Wabanaki Legal News, Winter 2009
by Paul Thibeault
The Maine Indian Claims Settlement has not lived up to its original potential to improve conditions for Indian people living in poverty in Maine's tribal communities. The Settlement was intended to create a flexible and effective relationship between the Tribes and the State. The express language of the settlement legislation anticipated and consented to future amendments concerning the allocation of jurisdiction. Whatever view one holds on particular issues, it is clear that none of the parties to the Settlement could have predicted that the settlement legislation would remain essentially unmodified for all these years; that so many conflicts would be decided by state and federal judges instead of being worked out between the parties; or that the courts would interpret jurisdictional language in the particular ways that they have.
The Tribal-State Work Group was created to address the conflicts in the relationships between the State and the Tribes and to recommend constructive changes to the settlement legislation. After two years of discussions the Work Group concluded its work with a final report that recommended several specific changes to the Maine Implementing Act. The Work Group process and the recommendations were disappointing to the tribal representatives because the Work Group for the most part failed to address the central issue that led to the creation of the Work Group in the first place - the scope of internal tribal matters that should be protected from state regulation. Most of the court decisions have taken a narrow view of what is an internal tribal matter. As a result, the Tribes and supporters of tribal self-determination believe that the Settlement as interpreted by the State and the courts has been much more restrictive of tribal authority than what was originally intended.
Despite their misgivings about the Work Group process and recommendations, the Tribes went along with the submission of a legislative proposal that emerged from the process. The recommended changes were presented to the Maine Legislature for approval in the form of LD 2221, An Act To Implement the Recommendations of the Tribal State Work Group.
Perhaps the most important of the proposed changes was that the Houlton Band of Maliseet Indians and the Aroostook Band of Micmacs would have jurisdictional parity with the Penobscot Nation and the Passamaquoddy Tribe. In other words, all of the Maine Tribes would have the same powers and the same jurisdictional relationship with the State of Maine based on the terms of the 1980 Maine Indian Claims Settlement. Other proposed changes would have made Maine's freedom of access laws inapplicable to the Maine Tribes (effectively overturning the 2001 ruling in the case of Great Northern Paper v. Penobscot Nation); would have required every state agency to consult with the tribes before adopting legislation or regulations that would materially affect the tribes; and would have expanded the role of the Maine Indian Tribal State Commission (MITSC) in the resolution of disputes involving interpretation of the settlement statutes.
During the legislative process, most of these proposals were dropped from the bill and none of them were ultimately passed by the Maine Legislature as originally drafted. Instead, the bill was extensively amended so that the only substantive jurisdictional recommendation that survived was an altered version of “parity” for the Houlton Band of Maliseet Indians.
The changes concerning the Maliseets will not take effect unless ratified by their Band Council. The new law would create a Maliseet Indian Territory comprising federal trust lands controlled by the Band. It would also authorize the operation of a tribal court with exclusive jurisdiction over misdemeanors, minor juvenile offenses, minor civil disputes, divorces and child custody matters involving tribal members. Like the other tribes under the Maine Implementing Act, the Band would be required to apply the State's definitions of crimes and applicable punishments.
The legislation places other significant restrictions on the Maliseets' power to decide what laws to enact and how to enforce them within their Territory. For example, the Band would be required to enact ordinances that are at least as strict as those of the towns in which the Maliseet Indian Territory is located unless the towns agree in writing to any differences, and the Band would be required to negotiate with the towns on other transitional matters. So it still remains to be seen whether this legislation would actually provide the Maliseets with the same powers as the Penobscot Nation and Passamaquoddy Tribe.
The disappointing outcome of the Work Group process, and other negative developments (such as the crippling reduction in the budget for the Maine Indian-Tribal State Commission without advance notice to the Commission leadership or the member Tribes) give Tribal people in Maine good reason to question whether the initial promise of the 1980 Settlement will ever be fulfilled.