Wabanaki fight powerful lobbies on FOI exemption
Written by Gale Courey Toensing
from Indian Country Today
AUGUST A, Maine - Wabanaki tribes are facing a new sovereignty struggle as Maine's newspapers and powerful paper lobby try to quash a proposal that would exempt the tribes from the state's Freedom of Access Act.
The exemption is part of a proposed bill - Legislative Document 2221 - that would change a few provisions of the Maine Implementing Act, the legislation that enacted the federal 1980 Maine Indian Claims Settlement Act.
Tribal leaders said the Freedom of Information exemption is the most significant part of the proposed amendments, which fall far short of what they had hoped for at the beginning of the process - an affirmation of their inherent sovereignty and immunity, and their rights as federally recognized American Indian tribes.
The Wabanaki tribes are the Penobscots, the Passamaquoddy Indians, the Houlton Band of Maliseet Indians and the Aroostook Band of Micmacs. The Micmacs, however, have been excluded from the bill at their request.
The proposed bill would not be worth supporting if the exemption were stripped out, Penobscot Indian Nation Chief Kirk Francis said.
''I don't support any more amendments to the bill. We made three major amendments; we backed out of everything that was most significant to the tribes. At this point, the FOI exemption is kind of a line in the sand,'' Francis said.
Tony Ronzio, editorial page editor of the Sun Journal newspaper and chair of the Maine Press Association's legislative committee, and Matt Manahan, counsel for the Maine Pulp & Paper Association, testified at a March 5 hearing before the House Judiciary Committee.
Ronzio's written testimony said that the association has consistently opposed what it sees as ''attempts to weaken this state's landmark Freedom of Access Act. The members of the Maine Press Association believe strongly that Maine's governments best serve their citizens when they operate in the open and make their records accessible to the people they serve.''
Francis agreed that governments should be transparent and accountable to their citizens.
''Our point is the only people who should be concerned about the transparency of tribal government are our citizens, our tribal people. We feel we are very responsible and transparent to our citizens through tribal procedures.''
Penobscot has an FOI ordinance that asserts tribal members' right to access government documents. Tribal members also can directly influence or create policies and decisions by a majority vote at a general meeting that the tribal government is required to hold each year.
''We think our government is very transparent to the citizens that we're responsible to and we just don't think it's appropriate for citizens we're not responsible to access that information,'' Francis said.
Nevertheless, the tribal ordinance allows non-tribal members to receive documents with the written permission of the chief and council, but does not grant them the right to access.
Ronzio told Indian Country Today that the tribes should ''not be carved out of the FOI law'' on the basis of tribal sovereignty.
''And this is not our way of passing any kind of opinion on tribal sovereignty. We have no stance. Our very narrow opposition to the bill is in the tribes' exemption from FOI,'' Ronzio said.
But the tribes don't buy into that argument.
''It's all about sovereignty,'' Francis said. ''It's all about something as simple as freedom of information not applying to tribes. That in itself starts to recognize the tribes as separate and distinct governments, and that's really the importance of the exemption being in the bill.''
In addition to the FOI exemption, the paper lobby opposed almost all of the proposed amendments, including a provision that would require state agencies to consult with the tribes before proposing, adopting or implementing legislation or administrative measures that may affect them. That provision would come into play particularly when paper companies are found polluting the tribes' ancestral waterways.
The tribes and the paper companies fought a major FOI battle in 2000 when the tribes opposed the paper companies' getting a direct permit from the state to discharge pollutants into the rivers rather than having to get approval from the U.S. Environmental Protection Agency and the state Department of Environmental Protection. The paper companies sued for access to the tribes' internal documents under the FOI act in state court, which ruled in the paper companies' favor.
''The court was wrong. The court erred even in taking the case and many of the other cases,'' said Donna Loring, the Penobscots' representative in the state Legislature.
''The state takes these issues of sovereignty and interpretation of the MIA to the state courts, and the state courts invariably rule in favor of the state and erode tribal sovereignty,'' she said, noting that according to the land claims settlement, any change in the agreement is supposed to be approved by the state and the tribes.
''So they're getting around the agreement by taking these things to state courts. I think that's a breach and should abrogate the treaty.''
The Judiciary Committee reviewed LD 2221 March 18 and will continue to debate the matter.
Maine Indian Tribal-State Commission (MITSC)
13 Commissary Point Road, Trescott Township, ME 04652
Paul Thibeault, Managing Director: 207-271-7762