April 09, 2020
BANGOR DAILY NEWS (BANGOR, MAINE

Appeal sparks tribal vs. state’s rights debate

BANGOR — A legal challenge to balance the rights of the state against the self-governing powers of the Penobscot Indian Nation was presented to U.S. District Judge Morton Brody during a hearing Tuesday.

Presiding over an issue described as “fascinating” by one attorney, the judge deferred making an immediate decision on a request for a summary judgment in a case that pits the Indian Island tribal government against one of its former medical employees.

The case also involves larger issues — ones that were redefined in the historic Indian Land Claims Act of 1980 — and drew legal authorities from as far away as Washington, D.C., to the Harlow Street courtroom Tuesday.

At stake are the rights of Cynthia Fellencer, a former community health nurse at the tribal reservation on Indian Island, to legally appeal her dismissal from employment in 1994.

Fellencer, who is not a member of the Penobscot Indian Nation, claimed the tribal government practiced racial discriminaton when it fired her in 1994 after 1 1/2 years on the job as a community health nurse and diabetes program coordinator. She worked for the tribal Department of Indian Health Services.

Fellencer wanted to sue her former employers and appealed to the Equal Opportunity Employment Commission and to the Maine Human Rights Commission for their backing. Leaders of both agencies, however, declined to exert jurisdiction in the case, citing federal law that prohibits governmental interference in most internal tribal matters.

Fellencer, through her attorney, Mike Duddy of Bangor, appealed her right to sue to the state court system where the litigation has been discussed and examined for the last two years.

Protesting the state’s decision to try the case, an attorney for the tribe consistently has claimed that the state court system has no jurisdiction in the matter. Kaighn Smith Jr. of the Portland firm of Drummond Woodsum & MacMahon earlier filed a motion to dismiss the case in Penobscot County Superior Court shortly after it was introduced there. Superior Court Justice Donald Marden denied the motion and ordered discovery proceedings. During a discovery process, attorneys for both sides reveal the facts and incidents they intend to bring into court to support their claims.

Still resisting state intervention, Smith in October 1997 filed a motion in federal court for a summary judgment on whether Fellencer’s employment was an internal tribal matter. A decision in the plaintiff’s favor would take the issue out of the court’s purview and return it to tribal governance. Smith was joined by the U.S. government, represented by Department of Justice attorney Ann C. Juliano of Washington, D.C. Juliano filed a friend-of-the-court brief and spoke in court about internal tribal government matters.

Juliano cited national cases in which sovereign immunity of an Indian tribe had prevailed over state’s rights.

In response to a question from Brody, Juliano said a person, whether a member of a tribe or not, “abrogates state rights” if he or she is an employee of a tribal organization.

“Because the employment decision is made by an internal tribal council it is an internal matter,” Juliano said.

Duddy, representing Fellencer, termed the case “fascinating” and urged the judge to look at the underlying policies of the Indian nation in making his decision.

The position of the United States in the Indian land claims settlement “was not to make Indian Island an island unto itself and not an integral member of the community,” Duddy said.

The act, which granted millions of dollars to Indians — $27 million to the Penobscots alone — also reasserted Indian rights to govern their own affairs. However, Duddy questioned at what level employees of tribes should have a right to sue under the state system for issues including job loss.

His client was not in a policy-makig position with the tribe, said Duddy. She was a nurse who treated elderly, ill and infirm tribal members. He suggested her lack of power in the Indian governmental structure should qualify her for state’s rights in the firing case.

Brody asked Duddy for his interpretation of several legal cases already processed that either reasserted or called into question the rights of Indians to govern their own affairs.

“If this case stays in the state system, no injustice will be done,” Duddy replied.


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