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).	
2

                                       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.	
                                                                                                 5

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.		
                                                                                                            7

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	
8

	       [¶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.	
                                                                                                                 9

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	
                                                                                                                  11

    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).	
12

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).		
                                                                                         13

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	
14

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	
                                                                                                    15

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).			
16

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	
