Bill addresses tribal-state relationship

An 18-member Tribal-State Work Group has recommended eight changes to the Maine Implementing Act, the companion legislation to the 1980 Maine Indian Claims Settlement Act, and the Micmac Settlement Act that have been incorporated into a bill that will be considered during the current session of the legislature. The changes range from having the four Maine tribes not be subject to the state's Freedom of Access laws to requiring mandatory mediation by the Maine Indian Tribal State Commission (MITSC) for any tribal-state disputes.

"It's not as far-reaching as the tribes proposed, but it's an important step forward," says Senator Kevin Raye of Perry, a member of the work group. Of the discussions by the members of the group, which was established by Governor John Baldacci in July 2006 to review the settlement acts, Raye says, "It was a respectful process. Both sides really spoke from the heart and really listened."

"We were close on a lot of issues," says Passamaquoddy Rep. Donald Soctomah, another member of the work group, about the divisions between the tribal and state members of the group. "There's some need to educate more," he adds, noting that some state-appointed members still do not understand the view that tribal members have of tribal sovereignty. "We have to show how western tribes have sovereignty so that it's not interfering with state activities."

At the work group's January 11 meeting, three documents outlining possible legislative changes to the settlement acts were considered: Penobscot/Passamaquoddy proposed changes, an "Omnibus Tribal Sovereignty Act" drafted for the Aroostook Band of Micmacs and Houlton Band of Maliseets, and a draft of points of agreement among the members that Rep. Deborah Simpson of Auburn, a co-chairman of the group, had distributed. The work group members ended up deciding to use those points of agreement to form the basis of the legislation, and portions of the proposed Omnibus Tribal Sovereignty Act were included.

Raye doubts that the Penobscot/Passamaquoddy proposal would have received support in the legislature, since it's "too radical a departure" from the present tribal-state relationship. "We need to come up with a way to make the relationship work," he says, without it ending "in a divorce." Although he agrees with the tribal representatives that Congress, when enacting the settlement act, intended for revisions to be made, Raye says that he is "not comfortable with wholesale departures from the spirit of the act."

Currently, state laws apply to the four Maine tribes, unless the tribes are specifically exempted in state law. Under the Penobscot/Passamaquoddy proposal, that provision would be reversed so that only state laws specifically listed would apply to the tribes. The proposal would replace the section of Maine law outlining the powers and duties of the tribes with the statement that the tribes "shall have, exercise and enjoy all the rights, privileges, benefits, powers and immunities of any federally recognized sovereign tribe within their respective Indian territory relating to their respective tribal members, lands and natural resources."

Concerning the Penobscot/Passamaquoddy proposal, Soctomah says it makes sense for the tribes to follow certain state laws, such as those involving law enforcement and crimes, but state laws on political structures should not apply. "The tribe wants recognition of its aboriginal tribal government and the rights associated with it," he says. "By these changes we're hoping to make our communities better and for Native rights to be recognized more."

The state's Freedom of Access Act has been a source of dispute since the tribes had to defend themselves in a court case brought by three Maine paper companies for access to tribal documents relating to water quality regulation. Even though MITSC sided with the tribes, the Maine Supreme Judicial Court in 2001 ruled largely against the tribes.

As for whether tribal members could lose access to tribal government documents or protections afforded them through state laws, Soctomah notes that both the proposed legislation and the Penobscot/Passamaquoddy proposal, in addition to having to be approved by the legislature, would have to be approved by tribal members within 60 days of the legislature's adjournment. "If the tribe doesn't want it, it won't be approved," he says. The Passamaquoddy Tribe also has a constitution that protects the rights of tribal members, although "it does need to be worked on," he acknowledges.

Raye says the members of the work group felt that the Freedom of Access Act issue is an internal tribal matter. Tribal members can choose not to re-elect tribal councillors and chiefs if they are seen as not serving the tribe's interests, he says.

Concerning the bill's proposals concerning the role of MITSC, Soctomah points out that the tribes are looking for a different avenue for resolution of disputes, since tribal members have maintained that it is not fair for one side in a dispute, the state, also to be the referee through its court system.

Raye says the work group is trying "to make sure that MITSC would function as it was envisioned." Both tribal and state members of the work group agree that it has not. "We want to make sure it's relevant and will help resolve issues out there for years. We tried to do that in a way that will honor the concerns of the tribal members." Under the proposed legislation, disputes between the state and the tribes will first go through mediation by MITSC before going to the courts. "It will breathe new life into MITSC," Raye predicts.

Both Raye and Soctomah believe the legislature will support the bill being put forward. The bill would change the heading for Title 30 from "Municipalities and Counties" to "Municipalities, Counties and Indian Tribes"; amend the law to achieve jurisdictional parity for all four Maine tribes; institute mandatory mediation by the Maine Indian Tribal-State Commission (MITSC) for tribal-state disputes prior to going to court, with a requirement for deadlines and for all parties to act in good faith; require mandatory meaningful consultation with tribes prior to any legislative, regulatory or policy change by the state that may have an impact on the tribes; authorize MITSC to continue to study potential changes to the act and to make recommendations to amend the act to the legislature's Judiciary Committee, with MITSC having authority to introduce the legislation; have the Maine tribes not be subject to the state's Freedom of Access laws for any purpose; include a new statement of intent for the settlement acts that specifies that the documents are to be viewed as dynamic and flexible and will be regularly revisited, with the Aroostook Band of Micmacs and a corresponding state seat added to MITSC; and task the executive branch of state government to invite the tribes to discuss unresolved issues and sovereignty.

When the state and tribal architects of the settlement act addressed the group, it was clear that they intended that it would "evolve into a better document," says Soctomah. "They knew other issues would have to be addressed." The work group members agreed that the negotiators of the settlement agreement designed the Maine Implementing Act to have the flexibility for adjustments in the relationship between the tribes and the state and that they never intended to equate the tribes with Maine municipalities. Tribal members expected the settlements acts to strengthen their governments, improve their living conditions and help sustain them and their culture. The work group members agreed that, despite the intentions of the settlement act negotiators 28 years ago, gains in Wabanaki living conditions have lagged far behind other population groups in Maine.

John Dieffenbacher-Krall, executive director of MITSC, notes that there is a political agreement to continue the discussions about issues ranging from tribal sovereignty to the language about municipalities and internal tribal matters with a "post-tribal state work group."