Statehouse Report: For Maine’s Indian tribes, the wait for sovereignty continues

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The long quest of Maine’s Indian tribes to revamp their 1980 agreement with the state and federal governments reached another milestone May 4, with a public hearing on LD 1626 – an omnibus bill to implement recommendations of a legislative task force that met from 2019-2020.

But no votes will be taken this year, and the bill will be carried over to the 2022 session.

The original task force, chaired by former Sen. Mike Carpenter and former Rep. Donna Bailey, produced a sweeping set of consensus, bipartisan changes that would substantially conform Maine law to many of the 150 federal statutes enacted over the past 40 years affecting Indian tribes. None of them apply now, under state and federal court decisions rulings concerning the 1980 federal Settlement Act, and its state implementing legislation.

The federal law, which granted $82 million in federal funding to the Passamaquoddy and Penobscot tribes for land purchases, also made the tribes – uniquely – subject to state law, despite dozens of cases brought by the tribes to remove such jurisdiction.

The task force intended to bring a bill forward last year, but the coronavirus adjournment in March 2020 foiled those plans. So the May 4 Judiciary Committee hearing provided the first airing of concerns about the state’s treatment of the tribes, with the overwhelming proportion of nearly 200 items of testimony in favor of the bill.

Rep. Rachel Talbot Ross, D-Portland, introduced LD 1626; Senate President Troy Jackson and House Speaker Ryan Fecteau are among the co-sponsors. Among supporters were churches and environmental groups, retired newspaper editors, and many residents of rural Maine communities. A few municipal officials, from Carrabassett Valley and East Millinocket, expressed concerns about the effect on municipal ordinances and potential tribal land purchases.

A constant theme was that Maine’s tribes should enjoy the full benefits of federal laws over the past 40 years and that there’s no legal or moral rationale for denying them.

Cushman Anthony, a Quaker and former legislator who chaired the Maine Indian Tribal-State Commission from 1999-2004 – the body charged with implementing the federal Settlement Act – said “frequent disputes … emanating from the lack of clear language in the Maine Implementing Act” had created an “intolerable” situation for the tribes. He added, “if other states, as well as our national government, can flourish under provisions contained in federal law, then so can we.”

Sen. Anne Carney, D-Cape Elizabeth.

It won’t be easy; Carpenter was defeated for reelection last year, while Bailey ran for the Senate and now serves on the Appropriations Committee. Their successors are Sen. Anne Carney, D-Cape Elizabeth, an attorney versed in environmental and employment law, and Rep. Thom Harnett, D-Gardiner, who previously served in the attorney general’s office.

In announcing the likely carryover before the hearing opened, Carney said the committee is struggling to complete its work, with 170 bills still pending and just 17 carryover slots available – of which three will go to tribal bills heard May 4.

Jerry Reid, Gov. Janet Mills’ chief legal counsel and her former Department of Environmental Protection commissioner, provided only brief testimony, saying the governor had “serious concerns” but would not “share those concerns” until the 2022 session when there will be another public hearing.

Under questioning from Rep. James Thorne, R-Carmel, Reid confirmed that Mills opposes the bill, and when Thorne asked whether there was any bill the governor might support, “or does it need to go back to the drawing board?” Reid said “none of these bills” would win Mills’ favor.

Harnett followed up with a question about current negotiations between the governor’s office and tribal representatives, which have continued, on and off, for more than two years. Reid said talks “ended abruptly 10 days ago. I’m not sure why.”

Mills and the tribes feuded openly during her tenure as attorney general, especially after she filed an amicus brief in federal court supporting the state of Washington against the Swinomish and other tribes there seeking expanded protection for salmon runs; the tribes won the case in 2018 when the U.S. Supreme Court deadlocked 4-4, upholding a favorable lower-court ruling.

Rep. Thom Harnett, D-Gardiner.

As governor, Mills has made significant gestures toward the tribes, including appointing Donna Loring, a former Penobscot tribal representative in the Legislature, as a senior adviser.

During Loring’s 22-month tenure, Mills signed into law a bill changing Columbus Day to Indigenous Peoples’ Day. She also issued a posthumous pardon to Don Gellers, a Passamaquoddy tribal attorney who many believe was convicted on drug charges in 1968 as a result of police misconduct.

When Loring resigned in November 2020, the parting was said to be amicable, but three months later she wrote an op-ed advocating that the Legislature create a fifth “constitutional office,” joining the attorney general, secretary of state, treasurer, and auditor.

The new office would remove tribal matters from the governor’s purview, and, Loring said, grant them“permanent recognition.” She added, “The tribes would finally have an official and stable connection to state government.”

Though there was no sign the current administration has eased its opposition on substantive issues, there was reconsideration elsewhere. Evan Richert, who as state planning director under Gov. Angus King from 1995-2003 was the administration’s point person on the Tribal-State Commission, said it was time for change.

“Then as now, there were serious and at times seemingly intractable tensions between the tribes and state government,” he wrote, caused by “inherent conflicts and ambiguities within the Implementing Act itself.” This “reduced the tribes to special kinds of municipalities,” rather than partners with the state.

Richert praised the task force recommendations, said they respect municipal concerns, and concluded, “this correction to the Implementing Act is long overdue.”

In his testimony, John Banks, a Penobscot representative to the commission since 1987, said “the Maine tribes are ready, willing and able to take on the additional governmental responsibilities.”

During the hearing, Rep. Ben Collings, D-Portland, said he’s worked with tribes around the country and described them as “shocked” that Maine tribes do not enjoy the benefits of new federal laws. He attributed it to a “rushed” process in 1980, when President Jimmy Carter was headed out of office, and the tribes felt compelled to sign the agreement.

Two other bills under consideration, sponsored by Passamaquoddy Rep. Rena Newell, illustrate the dilemmas.

One, LD 1218, would apply the latest federal law, “Savanna’s Act,” to Maine. It requires better reporting of violent crimes against tribal members and was signed into law last year by former President Donald Trump.

The other, LD 906, would require improvements to the public water supply at the tribe’s Pleasant Point reservation, which also serves Eastport, where the water is often discolored seasonally, although still passing drinking water standards.

Newell said she was “in negotiations” with the attorney general’s office on the bills, which Carney said would be carried over.

On the water supply, there was some good news from the Maine Center for Disease Control and Prevention, which submitted a memo reporting $835,500 is available for improvements scheduled this year, with residents seeing “significant improvements in the water coming out of their taps.”

Beyond that, it appears to be wait until next year.

Douglas Rooks has been a Maine editor, commentator, reporter, and author since 1984. His new book is “First Franco: Albert Beliveau in Law, Politics and Love.” Visit  douglasrooks.weebly.com/#/ or e-mail drooks@tds.net.