‘Carving our own path forward’: An interview with Penobscot Nation Chief Francis
“Respect and acknowledge the Tribes’ inherent sovereignty consistent with federal Indian Law.”
– Chief Kirk Francis
Almost forty years after the settlement of the Maine Indian Land Claims, the Wabanaki Tribes in Maine struggle with oppressive state interpretations of jurisdictional issues folded into the Settlement Act, which has put the Wabanaki in a category separate from other federally-recognized tribes throughout the country in regards to sovereignty and the applicability of federal legislation.
Meredith DeFrancesco and I as members of the Sunlight Media Collective, a media organization led by both indigenous and non-indigenous people that focuses on amplifying Tribal issues, spoke with Chief Kirk Francis of the Penobscot Nation about the recent unanimous vote in the Judiciary Committee of the Maine State Legislature to approve the 22 recommendations put forth by the Task Force on Changes to the Implementing Act of the Maine Indian Land Claims Settlement of 1980, and the Mi’kmaq Settlement Act of 1989. We also asked what this legislative process will look like moving forward.
Dawn Neptune Adams, Sunlight Media Collective: So, what was your overall impression of the meeting?
Chief Kirk Francis of the Penobscot Nation and Chief Clarissa Sabattis of the Houlton Band of Maliseets. | Sunlight Media Collective
Chief Kirk Francis: I think my overall impression was, I think it was a pretty historic day. When I look at that, the Task Force recommendations as they’re seated right now, I think we’ve done a lot to accomplish the goals and objectives of the Tribes for the last four decades.
Everything from civil jurisdiction to criminal jurisdiction to gaming was in there, taxation, a whole host of things that get the Tribes on par with being recognized as sovereign independent governments and not some political subdivision of a state.
I think that the final report of the Task Force is good. It’s a great start and it’s one that I think will go a long way in getting the Tribes back on par with where they’re supposed to be.
Chief Francis: Under the Task Force recommendations, almost unanimously in all the areas, there is default to the federal Indian Law. It’ll tremendously affect our ability to implement programs and bring in the much-needed resources for victim services. For example, under VAWA—which is not just some authorization of Tribal jurisdiction—it’s also an authorization of an appropriation to Indian Tribes to build their Tribal courts, to enhance their victim services, and to be able to holistically address the issue by putting the resources behind it for a local response.
The enhancements under the Tribal Law and Order Act that are in there, go much, much further than the LD does. It brings the Tribe into a three year, $15,000 jurisdictional threshold on par with most all other Tribal courts in the country. But also allows us to address things like certain felony crimes around domestic violence against women. So it’s going to do a lot.
Look at the fishing for example, how that will affect us. We will be able to regulate not just the fishing part of it for our members, but also have a tremendous say in how the environment the fish live in is treated.
We would have treatment of state, for example, in the development of water quality standards in these areas, and have a say in how discharge permits are issued up the River and in our territory. It would give us a say in things like dam relicensing that happens maybe once every 25 to 50 years. And it’s critical to get those right before those permits are issued; there’s a tremendous effect on the cultural-based resources of the Tribe. As it stands now, the Tribe has to rely on our trustee, the Department of Interior, to intervene in those proceedings when they would have standing where we don’t.
New legislation could run counter to state case denying Penobscot River sovereignty
The Joint Standing Committee on the Judiciary voted unanimously to move forward with the 22 recommendations of the Task Force. | Sunlight Media Collective
SMC: How might the recommendations of the Task Force on regulating fishing and hunting on Indian territory (particularly those outlined on pages 43 and 44) affect our case with the State, Penobscot Nation vs Attorney General Janet Mills?
Chief Francis: If this law is passed, it kind of renders all their arguments null and void. So you have no dispute over Tribal authority within the Penobscot River, for example. You have no kind of struggle about where sustenance fishing exists, any of that. It will clearly define all those things. The state’s argument in the Mills case was about where the reservation existed and who got to control the sustenance-based fishing. In the district court, they ruled that the Tribe did have sustenance fishing rights, however, they felt like that was regulated by the state. We’re waiting on appeal now in the first circuit for En Banc review. That’s been going on for two years, but this would be a significant positive impact for the Tribe and create a lot of clarity around that.
A more meaningful voice
SMC: Thank you for elaborating on that. On page 44, in the last paragraph, it says “the Task Force members did not have time to fully examine the extent of those reserve treaty rights” (referring to our sustenance fishing rights) and “identified this as one area for further exploration and discussion between the Tribes and the state.” What would we like to see happen in those discussions?
Chief Francis: I think this whole issue around the Task Force in the whole Federal Indian Law scheme is extremely complicated and it’s hard for states and local governments to get their minds around. It’s very easy for us; we understand it. But I think that for them it’s like, “Oh, we’re going to have these two sets of laws. How are people going to know this?” […]
We have Treaty-reserved freshwater fishing rights and sea-run fishing rights, very specifically mentioned in the Settlement Act. Some of the state laws and the court cases have been attempting to limit that.
I think it just got complicated so there was a commitment to continue to work on [this].
It’s going to give us a much more meaningful voice. It’s going to allow for the Tribes to carve our own path forward. When you talk about the Tribe being able to create its own laws and to be able to prosecute those laws, and in some instances against non-Indians to be able to holistically address criminal jurisdiction, civil jurisdiction. Taxation, for example, is a big issue because nowhere else in the country, does it exist; a condition that Tribal members earning money on Tribal land are subject, somehow, to a state income tax.
Or that businesses on the reservation run by Indian people would be subject to state sales tax, for example. There needs to be a recognition that governments need those tools and opportunities themselves. […]
These are huge for the Tribe. And out of the 22 or so recommendations in the Task Force report, there’s not one of those that aren’t extremely significant.
Maria Girouard, a historian from the Penobscot Tribe, gives a talk in November on the history of the Settlement Act. | Sunlight Media Collective
The history of the 1980 Settlement Act
SMC: We’ve seen this framed in some of the coverage of the Task Force, as “this is the state giving us a gift,” when it isn’t really like that, from our point of view. Can you talk to us about that?
Chief Francis: Sure. I think that’s been the misunderstanding with this thing, not just with state government but with state citizens, as well. We have this whole history of the Tribes in Maine being treated as wards of the state. What the court said in the 1970s was, one, [the Tribes have] ceded their land illegally because it was never ratified by Congress. And two, they were never wards of the state. These are Tribes under federal jurisdiction. And so the Bottomley case, for example, the Dana case dealing with immunity from suit, and dealing with who gets to prosecute felonies, the courts said, “The state has no jurisdiction there. It’s a total federal jurisdiction.” So what they were saying was, “For almost two centuries you’ve gotten it wrong. You’ve not had that authority to do this. These Tribes are independent Tribal nations.”
I don’t think people understand that. They think all our rights derived from the Settlement Act. And the Settlement Act is a restrictive act on the Tribes. It was responding to a very strong (land) claim the Tribes had to two-thirds of this State. And so when you have that condition and that threat against the state, and the courts agreeing with [the Tribes], it got extremely political, as we all know. And so the Tribe got put into a situation of duress at that point, with threats of termination or no more funding or whatever it was.
Chief Francis: Quite frankly, if you look back at that whole period of time, the overall representation of the Tribes—compared to these high-powered attorneys from all over the place—the Tribes were at a disadvantage. […]
There were a lot of powers working against the Tribe. And I don’t think people know that history about the Tribes’ condition before the Settlement Act, as totally autonomous and independent from any state authority. And I think people tend to look at things from 1980 forward. And they say, “Okay, we created this relationship with the Tribes kind of out of the goodness of our heart. We gave them some things in this.” Really, what they did with the [Implementing] Act was to take things away. And so I think we got everybody thinking that way now. Because it’s pretty indisputable, the court decisions and the facts around that.
So this whole education process had to take place. This is a restoration effort and this is happening all over the country. Whether it’s Tribes that are having their recognition restored that was illegally taken from them, or lands restored, or whatever it is, that’s happening everywhere now. And so we’re just asking Maine to kind of come on par with that and focus on recognizing and restoring rights rather than staying in the mindset that they somehow own those.
Special interests and the ‘bloody slog’ ahead
SMC: [State] Sen. Mike Carpenter spoke about how special interests are going to make their opinions known about various parts of these changes to the Settlement Act. Would you speak to how it all comes back to our sovereignty?
Chief Francis: So, I think that’s the other mindset we have to try to get people away from. I think Representative [Thom] Harnett said it best yesterday. He said, “Look, we have to look at this differently. This can’t be about, ‘I have this casino constituency in my town. Or I have this issue here.’ This is a much bigger issue than that.”
We need to get people out of the mindset that this is run-of-the-mill legislation. This is a government to government issue, and they happen to be representatives of the government. And so I think, special interests are going to be there. We’ve seen that at every meeting; the forest product industry, the gaming industry, we’ve seen a whole host of people, conservation groups, others that are just kind of paying attention. Some, we kind of know what their positions are.
I’m not so naive to think that this is not going to be a bloody slog on this thing because I’ve been through a lot of these legislative processes. I know how it works. And I know what’s going to happen. This next step is going to be critical. To keep people focused on what’s right and wrong, and not what’s politically advantageous. I think we have a ton of support. I think we have some opposition. And I think that we’re going to get a lot of people from the outside that are going to try to keep the Tribes right where they are. And so we’re going to do our very best. We’re going to put our best people on it. We’re already working from a place of unity with the other Tribes. One contract, one team, and get some people that are very astute in that process to work on our behalf. But it is going to be a fight.
A growing social movement supporting tribes
Activists drop banners in protest of the State of Maine’s position regarding the sovereignty of Tribes and protection of the Penobscot River. | via Sunlight Media Collective
SMC: At all of these Task Force meetings we’ve seen members of various groups in the audience who are there to support us. Is there any message that you’d like to send to them?
Chief Francis: Yeah. In the [Penobscot] River case, we started to build so many alliances with people. I think that was the perfect issue. Not just about the river, but for people to understand—this is a unique and distinct people that are only asking to exist in that manner, right? They’re not asking for anything special. They have a right to be who they are. So I think that was the great part about the case and that it brought hundreds of people, Maine citizens to the table. And it’s been invaluable. It really has.
We have a list of progressive groups, conservation groups, environmental groups, a whole host of people—over 21 organizations signed on to a letter [to Janet Mills] in the middle of a gubernatorial race, right? Really putting pressure on, for Native-based topics to be part of the discussion. […] The Tribes had been kind of siloed off for so long that I think it was easy for them to say, “Well that’s them just whining again. Or it’s their issue.” And we have a lot of people now saying, “This is our issue, right? This is part of the fabric of our state. And we need to figure out how to resolve it.” So that just meant a lot, I think, to everyone.
It comes down to inherent sovereignty
SMC: Yesterday, I was talking to some of our allies in the faith-based community and they mentioned that some of their members have qualms with gambling. Is there anything you’d like to say about that?
Chief Francis: I think that the gaming issue is polarizing, even in our own communities. I think it’s a tough one. With the other hats I wear, sometimes with [United Southern and Eastern Tribes] and National Congress of American Indians], and I spent some time with the National Indian Gaming Association, I don’t know where I am on the issue. That’s something we’ll have to debate as people.
But I think that the problem is that Tribes have been so economically oppressed for so long that there have been few opportunities. So I hear it all the time from Tribal leaders: we don’t like selling cigarettes, we don’t like gambling, for example. We also just don’t like poverty.
Indian gaming generates billions of dollars a year, provides thousands and thousands of jobs, not just Indian, non-Indian as well. But beyond that, Indian gaming is rooted in an inherent sovereign practice of economically developing how you see fit. And what Congress recognized in the discussion, too, was that Tribes did need something that they could develop over the next couple of decades. They needed real-time opportunities. And the goal of that is to diversify from that with short-term revenues, to be able to do things you see a lot of Tribes do, with movie theaters and strip malls, and hospitals, and libraries and all of the things they’re doing within their communities now with those resources.
So it wasn’t meant to be the say-all, end-all. But again, this is one of those questions where, are you going to recognize the Tribes’ sovereignty or are you not? Gaming is rooted in a Supreme Court decision against the Cabazon Tribe, where the Supreme Court said Indian Country, and Indian and Tribal governments are allowed to provide casino-based opportunities, carte blanche. Nobody can interfere with that. It’s their inherent right to do so.
So again, this conversation for me is around, are you willing to, when the rubber meets the road, and on those things that give you some heartburn, are you’re willing to say, “It’s not for me to say.” Right? And I think that’s where we’re trying to get. And I think that this subject is the perfect example of people’s commitment to this issue. So if Representative [Barbara] Cardone [of Bangor] doesn’t like the fact, for example, that she has one [casino] in her district and doesn’t want one anywhere else, could she get to a place where she says, “I don’t like it. I think it hurts my constituents. But it’s not for me to say.” Right? And I think when we get there on subjects like that, then we’ll truly have made progress, I think. So, it’s rooted in a lot more than slot machines. Again, it’s about Tribal rights and it’s again, very well thought out and very well decided in the highest courts in this country.
SMC: Right. It’s about self-determination and sovereignty. And that’s what it all comes down to.
Chief Francis: We were asked a lot, “Geez, we have these 22 recommendations? They’re kind of all complicated.” And I said, “Look, this report could have just been one sentence. It could have been: Respect and acknowledge the Tribes’ inherent sovereignty consistent with federal Indian law.” But then we’d end up in this whole debate about, “Well, what does that mean for this?” So we tried to be transparent in the process and say, “Look, gaming’s going to be an issue. So let’s talk about it.” If we don’t talk about it, nobody’s going to talk about it. And we’re going to be what-ifed to death for the next two years. So I think it all boils down to that, that one sentence, “Are you willing to do that or aren’t you?”
And if you are, then yes, there are some consequences. But they exist everywhere. And people have found a way to coexist. You can’t just throw up a casino just because we have the right to do so. There are environmental reviews, there are economic studies, there are traffic studies, the Department of Interior is involved, the State of Maine is involved. Local communities get involved. There’s a whole host of things that have to take place. So there are all kinds of stakeholders in that example. But I think, again, I think the whole thing could have been summarized in one sentence. At the end of the day, we knew that people were going to want issues specifically explained, and if you look at those 22 recommendations, they get at a lot of what we think the special interests’ concerns are.
Concerning signals from the Governor’s Office
Meredith DeFrancesco, SMC: What is the process from here?
Chief Francis: The legislative process from here is one to two days of a public hearing in the middle of February. I’m very much looking forward to it because I think we’re going to hear some great voices. Then it’ll go to a work session where the Judiciary Committee will vote on the bill to report it out. So you either get a majority report or a minority report, or a split report. That’s pretty much how the process is going to go on that bill. But one [of the] things we’ve asked for is, given the complexity of these laws — there’s no way everybody in that room is going to know everything about… I’d be shocked if they all read this report. I hope they do because a lot of work went into it—we’ve asked for Tribal technical experts to be able to speak at the [committee] work sessions, as well. And then the bill will go to the governor and we’ll see.
SMC: Have you had any signals about what she thinks about this process?
Chief Francis: They just keep reporting that they haven’t read it. And they’re not prepared to make a statement, even though I have reason to believe that they’ve been listening to every one of these sessions, and they’ve had a representative there. I think there’s going to be some challenges.
The State of Maine has excluded Wabanaki Tribes from the federal Violence Against Women’s Act, based on their interpretation of the Settlement Act — an interpretation the Tribes disagree with.
Chief Francis: We’re seeing it with VAWA right now, right? That bill is still floundering around on the floor. We are talking about the restoration of Tribal rights, and the recognition of inherent sovereignty, fighting over whether the United States Constitution should apply to our VAWA bill.
The position of the Tribe is: we predate the Constitution. Protections for offenders are there on multiple levels, very similar to constitutional protections. You have the Indian Civil Rights Act. You also have a whole host of things that a defendant can do in this process. […] And we’ve submitted ourselves to a piece of state legislation over a Federal Indian Law already and compromised on things like pieces of the Maine Constitution that allow for a higher threshold for offenders, if they recant an admission for example. So I don’t understand all of this concern about making sure that people have due process when [the] Department of Justice oversees this program. And you can’t just implement it. You have to have all those things in place, which we have for over four years. And so we’re still having that battle. It tells me if we’re having that battle over that one little piece, then there’s probably going to be a fight on all of it. But we’re prepared to do it.
–End of Interview–
Chief Francis has served as Chief of the Penobscot Nation since 2006. He is also president of the United Southern and Eastern Tribes (USET) and chairs the National Congress of American Indians (NCAI) Natural Resources Committee:
The Task Force is comprised of the chiefs of the Penobscot, Passamquoddy, Mi’kmaq, and Maliseet Tribes, two Maine senators, three Maine representatives, and ex offico representation from the Governor’s office, Maine Attorney General’s office and the Maine Indian Tribal-State Commission (MITSC). Their charge has been to propose legislation that will address the following goals, as outlined in a May 2019 letter from the Wabanaki Tribal Chiefs, solicited by Senate President Troy Jackson and House Speaker Sarah Gideon:
“[T]he leadership of the Tribes have a consensus that for this process to work there must be a commitment to accomplish the following as to all Tribes:
Amendments to . . . establish that the laws of the State shall not apply to the Tribes or their respective lands, except as agreed by the State and the Tribes or as provided by federal law;
Amendments . . . to confirm that the Tribes shall exercise and enjoy the same rights, powers, privileges, and immunities as other federally-recognized Indian tribes, except as agreed by the State and the Tribes; and
Amendments . . . to confirm that Acts of Congress intended to benefit federally-recognized Indian Tribes in general apply to the Tribes and their lands, except as agreed by the State and the Tribes.”
Top photo: Rep. Donna Bailey, Chief Kirk Francis, and Senator Marianne Moore present the findings and consensus-based recommendations of the Task Force to the Joint Standing Committee of the Judiciary. | Sunlight Media Collective