February 22, 2020
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What you need to know about the latest bid to restore sovereignty to Maine’s tribes

Linda Coan O'Kresik | BDN
Linda Coan O'Kresik | BDN
Kirk Francis, Penobscot Nation chief, along with other Maine tribal representatives, gave a joint response to Gov. Paul LePage in 2015.

AUGUSTA, Maine — After months of negotiations, the most recent effort to restore some sovereignty to Maine tribes will get its first trial in the Legislature.

Friday will mark the first of two days of hearings in the Legislature’s Judiciary Committee on a bill that incorporates most of the 22 proposed changes to state law made by the Maine Indian Claims Task Force. They could change tribal relations in Maine going forward, encompassing taxation, fishing, hunting, natural resources, gambling and criminal jurisdiction.

The latter topic became more complicated Thursday, when tribes and the administration of Gov. Janet Mills continued to butt heads over a key domestic violence bill. Major sticking points are the scope of native jurisdiction and who could be charged with domestic violence.

The issue of tribal sovereignty is complicated and emotional, and stretches back more than 40 years. Here’s what you need to know as the recommendations hit the Legislature.

What is sovereignty? Sovereignty means indigenous tribes and native people have the right to govern themselves. As the National Conference for State Legislatures explains it, sovereignty means tribes can establish their own form of government, determine membership requirements and are in charge of law enforcement and court systems. It means tribes are treated as another nation — not a state or municipality — by the federal government.

The relationship between the U.S. and tribes has changed in the past 70 years. Public Law 280 took criminal jurisdiction on Indian land from the federal government and transferred it to six states. It also took away the federal government’s authority to prosecute crimes committed against a native by another or any native who has been punished by the tribal law.

The reauthorization of the federal Violence Against Women Act in 2013 recognized tribes’ power to prosecute domestic violence crimes committed on Indian land, regardless of whether the defendant is native or not. There was also the Indian Gaming Regulatory Act, which set the rules for how tribes could conduct gaming on their lands. The idea was to use gaming to boost tribes’ economies and encourage self-sufficiency. 

Tribes in Maine don’t have that kind of sovereignty. The state’s federally recognized tribes were essentially boxed out of it in 1980, when Congress approved the Maine Indian Claims Settlement Act, settling a land claim brought by the Passamaquoddy tribe and the Penobscot Nation in the 1970s. It resulted in state law that created tension between Maine and the tribes.

The law essentially changed the state’s relationship with the tribes to something resembling a state-municipality relationship. It didn’t affect all four tribes the same way. The state has separate, but similar laws governing the Houlton Band of Maliseet and the Aroostook Band of Micmacs. The latter tribe never ratified that agreement.

The law has led to several court battles over the years, and tribal leaders have said its enactment has hampered them culturally and economically. A study by Suffolk University Law School commissioned by the task force found Maine’s tribes were unable to benefit from 151 laws passed after the Settlement Act was passed, thanks to a section in the federal law stating any law passed that would be “for the benefit of Indians [or] Indian Nations” wouldn’t apply in Maine unless later specified. Most of them dealt with health, education, land and environment.

The bill created out of the task force’s recommendations would get around that by modifying state law to specify that the four tribes enjoy “rights, privileges, power, duties and immunities” similar to other federally recognized tribes.

What are the pressure points? Tribal leaders have expressed concern about how supportive the governor is of the overall efforts since Mills has not yet signed a bill enacting the provisions of the 2013 federal domestic violence law in Maine. 

Her office has said the bill must guarantee constitutional rights of non-native defendants in order to be signed. Tribal leaders argue they already made important concessions — including a 12-member jury when only six members are required and clarifying that defendants have a right to a unanimous jury verdict. They’ve noted the federal Indian Civil Rights Act of 1968 protects non-native defendants’ constitutional rights. 

Negotiations around the bill stalled in a Thursday work session. Members of the judiciary panel debated whether the bill should incorporate the state’s definition of who can be charged with a domestic violence crime — the federal law only includes “spouses or intimate partners” — and whether tribes would have jurisdiction over crimes committed on reservations or “Indian country,” a broader definition.

Attorney General Aaron Frey said though he felt constitutional rights were articulated correctly in the bill, he was not sure they would be applied as the federal government applies them. Linda Pistner, Mills’ deputy legal counsel, said she needed time to review proposed changes.

Gambling rights for tribes are certain to be opposed by Maine casinos in Bangor and Oxford, plus their surrounding communities. It’s an issue on which tribes have been stymied by the Legislature, voters and courts multiple times. Members of the task force wanted to present recommendations in one package to prevent contentious issues from being defeated.

What other rights are the tribes looking to get back? The task force did not address health care and education rights this year, but there is talk of continuing that work in the future. A separate drafted bill outlining a potential dispute resolution mechanism — one of the task force’s key recommendations — will work its way through the Legislature. 

The task force’s main bill would give tribes exclusive jurisdiction over fishing and hunting and the right to regulate natural resources on federally recognized tribal lands. The state would be allowed to regulate some lands for conservation purposes.

Tribes would regain rights to pass and enforce their own laws and acquire trust land under federal law. They would be allowed to tax members and businesses on tribal land and to tax non-members on tribal lands concurrently with the state. Tribes would not be subject to sales, income and property taxes.


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