December 06, 2019
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30 years later: Deal a one-sided document, says Penobscot Nation chief

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Penobscot Nation Tribal Chief Kirk Francis. Photographed on Indian Island Friday, Oct. 8, 2010. (Bangor Daily News/John Clarke Russ)

Kirk Francis was still in grade school when his tribe signed the Maine Indian Claims Settlement Act. He didn’t understand exactly what it meant at the time, only that it divided his people.

Francis watched his father, a Penobscot tribal councilor, and others struggle with the thought of giving up a claim of sovereignty in exchange for money to buy land most natives felt they already owned. He remembered hearing other kids at school say, “Aren’t we just paying for those Indians again?”

Thirty years later, Francis, now chief of the Penobscot Nation, fully understands the federal settlement act and its companion state legislation, the Maine Implementing Act.

“It’s been a colossal failure for the tribes,” he said in an interview this week. “I’m really concerned that it’s become a document that only works for one side.”

The landmark agreement, signed by President Jimmy Carter on Oct. 10, 1980, provided Maine’s Wabanaki people with a much needed economic boost in the form of land. In exchange, the tribes dropped all future claims of land ownership.

But Francis contends that a stubborn provision of the implementing act — that no federal law passed after 1980 can supersede it without state approval — has threatened the tribes’ sovereignty and hampered their ability to move forward with certain economic initiatives, such as casinos.

The settlement act was supposed to open a new chapter in the relationship between state and tribal leaders through the Maine Indian Tribal-State Commission. Debate lingers about whether or not that has happened.

John Dieffenbacher-Krall, the commission’s executive director since 2005, characterized the current state of relations between tribes and the state as “slightly improving.”

Gov. John Baldacci, who most agree has been Maine’s most sympathetic governor to the tribes since the 1980s, said the relationship has always been complex but is “sometimes hampered by a long history of misunderstandings and mistrust.”

Things are unlikely to improve until a fundamental question is answered: Is the settlement act a dead document that can never be substantially altered, or is it a living, breathing law that can, and should, evolve to meet current needs?

“I’ve heard people say, ‘A deal is a deal,’” Francis offered. “But this was always intended to be organic. What other piece of legislation is there that hasn’t changed in 30 years?”

They won’t say so publicly, but some legislators feel the tribes are trying to rewrite history. Bangor lawyer Tim Woodcock served as minority staff counsel on the Senate Select Committee on Indian Affairs and was instrumental in the drafting and enactment of the settlement act.

“Some of the provisions have become misunderstood over time, but everybody knew what they were signing,” he said.

More than land

In 1964, a non-Indian named William Plaisted acquired two adjacent parcels of tribal land in Washington County that came to be known as the Lewy Lake Tract. One parcel was compensation for burying an indigent Passamaquoddy tribal member. The other he reportedly won in a poker game.

Although land claims existed before the 1960s — some went back to the 1700s — Plaisted’s plans to build cabins and a road on his newly acquired land reignited Wabanaki fervor.

Passamaquoddy elder John Stevens staged a protest on the land, an event that set in motion 16 years of unprecedented political and legal wrangling between tribal and state leaders that eventually reached the White House.

The end result was the Maine Indian Claims Settlement Act and the Maine Implementing Act, which dropped all claims to land by the Indians in exchange for $81.5 million in federal dollars.

More than $54 million was used to buy — or buy back — land totaling 300,000 acres in northern and eastern Maine. The remaining funds, $27 million split between the Passamaquoddys and Penobscots, were placed in a trust fund that still earns interest today to benefit tribal members.

Maine’s two other federally recognized tribes, the Maliseets and the Micmacs in Aroostook County, were not included in the settlement act or implementing act but have since been given some rights to self-govern.

Tribal leaders now admit the 1980 deal was the best offer they were ever going to get, but land was only part of it. The settlement act confirmed the tribes’ status at the federal level and opened up access to housing, health care and education subsidies. Most tribal members would consider that access beneficial.

Reuben “Clayton” Cleaves, the recently elected chief of the Passamaquoddys at Pleasant Point, said the settlement act’s impact has been detrimental, largely because it opened up those welfare rolls. Now, he said, his community is saturated with federal and state subsidies, which he calls “the root of all evil.”

More than money and status, though, tribal leaders feel the act closed the door on their inherent sovereignty.

Francis said he believes sovereignty is guaranteed in the legislation, even with the provision that stipulates any federal law passed affecting tribes would not affect Native Americans unless the state signed off.

There was some thought in the 1980s and early 1990s that such a delicately negotiated agreement could never be changed. Gov. Baldacci, who was a state legislator at the time, said the act is not perfect, but he believes that the settlement act is a living document.

“During my time in office, I have been willing to propose amendments to make it stronger and address the legitimate and real concerns raised by tribal governments,” he said.

Still, poverty and unemployment rates among tribal members are higher than the state average. Life expectancy is markedly lower. Little progress has been made.

Deal or no deal?

Although they are quick to criticize the settlement act, tribal leaders acknowledge that it was not entirely useless.

“We needed to leverage some finances and create opportunities,” Cleaves said. “But the opportunities that have been there haven’t materialized. We haven’t created any real economic relations with the state. We’ve tried everything possible.”

Francis said the millions of dollars provided to purchase land were a mirage. Although much of the land remains owned by the tribes today, the chief said the act “provided a tool to put up economic barriers.” Some have even contended that limiting sovereignty has contributed to loss of culture.

The debate about the act is less about the words immortalized in law and more about the interpretation of those words. That’s where the state and the tribes often part ways.

“There is risk in any legislation that it will be interpreted in different ways,” Woodcock said. “But all parties tried to eliminate any ambiguity.”

And, he added, in approving the act, Congress turned over authority for future changes jointly to the state and the tribes.

However, in the 30 years since the act was passed, it has seen only minor changes related to expansion of tribal authority over some criminal matters on tribal lands and additions to the land trusts.

“I think the willingness hasn’t been there on both sides,” Woodcock said.

If the tribes say they are willing and the state’s top administrator is willing, what stands in the way?

This is where things get tricky.

Legislators are reluctant to comment publicly about the tribes’ frustration over sovereignty, but privately they say what Francis has heard: A deal is a deal.

“There was a willing seller and a willing buyer,” said Sen. Debra Plowman, R-Hampden. “In some ways, it’s always going to be a push-me, pull-you relationship, which is unfortunate. I’m not sure the settlement act is entirely to blame.”

History has shown that the tribes are not always the best communicators about some of their plans. The most recent illustration of that came last month when Attorney General Janet Mills issued an opinion that the Penobscots’ plans to bring electronic pull tab machines to their bingo parlor on Indian Island violated state law. The machines sit unlicensed and unused.

Many state legislators feel that the tribes have squandered the millions of dollars’ worth of land they were given 30 years ago.

Consequently, Maine lawmakers historically have been hesitant to surrender their remaining jurisdiction over the tribes, and tribal leaders often have asked for too much leeway.

Gambling is the best example.

Most tribes in other states may own and operate a casino, an ability afforded out of the federal Indian Gaming Regulatory Act of 1988. The Penobscots and Passamaquoddys, however, need state approval, which in Maine means voter approval.

When a recent decision went to the people of Maine, the tribes again were on the losing end. In 2003, voters rejected a proposal that would have allowed the Penobscots and Passamaquoddys to operate a casino in southern Maine.

Earlier that same year, the Maine Indian Tribal-State Commission attempted to make changes to the settlement act that would have reduced state oversight of some tribal matters. The proposed changes, designed to clarify that the tribes are not akin to municipalities but sovereign nations not bound by all state access and environmental laws, were unsuccessful.

That decision set off a series of events that nearly disbanded the Maine Indian Tribal-State Commission.

Relationship erosion

A lot of the mutual respect that grew out of the settlement act has eroded over time.

“That respect was supposed to be the foundation for further amendments to that legislation as tribal needs matured. That has not been fully borne out,” Woodcock said. “To some extent, over time, the original participants have changed and personal relationships went away. There is an unwillingness to compromise on both sides and no real mechanism for compromise.”

Publicly, state leaders and tribal officials say all the right things about wanting to continue to work together, but an underlying tension remains.

At the most recent tribal-state commission meeting last week, the settlement act came up several times. Denise Altvater of the Passamaquoddys said tribal-state relationships seem to work best outside the political arena.

“There is tension at the upper level, but departmentally, the state and tribes work together famously,” she said.

According to Dieffenbacher-Krall, Gov. Baldacci has not received the credit he deserves for urging tribal and state leaders to come back to the same table even though little has been accomplished to date.

“The measuring stick should be that both sides see mutual benefit. No one should go backwards,” the tribal-state commission director said.

Baldacci had only so much power. Two years ago, a task force whose members he appointed met for months before making a series of recommendations to a legislative subcommittee. Members of the Judiciary Committee altered those recommendations to the point where the tribes decided to walk away.

Francis said that made things crystal clear that the Legislature was not interested in working seriously with the tribes.

During the last legislative session, though, lawmakers approved An Act to Improve Tribal-State Relations. Among other things, it established a legislative representative for the Houlton Band of Maliseets, something that had never existed before. Also, earlier this year, Baldacci signed an executive order to help promote a culture within state government of engaging Maine tribes to maintain positive and effective communications.

Cleaves said that the tribes likely aimed too high with casino initiatives. Instead, he said, the tribes should stop waiting for the sky to open up and rain down prosperity.

“But let’s do something tomorrow,” he said.

Will the state be there to help open doors?

“We continue to hope,” Cleaves said. “We’re ready to communicate.”

For Francis, it’s about more than just money. “It’s about controlling our own fate,” he said.

That can’t happen as long as the details spelled out in the Maine Indian Claims Settlement Act and the Maine Implementing Act remain the way they have for the last 30 years.

Francis said he would continue to lead his tribe quietly, dealing with the state only when he must. Instead of continuing discussions with the state Legislature, the chief said he already has brought his plight to members of the state’s congressional delegation.

“Until we get back to protecting tribal sovereignty,” he said, “we’re going to be mired in this debate for decades.”



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