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In historic appearance before Congress, Maine tribes urge that future federal laws apply to them

The U.S. Capitol building is seen as the sun rises in Washington, Monday, March 21, 2022.
Gemunu Amarasinghe
The U.S. Capitol building is seen as the sun rises in Washington, Monday, March 21, 2022.

The leaders of the four Wabanaki Indian tribes in Maine appeared jointly before members of Congress for the first time in more than 40 years on Thursday, testifying in support of a bill that they said is necessary to restore their tribal sovereignty.

At issue is a 1980 settlement with the state that excludes tribes in Maine from most federal laws that benefit other tribes. Chief William Nicholas of the Passamaquoddy Tribe says that the fundamental purpose of the 1980 agreement between the state of Maine and tribes was to settle the Wabanaki Nation’s claims to their historic lands. But for Nicholas and other tribal leaders, the state has used the Maine Indian Claims Settlement Act to deny their communities access to the federal benefits and sovereign rights enjoyed by more than 500 other tribes across the country.

“At the end of the day, the land and the money were not the biggest consequences of the settlement act. The real cost was our sovereignty,” Nicholas told members of the House Natural Resources Subcommittee for Indigenous Peoples of the United States.

Nicholas and leaders of the Penobscot Nation, the Houlton Band of Maliseet Indians and the Micmac Nation were testifying in support of a bill sponsored by Maine Rep. Jared Golden, D-District 2, that aims to ensure that all future federal laws enacted to benefit Indian tribes would also apply to tribes in Maine. Since 1980, Congress has passed roughly 150 laws dealing with everything from health services and economic development to gambling and criminal justice in Indian Country. But Chief Clarissa Sabattis of the Houlton Band of Maliseet says Maine's settlement act, or MICSA, has preempted those laws in Maine with devastating effects.

"While our tribe has seen growth over the past four decades, we continue to struggle due in large part to this restrictive settlement act that we continue to live under,” Sabattis said. “When the U.S. entered into MICSA, it unfortunately left our four tribes in an impossible situation and under the authority of a state that does not have the same trust responsibility as the United States government does."

As examples, tribal leaders say they have been unable to directly access federal money for health programs, disaster assistance or even COVID-19 response. Tribes in Maine have fought unsuccessfully for more than two decades to gain state or voter approval to open casinos or other gambling venues. And they say a lack of tribal courts or child welfare programs has led to more tribal children being placed with non-native families.

Chief Edward PeterPaul of the Micmac Nation in Aroostook County pointed out that his tribe was not included in the 1980 agreement.

“In spite of not being a party or participating in the negotiations of the act, the U.S. court system later found that we had lost all of our jurisdiction to the state of Maine because of it,” PeterPaul said. “As a result, for the last 30 years, we are the only federally recognized tribe in the state of Maine that continues to be fully subject to state law. For 30 years, we have been unable to negotiate a new jurisdictional agreement that gives us the legal authority to provide for the health, welfare and safety of our people.”

Tribal chiefs said Golden’s bill would address some of those wrongs going forward.

“This is an intentionally narrow approach,” Golden told his congressional colleagues. “It doesn’t go back and apply this change to laws that are already on the books. This bill will cut through unnecessary red tape and bureaucratic efforts to block the Wabanaki tribes from benefiting from future laws passed for their benefit.”

Golden’s comments were in anticipation of concerns raised by at least one Republican member of the subcommittee as well as a representative of one of Maine's largest industries.

Patrick Strauch, who heads the Maine Forest Products Council, said tribal lands are scattered throughout the areas of the state where his members operate. While Strauch said the industry works well with tribes, he is concerned about companies having to negotiate different environmental regulations on tribal and non-tribal lands.

“This would be I think a dangerous precedent to be working against all of those parties that were originally involved,” Strauch said in response to one committee member’s questions. “And I know our governor has been working very closely with those tribes and has intimate knowledge of the issues that they are facing.”

Strauch was referring to negotiations back in Augusta on a more sweeping overhaul of the 1980 settlement agreement. Tribal leaders have been working with state lawmakers and negotiating with Gov. Janet Mills for several years on a bill to restore tribal sovereignty.

But the fate of that bill is murky, at best. Mills, who battled with the tribes in court while she was attorney general, has said she supports aspects of the bill but opposes other provisions of it. A separate bill from the Mills administration to allow tribes to offer sports gambling appears to have better chances.

The Mills administration has yet to take a position on Golden’s bill currently pending in Congress. In a letter sent Thursday to the subcommittee, Mills’ chief legal counsel, Jerry Reid, said the office was reviewing the legislation and would file written testimony at a later time.

Currently, the tribes in Maine can only be included in federal Indian laws if they are specifically added by name. Chief Kirk Francis with the Penobscot Nation said it takes time and precious money to lobby Congress to be added to bill. And the tribes have only been successful once over the past 42 years.

"When Congress passes a law intended to benefit all of Indian County, we think that is what should happen unless a tribal nation or a state is expressly excluded from the law,” Francis said. “Expecting the Maine tribes to have to get ourselves added to every federal bill is non-sensical."

Golden's bill received mixed reactions from the subcommittee. Republican Jay Obernolte of California said Congress shouldn't consider undoing any part of the 1980s agreement without consensus from Maine's governor, congressional delegation and tribes. But Democratic Rep. Betty McCollum of Minnesota said she was "outraged" when Maine wouldn't allow the four tribes to participate in a pilot project created specifically for them by Congress specifically under the Violence Against Women Act.

"Therefore I very much support the bill that is in front of us today,” McCollum said. “It's not a clawback. It's a way to move forward. We cannot have a group of tribal nations be treated differently with their sovereignty than other tribal nations in this country."

In order to move forward, Golden's bill will have to receive a markup review by the full House Natural Resources Committee. And it is unclear if or when that would happen.