High court: Indian case belongs in tribal venue

Posted Dec. 15, 2008, at 11:07 p.m.

PORTLAND, Maine — The Maine Supreme Judicial Court has ruled unanimously that a Passamaquoddy woman’s lawsuit against the Pleasant Point Passamaquoddy Housing Authority was properly heard in tribal court and should not have been in Superior Court as the plaintiff had argued.

The court issued its decision Thursday in the case of Pamela Francis v. Colleen Dana-Cummings, the housing authority and five of its former commissioners. Justices heard arguments in the appeal in October, when it convened at Sanford High School during its annual visit to Maine schools.

It was the fifth time a case involving Francis had been before the state’s high court.

What began as an employment discrimination case in the late 1990s evolved into a dispute over ownership of a house on the reservation. Francis, a former executive director of the housing authority, claimed in her eviction lawsuit filed six years ago that on Feb. 24, 1998, her successor, Dana-Cummings, directed housing authority employees to enter her residence forcibly and evict her.

The incident stemmed from a dispute over ownership of a house Francis previously lived in on the reservation. Francis, who now lives in Old Orchard Beach, claimed ownership of the house as the designated successor of her father, Edward Bassett Sr., now deceased. The housing authority also claimed ownership.

Earlier this year, Francis’ attorney, Curtis Webber of Auburn, said a tribal judge ruled in Francis’ favor after a four-day trial. She was awarded $10,000 in damages for emotional distress and compensatory damages for the personal property from the house that was “destroyed” by tribal members, her attorney said.

Webber appealed a portion of the case to the state supreme court asking that Francis be able to seek a jury trial, punitive damages and legal fees in Washington County Superior Court because they are not available to plaintiffs under tribal court rules.

Webber on Monday described his reaction to the court’s decision as “devastation.”

“It’s a very hard decision to accept,” he said. “I’ve been devoting a good part of my legal life to this case. We do have the consolation of having prevailed in tribal court.

“There are significant consequences to this decision,” he said, “[including] not being able to recover punitive damages — and because of what the [tribal] housing authority did my client deserved punitive damages — and not being able to collect attorneys fees.”

Webber did not specify the amount of damages or legal fees he would have sought in Superior Court.

Kaighn Smith Jr., the Portland attorney who represented the tribal defendants, said Monday that “it’s the right result. It just took us awhile to get there.”

The court found that the facts of the Francis case determined that the case be heard in tribal court rather than Superior Court:

ä All of the individual parties were members of the Passamaquoddy Tribe.

ä The property involved in the dispute was a low-income housing unit located on tribal land.

ä The dispute involved occupancy and rights to the use of property on the reservation.

ä All questionable actions occurred on the reservation and involved only members of the tribe and agencies controlled by the tribe.

ä A forum to redress any violation of rights and provide remedies exists in the tribal court.

ä The dispute could be resolved without participation by or communication with parties or agencies outside the reservation.

ä Resolution of the dispute required the interpretation of and application of tribal law, regulations, rules and policies.

Justices Andrew Mead and Ellen Gorman, who both ruled in the previous Francis cases when they were Superior Court judges, recused themselves from the case, which was dubbed “Francis V.”

jharrison@bangordailynews.net

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