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AUGUSTA, Maine — After trying to gain authority over gaming, natural resources and certain crimes through the courts, the State House and the ballot box, Maine’s Native American tribes are trying to reassert their sovereignty by changing law giving the state tribal oversight.
A task force examining the state law that led to the federal Maine Indian Claims Settlement Act of 1980, which settled a Passamaquoddy claim to 12 million acres of Maine, has drafted a set of proposed changes that would strike language allowing Maine to treat tribes largely like municipalities and adding provisions tribes say would help restore their status as sovereign nations.
Doing so would give them more jurisdiction over certain fishing rights, courts and gambling enterprises — except when the tribes and state reach an agreement or federal law supersedes jurisdiction — that are excluded from the nearly 40-year-old agreement tribes have often criticized since it was signed.
“People have this misperception that we went from having nothing to being given everything to where we exist today,” Penobscot Nation Chief Kirk Francis said during a Friday meeting of the Maine Indian Claims Task Force. But court cases and history show the tribes have always enjoyed federal-status rights, he said.
“This is about the restoration of those rights, not the granting of them.”
If the changes come to pass, it would mean removing language that allow public entities to take trust lands for public use, and restricting the civil jurisdiction of tribal government and giving greater criminal jurisdiction to state government from the agreement.
Language giving the Department of Inland Fisheries and Wildlife the authority to conduct fish and wildlife surveys in tribal territories would also be taken out, as would provisions allowing the state to tax tribes like a municipality, according to the draft.
Chief Clarissa Sabattis of the Houlton Band of Maliseet Indians said all of the changes would be significant in improving tribal welfare in the state. But she specifically said expanding tribal gaming would bolster revenues for tribal health care and social services.
“We’re trying to compete against private corporations who are doing this for their benefit, when we’re trying to do this to support our government,” she said.
Tribes have tried to resolve many of these issues through the courts and the State House. Gov. Janet Mills delayed action on a bill until January that would give the Penobscot Nation and the Passamaquoddy Tribe the ability to prosecute non-Native Americans in domestic violence and criminal violations of protective orders committed on tribal lands. Her office said in July that Mills was working to clarify the rights of non-tribal people, the Associated Press reported in July.
Maine’s high court declined late last year to weigh in on the constitutionality of tribal gambling at the House of Representatives’ request. Efforts to expand tribal gaming beyond bingo halls allowed to operate roughly half the year have failed at the ballot and in the Legislature.
A new section would require the state to request consultation from tribal leaders and obtain their “free, prior and informed consent” before taking actions that may affect tribal rights around land, water and other natural resources. It would also require the state to consult the tribes prior to filing civil litigation against a tribe, a tribal-owned business, developing department and agency policies, and taking other state action that could affect resources.
Tensions between Maine’s Native Americans and the state go back decades and have resulted in various court cases. But the fight around sovereignty came to a head in 2015, when two of the four tribal leaders withdrew their representatives from the Legislature, saying their rights were not being respected under former Republican Gov. Paul LePage.
Mills, a Democrat, clashed with the tribes during her time as attorney general. In 2018, she sided with the state of Washington in a fight to challenge federal water regulations. She represented the state against the Penobscot Nation in a federal dispute over whether the state or the tribe can regulate waters in their area, a case the state won in 2017.
Members of the Penobscot Nation protested her nomination of Jerry Reid to lead the Department of Environmental Protection for his involvement in the latter case. But Mills has also made it one of her administration’s goals to mend Maine’s relationships with tribes.
She signed a bill earlier this year banning the use of Native American mascots in all state public schools. She put forward legislation tightening water quality standards around tribal lands and changed fishing limits, which also passed this year. She also restored the tribal-state commission to full membership earlier this year for the first time since 2013.
Any changes the task force recommends will be subject to legislative approval. Rep. Jeff Evangelos, I-Friendship, who sits on the judiciary panel, said he hopes lawmakers will be receptive to the tribes’ requests.
“It’s shameful that my state is an outlier on this,” he said, referring to tribes’ federal rights. “It’s long overdue that we institute these changes and recognize the good work of our tribal brothers and sisters.”