April 08, 2020
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What to know as Maine lawmakers finalize negotiations with tribal leaders

Contributed | BDN
Contributed | BDN
Chief Clarissa Sabattis of the Houlton Band of Maliseet Indians, speaks during a 2017 event in Houlton.

AUGUSTA, Maine — An impending bill that will overhaul state-tribal relations will test how willing Maine is to repair its relationship with its indigenous tribes.

A task force of lawmakers and tribal leaders has worked for months to craft changes to the Maine Indian Claims Settlement Act, the state law tribes say has subverted their federal rights for 40 years. It is expected to release an initial report containing recommendations Friday, which will eventually be turned into proposed legislation.

Tribal leaders are cautiously optimistic the changes will partially restore their sovereignty, but some elements are expected to face opposition in the State House. Task force members say more work on issues such as health care and dispute resolution is needed going forward.

Maine’s tribes never ceded federally recognized rights, but the situation has been complicated for decades thanks to the settlement act. The act was meant to resolve a $150 million land claim lawsuit filed against the state of Maine by the Passamaquoddy Tribe in the early 1970s, a claim that grew even bigger when the Penobscot Nation filed a similar complaint.

Former Maine Attorney General Richard Cohen said the state law “is by far the most favorable state-Indian jurisdictional relationship” in the United States when it was negotiated, according to a Passamaquoddy Tribe summary of proceedings from 1995.

States usually have little authority to enforce their laws on tribal lands, he said. “The proposal before you not only avoids such a situation, but recovers for the state much of the jurisdiction over the existing reservations that it has lost in … recent litigation,” Cohen wrote. 

Courts have interpreted the settlement act as if Maine’s tribes agreed to give up their sovereignty, allowing the state to treat them like municipalities. Tribes have long disagreed, and the fight around sovereignty peaked 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.

Gov. Janet Mills, a Democrat, clashed with the tribes during her time as attorney general, and they protested her nomination of Jerry Reid to lead the Department of Environmental Protection. But she has made it one of her administration’s goals to mend relationships with tribes, signing a bill earlier this year banning the use of Native American mascots in all public schools and restoring the tribal-state commission to full membership for the first time since 2013.

The task force’s proposals touch on legal issues, natural resources and gaming. Courts proposals include giving tribal courts jurisdiction over certain criminal and juvenile offenses committed on tribal lands. They support a bill that would allow the courts to prosecute criminals not part of a federal tribe. Mills is expected to sign that bill, according to a Portland Press Herald July editorial from Donna Loring, her adviser on tribal affairs.

The task force recommends the state recognize federal law that gives tribes exclusive jurisdiction over fishing and hunting and the right to regulate natural resources on federally recognized tribal lands. Tribes would regain rights to pass and enforce their own laws, acquire trust land under federal law, to tax their members and businesses on tribal land and to concurrently tax nonmembers on tribal lands with the state.

A proposal that Maine adopt the federal Indian Gaming Regulatory Act of 1988 is expected to be controversial because it governs gaming activities on tribal land, and allows proceeds from games such as blackjack and slot machines to be used to fund tribal government or charitable donations. Currently, tribes are only allowed to conduct high-stakes beano and bingo games half the year on weekends.

Efforts to expand tribal gaming have failed regularly at the ballot and in the Legislature since at least 1992, including an effort this year. The state’s high court declined last year to weigh in on the constitutionality of tribal gambling at the Maine House of Representatives’ request. 

Any change will face opposition from people, businesses and chambers of commerce in the Bangor area and Oxford County, as well as the two existing casinos there. Opponents’ arguments have historically been that allowing tribal gaming will change the rules on legal gaming and that new casinos could take away business from existing casinos. 

The proposals don’t include everything some tribal leaders want. But the task force’s work isn’t over. The task force was not able to address health care and education rights this year, but there’s talk of continuing their work in the future. What proposals they make will be incorporated into a single bill, said Sen. Michael Carpenter, D-Houlton, a former attorney general who co-chairs the task force.

The report will highlight the need for an alternative dispute resolution method, something Carpenter said is “key” going forward to prevent future litigation with the tribes. He anticipates resistance to the bill but said there’s a genuine sense that most legislators are willing to support tribal sovereignty.

Some tribal leaders are cautiously optimistic. Vice Chief Maggie Dana of the Passamaquoddy tribe at Sipayik said the changes are a good start after 40 years of no action. Chief Kirk Francis of the Penobscot Nation said it may be hard to overcome the mindset of some people in the state, saying Maine’s tribes have been “wards” for four decades under the Implementing Act. 

For some, it may be hard to imagine life any other way. 

“I’ve grown up with this in my life — this is my whole life,” said Chief Clarissa Sabattis of the Houlton Band of Maliseet Indians. “This could have significant impacts for us, in a good way.”

Correction: A previous version of this story misidentified the type of report the task force would be releasing Friday. It is an initial report.

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