In re Children of Mary J.

MAINE SUPREME JUDICIAL COURT Reporter of Decisions
Decision: 2019 ME 2
Docket: Was-18-232
Argued: November 7, 2018
Decided: January 3, 2019

Panel: SAUFLEY, C.J., and ALEXANDER, MEAD, GORMAN, JABAR, HJELM, and HUMPHREY, JJ.
Majority: MEAD, GORMAN, JABAR, HJELM, and HUMPHREY, JJ.
Dissent: ALEXANDER, J., and SAUFLEY, C.J.

IN RE CHILDREN OF MARY J.

JABAR, J.

[¶1] The Passamaquoddy Tribe (Tribe) appeals from an order of the

District Court (Calais, D. Mitchell, J.) denying the Tribe’s motion to intervene in

a child protective action involving nonmember children, following the removal

of the children from the custody of their mother, who resided within the Tribe’s

territory. The Tribe contends that the court erred in determining that the

Department of Health and Human Services’ removal of the children from its

territory was not impermissible state regulation of an internal tribal matter.

See 30 M.R.S. § 6206(1) (2017). Because we find no error in the court’s

determination, we affirm the court’s denial of the Tribe’s motion for

intervention of right, filed pursuant to M.R. Civ. P. 24(a)(2), and the denial of

the Tribe’s motion for permissive intervention, filed pursuant to M.R.

Civ. P. 24(b).
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I. BACKGROUND

[¶2] The following is derived from the court’s factual findings, all of

which are supported by competent evidence in the record. See Grondin v.

Hanscom, 2014 ME 148, ¶ 8, 106 A.3d 1150 (“A factual finding is clearly

erroneous only if no competent evidence supports it.”).

[¶3] In September 2017, the Department filed a child protection petition

alleging neglect by both the mother and the father of several children. See

22 M.R.S. § 4032 (2017). Although the mother is a member of the

Passamaquoddy Tribe, neither the father nor the children are members, or

eligible to become members.1 At the time the petition was filed, the children

were living with the mother on the Passamaquoddy reservation at Indian

Township.

[¶4] In February 2018, the Department requested a preliminary

protection order, seeking custody of the children. See 22 M.R.S. § 4034 (2017).

The mother waived her right to a summary preliminary hearing except as to the

issue of placement. She requested that the children be placed with their

maternal grandmother, who is also a member of the Passamaquoddy Tribe, and

who lives on the reservation. After a hearing, the court denied the mother’s

1 Because the children are not members, or eligible to become members, of the Tribe, the Indian

Child Welfare Act (ICWA), 25 U.S.C.S. §§ 1901-1963 (LEXIS through Pub. L. 115-281), does not apply.
 3

request and allowed the Department to seek foster placement.2 The

Department placed the children in foster care outside of Indian Township.

[¶5] Following the Department’s removal of the children from their

mother’s care, the Tribe filed a motion to intervene, alleging that Maine Rule of

Civil Procedure 24(a)(2) provided for intervention of right, because the

Department’s removal of the children from the Tribe’s territory constituted

impermissible state regulation of an “internal tribal matter[].” See 30 M.R.S.

§ 6206(1). Alternatively, the Tribe sought permissive intervention, pursuant to

Rule 24(b), asserting that the underlying child protective action and its claim of

tribal sovereignty have a question of law in common. The court denied the

Tribe’s motion to intervene, and the Tribe timely appealed. See M.R.

App. P. 2B(c)(1).3

II. DISCUSSION

[¶6] Rule 24(a)(2) permits a nonparty to intervene, as a matter of right,

if three criteria are met: “(1) [the nonparty] must claim an interest in the

2 Although the court declined to place the children with the grandmother, she was granted

intervenor status without objection by the Department. See 22 M.R.S. § 4005-(D)(5) (2017).

3 Because the Tribe is appealing from the denial of a motion to intervene, there is no final

judgment at issue. However, we have “recognized an exception to the final judgment rule for appeals
challenging the denial of a motion to intervene. The exception applies whether the party sought
intervention of right or permissive intervention.” State v. MaineHealth, 2011 ME 115, ¶ 7, 31 A.3d
911 (citations omitted).
4

property or transaction that is the subject of the action; (2) it must be so

situated that the disposition of the action may impair or impede its ability to

protect its interests; and (3) its interests must not be adequately represented

by the existing parties to the action.” Bangor Publ’g Co. v. Town of Bucksport,

682 A.2d 227, 231 (Me. 1996). Alternatively, permissive intervention is

available when a “[nonparty’s] claim or defense and the main action have a

question of law or fact in common” and intervention will not “unduly delay or

prejudice the adjudication of the rights of the original parties.” M.R.

Civ. P. 24(b).

[¶7] Under either path for the Tribe’s intervention, the pivotal issue

before us is whether the court’s order, issued pursuant to Title 22, granting the

Department custody of children in jeopardy constitutes an impermissible state

intervention into “internal tribal matters.” See 30 M.R.S. § 6206(1).

[¶8] We review the denial of a motion to intervene for error of law or

abuse of discretion. State v. MaineHealth, 2011 ME 115, ¶ 7, 31 A.3d 911.

Where the court’s decision turns on a question of law, we review the issue de

novo. See Passamaquoddy Water Dist. v. City of Eastport, 1998 ME 94, ¶ 5,

710 A.2d 897.
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A. Internal Tribal Matters and Intervention of Right

[¶9] The Maine Indian Claims Settlement Act (Settlement Act), 25 U.S.C.S.

§§ 1721-1735 (LEXIS, 2015 U.S.C.S. Archive), and the Maine Indian Claims

Settlement Implementing Act (Implementing Act), 30 M.R.S. §§ 6201-6214

(2017), were the result of a comprehensive settlement between the Penobscot

Nation, Passamaquoddy Tribe, and the State of Maine, resolving the Tribe’s and

Nation’s claims to vast swaths of Maine land. See Francis v. Pleasant Point

Passamaquoddy Hous. Auth., 1999 ME 164, ¶ 6, 740 A.2d 575. As a result of

these acts, Maine exerts greater jurisdiction over these Tribes than other

states.4 See id.; Great N. Paper, Inc. v. Penobscot Nation, 2001 ME 68, ¶ 12, 770

A.2d 574 (“The relationship between the State of Maine and the Tribes is not

governed by the general federal laws,” but rather “occurs in a framework that

is unique to Maine.”).

[¶10] The Implementing Act lays out the specific contours and

limitations of this unique relationship between the State of Maine and the

Tribes, and describes the powers and duties of the Tribes within their

respective territories as follows:

4 The Houlton Band of Maliseet Indians were later added to the Implementing Act, although the

Band does not retain the same jurisdiction as the Penobscot Nation and Passamaquoddy Tribe do.
See P.L. 1981, c. 675 (codified at 30 M.R.S. §§ 6203(2-A), 6205-A, 6206-A, 6208-A (2017)).
6

Except as otherwise provided in this Act, the Passamaquoddy Tribe
and the Penobscot Nation, within their respective Indian
territories, shall have, exercise and enjoy all the rights, privileges,
powers and immunities, including, but without limitation, the
power to enact ordinances and collect taxes, and shall be subject to
all the duties, obligations, liabilities and limitations of a
municipality of and subject to the laws of the State, provided,
however, that internal tribal matters, including membership in the
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 shall
not be subject to regulation by the State.

30 M.R.S. § 6206(1) (emphasis added). Thus, pursuant to the Implementing

Act, the Tribes are treated like municipalities except with regard to “internal

tribal matters.” See Penobscot Nation v. Stilphen, 461 A.2d 478, 488 (Me. 1983).

[¶11] In arguing that the Department’s actions interfered with internal

tribal matters, the Tribe specifically points to the “right to reside within the

respective Indian territories,” and asserts that, by placing the children in a

foster home that is not on Passamaquoddy territory, the Department has

interfered with an internal tribal matter. Based on this assertion, the Tribe

claims a right to intervene in this child protective matter. As discussed below,

the plain meaning of “right to reside within the respective Indian territories”

does not support the Tribe’s position.

[¶12] To interpret the term “right to reside,” we first look to the plain

meaning of the statutory language in the context of the whole statutory scheme.
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See State v. Stevens, 2007 ME 5, ¶ 5, 912 A.2d 1229. The United States Supreme

Court has long recognized that Indian tribes have the right to determine who

may and may not reside within their respective territories, subject only to the

plenary control of the United States Congress. See Worcester v. Georgia, 31 U.S.

(6 Pet.) 515, 559, 561 (1832); Santa Clara Pueblo v. Martinez, 436 U.S. 49, 58

(1978). This right is specifically memorialized in section 6206(1) of the

Implementing Act, which the Tribe has recognized as giving it the

“unquestioned right to determine if and when a person may reside within

Indian Territory.” Indian Twp. Passamaquoddy Reservation Hous. Auth. v.

Socobasin, No. P93-C-03, 1994 Passamaquoddy App. LEXIS 2, at *7-8

(July 4, 1994).

[¶13] The statutory language of section 6206(1) is plain on its face: the

State is prohibited from regulating “the right to reside within the respective

Indian territories.” 30 M.R.S. § 6206(1). Here, neither the court nor the

Department has, or is, attempting to regulate who may or may not reside within

an Indian territory. As the court correctly held, a child protective proceeding

in no way “calls into question the right of the Tribe to determine who is able or

not able to reside on its reservation or within its territory.”5

5 In a child protective proceeding, it is the court’s obligation to determine whether to terminate

or suspend an individual’s parental rights because that individual’s child is in circumstances of
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[¶14] In addition, the Implementing Act specifically acknowledged and

retained the existing structure of the Indian Child Welfare Act (ICWA). See

S. Rep. No. 96-957, at 15 (1980) (stating that the Settlement Act “specifically

continues the applicability of . . . the Indian Child Welfare Act, and all other

federal Indian statutes to the extent they do not affect or preempt authority

granted to the State of Maine under the terms of the settlement”); 30 M.R.S.

§ 6209-A(1)(D) (granting exclusive jurisdiction over “Indian child custody

proceedings to the extent authorized by applicable federal law . . . .”). If the

children who are the subject of this action were members of the Tribe, or

eligible to become members, then the ICWA would apply and the

Passamaquoddy court would be able to assert jurisdiction over these children,

or at a minimum, the Tribe would have had the statutory right to intervene in

this case. See 25 U.S.C.S. § 1911 (LEXIS through Pub. L. 115-281); 30 M.R.S.

§ 6209-A(1)(D).

[¶15] Finally, the Tribe’s urged construction is at odds with our broader

interpretation of what constitutes an internal tribal matter. In determining

jeopardy. See 22 M.R.S. §§ 4035, 4055 (2017). If the court determines that the child is in jeopardy, it
must then determine how best to protect the child. See 22 M.R.S. § 4036 (2017). In this case, the
court determined that the mother’s children were in circumstances of jeopardy and that to best
protect the children it had to remove them from her custody. See 22 M.R.S. §§ 4034, 4035, 4036,
4036-B (2017). The mother does not contest that determination.
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whether something constitutes an internal tribal matter, we have looked to the

factors announced by the First Circuit in Akins v. Penobscot Nation, 130 F.3d

482, 486-87 (1st Cir. 1997).6 The Akins factors, which are nonexclusive and

nondispositive, include: “(1) the effect on nontribal members, (2) & (3) the

subject matter of the dispute, particularly when related to Indian lands or the

harvesting of natural resources on Indian lands, (4) the interest of the State of

Maine, and (5) prior legal understandings.” Great N. Paper, Inc. v. Penobscot

Nation, 2001 ME 68, ¶ 49, 770 A.2d 574 (applying the Akins factors to

determine that the Maine Freedom of Access Act does not apply to the

Penobscot Nation when it is engaged in self-governance).

[¶16] When the Akins factors are applied here, the subject matter of this

action—the children—are nonmembers, and stand to be the most affected by

its outcome. Moreover, the State has a well-established parens patriae interest

in the safety and well-being of the children within its jurisdiction. See In re

Emma B., 2017 ME 187, ¶ 12, 169 A.3d 945 (citing Prince v. Massachusetts,

6 Shortly after the enactment of the Implementing Act, we used the familiar canon of esjudem

generis—“that a general term followed by a list of illustrations is ordinarily assumed to embrace only
concepts similar to those illustrations”—to construe “internal tribal matters” as encompassing only
the concepts similar to those explicitly listed after it. Penobscot Nation v. Stilphen, 461 A.2d 478,
489-90 (Me. 1983) (determining that an otherwise unlawful high stakes beano game was not similar
to the listed matters because those matters did not directly bring the Penobscot Nation into conflict
with state laws of general application). However, in more recent cases, we have consistently applied
the Akins factors, and continue to do so here. See Great N. Paper, 2001 ME 68, ¶ 49, 770 A.2d 574;
Francis v. Dana-Cummings, 2008 ME 184, ¶¶ 13-17, 962 A.2d 944.
10

321 U.S. 158, 166 (1944)); see also 22 M.R.S. § 4003 (2017), amended by P.L.

2017, ch. 411, §§ 5-7 (effective Aug. 1, 2018) (codified at 22 M.R.S. § 4003(2),

(3-A), (3-B)). Finally, there is a prior legal understanding that the ICWA, which

provides the protections and procedures that the Tribe argues for here, does

not apply in this case. See 25 U.S.C.S. § 1903(4). All of these factors weigh

against a determination that an “internal tribal matter” is at issue here.

[¶17] Accordingly, the court did not err by determining that the removal

of nonmember children from the custody of their mother, pursuant to a

properly issued child protection order, did not constitute impermissible state

regulation of an internal tribal matter. For that reason, the court properly

denied the Tribe’s motion for intervention of right. See M.R. Civ. P. 24(a).

B. Permissive Intervention

[¶18] As an alternative to its claim for intervention of right, the Tribe

asserts that it should be permitted to intervene pursuant to Maine Rule of Civil

Procedure 24(b), again relying upon the argument that its participation in the

case is necessary to protect the Tribe’s sovereign power to decide who may or

may not reside within Passamaquoddy territory.7 For the reasons already

7 As part of its motion to intervene, the Tribe implies that by removing the children from Indian

Township, the children would miss out on being exposed to the Tribe’s culture, language, and
community. The Tribe asserts that it is important that the children have such exposure, regardless
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discussed, we do not find the Tribe’s underlying argument persuasive, and

conclude that the court did not abuse its discretion by denying the Tribe’s

motion for permissive intervention. See M.R. Civ. P. 24(b); In re N.W., 2013 ME

64, ¶¶ 12-13, 70 A.3d 1219 (stating that the interest of both the children and

the Department is “the prompt adjudication of a permanent and safe living

arrangement” for the children).8

The entry is:

Judgment affirmed.

ALEXANDER, J., with whom SAUFLEY, C.J., joins, dissenting.

[¶19] This child protective action involves children who have been living

with their mother, a member of the Passamaquoddy Tribe, on the

of their nonmember status, because the children’s mother is a member, and the children were living
within the Tribe’s territory.

The court recognized this concern, and noted that the mother was free to bring her, and the
children’s, cultural traditions to the court’s attention at the hearing. In addition, the grandmother of
the children, also a member of the Tribe, was permitted to intervene in this action pursuant to
22 M.R.S. § 4005-(D)(5). See supra n.2. Like the mother, the grandmother is also able to bring
concerns regarding the children’s culture to the court’s attention.

8 While the Tribe may not intervene in this action, the Department represented at oral argument

that it would not object to the continued participation of the Tribe through interested-person or
participant status. Interested person status would allow the Tribe to remain informed regarding the
proceedings and attend all hearings. See 22 M.R.S. § 4005-D(2)-(3) (2017). As a participant, the Tribe
would be permitted to both attend all hearings and be heard in the proceedings about cultural and
other matters. § 4005-D(4).
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Passamaquoddy Reservation at Indian Township. The children’s mother is

urging a kinship placement9 with the children’s maternal grandmother, who is

also a member of the Passamaquoddy Tribe. The grandmother has been

granted intervenor status. M.R. Civ. P. 24(b).

[¶20] The children’s mother, their grandmother, and the

Passamaquoddy Tribe itself each have a legitimate interest in preserving the

children’s access to and participation in the tribal culture that would be

fostered through a continuing relationship with the Tribe. As the Court

recognizes in its opinion In re Children of Shirley T., 2019 ME 1, ¶ 13, --- A.3d ---,

also published today, preserving access to tribal culture is important for

children with a parent or parents who are members of a tribe. Shirley T. quotes

the federal Indian Child Welfare Act, enacted in 1978, which states “that an

alarmingly high percentage of Indian families are broken up by the removal,

often unwarranted, of their children from them by nontribal public and private

agencies and that an alarmingly high percentage of such children are placed in

non-Indian foster and adoptive homes and institutions,” and “that the States

. . . have often failed to recognize the essential tribal relations of Indian people

9 See 22 M.R.S. §§ 4003(3-A), 4062(4) (2017) (instructing the Department to give preference to

an adult relative over a nonrelated caregiver when determining placement for a child). These
subsections have since been amended to include a reference to the newly enacted 22 M.R.S. § 4005-G.
See P.L. 2017, ch. 411, §§ 5, 11, 13 (effective Aug. 1, 2018).
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and the cultural and social standards prevailing in Indian communities and

families.” 25 U.S.C.S. § 1901(4)-(5) (LEXIS through Pub. L. No. 115-281).

[¶21] In the matter before us, for the safety of the children, the District

Court (Calais, D. Mitchell, J.) rejected the request to place the children in a

kinship placement with their maternal grandmother. Instead, it authorized the

Department of Health and Human Services to seek a foster placement for the

children off the reservation and with caregivers who are not related to the

children and are not members of the Passamaquoddy Tribe.

[¶22] With the prospect of the children being removed from their

Passamaquoddy relatives and the reservation community, the Passamaquoddy

Tribe sought to intervene as a matter of right or, alternatively, with the court’s

permission. M.R. Civ. P. 24(a)(2), (b). The Tribe argued that, pursuant to

30 M.R.S. § 6206(1) (2017), the children’s right to reside with their relatives on

the reservation constituted an “internal tribal matter” that “shall not be subject

to regulation by the State.” Accordingly, the Tribe argued that it had an

independent interest and a right to at least be heard regarding proper

placement of the children.

[¶23] The District Court denied the Tribe’s motion to intervene, and the

Court today affirms. From the Court’s affirmance of the denial of the
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Passamaquoddy Tribe’s effort to be heard regarding placement of children of a

member of the Passamaquoddy Tribe who have lived on the Passamaquoddy

Reservation, we respectfully dissent.

[¶24] Although we concur with the Court’s determination that the

Tribe’s concern about removal of the children from the reservation does not

constitute an internal tribal matter that would allow the Tribe to intervene as a

matter of right, that conclusion does not decide the issue. As the Tribe asserts,

their participation in decisions related to the placement and resources

available to the children are matters of importance to the court in addressing

the needs of the children, whose mother is a member of the Passamaquoddy

Tribe. The Tribe’s role, distinct from the role of family members, is important

in informing the court of options regarding tribal resources and connections to

tribal culture. As the Tribe argues, “[g]iven the well-established, horrific

history of forced acculturation and state agencies removing children from their

tribal families and forcing them to live off the reservation,” the Tribe’s request

to remain a resource for the children and the court is compelling.

[¶25] Although the Tribe’s argument that these factors and this history

give it a right to participate pursuant to 30 M.R.S. § 6206(1) is unpersuasive on

the facts of this case, these factors and this history demonstrate that, in the
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proper exercise of its discretion, the District Court should have found a method

of involvement for the Tribe that would benefit the children. See 22 M.R.S.

§ 4005-D(1)(C)-(E) (2017).10 With such involvement, the District Court could

properly consider information from the Tribe regarding conditions and

resources on the reservation and important cultural factors that may favor the

children returning to reside on the reservation or having continued meaningful

contact with members and the culture of the Tribe.

[¶26] In a footnote, the Court does suggest other ways the Tribe might

be allowed to participate. See supra note 8. However, those alternatives do not

appear to have been considered by the parties, and there is no certainty of any

participation on remand. We would vacate the trial court’s denial of the Tribe’s

motion to intervene and remand for the court to consider which type of

participation by the Tribe would best allow the Tribe to have meaningful input

regarding the children’s connection to their Indian heritage.

10 22 M.R.S. § 4005-D has since been revised, but subsections (1)(C)-(E) are unchanged. See P.L.

2017, ch. 411, §§ 8-9 (effective Aug. 1, 2018).
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Arnold S. Clark, Esq. (orally), Fletcher Mahar & Clark, Calais, for appellant
Passamaquoddy Tribe

Janet T. Mills, Attorney General, and Hunter C. Umphrey, Asst. Atty. Gen.
(orally), Office of the Attorney General, Augusta, for appellee Department of
Health and Human Services

Calais District Court docket number PC-2017-06
FOR CLERK REFERENCE ONLY