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Maine Lawmakers Advance Expansion Of Rights For Wabanaki Tribes, But Hurdles Remain

Natalie Williams
BDN File
Chief Kirk Francis of the Penobscot Nation speaks at the Bangor Daily News office in January of 2020.

A state legislative committee this week advanced the largest expansion of rights for the state's Wabanaki tribes in four decades. But the effort to overhaul the state's fraught relationship with the tribes still faces many political and logistical hurdles.

Moments before members of the Judiciary Committee voted for the most substantive and consequential changes to tribal relations since 1980, Democratic state Rep. Thom Harnett, of Gardiner, offered an apology.

"We have tried to strip you of your culture, of your language, of the traditions that defined you because we thought you should be more like us," Harnett said. "And we have broken and dishonored treaties and promises made over and over again. How dare we. And for that I am sorry."

Harnett was addressing leaders of Maine's tribes, who were monitoring changes in the law that they and their predecessors have long sought. Penobscot Nation Chief Kirk Francis thanked Harnett and other Committee members for their work, but said the apology for past wrongs was not necessary.

"None of the individuals on this call bear that cross. I mean, you're not personally responsible for how we got here or the historical tragedies that have taken place with Maine's tribes," Francis said.

What Francis and other tribal leaders say they want is progress — to obtain the same rights granted to Native American tribes in other states, but who are often denied because of the Maine Indian Claims Settlement Act passed by Congress in 1980.

At the time, the Settlement Act was heralded as a hard-fought compromise. But over the years it has become a persistent source of tension because it effectively treats Maine tribes like municipalities, granting them some semblance of local control, but not total self-governance.

From the perspective of Democratic Sen. Shenna Bellows, the three bills passed by the Judiciary Committee would bring the tribes closer to their ultimate goal: sovereignty.

"I think we have an opportunity to rectify an historic wrong," Bellows said, "and to try to recognize Maine's tribes in the way that tribes in other states are recognized."

The slate of proposals includes a bill allowing tribes to conduct gaming on their lands, eliminating the vexing hurdle of approval from either Maine voters or the Legislature. Both have spurned each attempt to change that requirement, including a 2003 referendum that rejected giving tribes the right to have gaming on their lands by a 2-1 margin. Lawmakers on the Judiciary Committee anticipate the gaming issue could draw more opposition, particularly from existing casino operators. That's why they made the gaming overhaul separate from two other bills that might stand a better chance of passing.

One bill exempts the tribes from sales and income tax earned on tribal lands, while also granting tribes jurisdiction over many misdemeanors and felonies. Another proposal clarifies fishing, hunting and other rights on tribal lands. Each of the bills is controversial and complex, leading Assistant Attorney General Chris Taub to raise concerns about a slew of late changes introduced Thursday.

"I think it's right to be a little bit concerned about making such sweeping kinds of changes and doing them in a way that is very rushed and puts them in a place where they can't easily be corrected," Taub said.

Taub's warning isn't the first from the Office of Attorney General, an agency that has found itself tangled in litigation with tribes on several occasions.

And the agency has been skeptical of attempts to overhaul the 1980 Settlement Act. Earlier this year Attorney General Aaron Frey, a Democrat, warned that the current effort to change the act was too drastic -- a message also echoed by his predecessor, Gov. Janet Mills. As AG, Mills clashed with tribes several times, but vowed to repair the relationship upon becoming governor. She created a special commission that became the impetus for many of the changes now in the three bills advanced by the Judiciary Committee.

Now, the fate of those bills could be in her hands. A special legislative session is needed to bring the bills up for floor votes, but legislative leaders have been unable to agree on the terms. Mills could call a session by herself, but when lawmakers wondered Thursday if that was going to happen, Democratic state Sen. Mike Carpenter seemed doubtful.

"The silence from the governor about the session, I think as of today, says no we're not (coming for special session)," Carpenter said.

And without a special session, the tribal bills will die without floor votes.

Tribal leaders and their attorneys have been negotiating with the governor and her staff, a sign that the proposals could be revived when a new legislature takes over later this year.

Penobscot Nation Chief Kirk Francis said he was skeptical of the process from the beginning, but that he and other tribal leaders are committed to seeing it through.

"Now, I don't know where this is going. The real work starts now," Francis said.

Supporters of the overhaul are gearing up for a long campaign. Last month the tribes formed a nonprofit groupdesigned to push for changes that would allow Maine's four primary Wabanaki tribes to advocate as a single coalition.

Some advocates are comparing the effort to the marriage equality movement in Maine, a seven-year battle with several crushing defeats, but one that ultimately emerged triumphant.

Journalist Steve Mistler is Maine Public’s chief politics and government correspondent. He is based at the State House.