May 27, 2020
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How Maine’s tribes are fighting for a broader role in state governance

Gabor Degre | BDN
Gabor Degre | BDN
Passamaquoddy Tribe at Indian Township Chief William Nicholas is seen in this 2008 file photo.

AUGUSTA, Maine — Amid a broader push for sovereignty, Maine’s indigenous tribes are looking for alternatives to magnify their voice in state affairs.

Two legislative bills are aimed at creating a codified consultation process between the Passamaquoddy Tribe, the Penobscot Nation and the Houlton Band of Maliseet and state agencies. They come as the Legislature is debating a broader bill that would vest tribes with federally granted jurisdiction over areas including gaming, natural resources and taxation.

It’s become one of the more divisive measures of the session. Leaders of both chambers support it, as well as environmental and social justice groups. But it faces opposition from some towns, textile and energy companies, as well as casinos and forest products associations.

Democratic Gov. Janet Mills is supportive of some elements, but raised concerns about the “sweeping nature” of the bill, partly because it cedes land jurisdiction to the tribes.

Regardless of how the push for sovereignty plays out, the required consultation would give the tribes a powerful — and key — say in state affairs. Tribal leaders say it would allow them to work with the state as equals.

The Mills administration is concerned some provisions would limit the executive branch’s constitutional authority, although she is generally supportive of more engagement.

One bill requires state agencies to develop a consultation policy. The other goes further, requiring agencies to ask for tribal consent before engaging in any “proposed action that may directly affect” them. State agencies would not be allowed to engage in rulemaking or testify on an issue until consultation concludes. It’s meant to improve communications before about legislation that could cause “substantial or irreparable harm” to tribal communities or rights in areas such as natural resources. It’s possible both will be merged and fused into the omnibus bill.

Derek Langhauser, chief legal counsel for Mills, is concerned that the tribes would have too much power over the governor’s office and create a “veto power” over certain actions.

“It would mean the office would be subject to a stoppage power delegated to a nongovernmental entity,” he said Thursday during a public hearing in the Judiciary Committee.

Attorney General Aaron Frey, while supportive of conflict resolution, said it was unclear whether tribes would have to engage in a similar consultation process. He said the requirements of consultation for any “proposed action” could be too broad for the state to feasibility carry out and could invite future litigation.

While tribal leaders say codifying consultation would prevent the state-tribal relationship from see-sawing as administrations change. Passamaquoddy Tribe at Indian Township Chief William Nicholas on Thursday pointed to former Gov. Paul LePage issuing — and later rescinding — an executive order proclaiming the tribe and state had a special relationship.

The reversal came as the state and tribes were engaged in contentious disputes about water quality standards, hunting and fishing rights. Shortly after, the Passamaquoddy and Penobscots pulled their tribal representatives from the State House.

“Whatever dialogue we had died,” Nicholas said. “Only now are we rebuilding that relationship.”

 


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