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Tribal records released under state open records law

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  1. Freedom of Information

    NMU         MAINE         Freedom of Information         May 9, 2001    

Tribal records released under state open records law

  • When tribal records have a “meaningful effect” on persons outside the tribe, they are not internal and must be released under the Maine open records law, the state high court ruled.

Two Indian tribes who had asked the federal government to allow them, and not the state, to regulate wastewater discharge must disclose the records showing their position, the Maine Supreme Court ruled on May 1.

The state’s Freedom of Access Law requires release of communications between the Penobscot Nation and the Passamaquoddy Tribe and the U.S. Environmental Protection Agency on the wastewater issue, the court said..

Upholding major portions of a decision by the Cumberland County Superior Court in Portland, the high court ruled that the open records law covers tribal records which can have a meaningful effect on members of the public outside tribal lands. It also ordered the tribes to disclose tribal records showing their efforts to be treated as a state under the federal Clean Water Act, and agreements with federal agencies relating to the protection or study of water or other natural resources.

However, the high court reversed part of the lower court’s ruling and held that the tribes could withhold notes, notices and minutes of tribal council meetings. It said that records of “internal tribal matters” not subject to the act would include “membership in a respective tribe or nation, the right to reside within the respective Indian territories, tribal organization, tribal government, tribal elections and the use or disposition of settlement fund income.”

The Great Northern Paper, Inc., and other pulp and paper mill owners had requested the records under the access law. They operate paper mills in Millinocket and East Millinocket, both of which discharge treated wastewater into Maine rivers near the Passamaquoddy and Penobscot reservations. When the records were denied, the paper companies sued in federal district court.

Maine had applied to the EPA for authority to issue wastewater discharge permits statewide. However, the tribes urged the EPA to conclude that Maine could not regulate wastewater on tribal lands because the tribes are entitled to be treated like separate “states.” The paper companies sought records of this discussion.

The relationship between the tribal and state governments in Maine is largely set out in a 1980 settlement agreement in which the tribes were given $81 million in a trust and land assets in exchange for dropping land claims that threatened title to vast areas of the state. The state retained its authority to regulate Indian affairs in Maine in the way it regulates municipalities, but with several exceptions including where the tribes act as a sovereign nation, or as a business entity.

(Great Northern Paper, Inc. v. Penobscot Nation; Attorney: Catherine Connors, Portland) RD

© 2001 The Reporters Committee for Freedom of the Press

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