EPA foresees long battle over tribal water authority

FROM THE ARCHIVE

Facebook Twitter Email
WEDNESDAY, NOVEMBER 14, 2001

Although the Supreme Court has declined to consider whether two Maine tribes are subject to a state freedom of information law, the nation's highest court may end up being involved in a much more controversial question of tribal authority, government officials and attorneys said on Tuesday.

While the case the Court rejected affects privacy of tribal documents, the underlying issue, all sides agree, is one of sovereignty. Citing years of environmental and health damage by paper mills in the region, the Penobscot Nation and the Passamaquoddy Tribe have expressed an interest in being able to have authority over water quality on their reservations.

Non-Indians aren't necessarily willing to let tribes have their say, though. Industry and local governments have been forced to accept often strict standards that tribes implement -- even if the courts have to tell them to do so.

In the case of the Maine tribes, Region 1 of the Environmental Protection Agency, based in Boston, Massachusetts, has been mulling the difficult issue. The region in January of this year allowed the state to control water quality under the Clean Water Act but left open the question of tribal authority.

According to Tim Williamson, a senior attorney for the region, the EPA is in the "middle" of its consultation with the Department of Justice on the decision. The two tribes, he acknowledged, are in a unique situation because of the Maine Indian Claims Settlement Act, which settled the tribes' land claims and granted them federal recognition.

But the act also gave the state jurisdiction in certain aspects of tribal government. Freedom of information is one of those "murky" areas, as the tribes have since found out,

As a result, the EPA is weighing a number of serious questions, said Williamson. "I think it's fair to say it's a very difficult question about which the agency has received sharply divergent interpretations."

To a coalition of paper companies and local governments, the issue is clear. Under the act, tribes don't have the right to control natural resources, they claim.

Maine tribes "lost a measure of their sovereignty," when Congress passed the act, said Matthew D. Manahan, a Portland, Maine, attorney for the group. Since "Congress has complete authority to decide what to do in matters of Indian law," he argues the EPA can't allow the tribes to exercise authority.

Manahan also claims the government might be stacking the deck against his clients. To find out, he wants to make sure the paper companies have access to any tribal correspondence with the EPA.

"It's possible that EPA may have some lack of objectivity towards the tribes' efforts," he charged.

The claims were denied in an October 19 letter. "It is unfair to suggest that 'EPA bias' is the reason that the agency has not swiftly decided this matter in accordance with the arguments you have offered," the EPA told Manahan.

"The way we have handled this matter is an effort to be as even-handed as possible withing the context of EPA's Indian policy . . . to respect tribal soveriegnty whenever possible," Williamson added yesterday.

Williamson also suggested Manahan's quest to view the tribes' documents in an effort to show EPA bias may be futile. Any documents the tribe has sent to the agency have already been made public, he said.

But when the EPA does make its decision known, there is little chance either side will accept the mandate, said Williamson. He expects even more lawsuits due to "the pressures around assertions of tribal sovereignty."

A spokesperson for Maine Attorney General, who opposed the Supreme Court's review of the privacy case, said the state is taking a "wait and see" approach to the dispute. Other states, including Michigan, Wisconsin, Minnesota and New Mexico, have fought tribal control -- winning in some instances and losing in others.

Beyond denial of the privacy case, tribal leaders declined to comment.

Relevant Links:
American Indian Environmental Office, EPA - http://www.epa.gov/indian