A congressional hearing Thursday on Democratic Rep. Jared Golden’s bill to allow Maine’s tribes to benefit from all future federal Indian laws received a mixed reception, with the ranking Republican expressing concern about Congress acting without Maine’s consent.
The subcommittee, however, didn’t invite a state official to the virtual hearing, leaving the committee’s top Republican member to ask fundamental questions about the fraught and complicated 1980 land claims settlement between the state and tribes to the only witness they had called, a lobbyist for the state’s forest products industry.
U.S. Rep. Jared Golden
“I can’t speak for the state of Maine,” Patrick Strauch, executive director of the Maine Forest Products Council, said after being pressed into that role by members for more than 10 minutes. “I can only speak for the Maine forest products industry.”
The ranking Republican member, Rep. Jay Obernolte of California, was among those expressing concern about Congress modifying the 1980 agreement if the state of Maine objected.
“I hope maybe as this process continues we can find some way of navigating this that gets these resources to the tribes without overriding the jurisdiction of the state,” he said.
Gov. Janet Mills, a Democrat who has expressed strong reservations about reforms that would substantially weaken the state’s jurisdiction over Maine’s four federally recognized tribes, has not taken a formal position on the bill. On Thursday morning, her chief legal counsel, Gerry Reid, sent a letter to the subcommittee that said they would be submitting written testimony after “reviewing this legislation” and before the “close of the hearing record.”
Obernolte’s spokesperson did not respond to an inquiry about why neither the Mills administration nor the state’s attorney general was invited to present and answer questions at the hearing.
Several Democrats on the committee expressed support for the bill from Golden, who represents Maine’s 2nd Congressional District, and indignation that Maine’s tribes were treated differently than other federally recognized tribes.
“I don’t see how federal recognition is federal recognition unless there is that exercise of (tribal) sovereignty of the lands and resources of the tribes,” said Rep. Ed Case of Hawaii. “So this one is a puzzle for me.”
Rep. Betty McCollum of Minnesota said she was “outraged” by Maine’s prior behavior concerning a pilot project Congress approved in 2013 to allow the Penobscot Nation’s courts to try certain categories of domestic violence crimes on the reservation under the Violence Against Women Act. Maine challenged the project, saying the federal act didn’t apply to Maine tribes. Paul LePage was governor at the time, and Mills was attorney general.
“I think the state of Maine pre-empted the federal government from working in partnership with tribal nations in Maine to uphold their obligation to protect families and women,” McCollum said. “We cannot have a group of tribal nations treated differently in their sovereignty than other tribal nations in this country.”
Maine tribes have been excluded from federal Indian laws and programs under the controversial 1980 agreement three of them negotiated with the state, and have long sought to benefit from changes to federal law that apply to all other tribes. The Maine Legislature is contemplating several bills that would alter that relationship to the tribe’s benefit, including one backed by the tribes that would return to them the same powers and privileges most other federally recognized tribes enjoy.
Golden’s Advancing Equality for Wabanaki Nations Act would amend the federal law that governs the historic 1980 agreement to remove one of several restrictions on their sovereignty. In the 1980 negotiations to settle the tribes’ claim to two-thirds of the state, Maine demanded that no federal Indian law – past or future – that undermined Maine’s authority would apply to the Maine tribes unless Congress specifically included them.
None of the 570 other federally recognized tribes in the United States faces similar encumbrances. The provisions in the law, the Maine Indian Claims Settlement Act, excluded Maine tribes from the provisions of the Indian Gaming Act (which allows and regulates tribal casinos), the Stafford Act (which allows tribes to seek federal disaster relief funds), the Indian Health Improvement Act (which allows tribes to employ medical professionals licensed in another state), the Violence Against Women Act (which allowed tribes to prosecute non-Indian defendants for domestic violence crimes on their reservations), and other laws.
Golden’s bill, which is co-sponsored by Rep. Chellie Pingree, D-1st District, would only apply to future laws, though it has language that would allow the Houlton Band of Maliseet and the Mi’kmaq to join the other two Maine tribes in benefiting from the Indian Child Welfare Act. That 1978 law increases a tribal court’s authority in child custody matters and limits a state’s ability to remove Indian children from their families.
Mi’kmaq Chief Edward Peter Paul testified that if the bill passed it would mark “the first time that our Nation would be able to assume jurisdiction over our most precious resource, our children. It will allow us to start our nation-building efforts by helping us to create our first court system, a court system to oversee our Indian Child Welfare Act cases.”
The Mi’kmaq recently changed their official name from the Aroostook Band of Micmacs to the Mi’kmaq Nation.
Tribal leaders worked closely with Golden’s office on the bill, and the chiefs of all four tribes testified in favor of its passage at the hearing.
Strauch of the Maine Forest Products Council said his industry opposes the bill because it would create regulatory uncertainty and would allegedly trigger the dismantling of Maine’s jurisdictional authority in the long term as federal laws are updated or reauthorized. “I think it would be a dangerous precedent,” he said.
Golden parried this criticism in his opening remarks. “You might also hear concerns expressed that this bill could create new ambiguity and lead to litigation,” he said. “But anyone in Maine can tell you there’s been repeated litigation between the state and tribes over the past 40 years precisely because (the settlement acts) created ambiguity in this area.”
Golden, who doesn’t sit on the subcommittee and so did not play a role in sending invitations, said via telephone Thursday night that the hearing was just a step in what would be a long process to passage, and that the governor’s office would have plenty of opportunity to be consulted. He said the majority had wanted to hear from the tribal leaders first and foremost, which is why they were given the limited slots available.
“I’m glad that the chiefs got to sit before Congress today and talk about this longstanding problem, which I think has done damage to them and the people they represent,” Golden said. “But I think it’s also done damage to the state. It’s a lose-lose situation.”
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