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Great Northern Paper v. Penobscot Nation: part 3, attorneys and footnotes

III. CONCLUSION
	[¶58]  With the enactment of the Act to Implement the Maine Indian
Claims Settlement and the ratification of that Act by Congress, Maine's
Indian Tribes agreed to significant limitations on their sovereignty, and
agreed to be treated within the State of Maine, not as separate sovereigns,
but, generally, as municipalities subject to the laws of Maine.  The Tribes
accepted those limitations in exchange for assets totalling approximately
$81.5 million.
	[¶59]  The Freedom of Access Act applies to all of Maine's
municipalities.  When the Tribes act in their municipal capacity, they are
subject to Maine's laws applicable to municipal governments.  No explicit
exception to the Act's application to the Tribes is found in the settlement
acts or the Freedom of Access Act itself.
	[¶60]  The Tribes are distinct from municipalities, however, in that
when they are engaged in internal tribal matters, state laws cannot be
imposed on them.  Tribes are ordinarily acting with regard to internal tribal
matters when they are engaged in the deliberative processes of self-
government.  They are not engaged in internal tribal matters when they
interact with federal and state governments in efforts to expand or clarify
their authority within the framework of the state's competing authority. 
Thus, in the context of the matter before us, the Freedom of Access Act
does not apply to the Tribes in the internal conduct of their governments,
but does apply when the Tribes communicate and interact with other
governments.
	[¶61]  Accordingly, the Superior Court did not err in requiring the
Tribes to turn over copies of their correspondence or documents exchanged
with the state or federal government that relate to their efforts to obtain
federal recognition as a "state" in water quality matters.  We therefore affirm
the court's judgment requiring the Tribes to turn over the following: any
communications and documents provided to the state or federal
government, or documents received from the state or federal government
related to:
1. efforts by the Tribes to obtain "treatment as a State" status
pursuant to section 518 of the Clean Water Act, 33 U.S.C.
§ 1377(e);

2. efforts by the Tribes to have the U.S. Environmental
Protection Agency adopt water quality standards different
from those of the State of Maine for any waters located in the
State of Maine; and

3. any agreements with federal government agencies that relate
to the protection or study of water or other natural resources.
	[¶62]  Because the Freedom of Access Act does not apply to the
Tribes' internal governmental proceedings, we vacate the judgment to the
extent that it required the Tribes to turn over (1) notices of or agenda from
any tribal council meetings; (2) notes taken at any tribal council meetings;
or (3) minutes of any tribal council meetings.
	[¶63]  To the extent that any documents sought by the paper
companies have not been identified here, the court is authorized on remand
to enter any judgment necessary to clarify the Tribes' responsibility under
the Freedom of Access Act, consistent with this opinion.
	[¶64]  Because we have altered the class of documents which are
required to be turned over by the Tribes, we vacate the judgment of
contempt against the Tribes and remand the matter to the Superior Court
with instructions to allow the Tribes a reasonable period of time to
voluntarily comply with the court's restructured order.{21}
	The entry is:
The Superior Court's judgment, denying the Tribes'
motion to dismiss and granting the paper companies'
motion for summary judgment, is affirmed in part and
vacated in part.  The judgment of contempt is vacated. 
Remanded for further proceedings consistent with this
opinion.
Attorneys for plaintiffs:

Catherine R. Connors, Esq., (orally)
Matthew D. Manahan Esq.
Brian M. Rayback Esq.
Pierce Atwood
One Monument Square
Portland, ME 0410

Attorneys for defendants:

Kaighn Smith Jr., Esq., (orally)
Gregory W. Sample, Esq.
Drummond Woodsum & MacMahon
P O Box 9781
Portland, ME 04101
	and
Mark A. Chavaree, Esq.
Indian Island
6 River Road
Old Town, ME 04468


Attorneys for intervenor State of Maine:

G. Steven Rowe, Attorney General
William R. Stokes, Asst. Attorney General, (orally)
6 State House Station
Augusta, ME 04333-0006

Attorneys for amici curiae:

Dean A. Beaupain, Esq.
4 Hill Street
Millinocket, ME 04462
	and
Loretta M. Smith, Esq.
New England Legal Foundation
150 Lincoln Street
Boston, MA 02151
(for Towns of Bucksport, Houlton, Lincoln, Millinocket,
Orono, and Patten; Houlton Water Company, Lincoln Sanitary District,
Milo Water District, Winterport Sewer District; 
Maine Chapters of the Pulp & Paperworkers Resource Council, 
Casco Bay Energy Co., LLC, and Penobscot Frozen Foods, Inc.)
FOOTNOTES******************************** {1} . According to the parties, the state's application has been granted with respect to all parts of the state except the tribal territories. The matter of regulating water treatment on tribal land is still pending with the EPA. {2} . The Maine Implementing Act was passed in 1980 and became effective later that year when Congress passed the Settlement Act. See 25 U.S.C.A. §§ 1721-1722 (West 1983) (ratifying the Maine Implementing Act, which means "section 1, section 30, and section 31, of the 'Act to Implement the Maine Indian Claims Settlement' enacted by the State of Maine in chapter 732 of the public laws of 1979"). Section 6206 of the Maine Implementing Act defines the "[p]owers and duties of the Indian tribes within their respective Indian territories" and sets forth the relationship between the Tribes and the state. 30 M.R.S.A. § 6206 (1996). {3} . Before us, the Tribes do not contend that the Superior Court lacked subject matter jurisdiction. We take judicial notice of the Tribes' action in the United States federal district court seeking to enjoin the paper companies from invoking the Freedom of Access Act against them. See Penobscot Nation v. Georgia-Pacific Corp., 116 F. Supp. 2d 201 (D. Me. 2000). {4} . The Tribes appealed the Superior Court's final judgment only "to the extent" that it denied their motion to dismiss. The court held a consolidated hearing on the Tribes' motion to dismiss and the companies' motion for summary judgment, considered the exhibits submitted by the parties, and in effect treated the Tribes' motion as a competing motion for summary judgment. We therefore review both the denial of the Tribes' motion and the grant of the companies' motion for summary judgment. {5} . The Superior Court stayed the order of contempt when the Tribes filed this appeal. {6} . On June 23, 1972, the Tribes obtained a preliminary injunction to force the federal government to file suits on their behalf. See Passamaquoddy Tribe v. Morton, 388 F. Supp. 649, 654 (D. Me. 1975). On June 29, 1972, while maintaining that it was not obligated to act on behalf of the Tribes, the federal government filed two suits, United States v. Maine, Civil Nos. 1966 & 1969 N.D., against the State of Maine on behalf of the Passamaquoddy Tribe and the Penobscot Nation. Id. at 653-54, 669 n.6 (citing Letter from Acting Solicitor of the Department of the Interior, to Assistant Attorney General, Land and Natural Resources Division, Department of Justice (June 20, 1972)). Subsequently, by court's order, those suits were held in abeyance on the court's docket pending full resolution of the legal issues presented in Passamaquoddy Tribe v. Morton. Id. at 669 n.6. {7} . Similarly, in 1979, prior to the enactment of the settlement acts, the U.S. Court of Appeals for the First Circuit concluded that the Passamaquoddy Tribe was protected from suits by the common law doctrine of sovereign immunity. Bottomly v. Passamaquoddy Tribe, 599 F.2d 1061, 1066 (1st Cir. 1979) (citing United States v. Wheeler, 435 U.S. 313, 322-23 (1978)) (reasoning that the inherent powers of the Indian tribes are, in general, those of a limited sovereign, which may not be extinguished absent express Congressional intent). {8} . See, e.g., Memorandum from J.B. Willkie, Facilities Engineer, Eastern Area Office of U.S. Department of the Interior, to Eastern Area Director (June 15, 1979) in 3 Maine Joint Select Committee on Indian Land Claims, Background Information on Indian Land Claims (1980) (on file with the University of Maine School of Law library). {9} . See generally Statement of Maine Attorney General Richard S. Cohen regarding the proposed Maine Indian Land Claims Settlement (March 18, 1980) in 2 Maine Joint Select Committee on Indian Land Claims, Background Information on Indian Land Claims (1980) (on file with the University of Maine School of Law library). {10} . See Testimony of David T. Flanagan on behalf of Governor Joseph E. Brennan, Public Hearing Regarding the Maine Indian Claims Settlement (March 28, 1980) in 1 Maine Joint Select Committee on Indian Land Claims, Background Information on Indian Land Claims (1980) (on file with the University of Maine School of Law library) ("We could never have a nation within a nation in Maine. Such a result would not only be unworkable in a State our size, but it would also promote racial and ethnic hostility and resentment to the ultimate detriment of all of our people.") {11} . In designating the state as the political entity authorized to regulate the Tribes, the Settlement Act also made certain subsequently enacted federal statutes inapplicable to the Tribes, absent explicit reference to the Maine Tribes. 25 U.S.C.A. § 1735(b) (West 1983); see also Passamaquoddy Tribe v. State of Maine, 75 F.3d 784, 787 (1st Cir. 1996). {12} . Testimony of Maine Attorney General Richard S. Cohen, Public Hearing regarding the Maine Indian Claims Settlement (Mar. 28, 1980) in 1 Maine Joint Select Committee on Indian Land Claims, Background Information on Indian Land Claims (1980) (on file with the University of Maine School of Law library). {13} . Testimony of Thomas Tureen, Public Hearing regarding the Maine Indian Claims Settlement (Mar. 28, 1980) in 1 Maine Joint Select Committee on Indian Land Claims, Background Information on Indian Land Claims (1980) (on file with the University of Maine School of Law library). {14} . Tribal sovereignty is not merely subject to the control of Congress; it is subject to "complete defeasance" by federal legislation. Wheeler, 435 U.S. at 323. {15} . More broadly, the Maine Implementing Act states as a general rule that "[e]xcept as otherwise provided in this Act, all Indians, Indian nations, and tribes . . . shall be subject to the laws of the State . . . to the same extent as any other person." 30 M.R.S.A. § 6204 (1996). The "laws of the State" is defined as "the Constitution and all statutes, rules or regulations and the common law of the State and its political subdivisions." Id. § 6203(4) (1996). {16} . Consistent with this relationship, in the past, the Tribes have applied to the State of Maine Department of Environmental Protection, Bureau of Water Quality Control, as municipalities to obtain Waste Discharge Licenses. See, e.g., Municipal Application from Jerry Pardilla, Governor of Penobscot Nation, to State of Maine Department of Environmental Protection (Jan. 29, 1993). {17} . "Public record" is defined as (1) "any written, printed or graphic matter . . . from which information can be obtained," (2) "that is in the possession or custody of an agency or public official of this State or any of its political subdivisions," and (3) "has been received or prepared for use in connection with the transaction of public or governmental business or contains information relating to the transaction of public or governmental business[.]" 1 M.R.S.A. § 402(3) (1989 & Supp. 2000). {18} . The Freedom of Access Act would also not apply to the Tribes in instances where they are acting in their corporate or other nongovernmental capacities. {19} . Not all actions affecting non-Indians fall outside the definition of internal tribal matters. See, e.g., Penobscot Nation v. Fellencer, 164 F.3d 706, 710 (1st Cir. 1999) (holding that "the decision to terminate Fellencer as the community health nurse [which] affects many tribal members but only one non-tribal member" was an internal tribal matter). {20} . The Tribes do not contend that the documents that they have submitted to the federal government would not be available from the federal government pursuant to the federal Freedom of Information Act. See Dep't of the Interior v. Klamath Water Users Protective Ass'n, 121 S. Ct. 1060, 1063, 1069-70 (2001) (holding that the documents passed between Indian tribes and the Department of the Interior, which addressed "tribal interests subject to state and federal proceedings to determine water allocations," were available from the Department pursuant to the federal Freedom of Information Act and were not exempt as intra-agency memorandum or letters). See also Wiggins v. McDevitt, 473 A.2d 420 (Me. 1984). {21} . In declaring unsettled questions of law, we frequently decline as a matter of comity to summarily enjoin a coordinate branch of government. See, e.g., Littlefield v. Town of Lyman, 447 A.2d 1231, 1235 (Me. 1982). We operate on the assumption that responsible governmental officials will comply with the law once it is declared. It is appropriate for the courts of Maine to extend this same degree of deference and respect to the representatives of the Penobscot Nation and the Passamaquoddy Tribe.

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