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Great Northern Paper v. Penobscot Nation
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MAINE SUPREME JUDICIAL COURT					Reporter of Decisions
Decision:	2001 ME 68
Docket:	Cum-00-573
Argued:	February 13, 2001
Decided:	May 1, 2001




	[¶1]  This case requires us to decide whether the Maine Freedom of
Access Act, 1 M.R.S.A. §§ 401-410 (1989 & Supp. 2000), which is ordinarily
applicable to municipalities and other components of state government, is
applicable to the Penobscot Nation and the Passamaquoddy Tribe.  We
conclude that the Act does not apply to the Tribes when they act in their
municipal capacities with respect to internal tribal matters.  We further
conclude that the Act does apply to the Tribes when they interact with
other governments or agencies in their municipal capacities.
	[¶2]  The dispute before us began when Great Northern Paper, Inc., 
Georgia-Pacific Corporation, and Champion International Corporation filed a
complaint pursuant to the Freedom of Access Act, 1 M.R.S.A. §§ 401-410,
seeking certain documents in the Tribes' possession.  Ultimately, the
Superior Court (Cumberland County, Crowley, J.) denied the Tribes' motion
to dismiss the complaint and granted the paper companies' motion for
summary judgment, thereby requiring the Tribes to turn over the
documents requested by the paper companies.  We affirm the judgment in
part and vacate in part.
	[¶3]  The facts relevant to our analysis are not disputed.  Great
Northern Paper, Inc., is a Maine corporation that owns and operates pulp
and paper mills in Millinocket and East Millinocket, both of which
discharge treated wastewater into the West Branch of the Penobscot River,
upstream of the Penobscot Indian Reservation.  Georgia-Pacific Corporation
is a Georgia corporation that owns and operates a pulp and paper mill in
Woodland, Maine, which discharges treated wastewater to the St. Croix
River, downstream of the Indian Township Reservation of the
Passamaquoddy Tribe.  The mouth of the St. Croix River is just northwest of
the Pleasant Point Reservation of the Passamaquoddy Tribe.  Champion
International Corporation owns and operates a paper mill in Bucksport,
Maine, which discharges treated wastewater into the Penobscot River,
downstream of the Penobscot Indian Reservation.  All three paper
companies have federal and state discharge licenses authorizing their
wastewater discharges.
	[¶4]  Pursuant to the National Pollutant Discharge Elimination System
program of the federal Clean Water Act, 33 U.S.C.A. §§ 1251-1387 (West
1986 & Supp. 2000), the State of Maine has applied to the U.S.
Environmental Protection Agency to gain control over the issuance of all
wastewater discharge permits in the state.  See 33 U.S.C.A. § 1342(b) (West
1986 & Supp. 2000).  In response to Maine's application, the Tribes urged
the EPA to conclude, in part, that the state is not entitled to regulate the
water resources within their territories, because they are entitled to be
treated like a separate "state."  See id. § 1377(e) (West Supp. 2000).  Upon
learning of the Tribes' efforts in that regard, the companies sought
information from the Tribes relating to those efforts.{1}
	[¶5]  Through their attorneys, the paper companies served written
requests upon the Governors of the Penobscot Nation and the
Passamaquoddy Tribe, requesting, pursuant to Maine's Freedom of Access
Act, 1 M.R.S.A. §§ 401-410, certain documents relating to the Tribes'
efforts to gain regulatory powers over water resources within or adjacent to
their borders.  Specifically, the companies sought "[a]ll documents,"
including, without limitation, "notes, records, or minutes of all meetings or
proceedings of [the Tribes] . . . that relate in any way to":
1. the regulation of water resources within [the Tribes'
territories] and in adjacent waters;

2. the State of Maine's application to obtain delegation of
permitting authority under the Clean Water Act's National
Pollutant Discharge Elimination System program;

3. [the Tribes'] alleged authority to protect or regulate water
resources within or adjacent to [the Tribes' territories];

4. 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;

5. 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;

6. any agreements with federal government agencies . . . that
relate to the protection or study of water or other natural
	[¶6]  The companies sought these documents "to educate themselves
regarding issues affecting their discharge permits."  They asserted that they
were entitled to the documents pursuant to the "public records" provisions
of the Freedom of Access Act, 1 M.R.S.A. § 402(3) (1989 & Supp. 2000),
and in accordance with Maine's Act to Implement the Maine Indian Claims
Settlement, 30 M.R.S.A. §§ 6201-6214 (1996 & Supp. 2000) (the Maine
Implementing Act),{2} as ratified by Congress pursuant to the Maine Indian
Claims Settlement Act of 1980, 25 U.S.C.A. §§ 1721-1735 (West 1983 &
Supp. 2000) (the Settlement Act).
	[¶7]  The Tribes denied the companies' requests, responding, in part,
that "the Maine Freedom of Access Act is inapplicable to [the Tribes],"
because "the application of that law . . . would amount to state regulation of
[the Tribes'] governmental process, policies, and procedures."  The Tribes
did offer, however, to provide the companies with copies of records in their
possession that are "not confidential under [the Tribes'] laws and policies
concerning matters of tribal government" and are not "privileged from
disclosure to adverse parties under . . . discovery rules or rules of evidence." 
	[¶8]  The companies then commenced this action against the Tribes
pursuant to 1 M.R.S.A. § 409(1) (1989), claiming that (1) pursuant to
30 M.R.S.A. § 6206(1) (1996) of the Maine Implementing Act, the Tribes
have "all of the rights and are subject to all of the duties, obligations,
liabilities, and limitations of municipalities"; 
(2) the Freedom of Access Act,
by its terms, "makes all public records, including all records in the
possession or custody of . . . the State 'or any of its political subdivisions,'
available for public inspection"; (3) the documents requested by the
companies are "public records"; and (4) by refusing to comply with the
companies' requests, the Tribes have violated the Freedom of Access Act. 
Soon thereafter, the companies filed a motion for partial summary judgment.
	[¶9]  The Tribes filed a consolidated motion in opposition to the
companies' summary judgment motion and in favor of their motion to
dismiss the companies' action, arguing that the Superior Court lacked
subject matter jurisdiction and that the Act could not, as a matter of law, be
invoked against the Tribes, because section 6206(1) of the Maine
Implementing Act prohibited direct state regulation of "internal tribal
matters."{3}  The Superior Court denied the Tribes' motion to dismiss and
granted the companies' motion for partial summary judgment. 
Subsequently, the Superior Court also denied the Tribes' Rule 60 motion for
relief from the judgment denying their motion to dismiss.  See M.R.
Civ. P. 60.
	[¶10]  In its order granting partial summary judgment, the court
ordered the Tribes "to turn over all non-privileged documents as well as
logs of all documents claimed to be privileged no later than 14 days from the
date of this order."  The Tribes failed to turn over any documents or logs of
any documents claimed to be privileged, and accordingly, the Tribes were
deemed to have waived the claims of privilege.  Because the Tribes asserted
that the Freedom of Access law could not be applied to them in any way,
they did not argue that even if the Act applied, the paper companies'
requests were overbroad.  Consequently, in the absence of a preserved
privilege or a request to tailor the paper companies' demands to protect
specific internal tribal matters, the Superior Court entered a final judgment
in favor of the companies, granting full relief to the companies on their
Freedom of Access requests.{4}  After being held in contempt of the court for
their continuing failure to comply with that order, the Tribes appealed to
this Court.{5}
	[¶11]  The applicability of the Freedom of Access Act to Maine's
Indian Tribes is a matter of first impression.  That Act does not explicitly
mention the Tribes as covered by, or excluded from, its terms, nor do either
of the Indian land claims settlement acts directly address the applicability of
the Freedom of Access Act.
	[¶12]  In construing the statutes before us, we begin with the
recognition that the applicability of state statutes to the Tribes occurs in a
framework that is unique to Maine.  See 25 U.S.C.A. §§ 1721-1735;
30 M.R.S.A. §§ 6201-6214.  The relationship between the State of Maine
and the Tribes is not governed by the general federal laws that define such
relationships.  Id.; Penobscot Nation v. Fellencer, 164 F.3d 706, 708 (1st
Cir. 1999).  Rather, it is governed by the two Acts, one state and one federal,
both memorializing a settlement of disputed claims brought by the Tribes in
the 1970s against the state for vast portions Maine land.  See 25 U.S.C.A.
§§ 1721-1735; 30 M.R.S.A. §§ 6201-6214; see also Passamaquoddy Tribe v.
Morton, 528 F.2d 370, 380-81 (1st Cir. 1975); Penobscot Nation v.
Stilphen, 461 A.2d 478, 482 (Me. 1983). 
	[¶13]  In order to resolve the question before us, we must construe
the Maine Implementing Act, the Federal Settlement Act, and the Maine
Freedom of Access Act to determine whether (1) the application of the
Freedom of Access Act to the Tribes, as a matter of law, is prohibited by the
state and federal settlement acts and, if not, (2) whether any parts of the
companies' specific requests are barred by application of the settlement
	[¶14]  Statutory construction is a question of law, and we review the
Superior Court's interpretation of the Freedom of Access Act and the Maine
Implementing Act de novo.  See Bangs v. Town of Wells, 2000 ME 186, ¶ 9,
760 A.2d 632, 635; Francis v. Pleasant Point Passamaquoddy Hous. Auth.,
1999 ME 164, ¶ 5, 740 A.2d 575, 577.  In interpreting the Implementing
Act, we look to the Act itself and its legislative history.  Stilphen, 461 A.2d
at 489.  The interpretation of the Act by the First Circuit Court of Appeals
also provides guidance to our analysis.
	[¶15]  Our main objective in statutory interpretation is to give effect to
the Legislature's intent.  N.A. Burkitt, Inc. v. Champion Rd. Mach. Ltd., 2000
ME 209, ¶ 6, 763 A.2d 106, 107.  To give effect to the Legislature's intent,
we look first to the statute's plain meaning and, if there is ambiguity, we
look beyond that language to the legislative history to determine the intent
of the Legislature.  Kimball v. Land Use Regulation Comm'n, 2000 ME 20,
¶ 19, 745 A.2d 387, 392.
	[¶16]  Each of the three Acts under scrutiny is devoid of any language
that directly addresses the applicability of Maine's Freedom of Access Act to
the Tribes.  Thus, the question presented cannot be resolved on the plain
language of the law.  The positions of the competing parties make the
ambiguities in the law apparent.  The Tribes argue that the Freedom of
Access Act may not be invoked against them because the application of the
Act would amount to an impermissible regulation of the Tribes' right to
control their "tribal government," as prohibited by Maine's Implementing
Act, 30 M.R.S.A. § 6206(1).  The companies, the state, and the amicus
curiae collectively contend that the Tribes agreed to be treated as
municipalities under the Maine Implementing Act, 30 M.R.S.A. § 6206(1),
and that municipalities are subject to the provisions of the Freedom of
Access Act, 1 M.R.S.A. § 402. 
	[¶17]  Because the question is not clearly resolved by the language of
any of the three Acts under consideration, we turn to the legislative history
of those laws to determine the applicability of the Freedom of Access Act to
the Tribes.

A.  The Maine Implementing Act as Ratified by the Federal Settlement Act

	[¶18]  It is frequently noted that the settlement between the State of
Maine and the Tribes created a unique new legal relationship between the
Tribes and the state.  What is sometimes overlooked, however, is the fact
that the relationship between the state and the Tribes preceding the
settlement was also unique.  A thorough understanding of the nature of the
settlement requires an understanding of that history.
	[¶19]  Any consideration of Indian law must begin with the basic tenet
that the power to regulate Indian affairs originates in Congress.  Pursuant to
the Commerce Clause of the United States Constitution, Congress has the
plenary authority to legislate over Indian affairs, see U.S. Const. art. I, § 8, cl.
3, and "only Congress can abrogate or limit an Indian tribe's sovereignty." 
Fellencer, 164 F.3d at 709.
	[¶20]  That congressional authority, however, was traditionally
exercised only when the sovereignty of a group of Indians was recognized by
the federal government.  United States v. Holliday, 70 U.S. (3 Wall.) 407,
419 (1865).  From the time that Maine was ushered into the United States
as a state separate and independent from Massachusetts in 1820, the United
States government consistently declined to recognize or to assume
responsibility for the Indians residing in Maine.  25 U.S.C.A. § 1721(a)(9)
(West 1983); Passamaquoddy Tribe v. Morton, 388 F. Supp. 649, 652-53 (D.
Me. 1975), aff'd by 528 F.2d 370.  The State of Maine, in turn, undertook
the almost exclusive role of assisting and regulating the Indians residing
within its borders.  See 25 U.S.C.A. § 1721(a)(9); Murch v. Tomer, 21 Me.
535 (1842).
	[¶21]  The absence of established tribal sovereignty was evidenced by
the state's extensive role in governing the Tribes throughout the history of
the State of Maine.  Consistent with this role, Maine actively regulated the
affairs of Indians within its borders for almost 160 years, creating hundreds
of laws that specifically related to the protection and regulation of the
Tribes.  See 22 M.R.S.A. §§ 4701-4836 (1964) (detailing the rules and
regulations that apply to the Tribes) (repealed in substantial part by Maine
Implementing Act, P.L. 1979, ch. 732); Morton, 528 F.2d at 374.  Indians
residing within Maine's borders were subjected to the general laws of the
state like "any other inhabitants" of Maine.  State v. Newell, 24 A. 943, 944
(Me. 1892) ("They are as completely subject to the state as any other
inhabitants can be."); Murch, 21 Me. at 537 ("We have in express terms
extended our legislation over them; and over their territory[.]"); cf. Dana v.
Tracy, 360 F.2d 545, 548 (1st Cir. 1966).
	[¶22]  Although the Tribes were recognized in a cultural sense, they
were simply not recognized by the state or the federal government in an
official or "political sense."  Newell, 24 A. at 944; see also Indian Township
Passamaquoddy Reservation Hous. Auth. v. Governor of State, 495 A.2d 1189,
1190 (Me. 1985).  Prior to the settlement, the federal government never
entered into a treaty with the Tribes nor did Congress enact any legislation
mentioning the Tribes.  Morton, 528 F.2d at 374.  The regulation by state
government, coupled with the total absence of congressional regulation,
contrasted sharply with many tribes in other states.  See, e.g., In re Kansas
Indians, 72 U.S. (5 Wall.) 737, 738-39 (1866).
	[¶23]  For more than a century, this situation went substantially
unquestioned.  See H.R. Rep. No. 96-1353 (1980).  In 1975, however, the
Tribes' relationship with the state and the federal government changed
substantially as a result of a significant court decision.  See Morton, 528 F.2d
at 380-81.  Early in the 1970s, the Tribes had asserted claims for vast
portions of lands in Maine on the basis that the lands in question had been
transferred from them in violation of the federal Indian Nonintercourse Act
of 1790, which protected "any . . . tribe of Indians."  Id. at 372-73.  The
Tribes asked the Department of Interior, Bureau of Indian Affairs, to file a
protective action on the Tribes' behalf against the State of Maine, to reclaim
the lands that had allegedly been transferred in violation of the Act.  Id. at
372.  Consistent with its historic approach to Maine's Tribes, the
Department denied the Tribes' request, asserting, among other things, that
the federal government had never formally recognized the Tribes and that it
had no trust relationship with the Tribes.  Id. at 372-73.{6}
	[¶24]  The Tribes then sued to force the Department to act on their
behalf.  Ultimately, the United States Court of Appeals for the First Circuit
rejected the Department's views and held that the Indian Nonintercourse
Act applied to the Tribes, despite the absence of "specific federal
recognition," and that the resulting trust relationship obligated the federal
government, at a minimum, to investigate the Tribes' claims and take such
action as may be warranted.  Id. at 378-81.
	[¶25]  The Morton decision had several significant effects on the
relationship between the Tribes and the state.  First, pursuant to the newly
recognized federal trust relationship, a fiduciary duty was imposed upon the
federal government, requiring it to act on behalf of the Tribes to investigate
the validity of their claims against the State of Maine.  Second, the
continuation of Maine's jurisdiction over the Tribes began to be questioned
because the Tribes could potentially invoke the application of other federal
statutes on their behalf.  See, e.g., State v. Dana, 404 A.2d 551, 554 (Me.
1979) (recognizing that the Tribes may be entitled to protections of the
federal Major Crimes Act of 1885, which granted exclusive federal
jurisdiction over certain crimes committed by Indians in "Indian country").{7}
Consequently, because the state's relationship with the Tribes was called
into question, significant concerns were raised regarding the possibility that
the state would discontinue its substantial financial support of the Tribes.{8}
	[¶26]  Amidst the turmoil created by the unsettling effect of the land
claims and the disruption of decades of understanding regarding the state's
relationship with the Tribes, the Justice Department indicated that it would
be forced to pursue the lawsuit against the state on behalf of the Tribes
unless the parties could find a way to settle their dispute.  Settlement efforts
began in earnest in 1977.  At least three separate settlement proposals were
structured, but ultimately rejected, over the next two years.{9}
	[¶27]  Although the issues which initially presented obstacles to
resolution were undoubtedly numerous, several key points of dispute arose
during the parties' negotiations.  First, the Tribes asserted that they were
entitled to receive more land or funds than the proposals carried.  Second,
identifying the extent of the Tribes' sovereignty and authority over natural
resources on tribal land was a source of frequent dispute.  And, finally, the
specific delineation of the relationship between the state and the Tribes was
problematic.  The state was resistant to any settlement that would create a
"nation within a nation."{10}  The Tribe wished to obtain as much autonomy,
or sovereignty, as possible.  The future nature of the relationship between
the state and the Tribe was thus pivotal in the parties' discussions of
	[¶28]  It was against this backdrop that the final settlement agreement
was reached in 1980.  Both sides benefitted from the bargain, see, e.g.,
Indian Township Passamaquoddy Reservation Hous. Auth., 495 A.2d at
1191-92, and the final agreement represented a compromise in the truest
sense.  All parties gained something and lost something in the final analysis.
	[¶29]  The Tribes gained, among other things, approximately $81.5
million in trust monies and land assets.  25 U.S.C.A. § 1733 (West 1983). 
They gained the legal capacity of a municipality and assurance of funds to
provide municipal services to their membership.  They also gained formal
recognition as sovereign entities by the federal government.  Thus, because
the Tribes in Maine "had not historically been formally recognized as
sovereign Indians," the Settlement Act and the Implementing Act
memorialized federal recognition of their tribal status, confirmed the
Tribes' title to designated reservations lands, and "opened the floodgate for
the influx of millions of dollars in federal subsidies."  Akins v. Penobscot
Nation, 130 F.3d 482, 483-84 (1st Cir. 1997) (quoting Passamaquoddy Tribe
v. State of Maine, 75 F.3d 784, 787 (1st Cir. 1996)).  

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