The Maine Indian Tribal-State Commission (MITSC) has forwarded documents to a United Nations investigator that the commission says show a humanitarian crisis facing Wabanaki tribes in Maine caused by the Maine Indian Claims Settlement Act (MICSA) and the Maine Implementing Act (MIA).
"For more than two years, the MITSC has thoroughly researched what impacts the MICSA and MIA are having on the Wabanaki tribes within the State of Maine today, consistent with our charge to continually review the effectiveness of this act [Maine Implementing Act]," says Jamie Bissonette Lewey of Pembroke, chair of MITSC. "What we found is that many key indicators of community health conditions have deteriorated for the Maliseets, Micmacs, Passamaquoddys and Penobscots since MIA and MICSA took effect in 1980. Specific provisions in MIA and MICSA are causing this structural oppression."
Responding to a request from U.N. Special Rapporteur on the Rights of Indigenous Peoples James Anaya, MITSC recently submitted a 14-page letter and 21 documents supplementing its original filing of May 16, 2012, asserting that the two acts "have created structural inequities that have resulted in conditions that have risen to the level of human rights violations." The letter from MITSC notes that the ways in which provisions of the acts have been interpreted by state and federal courts "constitute the partial termination of tribal self-governance and thus the tribes' ability to provide for the protection of natural resources, the provision of an economic base, and preservation of their unique cultures."
"MIA and MICSA are not working," says Bissonette Lewey. "No tribe negotiates to deepen its people's poverty. Provisions included in the MIA and MICSA designed to provide flexibility have been either blocked or unused. Unilateral interpretations of the acts by the Office of the Maine Attorney General and state and federal courts, contrary to the process that produced the laws, have magnified the inequities of MIA and MICSA."
While Congress preauthorized the ability to amend the Maine Implementing Act and while the implementing act has been amended numerous times, John Dieffenbacher-Krall, executive director of MITSC, says it's never been changed "in the areas of greatest dispute" between the state and the tribes.
He describes the difficulty in amending the act by noting that while a measure may be supported by one branch of state government, another branch may object. He points out that the state government has been described by some as "a multi-headed Hydra" and that, beyond the three branches, the Attorney General's Office also plays a role. "The legislative or executive branch might express an openness on paper for an action, but then the Attorney General's Office objects," he says. "This type of cycle has been repeated over and over again."
One example was the effort to restore alewife passage in the St. Croix River, when the Attorney General's Office asserted the state's authority to control the passage of the fish, in replying to the U.S. Environmental Protection Agency's statement that Maine should open up the river. The assertion by the AG's Office "runs counter to the rights of the Passamaquoddy Tribes under the U.N. Declaration on the Rights of Indigenous Peoples," the MITSC letter to Anaya states. This spring, though, the legislative branch did end up supporting the opening up of the river. Numerous other actions, including the new state law to cap the number of Passamaquoddy elver fishing licenses, are cited in the letter to demonstrate the "structural oppression" of the tribes.
Among the court cases cited is the suit brought by three paper companies to force the Penobscot and Passamaquoddy tribes to turn over documents related to their communications with federal agencies concerning Maine's request for sole permitting authority to administer the wastewater permitting program under the Clean Water Act. The state joined with the paper companies, and the Maine Supreme Judicial Court ruled largely in favor of the paper companies and the state. In another case in 1996, the Passamaquoddy Tribe sued the state, arguing that the federal Indian Gaming Regulatory Act opened the door for tribal gaming in Maine and compelled the state to reach an agreement with the tribe. A federal court ruled against the tribe, citing the section of the settlement act that makes many federal laws related to Natives that were enacted after 1980 inapplicable in Maine.
Concerning the role of state and federal courts, Dieffenbacher-Krall says that from a Wabanaki perspective there is "a huge conflict of interest" for them to be ruling on cases involving the state or federal governments. While the Tribal-State Work Group had recommended a tribal-state court that would be similar to the model used by MITSC, which includes equal representation from the tribes and the state, that proposal was rejected by the state. The perceived conflict of interest by the courts "takes a toll on tribal-state relations" and leads tribal members to feel that the process is "stacked against them," he says.
Meanwhile, Wabanaki people continue to suffer in "terrible living conditions," Dieffenbacher-Krall says. MITSC keeps trying to show decision-makers those conditions and make recommendations on how they can be improved.
MITSC had submitted its original letter to Anaya in response to his request for information as part of his first official visit to the U.S. Representatives of MITSC and the Wabanaki tribes met with Anaya and members of his staff on May 16, 2012, at the United Nations in New York City to allow him to hear from tribal citizens directly and to present information on the alleged human rights violations occurring because of specific provisions of MICSA and MIA.
The settlement act and implementing act comprise laws enacted by the State of Maine and the U.S. to complete the Maine Indian Claims Settlement Agreement in response to a lawsuit filed by the Passamaquoddy Tribe and Penobscot Nation in 1972 over the tribes' claims to lands in the state. In 1980, the tribes received over $80 million and federal recognition, while agreeing to regulation by the state, except for internal tribal matters. During the latter stages of the Passamaquoddy and Penobscot negotiations with the State of Maine and the U.S., the Houlton Band of Maliseet Indians became involved. The Aroostook Band of Micmacs has a separate settlement agreement with the U.S. enacted by Congress in 1991.
In his report issued in August 2012 examining the human rights situation of indigenous peoples in the U.S., Anaya included a brief mention of the issues facing Maine tribes. He wrote that the two acts "create structural inequalities that limit the self-determination of Maine tribes; structural inequalities contribute to Maine tribal members experiencing extreme poverty, high unemployment, short life expectancy, poor health, limited educational opportunities and diminished economic development."
While not every problem that the tribes face can be traced to structural problems with the settlement act and implementing act, Dieffenbacher-Krall says that some of the issues are caused by the laws. He comments, "Our hope is that our drawing attention to this may be a positive impetus for taking action." He points out that all parties "have a tremendous amount to gain by having an optimal relationship between these governments." If the structural impediments are removed, he believes the tribes will be able to improve their economies and the resulting economic development will help surrounding communities.
In his report, Anaya makes recommendations for the U.S. government's executive, legislative and judiciary branches so that any legislation and decisions are in alignment with the United Nations' Declaration on the Rights of Indigenous Peoples. In addition, state authorities "should become aware of the rights of indigenous peoples" affirmed in the declaration and should "develop state policies to promote the goals of the declaration and to ensure that the decisions of state authorities are consistent with it." Any further actions in dealing with the U.S. government will be determined by Anaya and the United Nations.