Statehouse Report: Tribal rights, sovereignty under legislative scrutiny

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If legislation heard last week by the Judiciary Committee concerning Maine’s Native American tribes were to become law, it would mark a revolution in a long-vexed relationship.

But that’s a big “if.”

Intense negotiations between tribal representatives and the office of Gov. Janet Mills have produced draft legislation (LD 585) that would include some significant state concessions – but not on the issue of sovereignty, which is the focus of an omnibus bill (LD 1626) three years in the making.

A 2019 task force recommended that Maine’s four federally recognized tribes be granted full rights under federal law, including the benefits of dozens of legal changes enacted by Congress since the 1980 Maine land claims settlement acts were interpreted to exclude the Passamaquoddy and Penobscot tribes, and later the Micmac and Maliseet.

But the effort was put on hold by the 2020 pandemic shutdown, reintroduced last year, and finally carried over to the current session.

Another bill, LD 906, sponsored by Rep. Rena Newell, the non-voting Passamaquoddy representative who serves on Judiciary, attempts to correct longstanding water system problems at the tribe’s Pleasant Point reservation. The two other proposals are sponsored by Rep. Rachel Talbot Ross, D-Portland.

Despite the intense news media focus, the principals on all sides have been regularly refusing interview requests, reflecting both the large stakes and the volatility of the talks, which could continue up to adjournment in April.

But House Judiciary Chair Thom Harnett, D-Gardiner, agreed to offer some observations on the bills’ prospects during a break between marathon hearings (the omnibus bill’s online hearing went eight hours, with written testimony from 1,000 people).

“Tribal representatives have told us the task force bill is their highest priority,” Harnett said. But Mills has made it clear, he added, she doesn’t support granting full sovereignty, although her chief negotiator, Gerald Reid, has steered clear of outright opposition.

Rep. Rena Newell
Rena Newell is the non-voting Maine state representative from the Passamaquoddy Tribe.

Still, sovereignty is a key priority for Democrats, including Senate President Troy Jackson of Allagash and House Speaker Ryan Fecteau of Biddeford.

At this point, the focus is on LD 585, which contains several items where the administration may be willing to deal.

Mills dangled a big carrot on Feb. 11 by offering the tribes exclusive rights to online sports gambling, legalized by a 2018 U.S. Supreme Court decision and already adopted in other states.

That announcement brought a fiery reaction from Sen. Joe Baldacci, D-Bangor, who said it might fracture support for both bills, calling it “a direct threat to jobs and business.”

The Bangor delegation has been protective of the downtown Hollywood Casino, which would like a share of sports betting. But Rep. Amy Roeder, D-Bangor, said she’s not worried about such a concession to the tribes.

Harnett agreed, saying the Bangor and Oxford casinos – both established by referendum – probably wouldn’t lose business, since patrons prefer to play in-person. “But it’s a big new market out there,” he added.

New York took in $70 million in tax revenue during its first month, he pointed out, catering to a younger crowd that bets even as sports events are going on.

Thom Harnett
Rep. Thom Harnett, D-Gardiner.

Tribal representatives have yet to respond to Mills’ offer, but it could be tempting. For two decades, they’ve endured repeated rebuffs, both in referendums and legislation.

Mills and the last Democratic governor, John Baldacci, both vetoed bills to allow tribal casinos. Meanwhile, the Penobscot’s high-stakes bingo parlor on Indian Island went bust after Hollywood Casino opened a few miles away.

Gambling is the only feature of the 2019 task force recommendations excluded from the omnibus bill. Other LD 585 features would make tax changes providing more revenue to tribes that have reservations.

Harnett said none of this involves amending the 1980 implementing act – a sticking point not only for Mills but all Maine governors back to Joe Brennan, who reluctantly agreed to the settlement.

That could pose difficulties for LD 908, Newell’s bill to amend the water district charter, making it eligible for federal funding of a new water supply to replace one that’s frequently contaminated. 

Since the district was included in the settlement act, this would reopen the law, something Mills wants to avoid. With two adjacent towns involved, Reid said, it might require dual federal and state regulation, an awkward situation.

The administration doesn’t object, however, to a property tax exemption for the only such utility now paying them.

Among many calling for tribal sovereignty at the hearing was Darrell Newell, Passamaquoddy vice chief, who said it’s a “no-brainer” that Maine tribes, like 500 others that are federally recognized, should have equal sovereignty with the state.

“It’s insulting to know that natives in this state have less rights than natives in other places just because the state insists it be this way,” Newell said.

Harnett said common sense suggests tribes should have equal status, and not be treated as municipalities subject to state law.

But there’s a reason why governors – Republicans, Democrats, and an independent – have all resisted, Harnett said: “It’s a good deal for the state. They don’t want to give it up.”

Legislation recently introduced in Congress by 2nd District Rep. Jared Golden and co-sponsored by 1st District Rep. Chellie Pingree, both Democrats, would make Maine tribes beneficiaries of future federal laws, although it wouldn’t affect the 42-year backlog.

Neither of Maine’s U.S. senators, Republican Susan Collins nor independent Angus King, the former governor (1995-2003) who took a hard line on tribal issues, has yet introduced companion legislation needed if the bill is to become law.

Douglas Rooks, a Maine editor, commentator, and reporter since 1984, is the author of three books. His first, “Statesman: George Mitchell and the Art of the Possible,” is now in paperback. He welcomes comments at [email protected].