Lawmakers work on bill to let Wabanaki tribes benefit from federal laws

State lawmakers continue to work on a long-awaited bill to allow the Wabanaki tribes in Maine to benefit from more federal laws, but the first day of debate failed to produce a compromise between tribal advocates and the Mills administration.

The Mills administration opposes the bill because it could essentially “erase” certain state laws without spelling out which ones were at risk. That would create constitutional uncertainty, leaving the average Mainer uncertain of where state law applies and where it doesn’t.

“I just don’t think there’s any way that ordinary Maine citizens could read this legislation and have any idea what laws are being repealed,” said Mills’ chief legal counsel, Gerald Reid. “That is a fundamental element of constitutional due process.”

Reid said he didn’t think the problems with the bill are solvable through state legislation. But he said Gov. Janet Mills remains committed to working with the Wabanaki nations on a statute-by-statute basis on any of the individual issues they had hoped to rectify with this bill.

“We are urging the committee and the Legislature to proceed with caution,” Reid warned.

The Wabanaki tribes of Maine say it is unfair they are excluded from federal laws that benefit the nation’s 570 other federally recognized tribes. The bill would grant them access to these federal laws, and their benefits, unless the state objects and lobbies Congress to exclude them.

Penobscot Nation attorney Allison Binney said lawmakers shouldn’t worry about public confusion or constitutional chaos, or the wave of litigation that opponents say could happen if the bill were to pass.

“Every other state in the lower 48 operates under the regime the tribes in Maine want and they don’t run into problems that can’t be solved,” Binney said. “And the general public does know in these other states … If in Maine we have to do a bit of educating the general public, we’re willing.”

In other states, tribal access to federal laws and programs often help non-tribal people, she said.

Chaos is created when tribes don’t know which federal programs the state might not allow the Wabanaki tribes to join, Binney said. For example, Maine tribes tried to take advantage of a native medical professional recruitment program. The state objected – years after the law had passed.

Under current law, Maine tribes must lobby Congress to make them specifically eligible for any new federal program or law that the state claims will affect the state-tribal relationship, which tribal leaders say can include almost anything, from medical licensing to environmental laws.

The proposed legislation seeks to flip that paradigm, granting the Wabanaki tribes automatic access to those benefits unless Maine takes exception within 30 days, then forcing the state to lobby Congress to exclude the Wabanaki tribes from that federal program or law.

Jurisdiction over serious crimes and gambling, however, would remain under the state’s purview.

The bill, L.D. 2004, is sponsored by House Speaker Rachel Talbot Ross, D-Portland, and co-sponsored by six Republicans, including House Minority Leader Billy Bob Faulkingham of Winter Harbor, which marks a turning point for the GOP’s relationship with Maine tribes.

At last week’s public hearing on the bill, Talbot Ross emphasized the social and economic impact of being excluded from federal laws intended to benefit tribes, as outlined in a Harvard Kennedy School report released last year. On Tuesday, however, she took on her critics.

Opponents have lamented the late introduction of the bill, which left little time for public notice and deliberation, but Talbot Ross said tribes have been raising these issues since the 1980 Maine Indian Land Claims Settlement Act, which gives the state oversight of tribal communities.

“I want to make sure that no one leaves with the impression that somehow a bill was introduced at the last minute and now we are trying to move really complex materials forward in a very untimely manner,” Ross told the committee.

Reid warned the committee about the “incredibly high stakes” of tinkering with the state-tribal relationship as laid out in the land claims settlement. If the state makes a mistake, the state can only reopen the agreement to fix it with the express permission of all Wabanaki tribes.

After about two hours of debate, on a day when the House was still taking votes until at least early evening, the Judiciary Committee voted to table the bill so members could think about what they had learned. The committee is expected to take up the bill again in the next few days.

The committee unanimously endorsed L.D. 1970, a state version of a federal law designed to keep Native American children removed from their homes because of neglect or abuse in their tribal communities. The U.S. Supreme Court could overturn the federal law this summer.

It voted to carry over Talbot Ross’s proposed tribal sovereignty bill, L.D. 2007, to the next legislative session, which begins in January. That will give all parties involved time to continue working on the issues, possibly even over the summer, lawmakers said.