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Here’s what you need to know ahead of vote on Gov. Mills’ veto of tribal bill

Clarissa Sabattis, Chief of the Houlton Band of Maliseets, foreground, and other leaders of Maine's tribes are welcomed by lawmakers into the House Chamber, Wednesday, March 16, 2023, at the State House in Augusta, Maine. Rena Newell, Chief of the Passamaquoddy Tribe at Sipayik, Edward Peter Paul, Chief of the Aroostook Band of Mi'kmaqs, Kirk Francis, Chief of the Penobscot Nation, and William Nicholas, Chief of the Passamaquoddy Tribe at Motahkomikuk, follow behind.
Robert F. Bukaty
Clarissa Sabattis, Chief of the Houlton Band of Maliseets, foreground, and other leaders of Maine's tribes are welcomed by lawmakers into the House Chamber, Wednesday, March 16, 2023, at the State House in Augusta, Maine. Rena Newell, Chief of the Passamaquoddy Tribe at Sipayik, Edward Peter Paul, Chief of the Aroostook Band of Mi'kmaqs, Kirk Francis, Chief of the Penobscot Nation, and William Nicholas, Chief of the Passamaquoddy Tribe at Motahkomikuk, follow behind.

Wabanaki Nation leaders, their close allies and the Mills administration are all gearing up for a crucial vote on a bill that will affect what laws and regulations apply on tribal lands in Maine.

Whichever way the vote goes, the outcome of the effort to override Gov. Janet Mills’ veto of the bill is guaranteed to impact state-and-tribal relations.

To Wabanaki leaders, a successful override would shrink state government’s influence over what happens on tribal lands while placing their nations on the same footing as 570 other tribes nationwide. Mills, meanwhile, warns the bill will lead to more uncertainty for businesses, additional legal battles and greater friction between the tribes and the state.

That vote could happen as early as Thursday. And the outcome is far from assured. So here’s a primer on the legislation, what’s at stake and the arguments from both sides.

What does the bill, LD 2004, seek to do? And why?

At its core, LD 2004 aims to ensure that any laws passed by Congress to benefit federally recognized tribes would also apply to the Passamaquoddy Tribe, the Penobscot Nation, the Mi’kmaq Nation and the Houlton Band of Maliseet Indians.

Right now, the four tribes have to be explicitly written into new federal laws that benefit other tribes.

That’s because of a phrase in the 1980 Maine Indian Claims Settlement Act that reads: “…no law or regulation of the United States . . . which affects or preempts the civil, criminal or regulatory jurisdiction of the State of Maine, including, without limitation, the laws of the state relating to land use or environmental matters, shall apply within the state.”

LD 2004 would essentially flip that language so that federal Indian laws automatically apply to the Wabanaki tribes unless they are explicitly excluded. One major exception would be gambling: even if LD 2004 became law, tribes still could not open casinos or other gaming facilities in Maine without state or voter approval. The bill would also still allow Maine statutes to preempt or supersede the federal Clean Water Act and federal mining laws on Indian lands.

Why do the tribes say the change is needed?

Negotiators from the tribes and the state agreed to that language before the settlement act was approved by Congress and signed by President Jimmy Carter. But over the ensuing decades, tribal leaders say it’s often been unclear when or if the state will invoke that preemption over federal law. And they accuse the state (under multiple governors) of impeding or blocking their access to some federal programs or benefits.

In a broader sense, tribal leaders are asking why laws and regulations that work everywhere else in the Lower 48 states won’t work here. And while they agree that the tribes signed the 1980 agreement, they argue that the 43-year-old law is due for a major overhaul given the movement toward greater tribal self-government in nearly every other state since then.

They also say that state preemption has held back their communities economically, particularly when compared to many of the other 570 federally recognized tribes.

As evidence, they point to a report released last December by Harvard University’s Project on American Indian Economic Development. Among other things, the report found per capita income has grown by 61% since 1989 among other Indians living on reservations but only 9% by Wabanaki Nation residents.

“We find that the consequence of handcuffing Wabanaki self-government is today visible in the stark economic underperformance of all four of the tribes in Maine – Maliseet, Mi’kmaq, Passamaquoddy and Penobscot,” the report’s authors wrote in their conclusion. “No inherent or Wabanaki-wide attributes readily explain why all of the Wabanaki Nations in Maine trail their peers by so much. The one attribute they all share is the restrictive construct of MICSA.”

Why is Gov. Mills opposed?

The Mills administration argues that the bill is overly vague in many sections, poorly worded in others and will merely spur more costly and contentious litigation. And it says the unintended consequences could be “effectively irreversible” because, under the 1980 agreement, a future Legislature would need to obtain support from all four tribes for any subsequent changes.

In her veto letter, Mills wrote that the legislation “would effectively repeal a broad swath of Maine laws governing public health, safety, and welfare in all Wabanaki Nations Territory.” That territory spans several hundred thousand acres across Maine.

“The bill does not identify exactly which state laws would be ‘modified,’ which is a serious problem,” Mills wrote. “This would create great uncertainty. How are Maine people, businesses and municipalities to know what laws are in effect where and under what circumstances? And when these inevitable questions arise, I fear they would only be solved through contentious lawsuits decided over the course of years, if not decades.”

Much of the formal opposition has come from the forest products and the paper industries because of concerns about how tribal regulation could impact their businesses. And those industries hold considerable sway in Augusta.

The Mills administration has also disputed the conclusions of that Harvard report, which was commissioned by the Wabanaki Alliance created by the tribes in 2020. One criticism is that the report’s economic comparison starts in 1989, nine years after the settlement act granted $81.5 million to the tribes to acquire 300,000 acres.

How many federal laws are preempted by the 1980 agreement?

That’s a matter of robust debate.

A 2019 research report conducted by the Suffolk University Law School’s Human Rights and Indigenous Peoples Clinic found that Congress passed 151 laws to benefit federally recognized tribes since 1980. That figure of 151 laws frequently comes up during debate. But the Suffolk University team did not evaluate which of those laws would have applied to the Wabanaki tribes.

The Mills administration contends that only a handful of federal laws are still preempted. Those include the Stafford Act that applies to disaster relief, the Indian Healthcare Improvement Act and the Clean Water Act.

Tribal leaders disagree and argue that no other tribe across the country has to deal with the uncertainty of knowing if a federal law will apply to them.

Mills says she is willing to work with the tribes and Maine’s congressional delegation to address any remaining conflicts individually rather than passing LD 2004. But again, tribal leaders say it’s much harder to change federal laws retroactively than to flip the state preemption paradigm created in 1980.

What are the prospects of a veto override?

It takes two-thirds votes in both the House and Senate to overturn a gubernatorial veto. Supporters appear to have that margin in the Senate, where the bill was approved 26-8. But the bill’s fate in the House is an open question.

The bill received initial approval in the House on a vote of 100 to 47 – so just barely above two-thirds. Holding every vote is never a guarantee, particularly when trying to override a governor on a complicated and contentious issues such as this. Mills and her allies are apparently lobbying lawmakers, and the Wabanaki Alliance is urging its supporters to rally at the State House on Thursday morning.

How does this fit into the broader push for tribal sovereignty in Maine?

Tribal leaders see this as an interim but important step in their campaign for greater self-government in Maine. That movement has gained considerable public and political support in recent years. But Mills also opposed a broader sovereignty bill, LD 1626, despite the bill enjoying strong backing among Democrats and progressives. That veto threat ultimately killed the billduring the last legislative session.

Penobscot Nation Chief Kirk Francis told reporters last week that the outcome of the veto override vote will be telling as to where the tribes stand in the Legislature on that broader sovereignty push.

Lastly, couldn’t Congress fix this?

Yes, it could. Maine Congressman Jared Golden, D-District 2, introduced legislation last yearto allow the Wabanaki tribes to benefit from all future laws passed by Congress. But the Mills administration opposed that more limited bill as well.

While Golden was able to get his bill out of the U.S. House by attaching it to a broader spending measure, Maine Sen. Angus King had the language stripped from the Senate version of the bill. Like Mills, the former two-term governor and now senator has advocated a more piecemeal approach of addressing specific concerns raised by the tribes.