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Evan Richert is a former member of the Maine Indian Tribal-State Commission. Roger Milliken chairs the board of Baskahegan Company.
Fifty years ago, the U.S. First Circuit Court of Appeals affirmed in Passamaquoddy v. Morton that the U.S. government owes a trust relationship to the tribe.
This case was the foundation for claims by the Passamaquoddy Tribe and Penobscot Nation to millions of acres of land that had been acquired illegally. That led, 45 years ago, to the landmark 1980 Maine Indian Claims Settlement Act (MICSA) and the state’s Maine Implementing Act.
In our view, things have gone downhill since.
To understand why, we dove into the historical record from 1975 to the present.
We found that the state and tribes came out of the settlement with opposite understandings of what the Implementing Act said.
Multiple actions by the state have since interfered with tribes’ attempts to independently run their affairs — and, in the tribes’ minds, denied them the core aspects of sovereignty they had negotiated in the Implementing Act.
For example, Maine blocked direct tribal access to federal funds for disaster relief on tribal lands, prevented tribes from directly recruiting licensed medical professionals and from regulating clean air and water on their lands, and for years prevented them from arresting non-tribal members who commit domestic violent crimes on tribal lands.
Other federally recognized tribes in the U.S. can perform these functions but tribes in Maine cannot. Why? Because the state sees tribes not as sovereigns but as a special kind of municipality. Municipalities, as creatures of the state, cannot do many things most federally recognized tribes can do.
And there’s the rub.
You can trace the conflict back to 1975-1979, when the courts recognized the inherent sovereignty of the tribes, leading to the land claims. That outraged some Maine’s leaders, including then-Gov. James B. Longley, who stoked fear by asserting that tribal advocates wanted to carve out “a nation within a nation,” beginning with the northern two-thirds of Maine.
The resulting negotiations were arduous. Both the state and the tribes were under great pressure to reach agreement: the state because it faced unfavorable bond ratings in parts of the state due to the land claims. And the tribes because, while President Jimmy Carter supported a settlement with federal dollars, Ronald Reagan, his likely successor within a few months, would not.
The parties got it done. But that demagoguery around “no nation within a nation” shaped the state’s negotiating stance and drives how the state has interpreted an ambiguous paragraph of the Maine Implement Act ever since. The tribes bitterly disagree.
That paragraph of the act says: “Except as provided in this Act, the Passamaquoddy Tribe and the Penobscot Nation… shall have, exercise and enjoy all the rights, privileges, power and immunities…and shall be subject to all the duties, obligations, liabilities and limitations of a municipality of and subject to the laws of the State, provided, however, that internal tribal matters…shall not be subject to regulation by the State.”
Examples of “internal tribal matters” are given but the term is not defined in the act.The First Circuit Court of U.S. Appeals found that the examples “provide limited guidance.” But in federal Indian law, as detailed in Stephen L. Pevar’s comprehensive text, “The Rights of Indians and Tribes,” internal tribal matters are understood to mean the activities necessary to the governing and care of a tribal nation.
Internal matters thus are at the center of inherent sovereignty. As Penobscot Nation attorney Mark Chavaree has said, “Tribal leadership understood that the internal tribal matters language would protect our inherent authority to govern ourselves.”
How should we view this ambiguity in the Implementing Act? It is a canon of federal Indian law that ambiguities in treaties and agreements with federally recognized tribes must be decided in favor of tribes. In different U.S. Supreme Court cases, the Court has said, “The legislation ratifying agreements with Indians is not to be construed to [Indians’] prejudice.” And: “…ambiguities should be treated generously.”
Yet the “no nation within a nation” mindset is so ingrained in state thinking that the ambiguity is usually decided ungenerously, much to the detriment of the tribes. For the tribes this has rendered “internal tribal matters” almost meaningless.
The state’s cramped view of the settlement contradicts the tribes’ clear — and we believe reasonable — understanding of the agreement. In our view, the best way forward is to adopt LD 785 now before the Legislature to implement the recommendations of the Task Force on Changes to the Maine Implementing Act. That will finally give internal matters the meaning long encoded in the canons of federal Indian law.