April 25, 2018
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Attorney general says bill to involve tribes in legal opinions should be rejected

By Christopher Cousins, BDN Staff

AUGUSTA, Maine — Amid a volatile conflict over elver harvesting, state and tribal representatives found themselves on opposite sides of another issue Thursday at the State House.

During a Judiciary Committee hearing, Maine Attorney General Janet Mills urged rejection of a proposal from one of the Legislature’s tribal representatives that would restrict her — or any Maine attorney general — from offering legal opinions on certain Native American issues before consulting with the tribes.

Rep. Wayne Mitchell of the Penobscot Nation said the need for his proposal, LD 308, An Act to Require the Attorney General to Consult with Federally Recognized Indian Tribes Before Issuing an Opinion on Federal Legislation Affecting the Maine Indian Claims Settlement Act of 1980, stemmed from a debate in Congress last year on changes to the Stafford Disaster Relief and Emergency Assistance Act, which affected tribes.

Mitchell said Sen. Susan Collins, R-Maine, relied on an improper interpretation of the Maine Indian Claims Settlement Act by the Maine attorney general’s office for a line of questioning in a congressional debate. Five chiefs of Maine’s Indian tribes wrote Collins a letter in December 2012 expressing their disappointment and arguing that despite Maine tribes’ one-of-a-kind relationship with the state as described in the Maine Indian Claims Settlement Act and the Maine Implementing Act, the tribes should not have been excluded from the changes to the Stafford Act, which sought to allow tribal reservations to apply for disaster assistance on their own as opposed to state government. Mitchell said the Maine tribes were the only Indian tribes in the country excluded from the changes to the Stafford Act.

“You have put the tribes of Maine in a very difficult position given how important the tribal amendments to the Stafford Act are to Indian country,” wrote the chiefs.

Mitchell gave the Legislature’s Judiciary Committee on Thursday copies of Collins’ testimony as well as an email between her office and the Maine attorney general’s office.

“It’s clear that the attorney general wrote this for the senator without consultation and we argue with the much-skewed facts,” said Mitchell. “The facts are that the tribes were never consulted and rarely are on meaningful jurisdictional and regulatory issues and this needs to change. … I think this bill offers an extremely fair request acknowledging the government-to-government responsibility of this state and for comprehensive conversation before such devastating actions are ever taken again.”

Rep. Ralph Chapman, D-Brooksville, a member of the Legislature’s Marine Resources Committee, supported Mitchell’s legislation. He said a direct consultation with tribal leaders could have avoided a recent impasse between the state and Passamaquoddy Tribe over the elver fishery.

“The committee allowed into our deliberations an opinion of the attorney general, which I believe was entirely appropriate,” said Chapman. “What we failed to do was to solicit, and admit into our deliberations, an opinion by a legal representative of the tribe affected by this matter.”

Attorney General Mills, who was not in her position last year when the consultation involving Collins took place, said she could not support Mitchell’s bill because it raises too many legal difficulties, chief among them that it likely would require an amendment of the Maine Indian Claims Settlement Act.

“I’m surprised the ACLU is not here to talk about our right to contact or be contacted by our duly elected representatives to Congress about any subject matter whatsoever,” said Mills. “When a member of Congress calls me or [former] Attorney General [William] Schneider … I can’t answer an obvious question like that. … Please give this bill the kind and swift demise I believe it deserves.”

Rep. Lisa Villa, D-Harrison, told Mills that the bill appeared to have merit.

“On its face this bill makes a lot of sense to me,” she said. “If you’re going to issue an opinion on the recognized Indian tribes, they should be notified.”

But Mills said the word “consult” is a loaded term in the legal world and would cause problems.

“It has a specific meaning and is heavily litigated in the area of tribal law,” said Mills. “The proposals in this bill are very vague and they will result in litigation.”

The next step for Mitchell’s bill is a work session where the committee will decide whether to recommend its enactment.

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