Maine tribes lose authority to regulate water on tribal lands

Maine tribes lose authority to regulate water on tribal lands

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John Ahni Schertow
August 21, 2007
 

August 9th, a 1st Circuit Court of Appeals panel eliminated the rights of the Penobscot and Passamaquoddy Nations to regulate water pollutants in their treaty territory.

The court claims the Maine Indian Claims Settlement Act of 1980 (and its accompanying implementation act) removed all their sovereignty and immunity except when it comes to matters such as choosing leaders and determining membership.

The Penobscot and Passamaquoddy, both riverine and coastal Peoples, say their authority as sovereign nations takes precedence over state jurisdiction, and that regardless of what the Indian Claims Settlement Act says, both Nations have never actually forfeited their sovereignty.

From Indian Country Today – ”In looking through the decision briefly, we’re trying to assess what our next steps are,” said Penobscot Chief Kirk Francis. ”It’s a disappointing decision on a lot of fronts. We believe that it breaks down the trust responsibility relationship between the tribes and the federal government, in this case, the EPA, which has that trust responsibility with the tribes. And the whole thing leads to an erosion of our sovereignty,” Francis said. {..}

The 25-page ruling, written by Chief Judge Michael Boudin and supported by Senior Circuit Judge Bruce Selya and Senior Judge William Stafford from the Northern District Court of Florida, upholds the state’s claim of total jurisdiction over the tribes and their lands.

”The southern tribes’ [Penobscot and Passamaquoddy’s] broadest claim is that their inherent sovereignty remains intact and therefore state regulatory power over their lands is exceedingly limited. The premise is mistaken: the explicit language of the Settlement Acts establishes state authority that far exceeds what is normal for Indian tribe to which no such legislation applies. In addition to Maine’s explicit authority over tribal lands and natural resources, the Settlement Acts expressly divested the Maine tribes of sovereign immunity,” Boudin wrote.

At issue is a section of the act that says the tribes are subject to the state’s civil and criminal jurisdiction.

But the tribes never waived their sovereignty and immunity, and the act doesn’t explicitly say that they did, argued attorney Doug Luckerman, who represents several Northeastern nations.

”The court just decided to eject the principles of federal Indian law in Maine. The whole concept that there’s a three-legged stool of authority between the state, the tribes and the federal government has vanished. It’s become a two-legged stool – that if the federal government delegates authority to the state, which is what Congress did because the state doesn’t have any original authority to deal with tribes, what this court is saying is once that happens there is no third leg,” Luckerman said.

The court’s views of the Settlement Act ”strangles the original compromises that were made in a way that squeezes out the rights negotiated by the tribes and enhances the rights negotiated by the state. It’s not what the tribes wanted and it’s not what they negotiated, either,” Luckerman said. (source)

Sovereignty, Immunity, the Trust Responsibility: Legal Facts

Indigenous Nations cannot be subjugated, impaired, compromised, or adjudicated in any way by outside force.

Sovereignty is not something granted by the Federal government to Indigenous Nations; but is rather inherently possessed by the Nations themselves. It was from this position that (most of) the Treaties were signed…

Contrary to common belief, the Treaties, reservations, and rights of Indigenous People were not grants from the United States. Rather they were grants from the Indigenous Nations “and a reservation of those not granted.” Of course, this is where Indigenous Nations were transformed into domestic-dependent Nations and where the Trust responsibility came to exist.

The trust responsibility is the obligation of the United States to

Above and beyond this, Indigenous Nations forever posses their Sovereign Rights and the United States simply cannot encroach, alter, or terminate them. That’s the theory anyways…

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