Help ICT make strides in 2024. Our goal is to raise $150,000 by the end of the year with generous contributions from funding partners and collaborators like you. We’re thankful for your support, and we’re thriving because of it. DONATE TODAY!
Pauly Denetclaw
ICT
WASHINGTON — In early November, Maine voters headed to the polls to decide whether or not it was important to require the state to print the entirety of its constitution. This included treaty obligations for the Wabanaki Nations along with other titles.
The question on the ballot was number six.
It read: “QUESTION 6: RESOLUTION, Proposing an Amendment to the Constitution of Maine to Require All Provisions in the Constitution to Be Included in the Official Printing. Do you favor amending the Constitution of Maine to require that all of the provisions of the Constitution be included in the official printed copies of the Constitution prepared by the Secretary of State?”
More than 70 percent of voters supported the constitutional amendment that would require the state to print the full state constitution, which includes the treaty obligations for the Wabanaki Nations that was removed in 1875. This symbolic gesture would hopefully further tribal sovereignty. This was important for tribal nations because the state has drastically limited tribal sovereignty and the right to self-determination for federally-recognized tribes in the state.
Despite decades of federal Indian law and policy that maintain federally-recognized tribes as sovereign nations, the Maine Indian Claims Settlement Act of 1980 and other policies enacted by Congress and the state have curtailed these federal laws and policies.
Wabanaki Nations are subject to state law and treated much like municipalities, not as sovereign nations that predate Maine and the United States. There are six federally-recognized tribes in Maine: Mi’kmaq Nation, Passamaquoddy Tribe, Passamaquoddy Tribe – Indian Township, Passamaquoddy Tribe – Pleasant Point, Penobscot Nation, and Houlton Band of Maliseet Indians. Federal Indian laws enacted by Congress after 1980 that would affect the application of state law do now apply in Maine unless specifically mandated by Congress.
“The state of Maine and the Wabanaki Nations have a long, very tense, complicated relationship,” said Maulian Bryant, Penobscot Nation ambassador. “So I think this is a great step forward in some restoration of history and hopefully heading in the right direction towards improving that relationship and restoring some recognition of our tribal sovereignty.”
Maine Gov. Janet Mills, who is the former state attorney general, has been opposed to this language restoration. Her office claims restoring the language would confuse citizens since tribal relations are now governed by the Maine Indian Claims Settlement Act.
“Because this legislation would not solve any real-world problem, but would instead create new confusion, the Office of the Governor urges that you vote ought-not-to-pass,” said Gerald Reidtold, the chief legal counsel to Mills, during the legislature’s Judiciary Committee meeting earlier this year.
The relationship between the state and tribal nations has been strained over the last few years. In June, Mills vetoed a bill that would have restored some tribal sovereignty for the nations. The other 570 federally recognized tribes are able to exert tribal sovereignty and self-determination.
The Maine legislature tried to overturn the veto but after pressure from Mills, some of the state legislators stepped back their support. Ultimately, it failed to meet the two-thirds vote, the final tally being 84-57 in the House.
How it affects gaming and VAWA
In 2022, a more substantial version of the tribal sovereignty bill, as it became known, wasn’t even brought up for a vote after Mills said she would veto it and the legislature didn’t have the votes to override a veto. The Wabanaki Nations had recently secured mobile sports gambling and were unwilling to jeopardize that by pushing the tribal sovereignty bill.
“We have very restricted gaming,” Bryant said. “We haven’t had access to (the Indian Gaming Regulatory Act) because it’s one of those acts after 1980, and the state made it very clear from the get-go that state jurisdiction would control all gaming. We’ve tried a bunch of different ways to get some Class III gaming. We’ve had high stakes bingo and efforts like that, but we haven’t been able to break into casino gaming.”
Another issue was the implementation of the tribal provisions included in the reauthorization of the Violence Against Women Act. The reauthorization allowed tribal courts to prosecute non-Native offenders in cases of domestic violence, dating violence or violating protection orders.
“The Penobscot Nation assumed that we could start having these cases in our tribal court,” Bryant said. “We were picked for a pilot program nationwide to start implementing these. And current governor Janet Mills was Attorney General at the time and she stepped in and said the Violence Against Women Act would impact Maine jurisdiction. There were concerns about getting a fair trial for these offenders in tribal courts… They effectively blocked Penobscot Nation from having access to VAWA and all the other tribes.”
This was eventually resolved six years later when the Wabanaki Nations worked with Mills as governor to allow the tribal provisions in VAWA to be implemented.
The governor’s office has tried to minimize the issues around the Maine Indian Claims Settlement Act by saying the sovereign nations in the state don’t have access to only four or five federal Indian laws passed by Congress.
The first recommendation, in a 2015 report, made by the state’s own and historic Truth and Reconciliation Commission, states, “ Respect tribal sovereignty.”
“The only exception is a very few number of laws that might conflict directly with Maine laws, just a handful,” Mills said in a statement. “But instead of specifically addressing the very few Federal laws that do not now apply to the Wabanaki Nations, LD 2004 (the tribal sovereignty bill) attempted to upend the 1980 agreement wholesale.”
“(The bill) would repeal a broad swath of unnamed, unidentified State laws on Tribal Territory, lands that they now hold or might later acquire anywhere in the State of Maine – laws that could regulate things like fish and game, water quality and land use, fire safety and building standards, education requirements, labor and employment laws. This would create a situation where people would not know what laws are in effect in any particular place in Maine. The only way to solve those questions would be by very contentious and lengthy lawsuits.”
Meanwhile there are 570 nations, in 34 states, that are able to exert tribal sovereignty and implement federal Indian laws.
Nonetheless the Wabanaki Nations have continued to push for tribal sovereignty at the state legislature and with the governor’s office.
“We’re heading into a new legislative session, so we’ll be looking once again at amending that 1980 agreement, or trying to,” Bryant said.
The Maine legislature convenes January 3, 2024 and adjourns on April 17, 2024.
ICT is a nonprofit news organization. Will you support our work? All of our content is free. There are no subscriptions or costs. And we have hired more Native journalists in the past year than any news organization ─ and with your help we will continue to grow and create career paths for our people. Support ICT for as little as $10. Sign up for ICT’s free newsletter.