March 18, 2018
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Court opinion could free Maine tribes to open casinos without state approval

Troy R. Bennett | BDN
Troy R. Bennett | BDN
July 2015 file photo of Rep. Henry Bear, Houlton Band of Maliseet, speaking on the veranda at the State House in Augusta.
By Christopher Cousins, BDN Staff

The Maine House of Representatives is scheduled to consider asking the Maine Supreme Judicial Court whether Maine’s Native American tribes can operate casinos without state approval.

Rep. Henry John Bear, who does not have a vote in the Legislature but represents the Houlton Band of Maliseets, has proposed the order while the Legislature is considering a bill that would open gaming opportunities for the tribes. Bear argues in his order that a 1987 U.S. Supreme Court decision about a case in California lifted gaming restrictions on U.S. tribal reservations.

The order was originally scheduled for consideration Tuesday but because of a scheduling conflict was postponed to Thursday.

Under the Maine Constitution, the governor, House or Senate can ask the Supreme Judicial Court to “give their opinion upon important questions of law, and upon solemn occasions.” That means Bear’s order only needs approval in the House and not from the Senate or governor.

“The time is right,” Bear said Monday. “I think the court will see this as the opportunity to help balance the relationship that has gone off the path and that they’ll see this as saving lives [by funding public health programs] and helping to bring about healing.”

The order comes amid consideration of LD 1201, which would allow the Maine Gambling Control Board to issue licenses to federally recognized tribes to run table games and up to 1,500 slot machines.

The bill also bars the board from issuing a license for a new gaming facility until all federally recognized Indian tribes have been authorized to operate a casino. The bill, which has been pending since last year, awaits a recommendation from the Legislature’s Veterans and Legal Affairs Committee.

That bill’s prospects are dim, given the Legislature’s history of rejecting tribal gaming proposals. Relations between state government and Maine’s four federally recognized tribes is at a near-historic low. In May 2015, two of Maine’s four tribes withdrew their members from the Legislature after Gov. Paul LePage canceled his own executive order that tribes would be consulted on state decisions that affect them.

At a legislative hearing in March 2017 where tribal leaders made the case that they represent sovereign nations, a question from a lawmaker about public funding for the tribes angered William Nicholas, co-chief of the Passamaquoddy Tribe at Indian Township.

“Questions like that make us feel like we’re about this big,” Nicholas said, holding two fingers inches apart.

Tribal gaming has never gained enough State House support, and bills to allow it have been defeated in virtually every two-year session in recent memory. Near the end of the 2014 legislative session, six tribal gaming bills all died in a single afternoon in the then-Democrat controlled Senate.

Another Bear-sponsored bill, LD 1447, which would have allowed the Maliseets to open a casino in Aroostook County, stalled last June after the Maine Senate voted against it.

Bear said casinos would give tribes revenue to invest in public health and other projects that are desperately needed on reservations where a number of morbidity measures are well above averages for the rest of Maine.

Bear said the 1987 Supreme Court decision regarding the California tribe has been used as precedent in numerous other states, arguing that once a state establishes casinos, tribes should be allowed to start their own. However, a likely factor in a legal analysis of the issue would be the 1983 Penobscot Nation vs. Stilphen decision, in which the Maine Supreme Judicial Court ruled on the state’s side against the tribes’ rights to continue operation of a high-stakes Beano game.

“I’ve proposed this at the advice of numerous legislators,” Bear said. “I’m hoping this order is just approved unanimously.”

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