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Great Northern paper v. Penobscot Nation, part 2

	[¶30]  The state, in turn, gained closure on the Indian land claims that
threatened title to vast areas of the state.  The state also retained and
clarified its authority to regulate Indian affairs in Maine.{11}  In the end, the
settlement acts extinguished the Tribes' claims to nearly two-thirds of the
land area of the state and "achieved a certain sharing of authority with [the
Tribes]."  Accord Akins, 130 F.3d at 484; 25 U.S.C.A. § 1730 (West 1983).
	[¶31]  The description of the state's authority and the delineation of
the lines for shared authority was central to the settlement.  In order to
accommodate the state's resistance to the creation of a "nation within a
nation," the model chosen for the sharing of authority between the
individual tribes and the state was a municipal model.  See 25 U.S.C.A.
§ 1721(b)(3) (West 1983); 30 M.R.S.A. § 6206(1).  This model created a
framework to which all involved could look for resolution of any lingering
jurisdictional disputes.  Because the state's relationship with its
municipalities was understood by the framers of the settlement, the model
provided a measure of certainty about future relations not otherwise existing. 
Moreover, because the state's authority over municipal matters was well
established, those members of state government who had been resistent to a
compromise were reassured by the language of the Maine Implementing Act
establishing the state's authority to enforce its laws throughout the state. 
See 30 M.R.S.A. § 6204 (1996).
	[¶32]  Both parties understood the general ramifications of the
adoption of the municipal model.  As Attorney General Cohen put it, "Let
there be no mistake . . . .  This proposed Settlement does not create any
nation within a nation."{12}
	[¶33]  This aspect of the settlement, however, was not without its
opponents.  Members of the Tribes who had voted against the agreement in
tribal proceedings spoke in opposition to the loss of tribal jurisdiction at the
hearing before the Joint Select Committee of the Maine Legislature on
Indian Land Claims.  See Memorandum from the Indian Law Resource
Center (Mar. 13, 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) (opposing the passage of the
Implementing Act because the passage of that Act would "virtually terminate
the sovereignty of the [Tribes]").  
	[¶34]  Nonetheless, on behalf of the Tribes, Thomas Tureen, their
attorney, acknowledged the significance of the settlement's jurisdictional
compromise.  After noting that the Tribes had in recent years been
"uniformly successful" in repelling state jurisdiction in many matters
relating to Indians, he noted, "In light of all this, one might ask why the
Indians were willing to even discuss the question of jurisdiction with the
State but simply the answer is that they were obliged to do so if they wanted
to effectuate the Settlement of the monetary and land aspects of the claim
which they had already worked out with the Carter Administration."{13}
	[¶35]  Thus, one of the most significant aspects of the settlement
agreement was the Tribes' acquiescence in the assertion of the state's
jurisdiction over the Tribes.  Because tribal sovereignty exists at the
sufferance of Congress, Santa Clara Pueblo v. Martinez, 436 U.S. 49, 56
(1978), that acquiescence could not be enacted into Maine law without
Congressional approval.{14}  The necessary Congressional approval is set out in
no uncertain terms in the Settlement Act:
The Passamaquoddy Tribe, the Penobscot Nation, and 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.
25 U.S.C.A. § 1725(b)(1) (West 1983).  The Maine Implementing Act in turn
limits tribal authority such that the Tribes shall be subject to "all the duties,
obligations, liabilities and limitations of a municipality of and subject to the
laws of the State."  30 M.R.S.A. § 6206(1).{15}
	[¶36]  In the end, the compromises expressed in the settlement acts
established substantial limitations on the sovereignty of Maine's Indian
Tribes.  The  settlement acts, taken together, memorialized the Tribes' 
agreement to that result and gave Congress's imprimatur to a future in
which the Tribes gained clarity of their official status in the eyes of the
federal government, while at the same time, the state obtained clarity of its
jurisdiction over the Tribes, thus significantly limiting the Tribes'
sovereignty in their interactions with the State of Maine.
	[¶37]  The analysis cannot end there, however, because the settlement
acts did not simply transform the Tribes into municipalities for all purposes.
Rather, the Acts framed jurisdictional issues around a municipal model. 
That model contained several exceptions, creating distinctions from
ordinary municipal law.  The Acts also precluded the state's exercise of
jurisdiction in certain limited but important areas.  Those exceptions and
limitations on the state's authority are critical to our analysis.
B.  The Parameters of the Municipal Model

	[¶38]  Because the Tribes agreed to be treated as municipalities for
purposes of defining their relationship with the State of Maine, state laws
that apply to municipalities also routinely apply to the Tribes.  For example,
similar to any municipality, the Tribes do not have absolute sovereign
immunity against law suits.  See 25 U.S.C.A. § 1725(d)(1) (West 1983).  As
with other cities and towns, however, the Tribes are entitled to qualified
immunity from suits in state and federal courts.  See 30 M.R.S.A. § 6206(2)
(establishing a Tribe's qualified immunity when "acting in its governmental
capacity to the same extent as any municipality"); Couturier v. Penobscot
Indian Nation, 544 A.2d 306, 307 (Me. 1988).  The Implementing Act
provided the Tribes broad ordinance powers pursuant to a municipality's
home rule authority.  See 30 M.R.S.A. § 6206(1).  Properties used by Tribes
for "governmental purposes" are exempt from taxation by the state to the
same extent provided for any such properties owned by municipalities.  Id.
§ 6208(2) (1996).  Regarding financial aid, not only are the Tribes "eligible
to receive all of the financial benefits which the United States provides to
Indians," 25 U.S.C.A. § 1725(i) (West 1983 & Supp. 2000), but they are also
eligible to receive financial assistance from the state as a municipality of the
state, 30 M.R.S.A. § 6211(1) (1996).
	[¶39]  At the same time, however, exceptions to the municipal model
were clearly anticipated by both parties.  Some exceptions are set out
without ambiguity.  For example, in contrast to municipalities, the Tribes
have retained exclusive jurisdiction over certain juvenile, civil, criminal, and
domestic relations matters.  30 M.R.S.A. §§ 6209-A, 6209-B (1996 & Supp.
2000); 25 U.S.C.A. § 1727 (West 1983) (granting tribal courts exclusive
jurisdiction over Indian child custody proceedings pursuant to Indian Child
Welfare Act of 1978).  Judgments from those proceedings are granted full
faith and credit, 25 U.S.C.A. § 1725(g) (West 1983), and are not subject to
principles of double jeopardy in state courts.  See State v. Mitchell, 1998
ME 128, ¶ 6, 712 A.2d 1033, 1034.  The Tribes have the exclusive power to
regulate certain aspects of the fishing and wildlife resources within their
territories, 30 M.R.S.A. § 6207(1) (1996), a power not delegated to
municipalities.  The Tribes also have the power to create tribal school
committees, distinct from the committees established by the laws of Maine,
30 M.R.S.A. § 6214 (1996), but regulated in a similar fashion.
	[¶40]  Other exceptions to the municipal model recognize that the
Tribes may take on roles that are distinct from municipal or governmental
roles.  In courts, the Tribes may generally sue and be sued to the same
extent as "any other entity or person."  30 M.R.S.A. § 6206(2).  When a
Tribe acts in its business capacity, rather than in its governmental capacity,
it is deemed to be a "business corporation organized under the laws of the
State."  Id. § 6208(3) (1996).  When acting in its "business capacity as
distinguished from its governmental capacity," a Tribe is taxed to the same
extent as any other corporation.  Id.; cf. Couturier, 544 A.2d at 309 n.6
(explaining that the Maine Tort Claims Act, which ordinarily applies to
municipalities, does not apply to the Tribes when acting in their business
capacities).  With regard to the federal government, the Tribes are
recognized as sovereign "Indian tribes" entitled to receive federal funding
available to other such tribes, but not subject to the full measure of control
Congress has generally exercised over similar Indian tribes.  See 25 U.S.C.A.
§ 1725; cf. Akins, 130 F.3d at 489-90; Passamaquoddy Tribe, 75 F.3d at
794.
	[¶41]  Thus, depending on the circumstances and activity engaged in
by a Tribe, it may be recognized as a sovereign nation, a person or other
entity, a business corporation, or a municipal government.  See, e.g.,
19-A M.R.S.A. § 2802(19) (1998 & Supp. 2000) (defining a Tribe as a
sovereign "state" for purposes of the Uniform Interstate Family Support
Act); 17 M.R.S.A. § 314-A (Supp. 2000) (granting the Tribes the right to
obtain licenses to operate high-stakes beano).  Designation of the capacity in
which the Tribes act is, therefore, a necessary first step in the
determination of the laws applicable to those actions.
	[¶42]  Accordingly, when it is asserted that a state law is applicable to
the Tribes, our analysis proceeds as follows:  (1) to what entities does the
statute at issue apply; (2) are the Tribes acting in the capacity of such
entities; (3) if so, does the Maine Implementing Act expressly prohibit the
application of the statute to the Tribes generally; (4) if not, does the Maine
Implementing Act prohibit or limit the application of the statute in the
circumstances before the court.  Here, the paper companies have asserted
that the Freedom of Access Act is fully applicable to the Tribes.  We turn
then to our first enquiry:  to what entities does the Freedom of Access apply.

C.  The Maine Freedom of Access Act

	[¶43]  By enacting the Freedom of Access Act, the Legislature has
declared that "public proceedings exist to aid in the conduct of the people's
business.  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."  1 M.R.S.A. § 401 (1989).  The
provisions of the Act apply to all "public proceedings."  Id.  Public
proceedings are defined for purposes of our analysis as "the transactions of
any functions affecting any or all citizens of the State by . . . [a] municipality." 
Id. § 402(2)(C) (1989 & Supp. 2000).  The Freedom of Access Act does not
create any exceptions to the application of the Act to the Tribes.
	[¶44]  Preliminarily, therefore, we must determine whether the
Tribes are acting in their municipal capacities in the matter before us.  We
conclude that they are.  The information sought by the paper companies
relates to the Tribes' interactions, or "transaction[s]," with the federal
government regarding the regulation of water quality within or adjacent to
their territories.  See id. § 402(3).  Through their communications with the
federal government, the Tribes have sought, inter alia, an approval to be
treated like a "state," thus excluding the State of Maine from exercising
authority over those portions of the rivers that are within or adjacent to
their lands.  See 33 U.S.C.A. § 1377(e).  They do so not as businesses or
individuals, but in their capacities as the governments of Indian territories
in Maine.  Cf. Indian Township Passamaquoddy Reservation Hous. Auth., 495
A.2d at 1191-92.  In doing so, the Tribes are unquestionably acting in their
governmental capacities.  The Maine Implementing Act defines their
governmental status with regard to the State of Maine as a municipality. 
30 M.R.S.A. § 6206(1).{16}  The Tribes are therefore subject, in this context,
to state laws affecting municipal governments.  See Couturier, 544 A.2d at
308 (holding that the Maine Tort Claims Act, from which municipalities
derive their immunity, applies to the Tribes when acting in their
governmental capacity).
	[¶45]  Because the Freedom of Access Act applies to municipal
governments and because the Tribes are acting in their municipal capacity,
we must next determine whether any provision of the Maine Implementing
Act prohibits or limits the application of the Freedom of Access Act to the
Tribes generally or as applied to this case.
	[¶46]  The Tribes argue that the internal tribal matters exception
flatly prohibits any application of the Freedom of Access Act to the Tribes. 
See 30 M.R.S.A. § 6206(1).  Specifically, the Tribes assert that because the
Act would regulate "tribal government," its application is prohibited by the
exception for "internal tribal matters," defined to include tribal
government.  See id.  There is no question that the state may not interfere
with internal tribal matters.  Id.  The question is whether the application of
the Freedom of Access Act would always interfere with internal tribal
matters.
	[¶47]  Generally, the Act affects two areas of government action.  First,
it requires that public proceedings be open to the public. 1 M.R.S.A. § 403
(1989).  Second, it requires that the public be given access to all public
records.  Id. § 408 (1989).{17}  The paper companies have sought access not
only to documents generated by the Tribes as a result of the decisions or
actions of tribal government, but also to the minutes of the Tribes' meetings
or hearings.  See id. §§ 402, 403.  Thus, both aspects of the Act are
implicated here.
	[¶48]  Whether either aspect of the Freedom of Access Act would
reach into internal tribal matters requires an understanding of that term.  
Fellencer, 164 F.3d at 709.  "Internal tribal matters" is not defined in the
Implementing Act, but includes "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."  30 M.R.S.A. § 6206(1) (emphasis added).  The
Committee Report accompanying the bill "To Provide for the Settlement of
Land Claims of Indians, Indian Nations and Tribes and Bands of Indians in
the State of Maine" described this aspect of the compromise as follows:
Prior to the settlement, the State passed laws governing the
internal affairs of the Passamaquoddy Tribe and the Penobscot
Nation, and claimed the power to change these laws or even
terminate these tribes. . . .  While the settlement represents a
compromise in which state authority is extended over Indian
territory to the extent provided in the Maine Implementing
Act . . . the settlement provides that henceforth the Tribes
will be free from state interference in the exercise of their
internal affairs.
H.R. Rep. No. 96-1353 (1980); cf. 22 M.R.S.A. §§ 4701-4836 (dictating the
rules and regulations that apply to the Tribes) (repealed in substantial part
by Maine Implementing Act, P.L. 1979, ch. 732).
	[¶49]  Because the Implementing Act does not define internal tribal
matters, giving definition to the term has necessarily fallen to the courts.  It
has proven to be a complex task.  The First Circuit in Akins has suggested
several factors for consideration in determining whether a disputed issue
relates to an "internal tribal matter."  Akins, 130 F.3d at 486-87.  While
these factors are neither exclusive nor dispositive, they provide a common
sense framework for addressing this murky area, referred to by the Akins
court as "treacherous," in which the state's authority over the Tribes may be
curtailed.  Id. at 487.  Those factors include: (1) the effect on nontribal
members, (2) & (3) the subject matter of the dispute, particularly when
related to Indian lands or the harvesting of natural resources on Indian
lands, (4) the interests of the State of Maine, and (5) prior legal
understandings.  Id. at 486-87.
	[¶50]  Applying the Akins factors, we conclude that a Tribe's own
methods of convening and engaging in government will in most instances be
matters "internal" to the Tribe.  See id. at 487-88, 490 (concluding that the
regulation of stumpage permits was an "internal tribal matter" where policy
only dealt with tribal members and natural resources within tribal
territories).  The methods by which the Tribes govern themselves are not
matters of interest to the citizenry of the state at large.  Tribal government
will ordinarily be focused on Indian territory, tribal resources, and members
of the Tribe.  Moreover, treating the processes of tribal government as free
from state interference is entirely consistent with the intent of the
settlement acts.  See id. at 488-89; see also 30 M.R.S.A. § 6206(1);
Fellencer, 164 F.3d at 709-10, 713.
	[¶51]  We need not determine the full parameters of the instances
where the Act will not apply to the Tribes.  It will suffice to conclude that
the Freedom of Access Act is not ordinarily applicable to the methods and
actions by which the Tribes engage in self governance.{18}  This conclusion is
consistent with the House and Senate committee reports which indicated
Congress's understanding that, pursuant to the internal tribal matters
exception, the Tribes "may exclude non-Indians from tribal decision-making
processes."  S. Rep. No. 96-957, at 15 (1980); H.R. Rep. No. 96-1353 (1980).
	[¶52]  Thus, when the Tribes undertake the deliberative processes of
self-governance, they are, in most instances, engaged in matters that are
"internal tribal matters."  See Stilphen, 461 A.2d at 489-90.  The
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."  30 M.R.S.A. § 6206(1).
	[¶53]  In the context of this case, the Tribes' internal discussions,
votes, and decision-making as to whether they would petition the federal
government, and if so, in what manner and to what extent, are processes
entirely internal to the Tribes.  Neither the state nor the general public has
a right to be involved in, or sit in on, that internal decision-making process. 
Similarly, the methods used to reach the decisions, along with the
documents generated in the process, were within the Tribes' authority to
create, without interference from the state or the public.
	[¶54]  It is not until the decisions made in the course of tribal
governance find their way to actions and interactions with others outside of
the Tribes that the Tribes will ordinarily be deemed to have moved outside
of internal tribal matters.{19}  Cf. id. § 6210(3) (1996).  When 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."  See
Stilphen, 461 A.2d at 488-90.
	[¶55]  We conclude that the effort of the Tribes to obtain a position on
a par with state government regarding the regulation of water quality is such
an instance.  The Maine Implementing Act makes state laws regarding
natural resources generally applicable to tribal lands. 30 M.R.S.A. § 6204. 
The Tribes' efforts would, in many aspects, have a direct effect upon
members of the public outside the borders of tribal lands and upon the
Tribes' relationships with the state, see 33 U.S.C.A. 1377(e), could limit the
state's authority, and could affect the state's relationship with federal
agencies.  The relationship between the state and the Tribes regarding the
regulation of water quality within the state is a matter of the legitimate
interest of the citizens of this state.  Thus, the Tribes' communications with
the federal government or the state in the context of their water quality
authority are not matters "internal" to the Tribes, and are subject to the
public records provisions of the Freedom of Access Act.  See 1 M.R.S.A.
§ 402(3).{20}
	[¶56]  In sum, because the decisions reached by the Tribes have
resulted in actions of a governmental nature that may have a meaningful
effect on members of the public who are not members of the Tribes, the
provisions of the Freedom of Access Act apply to those actions.  See
Stilphen, 461 A.2d at 480, 490 (holding that operation of beano games,
open to the general public and drawing "hundreds of players [to the Tribe]
from all over Maine and beyond," was not an internal tribal matter).  Thus,
when the Tribes communicate with the state or federal government, file
documents relating to the dispute of authority at issue, and provide the
other governments with information regarding their requests, they are not
engaged in "internal tribal matters."  See 30 M.R.S.A. § 6206(1).
	[¶57]  The paper companies, however, have not limited their
document requests to the Tribes' communications with other governmental
entities.  They also seek minutes of tribal council meetings in which any
discussion of options or proposals regarding governance of water quality
occurred.  As we concluded above, although the Tribes' interactions with the
state and federal government in this instance do not fall within the
exception for internal tribal matters, the council meetings and internal
decision-making processes of the Tribes do.  See id.

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