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Mills administration and tribes are still at impasse over state preemption of some federal laws

The State House is seen at dawn during the final week of winter, Thursday, March 16, 2023, in Augusta, Maine.
Robert F. Bukaty
The State House is seen at dawn during the final week of winter, Thursday, March 16, 2023, in Augusta, Maine.

The Mills administration has not changed it’s opposition to a bill sought by Wabanaki tribal leaders despite recent changes to the proposal.

Instead, a top administration official is reiterating a pledge to work with tribal leaders to address specific concerns about state laws that currently supersede federal laws – an piecemeal approach that so far has been rejected by the tribes.

The bill from House Speaker Rachel Talbot Ross states that any laws passed by Congress that apply to federally recognized tribes would also apply to the four Wabanaki tribes in Maine: the Penobscot Nation, the Passamaquoddy Tribe, the Houlton Band of Maliseet Indians and the Mi’kmaq Nation. Tribal leaders contend the state has blocked their access to many federal benefits under the Maine Indian Claims Settlement Act – the landmark 1980 agreement that resolved tribal land claims – and that has hampered economic development and other improvements in their communities.

But Jerry Reid, who is Gov. Janet Mills chief legal counsel, said Tuesday that a revised version of the bill could still have potential ramifications. Among other things, those changes sought to clarify the scope of the alterations and make clear that state law would still apply when it came to gambling on tribal lands.

"I think that the issues with this bill, as originally presented and as amended, are very serious and I don't think they are solvable," Reid said.

Mills and her administration have said that the bill as well as a broader push to for tribal sovereignty could lead to policy conflicts and eventually lawsuits if tribes assert their right to self-government and regulatory powers on lands they own throughout the state. Tribal leaders, on the other hand, contend the state continues to treat their communities more like “wards of the state” rather than as the sovereign nations that they are under federal recognition.

Speaking during a work session on the bill, LD 2004, Reid told members of the Legislature’s Judiciary Committee that he believes “the vast majority” of more than 150 laws passed since 1980 to the benefit of other federally recognized tribes already apply to the Wabanaki tribes. In a separate letter to the committee, Reid said the administration would work with the tribes to address specific conflicts with federal law, such as the Stafford Act and the Indian Healthcare Improvement Act.

“We reiterate our offer to work in partnership with the Wabanaki Nations and Maine’s Congressional delegation to seek enactment of such legislation without further delay,” Reid wrote. “We view that as a responsible alternative means of addressing this issue without the serious problems that LD 2004 presents by purporting to ‘adjust’ a set of unidentified state laws in unspecified ways, all of which deprives ordinary citizens of the ability to know what laws are in effect and under what circumstances.”

But Allison Binney, an attorney for the Penobscot Nation, told lawmakers that the obligation should be on the state to explain why tribes in Maine should be excluded from federal law and not vice versa where tribes are presumptively “carved out” from new laws.

“We want to change the presumption,” Binney said. “We want to shift the burden to the state so that the state has to say affirmatively and up-front and immediately why Maine should be carved out . . . Every other state in the lower 48 states operates under the regime that the tribes in Maine want and they don’t run into problems that can’t be solved. And the general public does know in these other states. So if it’s that here in Maine we have to do a little bit of educating the general public, I can speak on behalf of the Penobscots that we are willing to do that.”

The situation is unique to Maine because of the 1980 settlement agreement in which the tribes dropped ownership claims to the majority of lands in the state. In return, the Penobscot Nation, the Passamaquoddy Tribe and the Houlton Band of Maliseet Indians received more than $80 million to purchase hundreds of thousands of acres around Maine and for a federally managed trust. But rather than resolving disputes, the 1980 agreement spawned decades of court battles over issues like environmental regulations, fishing rights and tribal jurisdiction over waterways such as the Penobscot River.

The committee took no action on the bill on Tuesday but plans to take up the measure again this week or next week.