May 20, 2018
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It’s time for tribes, Maine to renegotiate terms of tribal sovereignty, state authority

BDN File | BDN
BDN File | BDN
Members of Maine's Native American tribes rallied outside the State House on Tuesday, May 26, 2015.
By The BDN Editorial Board

Tribal-state relations suffered a major setback last year when representatives of the Penobscot Nation and Passamaquoddy Tribe walked out of the state Legislature. The soured relations essentially were severed by one tribe last week, when the Penobscot Nation officially vacated its seat in the state Legislature.

Penobscot Nation Chief Kirk Francis said his tribe was breaking off relations with the state because Maine does not respect the Penobscots’ sovereignty. The tribe instead plans to select an ambassador to work with the federal and state governments.

The central point of contention is that the tribes and state have different views of where tribal sovereignty ends and state authority begins. Without resolving this fundamental issue, the cycle of disagreements and disengagement will continue, hurting the tribes and the state.

This cycle needs to be broken. Maine’s tribes need a relationship with the state just as the state can’t ignore the 8,000 tribal members who live here.

Divisive state-tribal relations are not unique to Maine. Many disputes nationally are about revenue and resources. Many of these disputes have been resolved through agreements that allow tribes to raise revenue, often through gaming or selling cigarettes, while dividing tax revenue with the state. Sustenance fishing is also a contentious issue — the Penobscot Nation has sued the state over control of fishing in the Penobscot River. In the Pacific Northwest, tribal fishing rights have been clearly spelled out and often include co-management by the tribes and states.

Other states also offer models for venues that encourage stronger relationships between tribes and state officials. Fifteen states have legislative committees, either standing or interim, to deal with tribal issues. One of the oldest is the Wisconsin Special Committee on State-Tribal Relations, created in 1955. The committee, which comprises 11 legislative members and nine tribal representatives, reviews executive branch actions regarding state-tribal relations and facilitates communications among state, municipal and tribal officials.

More than 30 states have executive branch offices or commissions devoted to tribal affairs, which offer a venue for continual tribal-state communication as well as tribal input on state policy development.

Maine has neither but is the only state with designated tribal representatives in the Legislature. The Penobscot and Passamaquoddy tribes and the Houlton Band of Maliseets have long had nonvoting members in the Maine House. These representatives can introduce legislation affecting the tribes and co-sponsor any legislation.

The Maine Indian Tribal-State Commission, which is required by the 1980 Maine Indian Claims Settlement Act that resolved longstanding disputes, could play a larger role in working toward resolution. MITSC is equally divided between tribal and state representatives, plus a 13th member this group chooses. The commission has ebbed and flowed in its influence. In 2003, its Passamaquoddy and Penobscot members left the commission for a time expressing anger that Maine voters rejected a plan for a tribal casino in southern Maine.

Whatever form it takes, the state and tribes must work together to rebuild a relationship and to correct what the tribes and the state see as inappropriate actions by the other. To start, it would be helpful for the state and tribes to outline — and agree upon — what current law says. What are the tribes’ rights and obligations? The state’s? Where do those rights and obligations overlap?

The tribes increasingly have been asserting their sovereignty in recent years. There are limits on that sovereignty set in the Settlement Act. “The basic principle of the settlement is that all Indians and Indian lands in Maine are subject to state laws to the same extent as other persons and lands in Maine, except that the Passamaquoddy Tribe and the Penobscot Indian Nation are accorded certain rights of self-rule,” a summary posted on the Passamaquoddy Tribe at Pleasant Point’s website says.

The state has been an easy target for tribal anger. As assertions of sovereignty have grown, the attorney general’s office has been forced to reiterate the terms of the Settlement Act, as upheld by several court orders, including one last year that found that the Penobscot Nation’s lands do not include the Penobscot River waters that flow past their lands.

Can Maine’s tribes gain the sovereign nation status of other tribes in the United States? Probably. But this would require a renegotiation of the Settlement Act. This is no easy undertaking, and it would only succeed with an agreed-upon set of ground rules before the process began.

But as dramatic as the process sounds, it would be preferable to repeated lawsuits that cost the tribes and state precious dollars and goodwill. It could bring needed certainty to the state, tribes, their neighbors and industries — all of whom have been at frequent loggerheads.

 


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