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Donna Loring is a Penobscot Nation tribal elder and former Penobscot Nation representative to the Maine Legislature. Eric Mehnert is the chief judge of the Penobscot Nation Tribal Court.
It is deeply concerning to read the misinformation it appears may have guided the Gov. Janet Mills’ recent veto of LD 2004 (An Act to Restore Access to Federal Laws Beneficial to the Wabanaki Nations). This bipartisan legislation would recognize some tribal sovereign rights of the tribes in Maine placing them on equal footing with the rest of Indian Country.
With due respect, we believe the governor’s response to LD 2004 misunderstands the U.S. Constitution, the development of federal Indian law in accord with the Constitution and the history of tribal-state relations in Maine.
For example, the governor takes the position that LD 2004 creates legal uncertainty for non-indigenous Mainers regarding tribal jurisdiction. This misunderstands the Supreme Court’s 1978 decision in Oliphant v. Suquamish Indian Tribe. Under Oliphant, non-Indigenous citizens who violate state law may only be tried in state court. The sole exception is for domestic violence against a tribal member.
Citing settlement money paid to the tribes under the 1980 land claims, the governor fails to note that every penny of these monies was paid by the federal government. Maine paid nothing to settle the Indian land claims in 1980. Quite oppositely, in 1942 then-Maine Attorney General Frank Cowan testified before the Legislature that Maine owed “some millions” of what had been promised when the state Constitution was ratified in 1820. This debt has only increased to date.
Mills’ response to LD 2004 appears solely focused on the Maine Indian Claims Settlement Act. Focusing solely on the settlement act is like treating a single needle on a dying pine tree. The broader and more relevant focus must be the historic tribal-state relationship. A thorough review of this history reveals that, in 1820, Maine agreed to assume Massachusetts’s obligations to the Wabanaki Nations — and that this agreement was ratified under Maine’s original Constitution. This portion of our state Constitution was removed from print in 1876. When in early 2023, Maine legislators proposed a resolution to require all provisions in the state Constitution to be included in the official printing, the governor’s office voiced opposition to the resolution, using similar rhetoric to its opposition of LD 2004. The resolution will go out for a referendum vote by the people.
When Maine became a state, it assumed a fiduciary relationship and duty with the tribes, something the state has long understood and was the focus of studies like the 1942 state-commissioned Proctor report referring to Maine as guardians of the tribes. On review, historians and the public will be hard pressed to come to a conclusion that legally explains or justifies Maine’s subsequent breach of its financial responsibilities to the tribes, taking of tribal lands without just compensation, the unconscionable sale of timber rights and even publicly calling for dissolution of the tribes, as revealed in the 1942 Legislative Research Committee Transcripts.
Sole focus on the settlement act is, therefore, misplaced. History confirms, it was under Maine’s failed fiduciary relationship that the settlement act was passed, turning a real estate suit into a mechanism for political control with all benefits going to the state, which bore no fiscal expense.
Conservative Supreme Court Justice Neil Gorsuch recently stated “Often Native American tribes have come to this court seeking justice only to leave with bowed heads and empty hands. But that is not because this court has no justice to offer them. Our Constitution reserves for the Tribes a place — an enduring place — in the structure of American life. It promises them sovereignty for as long as they wish to keep it. And it secures that promise by divesting States of authority over Indian affairs and by giving the federal government certain significant (but limited and enumerated) powers aimed at building a lasting peace.”
This is exactly what LD 2004 seeks to accomplish.
In yet another opinion, Gorsuch observed that even “on the far end of the Trail of Tears was a promise.” There was a promise at the inception of Maine’s statehood, a promise never fulfilled by the state: faithful fiduciary responsibilities to and recognition of the tribes and their inherent sovereignty.
In the past, the Wabanaki Nations have seen the hollow nature of the state’s promises. They have — as Gorsuch put it — “sought justice time and again, only to be left with heads bowed and hands empty.” In simplest terms, LD 2004 seeks to honor the promise Maine made more than two centuries ago to recognize tribal sovereignty and to join the 49 other states in the 21st century by acting as an ally, not an oppressor, and to do the right thing.
To save the tree, one must look beyond the pine needle and understand the root of the problem. The Legislature can begin to heal this Pine Tree State by overriding the governor’s veto.