Tribes are not political subdivisions
Written by John Banks and Paul Jacques
from Sun Journal
As state and tribal representatives on the Maine Indian Tribal State Commission, we are responding to the editorial "Tribes can be sovereign and transparent." (March 29). The editorial suggests that federally recognized tribes living within the borders of what is now the state of Maine should be subject to the state's Freedom of Access Act.
MITSC is the hybrid body, consisting of equal numbers of state and tribal representatives appointed by their respective governments, which is charged in statute with the responsibility of reviewing the relationship between the sovereign governments of the state and the tribes, and to make recommendations to either or both governments when differences of interpretation arise. Such is the case with the FOAA issue.
We looked at this issue thoroughly on two occasions in 2001 and 2002 when two paper companies tried to invoke FOAA against two tribes in an attempt to obtain documents related to the tribes' water quality programs.
After much discussion and deliberation, including reviewing the Maine Attorney General's Office analysis as well as the tribes' legal analyses, we - MITSC - unanimously concluded the application of Maine's FOAA to the tribes is inconsistent with the intent of the 1980 Maine Indian Land Claims Settlement Act.
The relevant portion of MITSC's statement reads:
"Under the settlement acts, 'tribal government' is an internal tribal matter, over which the tribes have sole authority. 'Government,' by its common meaning, includes the right to set the procedures by which governmental decisions are made. Freedom of information acts are procedural mechanisms that may or may not be adopted by a tribe as part of its system of ruling. Because tribal government is defined by the settlement acts as an internal tribal matter, the State cannot impose its own governmental procedures upon the tribes."
The important "fulcrum" aspect of this issue, which is often lost, intentionally omitted, or ignored in the discussion, is that the tribes have separate inherently sovereign governments that predate both the state of Maine and United States constitutions. The tribes are not political subdivisions of the state of Maine. Forcing the tribes to be subject to Maine's FOAA is attempting to put a square peg in a round hole.
One way to think about it is to ask the question: Would we expect New Hampshire or Canada to have to comply with Maine's FOAA?
This is not to suggest the tribes are immune from public scrutiny. The proper remedy to address issues and obtain information that the tribes are involved with that potentially impact non-tribal interests is through government-to-government consultation. The tribes have always been open to any and all discussions with Maine on a government-to-government basis. Problems and disputes arise when Maine tries to inappropriately force its laws on the separate and distinct tribal governments.
To use the recent indictment of a Passamaquoddy tribal leader as support for FOAA applicability is misplaced, to put it mildly. The federal Freedom of Information Act is available to any U.S. citizen wishing to obtain information on this matter.
Recognizing an important element of inherent sovereignty of the tribes within Maine's borders by supporting an exemption from the state FOAA is a great step forward in tribal/state relations and shows a good-faith effort to respect the self-determination of this region's first inhabitants.
Paul Jacques and John Banks are state and tribal representatives, respectively, to the Maine Indian Tribal State Commission.
Maine Indian Tribal-State Commission (MITSC)
13 Commissary Point Road, Trescott Township, ME 04652
Paul Thibeault, Managing Director: 207-271-7762