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Lawmakers, tribal leaders want to restore treaty language to printed copies of Maine Constitution

Chief Maggie Dana of the Passamaquoddy Tribe at Pleasant Point, right, listens to Tribal Rep. Rena Newell following the passage of a bill at the State House in Augusta, Maine, that allows the tribes to regulate their own drinking water and other water-related issues on Tuesday, April 12, 2022.
Robert F. Bukaty
Chief Maggie Dana of the Passamaquoddy Tribe at Pleasant Point, right, listens to Tribal Rep. Rena Newell following the passage of a bill at the State House in Augusta, Maine, that allows the tribes to regulate their own drinking water and other water-related issues on Tuesday, April 12, 2022.

State lawmakers heard testimony Tuesday about a proposed constitutional amendment that aims to reverse a nearly 150-year-old decision to stop printing a portion of Maine's Constitution related to the Wabanaki nations.

55 years after Maine separated from Massachusetts in 1820, members of a special commission charged with cleaning up the state's constitution voted to stop printing three sections of the document. One of those sections, known as Article X Section 5, required the state of Maine to continue honoring the treaties between Massachusetts and tribes living within the boundaries of the new state.

There are scant historical records to explain the decision. But retired lawyer Judson Esty-Kendall, who researched the history of the missing language for the Maine Indian Tribal-State Commission two years ago, said he believes it reflected attitudes by the Maine Legislature, governor and courts toward tribal communities at the time.

"To them, the relationship between the state of Maine and the Wabanaki people was guardian-to-ward: the state was the guardian and natives their wards,” Esty-Kendall told members of the Legislature’s Judiciary Committee. “And that is a sorry state about what people felt at the time. But I think that was probably more of what was going on."

Esty-Kendall was speaking as part of a hearing on a bill from House Speaker Rachel Talbot Ross to reverse that decision. Talbot Ross’s bill, L.D. 78, proposes to ask Maine voters whether they want to amend the state's constitution to require that Article 10 Section 5 once again be included in any printed copies of the document.

After all, Talbot Ross says that decision in 1875 makes it clear that the sections remain “in full force" even though they aren't included in print.

"My question is why are we making Maine citizens jump through hoops to find these words?” said Talbot Ross, a Portland Democrat who tribal leaders regard as a strong ally in the Legislature. “They are in effect. Article 10 Section 7 says so. Isn't it disturbing that we lack transparency in our own constitution? My answer is yes."

Penobscot Nation Ambassador Maulian Dana described the proposed constitutional amendment as a "powerful truth-seeking measure (for) truth that lives whether we acknowledge it or not." Dana also put the proposal into the context of the ongoing fight for greater state recognition of the sovereignty of the Wabanaki tribes.

"We have made some really great progress. So why not let these original treaty obligations be seen and printed?” Dana said. “The fact that they were hidden sends a message to the tribal nations that the agreements and the relationship with the state and our people are not important or worthwhile. We of course hope that that is not the case and that we can honor this shared history together."

After years of efforts, leaders of the the Passamaquoddy Tribe, the Penobscot Nation, the Houlton Band of Maliseet Indians and the Mi’kmaq Nation earned the support of the majority of lawmakers last year for a sweeping overhaul of a 1980 legal agreement between the state and the tribes. But the bill failed to earn final passage in the face of a veto threat by Gov. Janet Mills, who has signaled that she is more amenable to piecemeal revisions to the Maine Indian Claims Settlement Act.

The proposed constitutional amendment is one of several bills supported by tribal leaders pending in the current legislative session.

The 1875 commission also voted to refrain from printing to other portions of the state constitution. But Esty-Kendall and other said Tuesday that those sections dealt with the first meeting of the Maine Legislature immediately following statehood in 1820 and are no longer relevant or in effect. Article X Section 5 is still in effect, however, and states the following: “The new State shall, as soon as the necessary arrangements can be made for that purpose,

assume and perform all the duties and obligations of this Commonwealth, towards the Indians within said District of Maine, whether the same arise from treaties, or otherwise; and for this purpose shall obtain the assent of said Indians, and their release to this Commonwealth of claims and stipulations arising under the treaty at present existing between the said Commonwealth and said Indians . . .”

Maine Secretary of State Shenna Bellows, whose office maintains the state’s official records and re-prints the Maine Constitution every decade, testified in support of including the tribal treaties language in future editions. And Attorney General Aaron Frey said his office also supports restoring the language to printed versions of the constitution.

“While there are different view of why Article X Section 5 was excluded from the printed versions of the Maine Constitution, there does not appear to be any legal or policy reasons for that language to remain outside of the printed version,” Frey said. “So to promote transparency, and to ensure that all provisions of Maine’s Constitution are accessible to the people of Maine, Section 5 really should be included in printed copies.”

Talbot Ross's bill will have to receive support from two-thirds of both chambers of the Legislature in order to go out to voters for potential approval. The Judiciary Committee will hold a work session on the bill on a future date.