State House Report: Ambitious bill would remake Maine’s Indian claims settlement

Tribal courts, the ability to tax, and the right to operate gambling casinos are all on the table

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The Legislature’s Judiciary Committee in February is expected to hear an omnibus bill recommending sweeping changes to the relationship between Maine and its Indian tribes.

Sen. Mike Carpenter, a Democrat from Houlton and former attorney general, co-chaired the Task Force on Changes to the Maine Indian Claims Settlement Implementing Act, which wrapped up its work in December and is sponsoring the bill.

The legislation, Carpenter said, is a calculated risk.

“The task force decided to ‘go big’ with the bill, and consider everything together,” he said, while recognizing “we might have to peel off certain provisions to get it passed.”

Penobscot Chief Kirk Francis

Dozens of reports, task forces and commissions have made similar recommendations over the years since federal and state legislation was enacted in 1980, leaving Maine and the tribes in what Penobscot Chief Kirk Francis calls a “static relationship,” with the underlying law “a failed experiment.”

What makes lawmakers think this time will be any different?

For one thing, justice for Maine’s Indian tribes was a powerful current in the 2018 Democratic primaries for governor and legislative offices. For the first time, a gubernatorial forum took place on Indian Island – the Penobscot tribe’s reservation – with all seven candidates present except then-Attorney General Janet Mills.

For another, the Legislature itself commissioned this particular task force.

And, Carpenter said, he perceives a different tone, especially among young legislators. “When I talk with them,” he said, “there’s a lot of enthusiasm that’s very different from what we’ve seen before.”

Maine state Sen. Mike Carpenter, D-Houlton.

Carpenter should know; he was first elected to a House seat from Houlton in 1974, when he was just returning home after combat service in Vietnam.

His co-chair, Rep. Donna Bailey, a Saco Democrat and former York County probate judge first elected to the Legislature in 2016, seems equally committed to the task force plan. Together they encompass a diversity of legislative experience.

Bailey, who’s precise with language, responded to questions in writing, saying, “The current relationship with the state is holding the tribes back economically and also preventing them from being able to make decisions and set their own course.”

A final plus may be that, with a few exceptions, all the “consensus recommendations” were made unanimously, with the task force populated by Republican and Democratic legislators, as well as tribal representatives.

The recommendations are nothing if not ambitious.

The 1980 Settlement Act focused on the Penobscots and Passamaquoddies, and the later addition of the Maliseets and Micmacs, has left a confusing heirarchy of legal jurisdictions that in the tribes’ estimation makes them the equivalents of municipal governments, rather than enjoying equal status with the state.

The task force aims to clear this up with a series of changes that broaden the jurisdiction of tribal courts. It would also increase taxing authority and limit oversight from the departments of Environmental Protection and Fisheries and Inland Wildlife that the tribes find onerous.

The biggest issue, however, may be what to do about Indian rights for gambling establishments. Other tribes have opened casinos freely under the Indian Gaming Regulatory Act, especially after courts ruled that a state offering any similar games of chance – even Las Vegas nights for charity – couldn’t bar Indian-owned casinos.

Former Connecticut Gov. Lowell Weicker took the issue to court and, after losing, in 1991 negotiated the deal by which the Mashantucket Pequot tribe opened the Foxwoods Casino, which has since become New England’s largest and the nation’s second largest, with annual revenues of $789 million. The tribe had achieved federal recognition in 1983. 

By contrast, Maine’s tribes, with a continuous presence for thousands of years, have been shut out, losing referendum questions in 2003, 2007 and 2011, and seeing former Gov. John Baldacci veto a similar bill. In the meantime, voters narrowly approved non-Indian casinos, first in Bangor in 2003 (originally a “racino”) and in Oxford in 2010. 

The task force has a simple, and potentially game-changing proposal in Consensus Recommendation 17, which was adopted unanimously: “Amend the Maine Implementing Act to render the federal Indian Gaming Regulatory Act applicable in Maine.”

If adopted by the Legislature, the tribes would be able to build a casino on land they now own, or land they may subsequently acquire. It’s sure to be forcefully opposed by the all-Democratic Bangor delegation, which is protective of the city’s interests, and concerned about competition from Indian Island, where high-stake beano games were long held before losing out to Bangor’s Hollywood Slots.

Carpenter thinks those concerns may not derail the bill. “Opening a casino is a huge endeavor,” he said. “You need investors who expect a return on their money. You can’t put one just anywhere.”

Locating one “next door,” on Indian Island probably wouldn’t work. And while a location closer to Maine’s southern border is more likely, Carpenter said it would be a long process, with plenty of obstacles.

Even so, Carpenter said, “I’m struck about how strongly my colleagues feel about this. They want to change the relationship with the tribes. Our time here in the Legislature is short. We have to think about doing this now.”

Douglas Rooks has covered Maine issues for 35 years as a reporter, editorial writer, columnist and former editor of Maine Times.

Behind the 1980 settlement act

The Maine Indian Land Claims Settlement Act passed by Congress in October 1980, and signed into law by President Jimmy Carter, represented an important victory for Maine’s Indian tribes in their long battle for federal and state recognition – especially for the Penobscot and Passamaquoddy tribes that were the principal beneficiaries.

Less sweeping recognition was later offered to the Micmac tribe, and the Houlton Band of Maliseets.

Efforts to reclaim much of the lost territory ceded to white settlers over four centuries began in earnest in the 1960s, sparked by young attorneys who came to Maine seeking justice for the tribes; one of them, Don Gellers, recently received a posthumous pardon from Gov. Janet Mills for drug law violations many believed were initiated by Maine law enforcement officers in retaliation for his tribal work.

Gellers then hired Tom Tureen to create Pine Tree Legal’s Indian Legal Services Unit, and Tureen became the lead attorney in a series of federal and state lawsuits. By the 1970s, the tribes laid claim to nearly two-thirds of Maine’s land area, and the claims had sufficient legal plausibility for the U.S. 1st Circuit Court of Appeals to refuse to dismiss their lawsuit.

Tom Tureen

Intense negotiations followed, with then-U.S. Sens. Ed Muskie and Bill Hathaway leading the way, and concluded by their successors, Sens. George Mitchell and Bill Cohen. Gov. Joseph Brennan had litigated the case as state attorney general, and opposed settlement, although he finally agreed to the $80 million payment to the tribes because no state money was involved.

Tureen became a hero to the tribes, and continued to represent their interests. In one especially successful deal, he arranged for the Passamaquoddy Tribe’s 1983 purchase of Dragon Cement, a company vital to the state’s construction industry. He also helped the Mashantucket Pequot tribe start the Foxwoods Casino in Connecticut.

There were aspects of the 1980 Settlement Act, however, that proved far less beneficial. These provisions, of which the tribes say they were unaware, inserted state government authority between them and the federal government – unlike that of any other state, where Indian tribes deal directly with Washington.

Richard Cohen, former U.S. attorney for Maine, who presided over the early years of implementation as a Ronald Reagan appointee, recognized the significance of these provisions immediately, and said Maine has “by far the most favorable state-Indian jurisdictional relationship” – meaning the state has the final say. So far, few of the 151 federal laws passed since 1980 have been applied to Maine.

The most glaring is the Indian Gaming Regulatory Act of 1988, which as interpreted by the courts, prevents Maine tribes from opening gambling casinos, as other tribes throughout the nation have done. Indian casinos are now a $25 billion annual business, and a principal source of tribal revenue. The situation is one the new legislative task force is attempting to change.

— Douglas Rooks