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

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Opposition Brief
- **Published:** January 1, 2001
- **Citation:** 534 U.S. 1019

## Text

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.

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386014_2402%3A3. Public record. Not legal advice.