Maine’s second-class Indians: Betrayed by EPA

Posted: April 09, 2004 - 10:28am EST

Maine and Texas have this much in common: both states treat Indian people like second-class citizens. Neither wants to respect the inherent sovereign rights of tribal governments.

Admittedly, in each of these two states, tribes have at times sold themselves short of inherent sovereignty in land claims and recognition agreements that used language opening the door to state contentions of jurisdiction over Indian lands. Nevertheless, a truly fundamental hostility and dismissal of Indian-defined issues is at play. We have commented on the Texas situation before, where the economic future of the Isleta del Sur, the Kickapoo and the Alabama-Coushatta are held at bay by a state government policy of complete hostility toward tribal sovereignty. We will return to that topic in the coming weeks. Here, let us consider Maine.

A struggle of epic proportion has taken shape in northern Maine, where the leaders of the Penobscot Indian Nation are trying everything in their power to protect their river and watershed against a highly toxic lumber and paper milling industry, reinforced by state government anti-tribal forces. The mills are continuing to pollute and could completely destroy the tribal natural resources and ways of life.

The Maine Indian case is a classic that has been well reported in these pages by Associate Editor Jim Adams. As primary harvesters of natural resources, tribal people hunt and fish and consume directly the products of nature. The way of life demands a higher standard of cleanliness in the waters, animals and fish. According to a report released by the Penobscot tribe recently, wrote Adams, the state feared tribal quality demands for clean fish and water would be too high for the industries that impact the tribal watershed.

For more than five years Maine tribes, in this case the Penobscot, have battled to have their say on wastewater quality regulations over their ancestral rivers. Conducting their own scientific studies, Maine tribes have consistently monitored the impact of regional industries, particularly the paper mills, on their tribal waters. The Penobscot, who continue to carry on traditional ways, have for years attempted to legally designate "subsistence fishing" as a protected use of Maine’s rivers. The state and the timber industries have fought this tooth and nail. The tribe has also responded by setting up a superb Penobscot Tribal Natural Resources department, with an 80-point pollution monitoring system that far surpasses the state’s systems within the tribal watershed. The tribes have loudly denounced the hundreds of environmental violations of improper discharge by industries that result in only minor fines by the state agencies.

In many parts of Indian country, tribal governments and even non-profit organizations have employed tribal sovereign powers to legislate and enforce stringent environmental regulations. Everywhere else in Indian country, citing its trust responsibility with sovereign Indian governments, the EPA has kept authority over permits that affect tribal lands. It gets convoluted in Maine. The Maine tribes were soundly betrayed by the EPA in October 2003, when despite its mandate as a federal agency charged with trust responsibility to protect tribes from states, EPA relinquished its power over wastewater discharge throughout Maine’s extensive Indian jurisdictions to the state. A 2000 ruling by the Department of Interior that upheld the EPA’s right to jurisdiction in Maine’s Indian territories was reversed by this the EPA decision to give away tribal rights.

Why did the EPA let Maine go its own way to police the most powerful corporations in the state? Why cut the Native governments off at the knee, leaving the Native peoples dangling in unending pollution?

This serious breach of the trust responsibility doctrine by a federal agency must be challenged and is being challenged. The Penobscot, for one, are appealing the ruling by the EPA. Again, no doubt the concessions around the claim and recognition agreements are a stumbling block. Maine’s Implementing Act is considered the one of the worst cases of Indian concessions to state control. It was passed to fill in the blanks shortly after Congress passed the 1980 Settlement Act with the Penobscot and Passamaquoddy tribes to end their land claims and grant federal recognition. Legal scholars cite this law as the epitome of a bad deal for tribal sovereignty. After all, why seek federal recognition in the first place if the end result simply cedes tribal jurisdiction to the state?

The crucial language in the Implementing Act, which has caused serious damage to the two tribes, subjected the Penobscot Tribal Nation and the two reservation governments of the Passamaquoddy Indians "to all the duties, obligations, liabilities and limitations of a municipality … provided, however, that internal tribal matters … shall not be subject to regulation by the State."

Nevertheless, the Penobscot have a serious claim to environmental stewardship based on their indigenous long-term inhabitation of place. They are pitted against a range of paper milling operations, including Great Northern Paper Inc., Georgia-Pacific and Champion International Corp., three of Maine’s largest paper companies.

The Penobscot are joined by a coalition of organizations devoted widely to prevail on the need to clean up the rivers affected by the highly-toxic paper-milling. In 2001, the U.S. itself launched a claim against Lincoln Pulp and Paper for up to $60 million in harm caused to the Penobscot River and the land-based Penobscot Nation from polluted discharges, including the cancer-causing dioxin. We salute the Penobscot and other Maine Indian leaders who are fighting the good battle to assert their Indian sovereignty over the expected quality of environmental health. All of Indian country should take note and support the Maine tribes as strongly as they can.

By the way: former EPA head Christie Todd Whitman, who supported tribal-federal relationships publicly, resigned before the negative decision by the EPA. We encourage Ms. Whitman to come forward and assess for us why the EPA betrayed the Maine tribes, instead of continuing to support Indian jurisdiction over its natural world resources, as the first and best line of ecological defense across the whole United States.

Source: indinacountry.com  online Native newspaper

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