Urging that Indian Tribes are Subject to Maine's Freedom of Access Act When Acting in a Municipal Capacity
This appeal to the Maine Law Court arose out of the attempt by three paper companies to gain access to documents of the Penobscot Nation and the Passamaquoddy Tribe (collectively the "Tribes") through Maine's Freedom of Access Act ("FOAA"). The FOAA request was made after the companies learned that the Tribes had applied to the EPA for "Treatment as a State" status under Clean Water Act. The companies sought documents related to the Tribes' attempts to regulate water quality and to obtain permitting authority under the Clean Water Act. The FOAA defines "public records" as all records "in the possession or custody of an agency or public official of this State or any of its political subdivisions . . . [that] ha[ve] been received or prepared for use in connection with the transaction of public or governmental business or contain[] information relating to the transaction of public or governmental business" with several specific exceptions, none of which are relevant to this case. The Tribes rejected the request and contended that FOAA did not apply to them because, if it did, it "would constitute state interference with internal tribal affairs." The paper companies sued. The Superior Court held that, under the federal and state statutes governing the settlement of the Maine Indian land claims, when the Tribes act as "municipalities" of Maine, "they are reachable under state and federal law, but when they function as a tribe as to internal matters they are not." Using analyses adopted by the First Circuit and the Law Court, the Superior Court concluded that the requested records did not relate to "inner-workings of the tribes." The Court, accordingly, ordered production of the requested documents. The Tribes appealed.
NELF filed an amicus brief in the Law Court on behalf of numerous Maine municipalities and several municipal water districts that would be affected by the Tribe's regulation of water quality outside of Indian land. The NELF brief argued that, when the Tribes act to regulate conduct and activities outside of Indian land, they act in their municipal capacity and are, therefore, subject to the requirements of FOAA. The Law Court agreed and held that the Tribes act in their municipal capacity when they "interact with persons or entities other than their tribal membership, such as the state or federal government." The Court, accordingly, held that "the Tribes' communications with the federal government or the state in the context of their water quality authority are not matters ‘internal' to the Tribes, and are subject to the public records provisions of" FOAA. The Court also held that the "Tribes are ordinarily acting with regard to internal tribal matters when they are engaged in the deliberative processes of self-government," and, therefore, minutes of tribal council meetings are not public records.
This appeal to the Maine Law Court arose out of the attempt by three paper companies to gain access to documents of the Penobscot Nation and the Passamaquoddy Tribe (collectively the "Tribes") through Maine's Freedom of Access Act ("FOAA"). The FOAA request was made after the companies learned that the Tribes had applied to the EPA for "Treatment as a State" status under Clean Water Act. The companies sought documents related to the Tribes' attempts to regulate water quality and to obtain permitting authority under the Clean Water Act. The FOAA defines "public records" as all records "in the possession or custody of an agency or public official of this State or any of its political subdivisions . . . [that] ha[ve] been received or prepared for use in connection with the transaction of public or governmental business or contain[] information relating to the transaction of public or governmental business" with several specific exceptions, none of which are relevant to this case. The Tribes rejected the request and contended that FOAA did not apply to them because, if it did, it "would constitute state interference with internal tribal affairs." The paper companies sued. The Superior Court held that, under the federal and state statutes governing the settlement of the Maine Indian land claims, when the Tribes act as "municipalities" of Maine, "they are reachable under state and federal law, but when they function as a tribe as to internal matters they are not." Using analyses adopted by the First Circuit and the Law Court, the Superior Court concluded that the requested records did not relate to "inner-workings of the tribes." The Court, accordingly, ordered production of the requested documents. The Tribes appealed.
NELF filed an amicus brief in the Law Court on behalf of numerous Maine municipalities and several municipal water districts that would be affected by the Tribe's regulation of water quality outside of Indian land. The NELF brief argued that, when the Tribes act to regulate conduct and activities outside of Indian land, they act in their municipal capacity and are, therefore, subject to the requirements of FOAA. The Law Court agreed and held that the Tribes act in their municipal capacity when they "interact with persons or entities other than their tribal membership, such as the state or federal government." The Court, accordingly, held that "the Tribes' communications with the federal government or the state in the context of their water quality authority are not matters ‘internal' to the Tribes, and are subject to the public records provisions of" FOAA. The Court also held that the "Tribes are ordinarily acting with regard to internal tribal matters when they are engaged in the deliberative processes of self-government," and, therefore, minutes of tribal council meetings are not public records.
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