Argued: November 7, 2018
S. Clark, Esq. (orally), Fletcher Mahar & Clark, Calais,
for appellant Passamaquoddy Tribe
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
SAUFLEY, C.J., and ALEXANDER, MEAD, GORMAN, JABAR, HJELM, and
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.
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").
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. At the time the petition was
filed, the children were living with the mother on the
Passamaquoddy reservation at Indian Township.
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 request and
allowed the Department to seek foster
placement. The Department placed the children in
foster care outside of Indian Township.
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.
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 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).
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).
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 ...