Wabanaki continue push for access to federal laws amid opposition from Mills
The best chance this legislative session to advance Wabanaki rights and enhance tribal sovereignty is still pending as lawmakers on Tuesday delayed taking action. Amid opposition to the measure from Gov. Janet Mills, members of the Judiciary Committee said they wanted more time to consider the proposal.
The bill, LD 2004, is sponsored by House Speaker Rachel Talbot Ross (D-Portland) and co-sponsored by a variety of Democratic and Republican legislators, including powerful lawmakers like House Minority Leader Billy Bob Faulkingham (R-Winter Harbor) and Senate President Troy Jackson (D-Aroostook).
The measure — which is similar to a bill U.S. Rep. Jared Golden introduced in Congress last year that ultimately failed — is meant to address provisions of the Maine Indian Claims Settlement Act of 1980. That act is a jurisdictional arrangement between the tribes and the state that Indigenous leaders have long criticized for leaving the Wabanaki Nations with less authority over natural resources, gaming, taxation, criminal justice and economic development than 570 other federally recognized tribes. While other tribes around the U.S. are able to exercise stewardship over their territory, because of the Settlement Act, tribes in Maine are essentially treated like municipalities rather than sovereign nations.
In her presentation on the bill at a public hearing last month, Talbot Ross said that because of provisions in the Settlement Act, any federal law enacted after 1980 for the benefit of tribes around the country that impacts the application of Maine law doesn’t apply to the Wabanaki nations unless they are specifically included in the measure by Congress. The Wabanaki are the only tribes around the country that exist under such an arrangement, Talbot Ross noted.
The Wabanaki Alliance, a coalition of the tribes founded to advance sovereignty, has said Indigenous nations in Maine have missed out on a number of important federal laws approved since 1980 because of the Settlement Act.
Talbot Ross said LD 2004 would change that paradigm, allowing the Wabanaki to access past and future federal laws meant to benefit Indigenous nations, which would put them on equal footing with other tribes around the country.
Maulian Dana, tribal ambassador of the Penobscot Nation and president of the Wabanaki Alliance, added that the legislation would also shift the burden onto Maine officials to “proactively identify and advocate for the Wabanaki Nations to be excluded from a federal Indian law” if the state objects to the tribes benefiting from such statutes. Dana argued that the reform would prevent the state from objecting long after the implementation of a new law to benefit tribes.
“The main issue with having the state have this kind of veto authority over federal laws is that they haven’t ever really done it in a timely fashion and there’s no standard for if it’s reasonable if they’re objecting,” Dana said, citing the state’s objections to the application in Maine of tribal provisions added to the Violence Against Women Act in 2013 only after the law was enacted.
A section of LD 2004 includes a carve-out that means the Wabanaki will only be able to conduct gaming in accordance with state law and will still be subject to state jurisdiction when it comes to cases that involve extremely serious crimes.
In their arguments for reforming the Settlement Act and passing LD 2004, Indigenous advocates and their allies have pointed to a report released last year from Harvard University that found that the unique control Maine has over the Wabanaki nations has significantly stifled the tribes’ economic development, which has had a ripple effect throughout rural Maine. During the public hearing in May, Talbot Ross said if LD 2004 is passed and the Wabanaki are able to benefit from federal statutes going forward like other tribes do, there is a far better chance for that issue to be addressed.
“[The Wabanaki] will finally have the chance to build their tribal governments, engage in meaningful economic development, access federal programs that were created in part to remedy our country’s historically brutal treatment of our only Native residents, reduce unemployment and poverty, and improve housing and infrastructure,” she said.
Mills administration vigorously opposes bill
During the Judiciary Committee’s work session Tuesday on LD 2004, the Mills administration pushed back hard against the measure. The committee then voted to table the legislation, which means it will be returned to at a later date this session, so members could have time to consider the arguments and information presented by advocates and the administration.
Mills, through chief legal counsel Jerry Reid, has claimed that the bill would lead to more litigation between the tribes and the state — an argument the Wabanaki have rejected. Overall, the Democratic governor has proven to be a thorn in the side of efforts to expand tribal rights. For example, last year, Mills opposed a wide-ranging measure that would have recognized the inherent sovereignty of the Wabanaki and provided Indigenous nations with stewardship of natural resources, taxation and criminal justice on their own territory — something all other tribes around the country enjoy. Mills’ opposition stopped the bill in its tracks.
Lawmakers introduced another far-reaching tribal sovereignty measure this session, but the Judiciary Committee voted on Tuesday to carry that bill over to be considered next session. Dana said tribal leaders are still determining exactly which provisions they want to be included in that omnibus bill.
Given that, LD 2004 is the most ambitious tribal rights reform left to be considered this session. On Tuesday, Reid reiterated the governor’s opposition, explaining that Mills is worried that amending the Settlement Act is a risky endeavor because if there’s a mistake made, the measure can only be amended again with the permission of all the Wabanaki tribes.
He added that the governor believes LD 2004 would lead to complicated questions about the application of state law, creating confusion for Mainers. Reid also argued that if the Wabanaki feel they are missing out on beneficial federal laws, they should work with the state on a statute-to-statute basis to gain access to those specific measures.
Despite efforts by Talbot Ross to get the governor on board by offering changes to the legislation, Reid said Tuesday the administration doesn’t view LD 2004 as a workable solution.
“I don’t believe the problems with this bill are solvable,” Reid said.
However, Allison Binney, a lawyer for the Penobscot Nation, criticized that position. She told the Judiciary Committee that what the Wabanaki are asking for isn’t radical and would not lead to widespread confusion given that it is a paradigm that exists across the country.
“Every other state in the lower 48 states operates under the regime that the tribes in Maine want and they don’t run into problems that can’t be solved,” she said.
Given Mills’ opposition to LD 2004, Dana said Wabanaki leaders are looking to build significant support behind the measure so it can withstand a veto if necessary. That means getting backing from both Democratic and Republican lawmakers. Dana said the Wabanaki have invested significant time in forming relationships with legislators and helping them learn about tribal issues and the need for sovereignty.
“We’re just trying to get as much support as we possibly can,” Dana said. “We don’t see this as a partisan issue. It’s an equity issue for the tribes, and hopefully a lot of lawmakers will see that too.”