A task force outlines steps to restore the sovereignty that tribal leaders say was lost in the landmark 1980 law.
BY KEVIN MILLER STAFF WRITER
Gov. Janet Mills announces a posthumous pardon of attorney Donald Gellers, who worked with the Passamaquoddy tribe, on Tuesday at the State House. With her are Passamaquoddy Tribal Rep. Rena Newell and Vice Chief Darrell J. Newell of the Passamaquoddy tribe at Indian Township. Joe Phelan/Kennebec Journal Buy this Photo
AUGUSTA — A task force reviewing a contentious 40-year-old settlement between Maine and tribal governments is proposing major changes to give tribes broader authority over issues including taxes, gambling and fishing.
The recommendations and 200-plus pages of supporting documents are the latest attempt to change the landmark law that was supposed to resolve the tribes’ land claims against the state, but has, instead, spurred decades of tension, lawsuits and political fighting.
After meeting for more than six months, the task force produced recommendations that if enacted would restore some of the sovereignty that the leaders of Maine’s four federally recognized tribes say was taken from them by the 1980 Maine Indian Claims Settlement Act.
Chief Kirk Francis of the Penobscot Nation acknowledged Maine’s tribal leaders were initially skeptical, having participated in multiple previous groups studying a settlement that he described as “an utter failure.” But Francis said the recommendations, if implemented by the Legislature, have “the potential for tremendous impacts on some highly disadvantaged people and some very proud governments.”
“We are pleased with the results of the task force,” Francis told members of the Legislature’s Judiciary Committee, which is charged with crafting any legislation based on the report. “The recommendations being presented today are not perfect, but they will begin a foundation on which we can begin the work that should have been started 40 years ago.”
The group’s 22 recommendations include:
Affirming tribes’ rights to regulate hunting, fishing, land use and other natural resource activities on tribal lands, as allowed under federal law.
• Formally recognizing tribal courts’ jurisdiction over certain crimes committed on tribal lands, including in cases of non-Indians accused of domestically abusing Indians on tribal lands.
• Enabling tribes to tax non-members on tribal lands and exempting members from the state income tax for money earned on tribal lands, as allowed under federal law.
• Allowing tribes to operate casinos with table games and slot machines under a “compact” negotiated between tribal leaders, the state and the U.S. Department of the Interior.
All but two of the 22 recommendations were unanimous. The 13-member commission included tribal leaders, legislators, a representative of the Mills administration and an assistant attorney general.
History suggests that some of the proposals – particularly the one to grant tribes more authority to operate gambling facilities – will face opposition from the Legislature, which has rebuffed numerous attempts to change the 1980 law. Yet on Tuesday, the committee members resisted, at least for now, the temptation to split up the 22 recommendations in the report into separate bills that would inevitably be debated and dissected by lawmakers and interest groups.
“I want us to remember, as a group, not only the impetus for all of this work, but all of the work that was done over the summer,” Rep. Lois Galgay Reckitt, D-South Portland, said as she pledged to spend the weekend reading the 299-page report. While Reckitt said she could be open to breaking out contentious issues down the road, she added: “I think we owe it due consideration as a starting point and I am hoping that the initiative will remain relatively intact at the end of the day.”
Maine’s four federally recognized tribes – the Penobscot Nation, the Passamaquoddy Tribe, the Houlton Band of Maliseet Indians and the Aroostook Band of Micmacs – have a dramatically different relationship with state government than many other tribes across the nation because of the 1980 settlement act.
After years of lawsuits and negotiations, Congress approved the 1980 agreement providing the Penobscot, Passamaquoddy and Maliseet tribes with $81.5 million in federal funding in exchange for ending future land claims against the state. The tribes used much of that initial money to buy back about 300,000 acres. Yet the settlement led to decades of disagreement over state jurisdiction and tribal sovereignty.
There have been conflicts over fishing rights, lawsuits over water quality in industrialized rivers that flow through reservation lands and a legacy of Maine social services agencies taking away tribal children from their families. In 2015, tribal leaders grew so frustrated with the administration of former Gov. Paul LePage, then-Attorney General Janet Mills and legislative leaders that the Penobscot and Passamaquoddy tribes withdrew their representatives to the Legislature.
The task force is part of an effort to repair those long-strained relations. In addition to creating the group last year, lawmakers passed a bill renaming Columbus Day as Indigenous Peoples Day and now-Gov. Mills appointed a senior adviser on tribal affairs while proposing stringent new water-quality standards to protect tribal sustenance fishermen.
“The settlement act was supposed to be a living document, but it has been stagnant for 40 years, so to me and my perspective, this is just the start and the beginning,” said Elizabeth Dana, vice chief of the Passamaquoddy Tribe at Pleasant Point. “We have tried and tried over the years to build that relationship … between the tribe and the state, nation-to-nation building. We are not here for you to grant us rights. It is restoring our rights.”
Lawmakers plan to continue working on a bill, which was held up last year by Mills, that would allow tribal courts to handle domestic violence cases involving non-Indian defendants and Indian victims. The federal Violence Against Women Act reauthorized by Congress in 2013 extended those powers to tribal courts. Maine, however, was explicitly excluded from the bill because of the 1980 settlement act.
But the recommendations deal with complicated issues fraught with politics, as evidenced by the lobbyists for the forest products industry, casinos and environmental groups who attended Tuesday’s committee meeting.
The recommendation to give tribes more authority to create casinos is likely to be among the thorniest issue, as several committee members acknowledged on Tuesday. Tribes have lost repeated efforts to gain approval from the Legislature or from voters to open casinos offering slot machines or table games.
But Rep. John DeVeau, R-Caribou, harkened back to the American Revolution when he pointed out that local tribes risked their livelihoods to help fight the much-larger and better-equipped British military.
“It’s only fair for us to look at this and do what’s right for them and not for our community necessarily,” DeVeau said. “We have to weigh the balance. And we have to look at this openly and not just focus on a casino.”