Fast-tracked tribal bill faces opposition from Mills administration
Legislative leaders are trying to fast-track a major bill to put the Wabanaki Nations in Maine on the same legal footing as other tribes around the country. But the Mills administration remains opposed. And it's unclear whether a compromise is possible in the final weeks of the Legislative session.
The bill sponsored by House Speaker Rachel Talbot Ross, D-Portland, proposes a simple but sweeping change to resolve the long-standing tensions over the 1980 Maine Indian Claims Settlement Act. That 43-year-old agreement pre-empts federal law unless Congress explicitly includes Maine tribes in any new law or state government allows new laws to apply to tribal communities.
The bill, LD 2004, states that any laws passed by Congress pertaining to other federally recognized Indian tribes would also apply to the Passamaquoddy Tribe, the Penobscot Nation, the Mi'kmaq Nation and the Houlton Band of Maliseet Indians.
A Harvard University study conducted last year for the Wabanaki Alliance found that while most tribes nationwide have experienced extraordinary growth in recent decades as they gained greater ability to self-govern, the opposite has happened in Maine. Instead, the study found that Maine tribes have higher poverty and unemployment rates than Maine’s general population and most other tribal communities around the country.
Speaking Wednesday to members of the Legislature’s Judiciary Committee, Talbot Ross echoed the findings of that report from Harvard’s Project on American Indian Economic Development that blamed that economic disparity, in large part, on the state pre-emption allowed under the 1980 agreement.
"This will allow the Wabanaki Nations to become the economic engines that all Maine desperately needs, foremost among them our tribal citizens who might finally be able to have the opportunity to obtain the benefits of economic development that many other Maine people from Maine take for granted and that tribes throughout the United States enjoy,” Talbot Ross said.
LD 2004 is modeled after a proposal that Maine Congressman Jared Golden shepherded through the U.S. House last year only to see it falter in the Senate. But it goes even further than Golden's bill, as it would also apply retroactively to the more than 150 federal laws passed since 1980 that supporters say benefit tribes in other states but not tribal communities in Maine.
"This system where Maine just waves a wand and decides which laws apply to us and which do not is unfair and must be remedied,” said Chief Rena Newell with the Passamaqoddy Tribe at Pleasant Point. Newell was also a vocal advocate for tribal sovereignty while representing the Passamaquoddy people in the Maine Legislature in recent years, an effort that appeared to have growing public support but that failed to pass because of opposition from Gov. Janet Mills.
"Now is time for Maine to make a policy decision to move away from dynamics that were included to hold back the tribes and to instead support tribal self-determination,” Newell said.
Leaders from the Penobscot Nation, the Aroostook Band of Maliseet Indians and the Mi'kmaq Nation also spoke in strong support of the bill.
“The lack of access to federal funds has stunted the economic growth and health of our community,” Chief Edward Peter Paul of Mi'kmaq Nation said in a statement. “Our inability to have economic prosperity has created poverty, minimized educational outcomes, and manifested poor health for our people. We are just asking for an opportunity to self-determine the future and vibrancy of our community and future generations."
The proposal carves out two notable exceptions where federal Indian law would not apply in Maine. The first deals with prosecution of serious crimes. And the second says that Maine law would still supersede federal law when it comes to gambling. While the Wabanaki Nations will have the exclusive right to offer online sports gambling in Maine as soon as this fall, they cannot open a casino or other gaming venture without approval from the Legislature or voters.
But those carve outs were not enough to win the support of Attorney General Aaron Frey or the Mills administration.
Frey testified neither for nor against the bill but raised significant legal concerns during his testimony to the committee while the Mills administration opposed the measure.
"It creates an unconstitutionally vague statute that would not withstand court challenge,” said Gerald Reid, Mills’ chief legal counsel.
A former attorney general, Mills was frequently on the opposite side of the tribes in court battles over disputes rooted in disagreements over the 1980 land claims settlement. And as governor, she blocked an even more sweeping tribal sovereignty bill during the last legislative session because she said it was too broad and would create more legal uncertainty.
But Reid told lawmakers that the governor is willing to work with the tribes and Maine's congressional delegation to address specific federal laws that could benefit tribal communities here.
"The issues that LD 2004 seeks to address are issues that we believe absolutely can be addressed conclusively and cleanly in a way that doesn't give rise to any confusion for Maine citizens and any real threat of litigation,” Reid said. “And that's what our goal is."
The Legislature doesn't generally move quickly on complex issues. But Talbot Ross's bill is an exception.
Wednesday's public hearing was held just one day after the House Speaker's bill was printed and referred to the Judiciary Committee. And the lightning-fast speed didn't sit well with opponents like Ben Carlisle, the president of the Bangor-based forestry firm Prentiss & Carlisle.
"It's dangerous that this bill is being put forward with only one sunrise worth of time to consider it,” Carlisle said. “I think this is the birthplace of unintended consequences."
Carlisle told lawmakers that he doesn't oppose tribal sovereignty or correcting social and economic concerns raised by bill supporters. But he said one day is not enough time to determine how the sweeping bill could impact the environmental and natural resources regulations that his company uses to manage more than 1 million acres of forestland in Maine.
Representatives from the Maine Forest Products Council as well as some municipalities also testified against the bill.
Talbot Ross's bill has bipartisan support. Democratic Senate President Troy Jackson of Allagash is a co-sponsor, as is the Republican House minority leader, Rep. Billy Bob Faulkingham of Winter Harbor.
But Jackson and Talbot Ross are aiming to adjourn by June 21. So there's a strong possibility that the complex and controversial measure could join the hundreds of other bills that are being carried over to next year's legislative session.