The debate over proposed legislation to change the relationship between the tribes in Maine and the state so that they operate like over 560 tribes in the country under federal Indian law instead of state law has continued during hearings held by the legislature's Judiciary Committee. The committee held two days of hearings on a bill to revise the state implementing act that corresponds to the 1980 federal Maine Indian Claims Settlement Act. The legislation is based on 22 recommendations made by a task force and would affect the Passamaquoddy Tribe, the Penobscot Nation and the Houlton Band of Maliseets. The bill does not address the state's relationship with the Aroostook Band of Micmacs.

Concerns raised by governor
     Part of the debate during the hearings centered on loss of state jurisdiction over some tribal lands, with Governor Janet Mills and Attorney General Aaron Frey raising concerns about the legislation. Mills wrote that she is "deeply concerned that if enacted in its current form, this bill would actually have the opposite of its intended effect and would lead to the degradation of the tribal-state relationship by giving rise to disputes and disagreements over the meaning and effect of its provisions."
     Mills stated that the bill would allow the tribes "to acquire land anywhere in the state, which land could then be designated as tribal trust land and removed from the state's jurisdiction." The bill would end the state's authority over current and any later-acquired tribal trust lands and would exempt them from state and local taxation. John Paterson, an attorney who worked for the state in negotiating the settlement act, stated that the legislation would take about 300,000 acres in the state that had been in private ownership but was acquired by the tribes, using settlement funds, "and convert it into essentially a reservation." Any additional lands acquired by the tribes as trust lands also will be under tribal, not state, jurisdiction. Trust lands are those held in trust by the U.S. Department of Interior for use by the tribes.
     The attorney general provided a 22-page letter with advice on the bill's proposed changes but noted that the changes are a matter of policy for the legislature to decide. He said some changes might need congressional approval, including the application of federal gaming regulations in the state, since a court had determined that those regulations do not apply in Maine. "I am not here to tell the legislature what to do," he added.
     Tribal members and advocates countered the state's concerns by stating that the tribes would be governed by tribal and federal Indian law and want to work with their neighbors. Noting that there is a belief among some that the tribes would be able to do "whatever they want," Penobscot Nation Chief Kirk Francis pointed out that there would be "tons of federal oversight." Concerning the federal laws that the tribes would operate under, Rep. Benjamin Collings of Portland said, "If it's worked so well in so many states, why can't we make it work here in the State of Maine? What compelling argument does the state have not to allow the tribes to exercise their sovereignty fully?"
     Corey Hinton, a Passamaquoddy tribal member who works as an attorney for the tribe, said the tribes would propose agreements to work with counties, municipalities and the state. "It's in our nature to be good neighbors," he said. "We're asking for respect for our sovereignty, for our ability to survive and to be your neighbors." Hinton noted that many issues will need to be worked out on a local level, and the bill would allow the tribes to enter into intergovernmental agreements concerning economic development, taxation, natural resource regulation and criminal and civil jurisdictions.
     Sherri Mitchell, a Penobscot, said that calling into question the capacity of tribal governments to govern themselves is a form of racism. "Distrust of Indian sovereignty is rooted in a racially motivated paternalism."
     Passamaquoddy tribal member Edward Bassett, who works in the tribe's environmental department at Sipayik, stated that the Passamaquoddys' "traditional nature-based economy crashed" following the destruction of the tribe's homeland following colonization. He said the tribes "are the original stewards who will lead the fight to restore the ecosystem." He added, "There is nothing to fear from this legislation. It will help level the playing field so that the tribes can once again flourish alongside our neighbors."
     Sonja Dana, a tribal councillor at Indian Township, noted that domestic violence "is so rampant," with Native women suffering often from non-tribal men they have married. "The severe mental and physical abuse at times is unbelievable." However, the tribes in Maine have been excluded from the provisions of the federal Violence Against Women Act and few cases of domestic violence against Native women are prosecuted by federal or state agencies. She also said that while the tribes and the state should work together on child welfare cases, the state instead "comes in and takes our children" and does not work with the tribes. "Why do we have to be second-rate citizens here?" she asked. "Why are you afraid of us? What have we done to you?"

Differing views on settlement act
     Another point of contention was whether the tribes were fully aware of parts of the settlement act when it was agreed to in 1980. Chief Francis stated that the Penobscots did not understand that under the settlement act the state "would presume to treat us as wards," as provisions of the act "exclude us from federal laws that would help us and nearby communities." He said, "The restrictions in the settlement act that tried to make us wards of the state have been an utter failure," adding that if the bill with changes to the implementing act is enacted that "any success we are able to achieve will be reinvested back into this state."
     While Francis and others stated that a provision of the settlement act that states 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, was added without the knowledge of the tribes at the time, others disagreed, including attorney Tim Woodcock, who had served as counsel for a U.S. Senate committee involved with the settlement act hearings. "Nobody was putting anything over on anyone," he stated. "Any statement that it was done in the dark of night is not true. Tribal members knew those provisions were in the bill." Woodcock stated that the attorney for the tribes who helped negotiate the settlement act, Tom Tureen, said the tribes did not want to become subject to federal Indian law and were not concerned about the use of the Maine municipal model as a reference for their governmental powers. Attorney Paterson also defended the negotiations on the settlement act and noted the $81.5 million was the second largest settlement with a tribe in the history of the United States.
     However, tribal members said that tribal leaders at the time were negotiating under duress and political pressure, since it was understood that the incoming Reagan administration would not approve the settlement. Mark Chavaree, lead counsel for the Penobscot Nation, noted that language in the settlement act that refers to tribes as being like municipalities "does not recognize our primary status as tribal nations with inherent sovereign rights." Like numerous others, he said the tribes in Maine "have been denied our rights of self-governance, unlike all the other federally recognized tribes."
     Rep. Jeffrey Evangelos of Friendship, a member of the Judiciary Committee, noted the state's "shameful legacy" regarding the tribes, with Maine being the last state in the country to allow Natives to vote in state elections, back in 1967. He read from an internal memo by Richard Cohen, who was the Maine attorney general when the settlement act was negotiated, that stated, "The framework in this settlement act is by far the most favorable state-Indian jurisdictional relationship that exists anywhere in the United States. As a general rule, states have little authority to enforce state laws in Indian lands -- tax laws, water and air pollution laws, zoning laws, health laws, contract and business law, criminal laws -- all those state laws are usually unenforceable on state Indian lands."
     Another committee member, Rep. Rachel Talbot Ross of Portland, stated that the settlement act was not a granting of new authority to the tribes but instead was "a restriction of the jurisdiction they already possessed. It was a different direction than federal policy, which encouraged tribal self-determination." With the settlement act, "formal state control over Indians was largely reinstated," she said. "Maine has not developed an Indian policy based on government-to-government relations." She added, "The tribes in Maine are hindered like no other tribe across the country. We are suffocating the tribes' ability for self-determination."
     Passamaquoddy Vice Chief Maggie Dana of Sipayik stated, "This land deal had a clear intent to limit our sovereignty, and it was an attempt to control us and keep us dependent on the State of Maine." While stating that "Maine is far from the cutting edge of tribal-state relations," she added, "We want to work with our neighbors."

Tribal concerns
     Some tribal members, though, raised concerns about the bill. Madonna Soctomah, a former tribal representative, noted that the Passamaquoddys do not yet have a joint constitution and alleged that tribal resources "are preferentially used" by tribal leaders. She said that there has been a lack of consultation with tribal members about the proposed changes in the law. She and others noted that the quality of life on the reservations is not good, with rampant poverty and an unemployment rate around 50%, according to tribal leaders. Others were concerned that tribal members who live outside a reservation's service area are not able to vote in tribal elections and thus don't have representation for stewardship of the natural resources.
     In written testimony, William "Eric" Altvater, a Passamaquoddy tribal member and former lieutenant governor, stated, "Tribal government has little to zero transparency, no accountability and abuses tribal member-owned resources to control and oppress those who speak out. Important decisions such as the carbon credit project and the Tomah Water deal are undertaken without consultation from tribal members." He added, "The end result is that tribal government operates as an oligarchy rather than to care for the weak, the ill, the cold and the hungry, as is our tradition." He urged the adoption of a tribal constitution that would have protections from abuse of power by elected officials.

Specific issues examined
     The legislation's 22 recommended changes to state law concern criminal jurisdiction, fish and game, land use and natural resources, taxing authority, gaming, civil jurisdiction, federal law provisions and trust land acquisition. Specific areas were considered during parts of the committee's hearings.
     Concerning what would happen with gaming, Chief Kirk Francis said the Penobscots had to shut down their high-stakes bingo games because they couldn't compete with the Bangor casino. While the state has allowed out-of-state companies to open Hollywood Casino and Oxford casino, the tribes have been shut out of any casino gaming, because of the provisions of the settlement act. While two casinos have been approved in the state, numerous tribal proposals have been turned down either by the legislature or in statewide referendums. Francis said those two casinos took in $144 million last year, with the bulk of the money leaving the state. Hinton noted that under the federal Indian Gaming Regulatory Act, which the tribes would operate under if the legislation is approved, tribes are required to invest their gaming proceeds into government services and economic development that would benefit Natives and non-Natives. The Bangor and Oxford casinos "do not invest their profits locally," he said.
     However, a lobbyist for Hollywood Casino, Chris Jackson, said they would prefer not to see any more casinos in the state, since competition would affect the millions of dollars in revenues the casinos provide to a number of causes in the state.
     Matthew Manahan, a Portland attorney representing a coalition of municipalities and companies, expressed concerns about the displacing of the state's jurisdiction to regulate land and natural resources, stating it would create confusion and litigation. He said the proposed bill would be "an end-run around court cases over the last 40 years." He stated, "We don't know if the tribes would be regulating non-tribal members. They don't have to listen to any non-tribal member in adopting their regulations." Committee members, though, pushed back, with Senator Brownie Carson of Harpswell stating, "Your position is that they would adopt water quality standards that would cost millions of dollars," but the evidence is that the tribes have worked with municipalities and the state "to not cripple industry or municipalities."
     David Trahan, executive director of the Sportsman's Alliance of Maine, spoke in opposition to portions of the bill, stating that there would be "a hodgepodge" of laws for hunting and fishing in different areas of state, depending if they are under state regulation or tribal regulation. Rep. Evangelos stated that Maine and tribal game wardens would be collaborating on laws and enforcement. John Banks, the natural resources director for the Penobscot Nation, noted that the tribe's lands are posted, so hunters will know what jurisdiction they are in. "We have our own tribal laws -- environmental, natural resources, fish and game, zoning, land use plans. We operate like any other responsible governments. We have a deep-seated stewardship responsibility with the natural world."
     Passamaquoddy Chief William Nicholas of Indian Township noted that the tribe works collaboratively with the Department of Inland Fisheries and Wildlife concerning fish and game laws on tribal lands across the state and there have not been any jurisdictional issues that he is aware of.
     The Judiciary Committee will continue to review the bill in work sessions, including one on March 4.