Last-minute bill would allow Maine tribes to benefit from federal laws

With just a few weeks left before the state Legislature wraps up for the year, House Speaker Rachel Talbot Ross unveiled a bipartisan bill Tuesday to give Indigenous tribes in Maine more of the rights enjoyed by tribes in the rest of the country.

The bill would not restore full sovereignty to the Maine tribes, an effort that failed last year. But it would allow them to benefit from most existing and future federal laws that apply to tribes in other states, including those concerning the environmental protection and use of tribal lands.

Unlike the nation’s other 570 federally recognized tribes, the four tribes in Maine are excluded from benefiting from federal laws because of the terms of the Maine Indian Claims Settlement Act of 1980. In the 1980 negotiations to settle the tribes’ claim to two-thirds of the state, Maine demanded that no federal Indian law – past or future – that undermined Maine’s authority would apply to the Maine tribes unless Congress specifically included them.

Kirk Francis, chief of the Penobscot Nation, addresses the Legislature during the State of the Tribes Joint Convention of the House and Senate on March 16 as Associate Supreme Court Justice Andrew M. Mead, left, Congressman Jared Golden and Senate President Troy Jackson, D-Allagash, look on. On Tuesday, Francis said the bill sponsored by House Speaker Rachel Talbot Ross would “allow for a lot more resources to come into the state and to the tribes to address some very important issues.” Joe Phelan/Kennebec Journal

Penobscot Nation Chief Kirk Francis said that provision, which was not negotiated by the tribes in 1980 and was instead added by Congress, has led to uncertainty among tribes, which have sought to implement beneficial federal laws only to have the state object.

“You often find yourself having to go back and trying to figure out how to get included after the bill has been passed and it just doesn’t work,” Francis said. “Creating that certainty will allow for a lot more resources to come into the state and to the tribes to address some very important issues.”

That uncertainty played out during the pandemic, Francis said, when Maine would not allow the tribes to take advantage of a federal law allowing health care workers licensed by other states to provide health care services on tribal reservations in another state. “That caused a shortage of medical providers in tribal communities,” he said.

The 151 laws enacted by Congress since 1980 to benefit tribal communities could help improve public health, respond to natural disasters, promote economic development and protect the environment, according to the Wabanaki Alliance.

The new bill, L.D. 2004, specifically excludes federal gambling laws, however, and would not allow Maine tribes to operate a casino without special permission from the state.

The proposal does not go as far as the full sovereignty bill that passed both legislative chambers last year only to stall amid a veto threat from Gov. Janet Mills. A more sweeping sovereignty bill is expected to be reintroduced later this year and taken up next year.

“The Wabanaki Nations of Maine – the Maliseet, Mi’kmaq, Passamaquoddy, and Penobscot – are the only federally recognized tribes routinely denied the benefits of federal legislation that helps all the other tribes in the country prosper. With this bill, we have the opportunity to right this wrong,” Talbot Ross said in a prepared statement Tuesday. “For the Wabanaki people to build their tribal governments, engage in meaningful economic development, access essential federal programs, reduce unemployment and poverty, and improve housing and infrastructure, they must enjoy the same rights, privileges, powers and immunities as every other federally recognized tribe in the United States.”

Co-sponsor Sen. Rick Bennett, R-Oxford, said the bill, which would preserve state laws for gambling and certain criminal and juvenile offenses, represents part of last year’s sweeping sovereignty push.

Bennett said that, after more than 40 years, lawmakers should reevaluate the state’s relationship with the tribes to examine what works and what doesn’t. He said it doesn’t make sense to prevent Maine tribes from benefiting from federal legislation that helps other tribes in the United States.

“This is an area that deserves to be reconsidered,” Bennett said. “These tribal members are our neighbors, and they should be able to take maximum advantage of the programs that Congress has created for tribes elsewhere in the nation.”

The settlement act is holding back tribes in Maine compared to other federal tribes, according to a recent study by the Harvard Kennedy School.

The study found that from 1989 to 2020, the average per capita gross domestic product growth for Maine tribes was 9%, which was far below the 61% growth for tribes in the other contiguous states and below the average of all U.S. citizens of 11%.

Talbot Ross’ bill appears to be on the fast track in the closing weeks of the session, but it’s unclear whether it will make it across the finish line before lawmakers adjourn.

Lawmakers voted Tuesday to refer the bill, co-sponsored by Sen. President Troy Jackson, D-Allagash, to the Judiciary Committee, which is expected to hold a hearing Wednesday.

The bill would need two-thirds support from each legislative chamber to overcome a possible veto.

MILLS DOESN’T TAKE QUESTIONS

Mills has opposed similar federal legislation to change the terms of the 1980 agreement. And she has continued to clash with lawmakers over tribal sovereignty in Maine, most recently in private talks about the budget with her own party.

Her office did not respond to questions about the bill, which has four Republican co-sponsors, including House Minority Leader Billy Bob Faulkingham, R-Winter Harbor.

Mills has supported incremental changes to the state’s relationship with the tribes while opposing the more ambitious reforms. Last year, she supported giving tribes more control over their water supply at Pleasant Point and signed a bill to give tribes exclusive rights to online sports betting and tax benefits. But she threatened to veto the sweeping sovereignty bill and lawmakers did not have enough votes to override it, so they never sent it to her desk.

Mills also did not attend this year’s State of the Tribes address – the first in two decades. She invited tribal leaders to meet with her and her staff. But Francis said they have only met with the governor’s office once, about mobile sports betting, and haven’t discussed sovereignty because of their widespread disagreements.

More recently, tribes have become a source of tension in budget negotiations.

According to the governor’s office, the speaker’s chief of staff recently told his counterpart in the governor’s office that Talbot Ross would not support Mills’ budget proposal, which contains new spending priorities, unless the governor backed three other tribal bills.

A Mills spokesperson decried the move at the time, saying that each bill deserves to be considered on its merits, rather than being tied to the passage of unrelated legislation.

“We are disappointed by this approach – which seems more like a tactic out of a Washington, D.C., playbook than how we govern here in Maine,” spokesman Scott Ogden said. “The governor does not engage in quid pro quos, and she does not believe it is appropriate to tie the budget – which addresses urgent needs like housing, homelessness, food insecurity and others – to unrelated legislation. That is not responsible or good governance.”

BUILDING ON GOLDEN’S EFFORT

Talbot Ross’ bill appears to build on efforts by Rep. Jared Golden, D-2nd District, to pass federal legislation allowing Maine tribes to benefit from new federal legislation impacting federally recognized tribes.

That bill, which was opposed by Mills, passed the House as part of the National Defense Authorization Act, but was killed by the Senate. Talbot Ross’ bill is broader, applying to all existing laws.

Francis said tribal leaders are supporting a state-level bill because Sen. Angus King opposed Golden’s bill last year, calling it a state issue.

For the Penobscot Nation, Francis said, “our priority is this bill this session. And we want to see this bill get a vote this session. That’s where our focus is. We’re going to keep working to get this on the calendar and get it voted on. I think the other tribes feel the same way.”

It’s unclear whether lawmakers will act on Talbot Ross’ bill this session, or carry it over to next year. It also wasn’t clear Tuesday if Congress also would need to approve the proposal in order to change the federally approved settlement.

Sen. Minority Leader Trey Stewart, R-Presque Isle, told reporters at an unrelated news briefing that Republicans are hoping to adjourn by June 21, which leaves little time to act on scores of pending bills and finalize a two-year state budget.

“All signs point to that right now,” Stewart said. “I think we’re going to see, as committees wrap up here, a lot of carryovers and a lot of bills we will have to pick back up here in January, and maybe even work to some extent during the interim.”