High court: Francis case belongs in tribal court

The 10-year saga of the court cases stemming from the break-in at the residence of a former executive director of the Pleasant Point Passamaquoddy Housing Authority took a new twist this month, with the Maine Supreme Judicial Court ruling that the lawsuits properly were heard in tribal court and should not be in the state courts.

Although the Passamaquoddy Tribal Court decided last March in favor of Pamela Francis in the lawsuit she brought in 2002, finding that the housing authority's actions in 1998 constituted "a trespass, conversion of property and an illegal eviction," she was awarded only $10,462 in damages, including $10,000 for emotional distress. The tribal court held that punitive damages were not available because the housing authority is a governmental entity immune from such damages.

Francis then pursued a jury trial in the state court system, seeking $25,000 in punitive damages and her legal fees, which in March 2008 she said had amounted to $275,000. The housing authority had previously spent $125,000 in a settlement agreement over Francis' termination as executive director, and by 2007 had over $160,000 in legal expenses, which are covered by insurance.

The superior court decision that was affirmed by the supreme court in its December 11 ruling found that the state courts lack jurisdiction because the issues of housing on the tribal reservation are an internal tribal matter. The decision affirmed the superior court ruling on three separate lawsuits brought by Francis, which were against the then executive director of the housing authority, Colleen Dana-Cummings, the housing authority itself, and five individual housing authority commissioners at the time of the break-in. In 1998 the housing authority had been embroiled in a dispute with Francis over her ownership interest in the house she had been living in, although she was not living there when the housing authority broke in and removed her possessions.

Francis' attorney, Curtis Webber of Linnell, Choate and Webber of Auburn, says he was "stunned" by the decision. "This was our fourth trip to the supreme court on this case. We thought it was clearly established that the housing authority is a distinct legal entity and that the tribe itself is not affected, so its sovereign interests are not implicated. I was taken aback by the court's decision."

The housing authority's attorney, Kaighn Smith of Drummond, Woodsum and McMahon of Portland, comments, "It took a long time for the Maine supreme court to get to this position. It's the right result. From the perspective of the Passamaquoddy housing authority, it's an internal tribal matter to be submitted for resolution by the Passamaquoddy tribal court but not the state court system."

In its decision, the supreme court wrote that it found the case to be an internal tribal matter because: all the parties are members of the tribe; the property in the dispute is located on the tribe's reservation; the dispute involves occupancy and rights to use property on the reservation; all questioned actions occurred on the reservation and involved only members of the tribe and agencies controlled by the tribe; a forum to redress any violation of rights and provide remedies exists in tribal court; the dispute can be resolved without participation by parties outside of the reservation community; and resolution of the dispute requires interpretation and application of tribal law and regulations.

Attorney Webber has moved for reconsideration of the decision, since Francis has been deprived of the right to a jury trial, but he notes that "the court rarely grants such actions." He adds that there is no procedure in place for moving the tribal court decision to the state's superior court to protect one's right to a jury trial, since the tribal and state courts are separate systems.

In addition to the request for reconsideration by the state supreme court, the March 2007 tribal court decision is currently being appealed. Francis appealed first, arguing that Judge Rebecca Irving had erred in finding that the Passamaquoddy Fair Housing Code does not provide for covering attorney's fees, and then the housing authority appealed the decision itself. Oral arguments on the appeals will be held at the Passamaquoddy Tribal Court at Pleasant Point on December 29 before Judge Jill Shibles.