Talk eyes tribal-state relationship and federal law

With the Maine Legislature still debating a tribal sovereignty bill that would reframe the relationship between the state and the tribes in Maine, an understanding of federal Indian law and how the state is an outlier in the country in its adversarial approach to the tribes was the focus of a recent lecture hosted by the University of Maine School of Law. The November 19 Zoom talk, the first annual Indian Law and History Lecture, featured Matthew Fletcher, a professor at Michigan State School of Law, and attorney Sherri Mitchell, a citizen of the Penobscot Nation and executive director of the Land Peace Foundation. The event sponsors were the Maine Conservation Voters and the law firms of Drummond Woodsum and Bernstein Shur.
Moderator Donna Loring, the former senior advisor on tribal affairs to Governor Janet Mills, noted that Maine "has created its own Indian law" and is not that familiar with federal Indian law. Most of the 574 federally recognized tribes in the U.S. follow federal Indian law, with the tribes in Maine being among the few that do not. The state's relationship with the tribes is unique, as the state retains "tight control" over tribal governments and does not recognize federal Indian law, and that relationship has been the source of much conflict between the state and the tribes, she said.
Professor Fletcher outlined the three foundational principles of federal Indian law: federal law is supreme; state law has no force in Indian country; and tribal sovereignty is inherent. He noted that the U.S. Constitution preempts state authority over Indian affairs and also that the extent of tribal sovereignty is subject to negotiation. In Maine, though, the state has criminal and civil jurisdiction in Indian country. "It's much more interventionist than in other states."
He observed that there were reasons that the U.S. Constitution "stripped the powers of the state over Indian country," including massacres and slavery of Native people in the past. In northeastern states, though, Native people had little bargaining position because of poverty and lack of power. Fletcher believes they were punished for bringing land claims and that the State of Maine "wanted a vise-like grip" over them, which resulted in "bad public policy."
According to Fletcher, the federal default interpretive rules, which are constitutional, are: Indian treaties are to be construed as the tribal citizens who negotiated them understood them; courts must interpret ambiguities in Indian treaties to the benefit of Indians and in light of the history before and after the treaties; and courts must interpret Indian statutes to the benefit of tribes. Fletcher said that Congress can restrict some tribal rights, as long as it makes clear its intent to limit those powers.
Attorney Sherri Mitchell outlined that Maine has been unwilling to accept tribal rights and federal Indian law from when it became a state in 1820. There's been "a building hostility" between the state and the tribes from then until today. As an example, she pointed to an 1875 Maine constitutional amendment that forbids the publication of a section of the state's constitution that outlines its treaty obligations to the tribes, and in recent years the state legislature has refused to require the state to allow the publication of its entire constitution.
As for voting rights, the federal Indian Citizenship Act of 1924 should have given Native people in Maine the right to vote, but Maine was the last state to comply, only allowing Natives to vote more than 40 years later in 1967. She noted that the federal government had to apply pressure, threatening to withhold funds for the building of Interstate 95, to get Maine to change its voting laws.
The 1968 Indian Civil Rights Act and the 1975 Indian Self-Determination and Education Assistance Act were turning points in having Native rights be acknowledged by the federal government. Tribes were then able to determine how federal funds for programs would be used in their communities. Several federal court decisions in the 1970s also acknowledged the rights of the tribes in Maine, with federal judges, in their decisions in some cases, noting that the state was trying to actively diminish the rights of the tribes. The backdrop for the 1980 Maine Indian Claims Settlement Act, then, was that federal courts were recognizing that the state for over 150 years had been trying "to erroneously control and dominate and erode the sovereignty of the tribes," while nationally there was greater recognition of tribal sovereign rights, Mitchell stated.
She noted that settlement acts with tribes do not "grant" powers to tribal nations; rather, they define inherent sovereign powers. "Tribes have inherent sovereignty over their affairs," she stated, referring to federal Indian law.
She also pointed to the "mythology" that the tribes in Maine are considered municipalities under the 1980 settlement act. "They are not municipalities," she stated. "That's at the core of misperceptions by the people in the state." She explained that the inclusion of language in the Maine Implementing Act regarding municipal powers "was intended to expand tribal authority. It's wrongly believed to be a limitation on tribal authority." When the tribes act as a municipality, they can have the powers of a municipality and be subject to state regulations. "But they can also have the status as Indian nations with sovereign powers. It's a blend of state law and the inherent authority of tribes to be self-governing." The dual status "is an expansion of authority," she stated.
Mitchell also argued that Maine "continues to deny tribal rights and sovereignty," pointing to a number of court cases in recent years. In one of the cases, the state "unilaterally" said that the Penobscot Nation no longer had rights to its territorial waters. Pointing out that Maine was fighting the U.S. Environmental Protection Agency over cleaner water standards, she maintained, "The state is fighting for dirtier water to keep the tribes from having rights for subsistence fishing."
Prior to the 1980 settlement act, the state "was being brought to the table not as a willing participant," and following the signing of the act the state has been taking the position that "tribes have no more sovereignty. That's untrue. The tribes signed the settlement act as a sovereign nation." Tension between the tribes and the state still exists because the state is continuing to try to diminish and terminate tribal rights, she maintained. She alleged that the state "continues to purposely misinterpret the law" in order to "dispossess the tribes of their rights and territories."
As for why the tribes signed the 1980 settlement act, Mitchell observed there was "a lot of pressure" on them to do so, with people noting at the end of that year that Ronald Reagan was coming into office as the next president, and he had stated that he would not be signing any new settlement acts. Also, tribal officials who were involved with the negotiations on the settlement agreement have since stated that there are provisions in the act that they had to sign that were not what they had agreed to, including the provision that any future federal legislation had to mention the Maine tribes if it was to apply to them. Because the 1988 federal Indian Gaming Regulatory Act, which provides a framework for casinos in Indian country, does not mention the Maine tribes, the tribes in Maine have had to seek permission from the state to establish a casino, and all of their attempts have been turned down.
With the settlement act, the tribes gave up their claims to lands in the state and gave certain authority over the tribes to the state. Mitchell observed that they gave up "a lot" by signing the agreement. Noting that the monies that the tribes received in the settlement act were all federal funds, she asked rhetorically, "What did the state give up?"
"The legacy of racial discrimination is a blight on the state," she said, adding, "It's up to the citizens of the state to put an end to this shameful history." She urged people to lobby their representatives in the legislature and to push for municipal resolutions so that state officials will "come to the table with good heart and goodwill with the negotiations currently before them."