Legislation to reframe the relationship between the state and the four federally-recognized tribes in Maine is being put forward by the legislature's Judiciary Committee, based on recommendations made by a task force that met from July through December. At the end of the year, the Task Force on Changes to the Maine Indian Claims Settlement Implementing Act issued a report recommending 22 changes to state law concerning criminal jurisdiction, fish and game, land use and natural resources, taxing authority, gaming, civil jurisdiction, federal law provisions and trust land acquisition. For 40 years, the tribes in the state have chafed under the restrictions placed on them by the federal Maine Indian Claims Settlement Act of 1980 and the state's implementing act and have sought to be like other tribes in the country, operating under federal Indian law instead of state laws.

Omnibus bill planned
     At its January 14 meeting, the Judiciary Committee voted to report out an omnibus bill that will include all of the recommendations. Although some concerns were expressed that some of the proposals might "drag down the bill," as Senator Michael Carpenter of Houlton, the committee chair, stated, committee members felt they should not presuppose what issues might be controversial by breaking up the bill into separate pieces of legislation.
     In particular, Carpenter said he expected there will be "significant opposition on the gaming piece," which will allow the tribes to establish casinos without state approval. However, Rep. Barbara Cardone of Bangor, whose district includes the Hollywood Casino that employs many people, is a significant part of the city's tax base and could be affected by a new tribal casino, said, "I don't want to see that issue tank the other good issues" in the bill. Rep. Thomas Harnett of Gardiner stated that all of the recommendations work as a whole in recognizing the sovereignty of the tribes and should not be broken up. Rep. John DeVeau of Caribou also felt that the committee shouldn't focus on a casino but rather on doing "what's right" for the tribes.
     Because gaming is subject to referendum approval in Maine and tribal casino proposals have always been defeated either in the legislature or in referendum votes, the tribes in the state have lost the economic benefits of casinos, which have generated more than $25 billion a year for tribes across the country. The tribes in Maine desire the benefit of federal laws, like the Indian Gaming Regulatory Act, that other tribes enjoy.

Federal, not state, law
     In the U.S. the federal government has plenary power over Indian affairs, and state governments do not have authority over those affairs unless that authority is granted by Congress, as it was in Maine under the 1980 federal settlement act. The tribes in Maine are proposing that the current rubric of the Maine implementing act, in which state laws generally apply in Maine tribal territories, would be replaced with the rubric of federal Indian law, in which state laws generally do not apply in Indian country and in which Maine's tribes enjoy the same rights, privileges and sovereign status afforded most other tribes across the country.
     At the task force's August meeting, Michael Corey Francis Hinton, an attorney for the Passamaquoddy Tribe, proposed that the Maine implementing act should be amended to: establish that state laws do not apply to the tribes or their lands, except as agreed by the state and the tribes or as provided by federal law; confirm that the tribes enjoy the same rights, privileges and immunities as other federally-recognized tribes, except as agreed by the state and the tribes; and confirm that federal legislation to benefit federally-recognized tribes apply to the tribes in Maine and their lands, except as agreed by the state and the tribes.

‘A failed experiment’
     During the presentation to the Judiciary Committee on January 14, Penobscot Nation Chief Kirk Francis stated that the tribes view the settlement act "as a failed experiment that left the tribes in the state of Maine stagnant in the past, with limited opportunities to achieve self-sufficiency and an archaic restriction on tribal sovereignty that few other tribes in the country endure." The tribes see the settlement act "as an effort to terminate us as governments." They have long felt that they had not agreed to the terms of the settlement act, beyond the land claims, he stated.
     Chief Francis said that the settlement act restricted the sovereign authority of the tribes so that they cannot progress like other tribal nations under federal law. "It undermines our dignity," ability to provide services and to create an economy that benefits both tribal and nearby communities. Francis also pointed to the numerous legal cases the tribes have had to fight over matters from clean water to gaming because of the settlement act.
     Also, the tribes have lost millions of federal dollars in combating domestic violence crimes by non-tribal members on tribal lands since the federal Violence Against Women Reauthorization Act of 2013 was seen as not applying in Maine, because of the settlement act's restriction that federal laws applying to the tribes in the country that were enacted after the settlement act and would affect Maine laws do not apply in Maine, unless the federal law is specifically made applicable within Maine. That restriction also has prevented the tribes from establishing a casino in the state, as tribes in Maine, unlike the tribes in the rest of the country, need state approval for a casino.
     Passamaquoddy Vice Chief Maggie Dana of Sipayik noted that the settlement act "is supposed to be a living document" but instead has been stagnant for 40 years. "We need to built a relationship between the state and the tribes," she said. "We are here for restoring our rights."

Dispute resolution
     The task force's report notes, "In the nearly 40 years since the enactment of the settlement act and the Maine implementing act, the tribes and the state have been at odds and have engaged in litigation over various provisions of these laws. The common factor in these disputes has been disagreements over essential issues of tribal self-determination and sovereignty."
     At the July meeting of the task force, Passamaquoddy Vice Chief Dana "emphasized that the current relationship between the tribes and the state is ineffective, with insufficient consultation between the state and the tribes before the legislature passes laws that affect the tribes," according to the report. She primarily requested an increase in tribal self-governance. At the October meeting, she noted that the Passamaquoddy Tribe would like to grow its tribal court capacity and improve its criminal justice system under Passamaquoddy law, not Maine law. The tribe seeks to be treated the same as other tribes across the country. And at the December meeting, she pointed out that under a 1794 treaty the tribe was guaranteed the right to fish both branches of the St. Croix River forever, but the settlement act ended those rights and the water has become polluted. She hoped those rights would be recognized and protected.
     During its meeting with stakeholders, the Judiciary Committee considered the issue of dispute resolution and tribal-state consultation. It was noted that the Centennial Accord in the state of Washington has worked well in setting forth a government-to-government relationship and in recognizing the sovereignty of each. A tribal liaison is within each state agency for consultation on policies, so that meaningful dialog between the tribes and the state takes place, which helps avoid litigation later on.
     Maine Indian Tribal State Commission (MITSC) Managing Director Paul Thibeault felt that the Judiciary Committee's bill should create the design process for establishing a dispute resolution and consultation framework, looking at other successful models in the country, but should not specify the precise model to be used. He noted there should be "a heavy focus" on the consultation process so that dispute resolution would not be needed as much. The committee then asked MITSC to develop a model within the next few weeks, before the public hearing on the bill.

Recommendations outlined
    The specific recommendations made by the task force include amending the Maine implementing act to: establish an enhanced process for tribal-state consultation and alternative dispute resolution; recognize the jurisdiction of tribal courts over certain criminal and juvenile offenses committed on tribal trust and fee lands; equate the exclusive criminal jurisdiction of the Passamaquoddy and Maliseet courts with the Penobscot tribal court jurisdiction over offenses committed by Native defendants; recognize the authority of tribal courts to impose the maximum penalties other tribal courts are authorized to impose under the federal Tribal Law and Order Act; grant tribal courts jurisdiction over certain domestic violence criminal offenses committed by non-Natives on tribal lands against tribal victims; recognize the concurrent jurisdiction of tribal courts over offenses committed on tribal lands by tribal defendants against non-tribal victims; recognize each tribal government's authority to define all crimes and juvenile offenses committed on tribal lands over which its tribal court has jurisdiction but retain the authority of the state to define offenses over which state courts have jurisdiction.
     Concerning fish and game and natural resources, the implementing act would be amended to: recognize the exclusive jurisdiction of tribes to regulate fishing and hunting by tribal members and non-tribal members on tribal lands; relinquish the state's jurisdiction to regulate fishing and hunting by tribal and non-tribal members on tribal lands; affirm the tribes' rights to exercise regulation of natural resources and land use on tribal land.
     As for taxing authority, the implementing act would be changed to: recognize federal law providing: that tribes have exclusive jurisdiction to tax tribal members and tribal entities on tribal lands; that tribes, tribal members and tribal entities are not subject to state and local sales taxation; that tribal members living on tribal lands are not subject to state income tax for income earned on tribal lands; that tribal lands are not subject to state and local real property tax; that tribes have concurrent jurisdiction to tax non-members on tribal lands; and that state and local governments have concurrent jurisdiction to tax non-members on tribal lands.
     The implementing act also would be amended to render the federal Indian Gaming Regulatory Act applicable in Maine; to restore to the tribes the exclusive authority to exercise civil legislative jurisdiction and civil adjudicatory jurisdiction over tribal and non-tribal members on tribal lands; to specify that federal laws enacted for the benefit of Indian country do not affect or preempt the laws of Maine; to recognize the ability of tribes to acquire trust land in accordance with their settlement acts and federal laws; and to specify that state and local governments do not have veto power over trust acquisitions.
     Outright elimination of sections of the federal settlement act will require congressional approval, but the task force believes it may be possible to make sections of the act inoperable by enacting state legislation that provides that federal laws enacted for the benefit of Indian country do not preempt state laws.