy Tribe and the Penobscot

Nation, within their respective Indian territories, shall

have, exercise and enjoy all the rights, privileges, powers

and immunities, including, but without limitation, the

power to enact ordinances and collect taxes, and shall be

subject to all the duties, obligations, liabilities and limita-

tions of a municipality of and subject to the laws of the

State, provided, however, that internal tribal matters,

including membership in the respective tribe or nation,

the right to reside within the respective Indian territories,

tribal organization, tribal government, tribal elections

and the use or disposition of settlement fund income

shall not be subject to regulation by the State. The Pas-

samaquoddy Tribe and the Penobscot Nation shall desig-

nate such officers and officials as are necessary to

implement and administer those laws of the State appli-

cable to the respective Indian territories and the residents

thereof. Any resident of the Passamaquoddy Indian terri-

tory or the Penobscot Indian territory who is not a mem-

ber of the respective tribe or nation nonetheless shall be

equally entitled to receive any municipal or govern-

mental services provided by the respective tribe or nation

or by the State, except those.services which are provided

exclusively to members of the respective tribe or nation

pursuant to state or federal law, and shall be entitled to

vote in national, state and county elections in the same

manner as any tribal member residing within Indian ter-

ritory.

2. Power to sue and be sued. The Passamaquoddy

Tribe, the Penobscot Nation and their members may sue

and be sued in the courts of the State to the same extent

App. 5

as any other entity or person in the State provided, how-

ever, that the respective tribe or nation and its officers

and employees shall be immune from suit when the

respective tribe or nation is acting in its governmental

capacity to the same extent as any municipality or like

officers or employees thereof within the State.

MAINE INDIAN CLAIMS SETTLEMENT ACT OF 1980

25 U.S.C. § 1721(a)(9) & (b)(3)

§ 1721. Congressional findings and declaration of policy

(a) Findings and declarations

Congress hereby finds and declares that:

(9) Since 1820, the State of Maine has provided special

services to the Indians residing within its borders, includ-

ing the members-of the Passamaquoddy Tribe, the

Penobscot Nation, and the Houlton Band of Maliseet

Indians. During this same period, the United States pro-

vided few special services to the respective tribe, nation,

or band, and repeatedly denied that it had jurisdiction

over or responsibility for the said tribe, nation, and band.

In view of this provision of special services by the State of

Maine, requiring substantial expenditures by the State of

Maine and made by the State of Maine without being

required to do so by Federal law, it is the intent of

Congress that the State of Maine not be required further

to contribute directly to this claims settlement.

App. 6

(b) Purposes

It is the purpose of this subchapter -

(3) to ratify the Maine Implementing Act, which defines

the relationship between the State of Maine and the Pas-

samaquoddy Tribe, and the Penobscot Nation...

25 U.S.C. § 1725(a), (b)(1), (d)(1) & (h)

§ 1725. State laws applicable

(a) Civil and criminal jurisdiction of the State and the

courts of the State; laws of the State

Except as provided in section 1727(e) and section

1724(d)(4) of this title, all Indians, Indian nations, or

tribes or bands of Indians in the State of Maine, other

than the Passamaquoddy Tribe, the Penobscot Nation,

and their members, and any lands or natural resources

owned by any such Indian, Indian nation, tribe or band of

Indians and any lands or natural resources held in trust

by the United States, or by any other person or entity, for

any such Indian, Indian nation, tribe, or band of Indians

shall be subject to the civil and criminal jurisdiction of the

State, the laws of the State, and the civil and criminal

jurisdiction of the courts of the State, to the same extent

as any other person or land therein.

(b) Jurisdiction of State of Maine and utilization of local

share of funds pursuant to the Maine Implement-

ing Act; Federal laws or regulations governing

App. 7

services or benefits unaffected unless expressly so

provided; report to Congress of comparative Fed-

eral and State funding for Maine and other States

(1) The Passamaquoddy Tribe, the Penobscot

Nation, and their members, and the land and natural

resources owned by, or held in trust for the benefit of the

tribe, nation, or their members, shall be subject to the

jurisdiction of the State of Maine to the extent and in the

manner provided in the Maine Implementing Act and

that Act is hereby approved, ratified, and confirmed.

(d) Capacity to sue and be sued in State of Maine and

Federal courts; section 1362 of title 28 applicable to

civil actions; immunity from suits provided in

Maine Implementing Act; assignment of quarterly

income payments from settlement fund to judg-

ment creditors for satisfaction of judgments

(1) The Passamaquoddy Tribe, the Penobscot Nation,

and the Houlton Band of Maliseet Indians, and all mem-

bers thereof, and all other Indians, Indian nations, or tribes

or bands of Indians in the State of Maine may sue and be

sued in the courts of the State of Maine and the United

Stafes to the same extent as any other entity or person

residing in the State of Maine may sue and be sued in

those courts; and section 1362 of title 28 shall be applicable

to civil actions brought by the Passamaquoddy Tribe, the

Penobscot Nation, and the Houlton Band of Maliseet

Indians: Provided, however, That the Passamaquoddy

Tribe, the Penobscot Nation, and their officers and

employees shall be immune from suit to the extent pro-

vided in the Maine Implementing Act.

App. 8

(h) General laws and regulations affecting Indians

applicable, but special laws and regulations inap-

plicable, in State of Maine

Except as other wise provided in this subchapter, the

laws and regulations of the United States which are gen-

erally applicable to Indians, Indian nations, or tribes or

bands of Indians or to lands owned by or held in trust for

Indians, Indian nations, or tribes or bands of Indians

shall be applicable in the State of Maine, except that no

law or regulation of the United States (1) which accords

or relates to a special status or right of or to any Indian,

Indian nation, tribe or band of Indians, Indian lands,

Indian reservations, Indian country, Indian territory or

land held in trust for Indians, and also (2) which affects

or preempts the civil, criminal, or regulatory jurisdiction

of the State of Maine, including, without limitation, laws

of the State relating to land use or environmental matters,

shall apply within the State.

25 U.S.C. § 1735

§ 1735. Construction

(a) Law governing; special legislation

In the event a conflict of interpretation between the

provisions of the Maine Implementing Act and this sub-

chapter should emerge, the provisions of this subchapter

shall govern.

(b) General legislation

The provisions of any Federal law enacted after Octo-

ber 10, 1980, for the benefit of Indians, Indian nations, or

App. 9

tribes or bands of Indians, which would affect or preempt

the application of the laws of the State of Maine, includ-

ing application of the laws of the State to lands owned by

or held in trust for Indians, or Indian nations, tribes, or

bands of Indians, as provided in this subchapter and the

Maine Implementing Act, shall not apply within the State

_ of Maine, unless such provision of such subsequently

enacted Federal law is specifically made applicable

within the State of Maine.