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More than 40 years after the federal legislation that handcuffed Maine's native tribes on matters ranging from land use and acquisition to health care and education, an alliance of the four tribes and a wide range of Maine organizations is supporting legislation that would restore tribal sovereignty.
“We are at a point if we don’t really take the next meaningful step, those initial steps may feel empty," Maulian Dana, Penobscot Nation ambassador, said at a rally in support of the legislation Wednesday outside of the Augusta Civic Center, where the Legislature was meeting.
Not only would LD 1568 give Maine tribes the same rights as the other 570 federally recognized tribes in 49 states, but it would also put the state in a better position to combat climate change and increase biodiversity, supporters said.
Groups that have come out in favor of the bill include conservation groups, as well as the Maine AFL-CIO, the Maine ACLU, the Maine Council of Churches and more (see sidebar for full list). The Environmental Priorities Coalition, which represents 32 Maine conservation groups and 160,000 members, has made the bill a top priority this legislative session.
The new bill is based on recommendations by the 129th Legislature's Task Force on Changes to the Maine Indian Claims Settlement Implementing Act. That legislation, a result of bills introduced by Rep. Jeff Evangelos, I-Friendship, and Rep. Rachel Talbot-Ross, D-Portland, stalled when the Legislature shut down in March 2020 because of the pandemic.
The bill looks to restore the sovereignty that is recognized by the federal government and in all other states. The Maine settlement act came after a long series of broken treaties beginning in 1790, and extending into the 20th century. In the late 1970s, the tribes asked for 12.5 million acres. The settlement act passed by the U.S. Congress in 1980 instead gave them $81 million, most of it in federally held trust, that allowed them to buy 150,000 acres from large timber corporations.
Maine's four tribes — Penobscot, Passmaquoddy, Houlton Band of Maliseet and Aroostook Band of Micmacs — own or control about 170,000 acres in the state. But the 1980 settlement created a hybrid model unique to Maine in which the tribes have federal sovereignty, but they are under state control, which limits their land use and acquisition rights, as well as other authority that tribes across the nation have.
Since the act was passed Oct. 10, 1980, more than 150 federal laws related to health, education, the environment and land use and acquisition have been passed that don't apply to Maine's tribes, according to a Suffolk University study commissioned by the task force.
"We need to look at the structure of this relationship," Dana said. "We need it to be based in equity, fairness, respect and beyond that we need it to be based in healing."
Among the changes the legislation would make to the 1980 settlement act are:
Land acquisition. Restructures procedures for adding land to tribal territories and eliminates land acquisition time limits. Currently, if the Passamaquoddy Tribe and the Penobscot Nation want to to acquire land within the borders of a city, town, village or plantation, they must agree to make a payment in lieu of taxes to the relevant local taxing authority and agree to establish law enforcement authority and establish that land use is not contrary to zoning ordinances. The bill eliminates that language.
Court jurisdiction. It allows federal Indian law to be used in tribal courts, providing broader jurisdiction, and repeals most of the state limitations on what the courts can do. It adopts federal law set out by the Indian Civil Rights Act of 1968 the Tribal Law and Order Act of 2010 and other federal laws addressing tribal court jurisdiction and the obligations of the tribal courts.
Fishing and hunting rights. Recognizes federal Indian law regarding the exclusive jurisdiction of tribes to regulate fishing and hunting by tribal citizens of all federally recognized Indian tribes, as well as non-tribal members, on tribal land. It reinquishes the state's jurisdiction over regulation of fishing and hunting by both tribal and nontribal citizens on tribal land.
Taxation. Adopts federal Indian law allowing tribes to have exclusive jurisdiction to tax tribal members and tribal entities on their land, including entities owned by a tribe or tribal member, as well as the fact that tribes, tribal members and tribal entities are not subject to state and local sales tax on tribal land. Tribal members who live on tribal land are not subject to state income tax for income earned on that land, and are not subject to state and local real property tax. Tribes also have jurisdiction to tax nonmembers on their land, and the state and local governments have concurrent jurisdiction to tax nonmembers on tribal land.
The legislation, except where it notes "all federally recognized tribes," doesn't apply to the Aroostook Band of Micmacs, which never ratified the 1980 agreement. The legislation, if passed into law, must be agreed to by the Penobscot, Passamaquoddy and Houlton Band of Masileets governments.
A public hearing on bill before the Legislature's Judiciary Committee is scheduled for 8 a.m. Tuesday.
Evangelos, sponsor of LD 1568, told those at at the rally Wednesday that he would fight for the bill to be passed.
"I want you to know, my state did not negotiate in good faith in 1980," he said to the crowd, after a brief moment in which he seemed overcome.
Evangelos said when the agreement was forged, critical information was withheld from the tribes, including knowledge among state officials that Maine wouldn't have to pay for any of the settlement. He also read an April 1980 memo that Richard Cohen, Maine's attorney general at the time, wrote to the Legislature, that spells out how the state will control tribal land to an extent that no other state had achieved.
The memo says: "The framework of laws and the Settlement Act is by far the most favorable state Indian jurisdictional relationship that exists anywhere in the United States. As a general rule, states have little authority to enforce state laws on Indian lands." The memo says that laws relating to taxes, water and air pollution, zoning, health, contracts and business and criminal are unenforceable on Indian land.
"I believe such a result would be intolerable," Cohen wrote. "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 had lost.’”
Evangelos said, "You tell me whether this was good faith."
Also speaking was Abbigail Bradford, of Maine Conservation Voters, on behalf of the state Environmental Priorities Coalition, who said, "We believe restoring the Wabanaki's inherent rights to manage their lands, waters and natural resources will help regenerate those ecosystems and make them more resilient to climate change," Bradford said.
"Restoring Wabanaki tribal sovereignty will be a step of healing for the state of Maine to take, both for our relationships with each other and with the land," Bradford said. "This step will make us stronger in the face of our common challenges, including climate change and environmental degradation, and will benefit all of our children.”
Carmella Bear, 14, of Penobscot Indian Island Reservation, also spoke Wednesday, about what the changes would mean for her generation and those who follow. "Tribal sovereignty is very important and we have taken a lot of steps to get much closer to where we need to be. But there are many more steps that need to be taken.”