The state of Maine needs a new beginning with the tribes. Maine recognized tribal sovereignty when it signed a treaty with the tribes required by Massachusetts in its articles of separation over 200 years ago. Truth be told, however, Maine did not sign that treaty with good-faith intentions.
The commitment of Maine’s government to tribal sovereignty varies according to who’s governor and in the Legislature. Penobscot Nation Chief Kirk Francis speaks at a 2017 hearing in Augusta. In the front row are Chief Brenda Commander, Houlton Band of Maliseets; Chief Edward Peter-Paul, Aroostook Band of Micmacs; Chief William Nicholas, Indian Township Passamaquoddy reservation; and Chief Ralph Dana, Pleasant Point Passamaquoddy reservation. Joe Phelan/Kennebec Journal, File
The first evidence of Maine’s real intent was its governor’s direction to survey the lands belonging to the tribes within six months of statehood. From Day One, state legislation and policies served to keep the tribes poor and to dismantle tribal governmental structure. Laws known to the tribes as “Blue Book laws” controlled our everyday lives. The Legislature put an agent in charge of the tribal trust fund established by the treaty. Maine’s failure to implement those treaty obligations proved the underlying intent of the state to assimilate and terminate.
The commitment from state government has been up and down. When the Land Claims settlement was approved, the state dissolved its Department of Indian Affairs, thereby eliminating any official direct communication with the tribes. Maine governors and Legislatures issue executive orders and a variety of legislation about how to relate to the tribes or if they will recognize tribal sovereignty. This varies from governor to governor and from Legislature to Legislature. The tribes are left to wonder about their standing from year to year. This situation does not lend itself to a stable or trusting relationship.
The sections of the Maine Constitution that incorporate Maine’s treaty obligations were removed from public view by the Legislature in 1841, although they were still in effect. The removal took place just one year before the decision in the Maine Supreme Judicial Court case Murch v. Tomer. Chief Justice Ezekiel Whitman ignored the recognition of the tribes in the Maine Constitution. Murch v. Tomer was cited, with devastating effect, in the 1892 case State v. Peter Newell. Chief Justice John Peters found that the tribes no longer exist and, therefore, that Maine had no treaty obligations. These two court cases effectually terminated the tribes and treaty obligations. It is no wonder there is no trust.
The tribes have been in a disastrous relationship with the state for over 200 years. We need to establish trust, and in order to do that we must go back to the beginning and start over. The 1819 treaty marked the beginning of the Maine tribal relationship. Maine proceeded to steal tribal land. The court system backed the right of Maine to steal those lands. It’s nearly impossible to correct historic wrongs. Maine’s way of dealing with the tribes has been a colossal failure, resulting in endless litigation. It is time to try another remedy.
How can we create a relationship of trust?
The honorable way to deal with the tribes is not to take their lands and keep them in poverty. Tribal obligations are mentioned in the Maine Constitution; I suggest that Maine print those obligations and recognize them rather than cover them up in legislation and court decisions.
In order to show good faith in implementing its treaty obligations, the state needs to make room for a fifth constitutional officer. This would be a permanent position embedded in the Maine Constitution and appointed by the Legislature to be the official liaison between the state and tribal governments.
I believe the creation of this fifth constitutional office, the Office of Tribal Relations, would be a cornerstone in establishing trust between the state and the tribes. We need a new beginning and this could be it. It is within the power of the Legislature to create this constitutional office and the people of the state of Maine to approve it. The duties and details of this new office could be worked out through the legislative hearing process. The result of such a constitutional office would be the immutable recognition of the tribes and an office where tribal issues and concerns could be respectfully addressed. The result of such a constitutional office would be the permanent recognition of the tribes. The tribes would finally have an official and stable connection to state government.
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