Governor, attorney general urge caution on changes to 1980 state-tribal agreement

AUGUSTA — Gov. Janet Mills and Attorney General Aaron Frey are raising concerns about the “unintended consequences” of making sweeping changes to the 40-year-old agreement governing relations between the state and Indian tribes in Maine.

In separate letters submitted to lawmakers on Friday, Mills and Frey warned that recommendations to grant tribes more authority on issues from taxation to gambling and wildlife management could conflict with federal laws or spark additional litigation rather than resolve long-standing issues.

“In fact, I am deeply concerned that if enacted in its current form, the bill would actually have the opposite 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, thereby breeding confusion and extensive litigation at a time when we have finally begun to move past these,” Mills wrote.

Mills’ strongly worded testimony – along with several tense exchanges Friday between lawmakers and representatives for sportsmen and industries – underscores the logistical and political challenges of rewriting a decades-old legal settlement before the Legislature adjourns in April.

The outcome of those discussions could affect land use, economic development and criminal justice on tribal reservations as well as potentially neighboring lands. The Legislature’s success or failure also will likely affect the long-strained relationship between state leaders in Augusta and tribal communities.

“As we enter the next phase of the process, I hope that we can do away with a lot of the fear and distrust, and that we recognize that when tribal nations do well, all of Maine will do well,” said Maulian Dana, tribal ambassador for the Penobscot Nation. “Indigenous nations are not special interests, and these are equal rights, not special rights.”

After six months of work, a task force comprised of tribal leaders, lawmakers and state officials released 22 recommendations to improve the 1980 Maine Indian Claims Settlement Act.

The recommendations include giving tribes “exclusive jurisdiction” over hunting and fishing on tribal lands except in limited circumstances, allowing tribes to operate casinos, exempting tribal members from state or local taxes, and expanding the jurisdiction of tribal courts.

Although wide-ranging in scope, the recommendations have an underlying theme: restoring the sovereignty of the Penobscot Nation, the Passamaquody Tribe and the Houlton Band of Maliseet Indians. Maine’s fourth federally recognized tribe, the Aroostook Band of Micmacs, was not part of the 1980 settlement agreement but supports the task force’s recommendations.

“The settlement in 1980 really reduced us to mere municipalities,” said Vice Chief Darrell Newell of the Passamaquoddy Tribe at Indian Township. “I respect the sovereignty of the state of Maine, and I respect the sovereignty of our tribes.”

Approved by the Maine Legislature and Congress and signed by President Jimmy Carter, the 1980 agreement ended a years-long court battle in which tribes claimed ownership of roughly two-thirds of the state’s land mass. The settlement provided the Penobscot, Passamaquoddy and Maliseet tribes with $81.5 million – most of which went to purchase about 300,000 acres – in exchange for ending future land claims against the state.

But the settlement also led to decades of jurisdictional fights and sovereignty disputes over fishing rights, water quality in tribal waters, gambling and other issues.

Proposed by House Speaker Sara Gideon, D-Freeport, and Senate President Troy Jackson, D-Allagash, the task force is the latest attempt to resolve some of those long-standing issues.

“The tribal and non-tribal peoples of Maine all deserve a process that allows us to modernize our relationship so that the Maine tribes do enjoy the same rights, privileges, powers and immunities as the other federally recognized Indian tribes within the United States,” Gideon said.

With this proposed legislation, there is real opportunity to right past wrongs, establish a viable working relationship based on mutual understanding between the state and the tribes, and to avoid future controversies,” Jackson said. “This legislation was carefully crafted to ensure Maine tribal nations are treated with the dignity and respect they deserve.”

However, the changes proposed by the bill, L.D. 2094, are complex and would have implications beyond tribal lands. That became clear on Friday as members of the Legislature’s Judiciary Committee heard eight straight hours of testimony during the first of multiple days of hearings and work sessions on the bill.

Tensions flared at times during Friday’s hearing as committee members pressed individuals raising concerns about aspects of the bill. There were accusations of “fear mongering” and racism, and at times the public hearing devolved into testy back-and-forth exchanges between lawmakers and those testifying.

Committee members will have to grapple with a host of complicated issues surrounding an agreement crafted more than a generation ago.

Frey, an attorney and former legislator who succeeded Mills as attorney general, submitted 22 pages of “basic legal analysis” of the bill. While Frey stressed that he did not view his job as telling the Legislature what to do, the attorney general highlighted numerous concerns about the proposal.

For instance, Frey said language in the bill saying tribes will be governed by the federal Indian Gaming Regulatory Act conflicts with a federal court decision saying the law does not apply in Maine. Frey also pointed to potential legal conflicts or uncertainties in the proposals to change taxation, tribal court jurisdiction and civil laws.

“Changes … on the scale proposed by L.D. 2094 will dramatically alter the long-standing jurisdictional relationship between the States and the Tribes,” Frey wrote. “I do not question the merits of making changes to that relationship, but changes should be made cautiously and deliberately, with careful consideration given to all possible consequences.”

While Mills wrote that she sees multiple opportunities to improve tribal-state relations, she was “concerned about the sweeping nature of the bill, the impacts on non-tribal citizens and communities, and the extent to which those impacts have been given due consideration.”

Under the 1980 settlement, newly acquired tribal lands are subject to state laws and regulations. But the bill would allow tribes to acquire land anywhere in Maine and designate it as “trust land” subject only to tribal jurisdiction.

“Neither the Maine Legislature nor adjacent municipalities would have any influence over land use or similar issues on such lands, including within the newly created jurisdictional enclaves that could be created anywhere in the state,” Mills wrote. “Nor could state labor laws, the Forest Products Act, air quality standards, mining regulations or any other provisions of state law apply with the new broad and indefinite areas termed ‘tribal lands.'”

As attorney general, Mills sparred with tribes in court over water-quality regulations, reservation boundaries and whether tribal courts should be allowed to try cases of non-tribal members accused of domestic violence against tribal citizens. While tribal courts throughout the nation have that authority under the federal Violence Against Women Act, Maine tribes were explicitly excluded.

Since becoming governor in January 2018, Mills and officials in her administration have attempted to rebuild relations with tribal leaders. Mills signed new laws renaming Columbus Day as Indigenous People’s Day and banning Indian-related mascots at schools. The Maine Department of Environmental Protection also is setting some of the strictest water-quality standards in the nation to protect the health of sustenance fishermen.

But Dana, the Penobscot Nation’s ambassador, said such goodwill acts could be viewed as “empty and superficial” if the 1980 settlement act is not substantially changed to address tribal concerns.

Chief Clarissa Sabattis of the Houlton Band of Maliseet Indians said she hopes lawmakers “can stand in our shoes and understand the positive impact that your decisions can set in motion” for tribal communities.

“I also understand the fears of the unknown,” Sabattis said. “However, I would like you all to keep in mind that there are over 560 other tribal nations around the United States that live with these rights. And as far as I know, the sky has not fallen yet.”