In the 1970s, the Penobscot Nation and Passamaquoddy Tribe asserted claims to two-thirds of the land in the state of Maine. They had legitimate arguments because Congress had never ratified the 18th- and 19th-century treaties conveying their lands. The state of Maine, likewise, had legitimate defenses, considering that generations of citizens had relied on those treaties to build homes, farms and businesses.
Thankfully, the tribes, the state and the federal government reached a compromise: the 1980 Maine Indian Land Claims Settlement Act. The tribes were represented by a team including the international law firm Hogan & Hartson, attorneys with the Native American Rights Fund and former U.S. solicitor general and Harvard Law School professor Archibald Cox.
The settlement was mutually beneficial in many ways. First, it granted tribes in Maine federal recognition. This meant that the federal government for the first time recognized the tribes as having a government-to-government relationship with the United States. It also recognized the tribes as possessing certain rights of self-government (i.e., sovereignty); allowed the tribes to establish their own governments, judicial systems and police forces, among other things, and strictly prohibited the state of Maine from interfering in the tribes’ internal matters. This exempted the tribes from state legislative oversight and public transparency requirements, unlike municipalities.
The settlement also guaranteed that the tribes receive federal benefits and services on the same terms as their counterparts around the country, excepting only a handful of statutes that would conflict with state law. It also made the tribes eligible for streams of state funding, like state education funding and revenue sharing, which is beneficial because other federally recognized tribes around the country generally do not enjoy such state funding.
Second, the settlement provided $80 million (today’s equivalent of more than $290 million) in federal funds and the authority to acquire up to 300,000 acres of land around the state from willing private landowners, in addition to their existing reservations. This newly acquired land would make the Penobscot and Passamaquoddy among the tribes with the greatest land holdings east of the Mississippi.
Third, in exchange, the tribes agreed that state law would apply in tribal territory, in order to maintain a stable and consistent legal and regulatory framework, as opposed to a potentially confusing patchwork of “jurisdictional enclaves” across Maine. In this way the settlement did something that had never been done anywhere in the country, and something that has never been replicated: It provided a way for the tribes to reacquire extensive lands while avoiding the disruptive effects that would result from displacing state law on those parcels as they acquired them in disparate places across Maine in the decades to follow. This explains why state law applies to lands belonging to the tribes in Maine. Maine is not unique in this respect. State laws in Rhode Island and Massachusetts also apply to federally recognized tribes in those states.
At the time, the lawyers at Native American Rights Fund declared the settlement to be “the greatest Indian victory of its kind in the history of the United States.”
None of this is to say that the Settlement Act should not be changed.
Gov. Mills recognizes that it is a 40-year-old document and she believes that, working together, we should consider amendments to address unanticipated circumstances or identified problems.
To that end, in recent years the governor, working with the tribes and the Legislature, has enacted the strongest water quality standards in the nation to protect sustenance fishing, amended the Settlement Act to allow tribes to prosecute non-tribal members for domestic violence-related crimes, and negotiated a new law that provides tribal members with new tax benefits and gives the tribes exclusive mobile sports betting rights.
That’s more progress in four years than any governor has made in the past 40. And Gov. Mills wants to continue to make progress. For example, she is interested in identifying federal laws that are not applicable to tribes in Maine and in working with the tribes and Maine’s congressional delegation to negotiate amendments to address tribal concerns.
As we move forward, the governor is committed to collaborating with the tribes and the Legislature to ensure that any changes to the Settlement Act are carefully drafted, well understood and fair to all people who call Maine home, tribal and non-tribal alike. We look forward to working with tribal and legislative leaders in that spirit.
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