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Tribal bill advances in Legislature with bipartisan support in crucial first vote

The morning fog lifts beyond the Burton M. Cross Building (left) and the State House, Wednesday, June 21, 2023, in Augusta, Maine. The Legislature is working to wrap up the current session.
Robert F. Bukaty
The morning fog lifts beyond the Burton M. Cross Building (left) and the State House, Wednesday, June 21, 2023, in Augusta, Maine. The Legislature is working to wrap up the current session.

Both chambers of the Legislature voted Wednesday along bipartisan lines to extend to the Wabanaki Nation the same benefits that tribes across the country receive under federal law.

In two crucial votes, the House and the Senate gave initial approval to a bill that is a top priority for Wabanaki leaders. And the vote margins in both chambers exceeded the supermajorities that would be needed to override a likely veto from Gov. Janet Mills, although the margin was razor-thin in the House.

The Mills administration has raised serious concerns about potential implications of the bill and has, instead, offered to work with the tribes and Maine’s congressional delegation to address specific discrepancies between state and federal laws.

The legislation, LD 2004, is a top priority for Wabanaki leaders in Maine this session. It would supersede the landmark 1980 Maine Indian Claims Act by explicitly stating that all laws passed by Congress to benefit other federally recognized tribes would also apply in Maine unless the four Wabanaki tribes are explicitly carved out.

Leaders of the Passamaquoddy Tribe, the Penobscot Nation, the Mi’kmaq Nation and the Houlton Band of Maliseet Indians contend that Maine state government over multiple administrations have invoked the 1980 agreement to block federal laws from applying to tribes in Maine. And they say that preemption has harmed their communities economically, contributing to higher poverty and employment rates when compared to the state as a whole and other federally recognized tribes around the country.

State Rep. Aaron Dana from the Passamaquoddy Tribe said the change will benefit surrounding communities and the state because tribes will be more economically self-sufficient.

"Today is a day when we can take a major first step forward in modernizing the 40-year-old Maine Indian Land Claims Settlement Act,” Dana said on the House floor. “This not a sweeping change, though. This is about first incremental steps towards a bigger change."

That “bigger change” is a reference to the broader sovereignty push that tribal leaders have made in recent years, picking up significant public support as well as large numbers of allies in the Democratic caucuses at the State House. But Wednesday's lopsided votes illustrate the inroads the tribes have made with Republicans this past year.

Twenty-one House Republicans voted for the measure during the initial vote along with all but two of the Democrats who were present.

"We aren't reinventing the wheel,” said Republican House Minority Leader Billy Bob Faulkingham of Winter Harbor. “Five hundred other federally recognized tribes benefit from these laws across the nation. We can allow these laws to benefit our tribes the way they are supposed to while also maintaining the protections in the 1980 agreement."

The Mills administration counters that the bill is overly broad and warns that it would only lead to legal conflicts as well as regulatory confusion over whether state or tribal regulations applied on lands.

The administration also argues that the tribes already have access to all but a handful of the federal laws. According to an analysis by Mills’ chief legal counsel, Jerry Reid, most of the 151 federal laws enacted since 1980 “address obscure issues and do not, or would not, provide any clear benefit to the Wabanaki Nations.”

Writing to the Judiciary Committee that reviewed the bill, Reid said he identified eight federal laws that do not apply in Maine because of the 1980 agreement and that four of those “could be made applicable in Maine without controversy or delay by agreed-upon federal legislation.”

Reid also reiterated the administration’s offer to work with the tribes on other policy conflicts.

“We view that as a responsible alternative means to 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,” Reid wrote earlier this month.

But Sen. Donna Bailey, a Saco Democrat who serves on the Judiciary Committee that reviewed the bill, said changes made to the bill will address those concerns as well as issues raised by Attorney General Aaron Frey. Bailey also accused the Mills administration as well as other opponents, including the forest products industry, of making vague warnings without offering ways to improve or clarify the bill.

“Forty-three years of hindsight has shown that the settlement acts regime is harmful to the Wabanaki Nations and the surrounding rural communities,” Bailey said. “There has been no meaningful explanation for continuing the state’s ability object to the application of beneficial federal laws without justification or parameters.”

The measure faces additional votes in the House and Senate. Should it pass both chambers, Mills would have 10 days to sign, veto or allow the bill to become law without her signature. It would require two-thirds votes in both chambers to override a gubernatorial veto.