Legislation to alter the relationship between the State of Maine and three of the tribes in the state took a major step forward on August 6, when a legislative committee endorsed three bills that would make changes to the act that governs that relationship. Since 1980, when the federal Maine Indian Claims Settlement Act and the corresponding state implementing act were enacted, the tribes have been under state law instead of federal Indian law, unlike almost all of the other tribes in the country. The new framework of a government-to-government relationship between sovereigns -- the state and the Passamaquoddy Tribe, the Penobscot Nation and Houlton Band of Maliseets -- was accepted by most members of the Judiciary Committee.
     In voting for the legislation, Rep. Thom Harnett of Gardiner stated, "We have taken your ancestral land, we have taken your children. We have polluted yours waters so much that we warn you not to eat fish from your rivers, the rivers that provided you sustenance for millennia. ... We have treated you as wards of the state and not as free human beings with liberties that others have enjoyed." He continued, "We have tried to strip you of your culture, of your language, of the traditions that defined you because we thought you should be more like us." Noting the resistance to accepting the task force's recommendations, he observed, "Maine still is not ready to recognize the inherent sovereignty of Maine's first peoples."
     The committee then recommended in 6-1 votes, with six members absent, three bills that encompass the 22 proposals made by a task force after 16 months of work. What will happen with those bills, though, is unclear, as the legislature is not expected to return into session this year. The agreements that were reached, though, could be taken up by the next legislature in 2021. The bills, along with all other bills, had been put on hold when the legislature adjourned in mid-March because of the coronavirus pandemic. In late July negotiations began again, and the legislature's Judiciary Committee has been holding work sessions on the legislation.

Changing the implementing act
     Tribal leaders prefer to have the changes made in the Maine Implementing Act, rather than in state law, as both the state and the tribes would have to agree on making any changes again.
     When Senator Michael Carpenter, the Senate chair of the committee, asked if the state was willing to amend the act, Chris Taub of the Attorney General's Office said the state is willing to do so for certain areas such as criminal jurisdiction but is concerned "about making sweeping changes in a rushed manner" that would be difficult to undo in the future, since both state and tribal agreement would be needed. He also noted that the state doesn't believe in going back to treaty rights the tribes have, while the tribes believe they still have those rights.
     Rep. Harnett then responded, "Are we dealing with each other as sovereigns, or just sometimes? Is the state saying it wants to control the game and change things with just one side agreeing?" He noted that the task force wanted the tribes and the state to be on equal footing, and "the only way to do that is by putting things in the implementing act."
     Penobscot Nation Chief Kirk Francis stated, "For 40 years, we've been unable to have a meaningful voice in effecting change to address real conditions in Indian territory in Maine. The Indians in Maine lag far behind everyone else in the country, and that is indisputable." He added, "Memorializing the changes in the implementing act allows for a sovereign-to-sovereign, government-to-government relationship. It doesn't give either unilateral authority. If you don't change the implementing act, the state is saying it doesn't trust the tribes right now."

Correcting a historic wrong
     The main bill, LD 2094, had incorporated the 22 recommended 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. Senator Shenna Bellows of Manchester stated that the bill is a comprehensive amendment to the settlement act to correct a historic wrong, "treating the tribes as a municipal subdivision in the state rather than as inherent sovereign authorities."
     The tribes would have civil legislative and adjudicatory jurisdiction over tribal lands, as in federal Indian law. The bill would allow sustenance fishing on all tribal lands and give the tribes exclusive jurisdiction to regulate fishing and hunting on tribal lands by both tribal and non-tribal citizens.
     The issue of tribal gaming was separated out in another bill, LD 2118, and taxation, criminal jurisdiction and land acquisition were all placed in a third bill, LD 1392.
     Under the settlement act, the Passamaquoddys and the Penobscots had each been guaranteed that they could acquire 150,000 acres of lands in the state that would be held in trust for the tribes by the secretary of the U.S. Department of the Interior, but neither has purchased more than 100,000 acres. LD 1392 eliminates the time constraints for trust land acquisitions, which had originally been by January 1991. The tribes would be restricted to acquiring more trust lands to Penobscot, Franklin, Hancock, Piscataquis, Washington and Aroostook counties, and agreements would need to be reached with municipalities concerning payments in lieu of taxes, mutual aid for law enforcement and restrictions to not use land in a manner contrary to local zoning ordinances. However, state and local governments would not have veto power over trust acquisitions.
     Corey Hinton, an attorney for the Passamaquoddy Tribe, noted that the Passamaquoddys would be allowed an exception to place tribal fee land into trust to allow for a tribal solution to the drinking water issue at Sipayik and for "critical infrastructure projects," with municipal consent not being required. The tribe has been working for some time to use an aquifer in Perry instead of Boyden's Lake as a source of drinking water. It was also noted that the municipal consent provision would not apply to fee lands the tribe owns in Calais and Centerville.
     On taxation, the three tribes would be exempt from sales tax on tribal lands and from state income tax for income earned on tribal lands if the individual resides on tribal lands. The state and the tribes are still working on whether tribal entities would be included in the income tax exemption.
     For criminal jurisdiction, the bill would expand tribal court jurisdiction from only Class D and E crimes to also Class C crimes, but not Class A and B crimes like murder and arson. It would also expand the jurisdiction from only the reservations to all tribal territory. If the victim is not a member of the tribe, there would be concurrent jurisdiction with the state.

Gaming legislation
     The gaming bill makes clear that the tribes in Maine are subject to the federal Indian Gaming Regulatory Act (IGRA) and that nothing in state law would prevent them from operating under IGRA. The bill would allow the tribes to conduct gaming on tribal lands subject to IGRA. Because IGRA was adopted after the 1980 settlement act, it has not applied in Maine. Unlike tribes in the rest of the country, Maine tribes have had to obtain state permission to establish gaming facilities.
     Rep. Chris Babbidge of Kennebunk, a member of the committee who voted against all three bills and says he is opposed to gambling, said he was worried about giving preference to the tribes to operate casinos and about "out-of-state interests" moving in to set up casinos that "would be owned in name only by the tribes." Another committee member, Rep. Rachel Talbot Ross of Portland, responded that his comments represented "an absolute failure to understand the historical and cultural genocide that's taken place" with the tribes in Maine. Rep. Thom Harnett stated that the tribes in Maine "have been shut out of gaming completely," as their proposals have been voted down by Maine people every time. "It's not giving them preference over other Maine people." And Senator Bellows said that gaming in the state "is a white supremacist structure," where "whites can and Indians can't."
     Penobscot Chief Francis stated, "There's no more of an example of an inequity in this state than this issue of the tribes and gaming." Two non-tribal casinos have been approved by Maine voters, with outside interests holding the largest stake in each, and "a lot of that money leaves the state," he said. All of the proposals for casinos by the tribes have been turned down, but the revenues from tribal casinos "would predominantly stay in the state." Under IGRA, a tribe negotiates a compact with the state governing the casino's operation, and out-of-state companies can have no more than 30% interest in the casino.
     Allison Binney, an attorney for the Penobscot Nation, noted that it's likely that the legislation will result in litigation by other gaming interests, with lobbyists for the two casinos previously expressing objections to any more casinos in the state.

Tribal leaders express frustration
     At the July 31 work session on the bill, Chief Francis said, "The tribal leaders are extremely frustrated at this point." It was not clear whether or not portions of the bill were now off the table. While a letter from Governor Janet Mills indicates a willingness to continue discussions, it appeared as though the executive branch is not willing to consider amendments to the Maine Implementing Act. "The committee owes it to the state and the tribes to move this bill forward," he said. "We can't compromise further who we are as a people, who we are as governments and continue to submit to state regulation around sovereign government activities." While the tribes are willing to discuss issues concerning gaming and those that affect neighboring communities, he said, "It just can't be a carte blanch 'no' all the time."
     Linda Pistner, the governor's deputy legal counsel, said she was not able to answer the broad question of recognizing tribal sovereignty through changing the settlement act. "We haven't been invited in on the process," she said, noting that the task force and then the legislative committee have been discussing the issues with the tribes, although the Attorney General's Office has also been having discussions. "I'm not aware of any impasses," she said, adding that she was not sure if "anything is off the table." However, she felt that the many changes that would be made to state and federal laws through the bill will require time to look at all of the implications before the question of sovereignty can be answered.
     Those comments triggered responses from some legislative committee members, including Rep. Jeffrey Evangelos of Friendship, who stated that advocates for the bill "are asking for what the other 49 states already have. This shouldn't be that difficult." He added, "The country is coming around to realize that sovereignty is not something that anybody can grant." Rep. Talbot Ross commented, "This is an absolute travesty for the state of Maine to continue to debate the issue of sovereignty."
     Attorney Hinton also objected to Pistner's suggestion of a graduated approach to expanding criminal jurisdiction for the tribes. "Putting training wheels on tribal sovereignty -- it's hurtful and it's offensive," Hinton stated. "We are not here for bread crumbs, we are not here for graduated steps to the inherent recognition of inherent rights."
     To advocate for tribal sovereignty, the four tribes in Maine formed the Wabanaki Alliance in June. The alliance's website states, "The settlement act was supposed to be a living document that would be improved upon. Under political duress the tribes agreed to the settlement act but with the hope to continue improving the relationship between the State of Maine and the tribes. For 40 years this has not happened."