In our zeal to expiate the sins of the past with respect to Maine’s treatment of indigenous people/tribes, we are a step away from doing more harm than good. Apart from abandoning “regular order” in scheduling hearings on LD 2004 with little notice, little or no time for serious Committee debate, no time for consideration of amendments, we are on the cusp of nullifying on all tribal lands Maine’s highly protective environmental laws and a large number of Maine laws protecting the safety and rights of individuals, e.g., minimum wage, occupational safety, laws protecting children, abortion and relationships. Except for certain crimes (mostly juvenile) and state gaming laws indigenous and non-indigenous people on tribal land will be protected only by federal laws and laws passed by elected tribal leaders.
Absent the existing panoply of state environmental laws and laws protecting the safety and rights of individuals, it must be recognized that federal laws are unlikely to address environmental problems unique to Maine. And tribal leaders (though well-intentioned) will be burdened to the breaking point to fashion and enforce (on tribal lands) a body of environmental law and laws protecting the safety and rights of individuals comparable to Maine laws presently in place.
Further, LD 2004’s assertion of “full tribal sovereignty” (the power to make laws) ignores the fact that tribal land in Maine (unlike tribal land in other parts of the country) is highly fragmented. Over 25 separate parcels (of varying size) exist today; more will exist in the future as tribal leaders exercise rights to acquire additional land granted by the 1980 Maine Indian Claims Settlement Act. Today indigenous and non-indigenous people alike (in pursuit of countless business and personal interests) travel back and forth between tribal and non-tribal land protected/benefited by a uniform body of Maine law; passage of LD 2004 will subject these travelers to federal/tribal law when they are on tribal land, and Maine law when they are on non-tribal land. The potential for chaos and conflict is obvious, but LD 2004 does not address how these problems/conflicts can or will be resolved, much less how the costs will be borne.
Additionally, there are essential infrastructure needs, roads, bridges, power lines, water lines that seamlessly run through and between tribal and non-tribal lands. Today, they are built and maintained by a uniform body of Maine law; LD 2004 does not address how these facilities will be built, maintained, or paid for going forward. Similarly, there are natural phenomena, e.g., air masses, ground water, navigable waters that now are protected by a uniform body of Maine law. LD 2004 does not address how these natural phenomena will be protected as they move through non-tribal land (subject to Maine law) at one point, and then through tribal land (subject to federal/tribal law) at another. In short, LD 2004 leaves these natural phenomena at great risk.
Finally, there is language in Maine’s Constitution (Article 1 and Article 4) suggesting that LD 2004 is barred, that the power to legislate (with respect to a type of land, i.e., tribal land) may not be ceded to an internal governing body. In my view questions of constitutionality must be asked and answered before LD 2004 is enacted. In sum, for any/all of the reasons stated above, enacting LD 2004 is a mistake.