Tribal leaders urge passage of narrowed sovereignty bill in attempt to avoid another veto

Tribal leaders want the Maine Legislature to focus on provisions about criminal jurisdiction, trust land acquisition and federal beneficiary laws within the latest tribal sovereignty bill, acknowledging the time constraints of the short legislative session and Gov. Janet Mills’ continued opposition.

The committee heard testimony for more than five hours on Monday about the latest bill aimed to get the state to recognize the inherent sovereignty of tribes in Maine. The bill, put forth by House Speaker Rachel Talbot Ross (D-Portland) and a litany of bipartisan co-sponsors, is the third sovereignty bill to be considered by the Legislature in the past several years. 

Previous iterations have been blocked by Mills, a Democrat, who told Maine Morning Star Monday that she remains opposed to the latest sweeping proposal from Talbot Ross, although welcomes discussions to narrow its scope.

Unlike the other 570 federally-recognized tribes in the U.S., tribes in Maine — the Houlton Band of Maliseet, Mi’kmaq, Passamaquoddy and Penobscot, collectively known as the Wabanaki Nations — are treated more like municipalities than sovereign nations under the 1980 Maine Indian Claims Settlement Act. Tribal leaders explained on Monday that their tribes signed the Settlement Act to get fair compensation for stolen lands, not to give up the level of sovereignty that has been interpreted by the state and courts to date. 

There’s no question about whether the Wabanaki Nations want to see the policy aims of Talbot Ross’ bill enacted, tribal leaders assured the committee, but they don’t want to see another proposal brought forth that is only going to end in a veto. 

Mills open to pared-down bill

As currently written, the proposal is largely similar to the version the governor vetoed last year, and for that reason Mills’ Deputy Chief of Staff for Communications and Strategy Scott Ogden told Maine Morning Star her administration’s objections remain the same. 

“These provisions would fundamentally undermine the uniform application of laws and regulations across Maine,” Ogden said, reiterating Mills’ stance that sweeping reform would make it unclear for Maine people and businesses which laws apply under what circumstances. 

The administration appeared more open to the pared down version discussed during the hearing on Monday, after which Ogden said Mills “welcomes their change in approach to amend the bill to find areas of common ground, such as criminal jurisdiction,” but did not provide her definitive stance. 

“The Governor’s Office agrees that we can make important progress on that front,” Ogden said. “We look forward to resuming our collaborative work with the Tribes, the Speaker, and others to move it forward.” 

Talbot Ross said Monday that she does not expect all the provisions of her bill to be enacted this session but chose to put forth a comprehensive proposal to establish the foundation of what remains to be done. “It’s important that we always remind ourselves and the public of the full work that needs to be done,” Talbot Ross said. 

Talbot Ross, tribal and state leaders are working to agree on a consensus amendment ahead of the work session, expected to focus on criminal jurisdiction, trust land acquisition and federal beneficiary law.  

With the sovereignty bill first heard on Feb. 26 and the short session scheduled to adjourn by mid-April, time constraints were another concern among tribal leaders and legislators on Monday in charting a realistic path forward. 

Passamaquoddy attorney Corey Hinton told the committee that his Tribe is not taking a position for nor against LD 2007, because while it is undoubtedly supportive of the changes proposed, it does not want to see another effort end in a veto. 

“We seek sovereignty. We see economic independence for our people and for our neighbors in Washington County and beyond,” Hinton said. “If that takes more time and more work with the governor’s office and work sessions into the future, the Passamaquoddy Tribe is prepared to do that work. The Passamaquoddy Tribe will remain forever committed to improving the health, welfare and safety of our people through meaningful and necessary changes to the Maine Indian Claims Settlement Act.”

Path to comprehensive reform remains steep

The Legislature recognized a need to alter the Settlement Act in 2019 when it tasked a bipartisan group of state legislators and tribal chiefs to recommend changes. Since then, the 22 recommended changes have been taken up in a series of bills, though all have failed after opposition from Mills.

While blocking comprehensive reforms, Mills helped usher through legislation targeting specific aspects — including a law passed last year that established a formal Tribal-State collaboration process for policy making, revised tax rules to align more so with those of other tribes in the U.S., and permitted tribes to handle sports betting.  

The latest bill, LD 2007, therefore doesn’t include tax law, gaming or Tribal-State collaboration but would implement the remainder of the task force recommendations, such as providing tribes’ jurisdiction over hunting and fishing, civil and criminal proceedings, among other ways of self-governance.  

While tribal leaders and Talbot Ross appeared broadly unified on supporting a pared down version of LD 2007, bill co-sponsor Sen. Rick Bennett (R-Oxford) said he would rather advance more sweeping reform.

“We have to pass the law we think is best for the people of Maine,” Bennett told Maine Morning Star after the hearing.

Bennett is also focused on ensuring the proposal does not get caught up in red tape, expressing frustration with how the appropriations table was used to kill the 2022 tribal sovereignty bill, despite its relatively small fiscal note. 

At the time, Bennett said he could not get the two-thirds support to get it funded. Now, as a member of the budget-making committee, he vowed to get the latest proposal off the table to prevent it from being killed that way.

While Republican support for tribal sovereignty efforts has grown, as evident by its several Republican co-sponsors, Bennett expects lingering concerns, particularly when it comes to land acquisition. 

He is of the view that such concerns could be tempered this session by providing a clear sense of what the process would look like — a structure currently in development as tribes and the state work behind the scenes to reach consensus on the priority items they want to pass this session. 

High-priority issues 

While Talbot Ross’ 41-page bill covers a swath of proposed changes to the Settlement Act, tribal leaders are focused on pushing through three in particular: trust land acquisition, criminal jurisdiction and federal beneficiary laws.

As currently written, the bill would remove many of the limitations imposed on the tribes under the Settlement Act regarding trust land acquisition, a process the federal government established to help all federal tribes regain lost lands, which the Wabanaki Nations have been limited in taking part in under the act. 

It aims to expand the specific parcels of land that tribes are able to purchase and establish a process for tribes to enter into agreements with municipalities regarding issues of taxation, law enforcement and government services before any lands become trusted. 

As for expanding criminal jurisdiction, the proposal would adopt most of federal Indian law addressing tribal court criminal jurisdiction, including the Indian Civil Rights Act of 1968 and the more recent Tribal Law and Order Act of 2010.

The Wabanaki Nations would have jurisdiction for crimes committed within their territory by tribal members, except when committed against a person who is not a tribal member, in which case tribes would have concurrent jurisdiction with state courts. 

Tribal representatives pointed to the disproportionate overdose death rate among Native Americans as a specific reason why the Wabanaki Nations need meaningful criminal jurisdiction. “We need the ability to combat this drug epidemic at the local level,” said Hinton, the Passamaquoddy attorney. 

The Wabanaki Nations would also be immune from lawsuits to the same extent as other federally-recognized tribes under federal Indian law. 

Further, the proposal would ensure the Mi’kmaq Nation has the jurisdiction already afforded to the other Wabanaki Nations. The Mi’kmaq Nation, earlier known as the Aroostook Micmac Indians, was not referred to in the federal act at the center of the tribal sovereignty discussion. In the mid-1960s the Micmacs and Maliseets living in Aroostook County began working together to attain federal recognition. While the Houlton Band of Maliseet Indians received federal recognition in the 1980 act, the Micmacs did not until 1991. 

The Mi’kmaq Nation is currently starting up its first police force, tribal court and establishing its own hunting and fishing regulations, among other policies, following the passage of what is known as The Mi’kmaq Nation Restoration Act last session. 

Growing support for tribal rights

Referring to overwhelming voter support to print the state obligations to the tribes in the Maine Constitution this fall, Penobscot Nation Ambassador Maulian Bryant told the committee that people in Maine are no longer afraid of tribal sovereignty. 

“They can look to examples throughout the country that show how tribal governments can help build rural economies and provide opportunities for tribal and non-tribal people,” Bryant said. 

Another factor of LD 2007 that tribal leaders said is a priority this session is ensuring federal laws applicable to other federally recognized tribes apply to the Wabanaki Nations. Under the Settlement Act, any federal law that would impact the application of state law does not apply to Maine, unless explicitly stated. 

Penobscot Nation Chief Kirk Francis pointed to the 2022 study out of Harvard University that found Maine’s unique control over the Wabanaki Nations has blocked economic development to the detriment of both tribal and nontribal citizens, alike. 

“While Maine has tried to stay stagnant in its views towards tribal nations, the federal government and the rest of the country have adopted a strong position in support of tribal self-determination and self sufficiency to the benefit of everyone,” Francis said.

LD 2007 is not about granting special rights to the Wabanaki Nations, Francis explained, but rather about modernizing the relationship between the tribes and state to align with the rest of the country. 

“The restrictions placed on our sovereignty did not make sense in 1980,” Francis said, “and they make less sense today.”