Decades of conflict between Maine’s government and the state’s indigenous people will take center stage at the State House this week.

Lawmakers may try to redefine that fraught relationship by restoring the right of the Maine Indian tribes to govern themselves in the same way that federally recognized tribes do in the rest of the country, a move that runs the risk of a veto by Gov. Janet Mills.

Proposals before the Legislature would transform the tribes’ legal standing in relationship to the state and municipal governments, a change in power dynamics unprecedented in Maine’s history but long the norm in other states. And the impact could ripple through Maine’s tribal communities, affecting economic development and quality of life and access to federal programs that are now out of reach.

“This is about the tribes being on equal footing with other tribes in the country and modernizing and healing the relationship with the state of Maine,” says Maulian Dana, the Penobscot Nation’s ambassador at large. “We’re super thankful for all of this support and excited to be back in the process.”

A legislative panel Tuesday will hold a hearing on two bills – L.D. 1568 and L.D. 1626 – that would implement the recommendations of a 13-member task force appointed by the Legislature to study the matter in 2019. The legislation was originally to have been debated two years ago, but was delayed first by the onset of the pandemic and again last year when legislators were overwhelmed by the backlog of bills.

The package, which would greatly enhance the tribes’ powers over land use, natural resources, environmental measures, taxation and other matters on tribal land, has had the support of the top leadership in both chambers, Senate President Troy Jackson, D-Allagash, and House Speaker Ryan Fecteau,  D-Biddeford, but not Governor Mills, who opposed certain tribal sovereignty efforts as attorney general.

While the bills are backed by a broad range of environmental, religious, labor, and social justice groups, some of their provisions have alarmed some municipalities and business groups concerned about regulatory uncertainties and the possible loss of towns’ power to regulate the use of lands purchased by the tribes within their boundaries.

“We’re not saying the settlement acts shouldn’t be amended, but this is just throwing out the whole thing and seeing what happens,” says attorney Matthew Manahan of Pierce Atwood, who represents 10 interior Maine municipalities and two sewer districts concerned about how the changes will affect them. “It’s too much. It needs to go back to the drawing board.”

Gov. Mills declined an interview request for this story, but she expressed similar concerns about the “sweeping nature of the bill” in a February 2020 letter to legislators.

Mills warned the bill would allow the tribes to acquire land anywhere in the state to convert to trust land, removing it from state and local jurisdiction, including property taxes and labor, forestry, mining, and air quality regulations. Because, under federal law, any changes to the settlement acts have to be agreed to by both the state and the tribes, Mills noted, the Legislature would not be able to undo any decisions they later regretted because of “unexpected negative consequences.”

In response to questions about L.D. 1626, Mills’ office forwarded an opinion column authored by the governor’s chief legal counsel, Jerry Reid, and published last week. In it Reid said the governor’s office was “concerned that some of the legislation’s broadly written provisions would lead to new legal disputes over their meaning and effect at a time when we are working so hard to improve relations.” It described ongoing negotiations with tribal leaders to find common ground on state tax relief for tribes and institutional and process improvements in how tribal and state governments interact.

“Our negotiations remain ongoing and we are working toward finalizing legislative language that could be enacted this session,” Reid wrote.

Asked by email if there were particular parts of the legislative package that would be non-starters for the governor, her  office did not respond.

A number of other key stakeholders in the process did not respond to requests to speak about the bills last week, including Penobscot Nation Chief Kirk Francis, Maliseet Chief Clarissa Sabattis and the bills’ sponsor, Rep. Rachel Talbot Ross, D-Portland. The Passamaquoddy Tribe’s attorney, Michael-Corey Francis Hinton, declined an interview request.

LONG STANDING GRIEVANCES

Maine’s four tribal nations – the Passamaquoddy Tribe, the Penobscot Nation, the Houlton Band of Maliseets and the Aroostook Band of Micmacs (or Mi’kaq) – have long sought clarifications to the Settlement Acts, a pair of federal and state laws passed in 1980 to settle a tribal land claim to two-thirds of the territory of the state of Maine. In exchange for an $81.5 million cash settlement, the Passamaquoddy and Penobscots agreed to drop their land claims and adhere to a unique jurisdictional arrangement.

Under pressure – the incoming Ronald Reagan administration was expected to derail the settlement – the two tribes agreed to be subject to the laws and jurisdiction of Maine, except for “internal tribal matters,” hunting and certain fishing rights on tribal territory. The settlement also stipulated that federal Indian laws – past and future – did not apply to the Maine tribes if they affected Maine’s sovereignty in any way, unless Congress specifically said otherwise. The latter measure foiled tribal efforts to open casinos, to adjudicate certain crimes taking place on tribal territory, and to access a range of federal funding.

“The Settlement Acts basically removed the ability of the tribes to develop governmental, economic, and legal institutions that enhance their sovereignty and match their culture,” says Steven Brimley, a Belfast-based anthropologist who spent decades as a consultant to the Penobscot Nation and other tribes on developing their judicial systems. “Maine tribes have some of the least ability to exert their sovereignty of any federally recognized tribes in the country.”

The bills currently before the Legislature would effectively repeal the special encumbrances in the Maine settlement act, putting tribes here on par with those elsewhere in the country.

State laws would cease to apply not only on their reservations but also on “trust land,” land owned by the tribes that the U.S. Department of the Interior has accepted as federally supervised land for tribal use and benefit. Tribes would be allowed to purchase potential trust land anywhere in the state (not just in certain counties as is currently the case) including within organized towns. All federal Indian laws would apply in Maine.

In a separate development announced Thursday, U.S. Rep. Jared Golden introduced a bill in Congress that would amend the federal settlement act, making all future federal Indian laws apply to the Maine tribes. The 2nd District Democrat made the announcement in conjunction with leaders of three of the tribes and 1st District Rep. Chellie Pingree, who is the bill’s first co-sponsor.

“Maine tribes want what the other tribes have already, so it’s not like this is novel,” says Stephen Pevar, senior staff counsel at the American Civil Liberties Union and author of the most used reference book on federal Indian law, “The Rights of Indians and Tribes.” “There is a track record in the other 49 states where you could look and see what is likely to happen.”

“There are definitely some heated controversies between tribes and states but the trend is toward cooperation,” Pevar adds. “By and large they work things out because there are many more reasons for them to be friends than enemies.”

AN UNUSUAL SETTLEMENT

Maine has long been an outlier in tribal relations, and not in a good way.

When the tribes began their legal struggle for sovereignty in the mid-1960s, Maine considered them wards of the state.

Indians weren’t allowed to serve on juries or to vote in state elections and in eastern Maine they couldn’t get jobs in the local mills, their hair cut by area barbers, or win the conviction of a white person for murdering one of their members. Maine courts had declared the tribes didn’t exist and Maine officials had illegally sold off thousands of acres of Passamaquoddy treaty lands and trust fund. A state Indian agent – an arbitrary and much-feared retired fish inspector named Hiram Hall – held the power of life and death over his Passamaquoddy wards, controlling who did and didn’t receive food and other supplies.

The Passamaquoddy Tribe attempted to restore its sovereignty in court, but its initial effort to sue the state came undone hours after the case was filed because of a state-sponsored conspiracy against their attorney, Don Gellers, organized by the attorney general’s office and the Maine State Police.

Arrested for the “constructive possession” of three marijuana cigarettes allegedly found in the pocket of a jacket hanging in his upstairs bedroom, Gellers was sentenced to two to four years in prison in a case condemned by the National Lawyers Guild. He fled to Israel and the Passamaquoddy’s case collapsed. Recognizing the miscarriage of justice, Gov. Mills in 2020 gave Gellers the first posthumous pardon in Maine history.

Gellers’ intern, Tom Tureen, picked up the pieces and, using a different legal theory, sued the federal government for allowing Passamaquoddy and Penobscot territory comprising two-thirds of Maine to be taken from the tribes without congressional approval. In 1975, the tribe won the historic case, which reversed the legal assumption that tribes in the eastern U.S. had lost their sovereignty by conquest and could not receive federal recognition.

From 1976 to 1980, the Passamaquoddy, Penobscot and Maliseet had exactly the powers they’re seeking today: They were federally recognized and subject to the same legal framework as long-before-recognized Western tribes such as the Navajo or Lakota Sioux. As such, they were not subject to state laws or taxes, the federal government had sole authority over felony-level crime on their reservations, and all federal Indian laws applied on their reservations and trust territories.

But the 1975 legal decision effectively meant the land claim case against the state of Maine could go forward, not that it had been resolved. And the tribes still wanted a settlement with the state that would give them partial compensation for the theft of tribal lands. Negotiations brokered by President Jimmy Carter’s White House staff dragged on for months, with both sides under pressure to avoid bringing the explosive case to court.

 

At the end of 1980, Carter lost his reelection bid to Reagan and the tribes had reason to fear the whole process might collapse. They agreed to settle their claims for $81.5 million and a series of concessions that reversed many of the gains of their victory in court.

MUNICIPALITIES, NOT NATIONS

Unlike other federally recognized tribes, the new agreement meant Maine’s tribes were to be subject to virtually all state laws. Instead of sovereign reservations, they would be given the powers of municipalities – to run schools and police departments, to enact zoning, build roads, and receive state municipal aid. They would be entitled to govern their internal affairs, and to set up tribal courts to rule on minor offenses between tribal members on tribal land, but would pay state taxes and accept state environmental, labor and gambling regulations.

The deal involved “no significant compromise of the state’s sovereignty at all,” Gov. Joseph Brennan’s legal counsel, David Flanagan, told state lawmakers at the time. “What we have created is certainly not a nation within a nation but rather two new municipalities within the state.”

Subsequent administrations – Democratic, Republican and independent — have taken that same position: The tribes had given up any sovereign rights not explicitly granted to them in the settlement acts and that was that.

The tribes have argued that the only powers they gave up are those explicitly described in the settlement: being subject to the laws and jurisdiction of the state in matters not internal to the tribe. Areas that were not fleshed out in the agreement – from fishing rights to operating casinos – were to be negotiated between the parties in good faith.

When questions of what was an “internal tribal matter” came to a head, state authorities and courts – which had jurisdiction under the settlement’s terms – rarely agreed with the tribes’ point of view.

The Penobscots’ on-reservation high stakes beano games – conducted since federal recognition in 1976 – were shut down in 1982 after a state court disagreed that they were an internal matter. In 2013, marine patrol officers wound up in tense confrontations with Passamaquoddy elver fishermen bearing tribal, rather than state-issued, fishing licenses.

In 2012 the state asserted that the Penobscot Nation’s reservation sustenance fishing rights didn’t extend from bank to bank on the Penobscot River, only to their island reservation located in the middle of the river, prompting a heated legal battle, with then-Attorney General Janet Mills representing the state. In 2018, a federal judge issued a mixed ruling: The tribe had sustenance fishing rights in the river, but their territory ended at the island’s shores.

Joseph Kalt, co-director of the Harvard Project on American Indian Economic Development at Harvard University’s Kennedy School of Government, says the track record elsewhere in the U.S. shows that tribes and the states where they are embedded can both win when the former gain greater control of their affairs.

“The overall pattern is quite clear that once tribes have the kind of sovereignty Maine’s tribes are seeking, they basically perform better – economically and socially – and that’s a benefit to everyone,” Kalt said.

Sovereignty, he says, means accountability and accountability creates better government, improved services, job prospects, infrastructure, and schools with positive spillover effects for surrounding communities.

“Maine isn’t used to this stuff, but elsewhere in the country governments behave responsibly – tribal and non-tribal – by entering into countless agreements with each other to coordinate revenue and jurisdiction sharing, coordination of transportation or environmental laws, or the building of a new bridge between states,” Kalt says. “Tribal governments don’t have perfect performance everywhere, but look across the fifty states” and compare their track records.

The public hearings for L.D. 1626 and L.D. 1588 will be held before the Legislature’s Judiciary Committee starting at 9 a.m. Tuesday.

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