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s the settlement money began coming in and investments were being made, tribal members started becoming aware of an unexpected but extremely serious implication of the land claims deal.
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Until 1976, when attorney Tom Tureen won them federal recognition, the Passamaquoddy were entirely subject to state jurisdiction in virtually all matters: criminal and civil law, labor and environmental regulation, taxation and electoral law. They were exploited – officially termed “imbeciles” and wards of the state – and denied constitutional rights such as the right to vote, but when tribal attorney Don Gellers or tribal governor George Francis had fought for tribal members’ rights, they knew what body of laws were supposed to apply, and which ones the state or federal government were violating.
From 1976 to 1980, the Passamaquoddy’s legal status was also clear: It was a federally recognized tribe, subject to the same legal framework as long-before-recognized Western tribes such as the Navajo or Lakota Sioux. As such, they were not subject to the laws or taxes of the state of Maine, and the federal government had sole authority over felony-level crime on their reservations. Tribal members could count on the protections enshrined in the Indian Civil Rights Act, a 1968 law that extended to them most of the guarantees in the Bill of Rights – among them freedom of speech, due process, protection from unreasonable search and seizure, equal protection for all members before the law – providing protection against any would-be tyrants in tribal government.
But with the signing of the Maine Indian Claims Settlement Act in October 1980, those one-time legal certainties went out the window, laying the groundwork for mischief.
Under the settlement, Maine tribes agreed to a unique and, as it turns out, dangerously ambiguous jurisdictional arrangement. Under pressure, they agreed to be subject to the laws and jurisdiction of Maine, except for “internal tribal matters” and hunting and certain fishing rights on tribal territory.
What is and is not an “internal tribal matter” has remained uncertain ever since. Do state public records laws apply to the Maine tribes, which receive state and federal grants and funds? Does the tribe have to reveal its budget to its members, as other governmental entities in Maine must? Do state labor laws apply to tribal entities employing tribal members on tribal land? Does the state Constitution apply to tribal members living on the reservations? Whistleblower statutes? Anti-nepotism rules? Laws requiring the holding of open and honest elections?
Nobody knew exactly. The only way to find out was to take a specific matter to court – if, that is, the court would even hear the case.
Probe the matter further and it gets more ominous.
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s a result of the agreement, no federal Indian law – whether passed before or after 1980 – is applicable within Maine if it “affects or pre-empts the civil, criminal, or regulatory jurisdiction of the State of Maine” unless Congress explicitly specifies it is to apply to the Maine tribes. Maine’s attorneys general – including the current one, Janet Mills – have emphasized this point ever since.
This raises the possibility that Maine Indians living on reservations may not have the protections of the Indian Civil Rights Act. In anything deemed an “internal tribal matter” on these reservations, the Bill of Rights may not apply, leaving individuals vulnerable to unscrupulous tribal officials.
Add to that a long list of federal laws – the Violence Against Women Act, the Tribal Law and Order Act, the Indian Gaming Regulatory Act – that don’t specifically mention the Maine tribes, and the complications only grow.
“I think the Maine Land Claims Settlement Act is one of the most problematic agreements out there because of this gray area that exists in so many areas,” says Stephen Brimley, a consultant on Indian justice issues who recently served as director of the Penobscot tribe’s judicial system. “It’s a document that in my mind has created more problems than it solved.”
Making matters worse: Anything that came to be deemed an “internal tribal matter” was plunged into a nascent system in which the normal checks and balances on power had yet to be constructed.
Tribal members soon discovered that if they had a grievance against a tribal governor, official or council decision, they in effect had no reliable way to seek justice.
The Passamaquoddy learned this well in the summer of 1986.
Traditionally, all members of the Passamaquoddy tribe had the right to vote in tribal elections, regardless of whether they lived in Eastport or Bangor or Detroit, Michigan, or right on the reservations, a practice that had also been encoded in the Maine laws that governed tribal elections and government prior to federal recognition in 1976.
But at a tribal caucus election held Aug. 5, 1986 – normally a routine affair to narrow the field of candidates for tribal council and governor – the tribal government asked members to vote on whether to disenfranchise all tribal members not living in Washington County. Since one had to vote in person, few of the affected tribal members cast ballots, even though they constituted about a third of the electorate.
The measure also banned anyone who hadn’t lived on reservation for at least two years from running or holding office. This disqualified, among other people, the sitting governor at Pleasant Point, Clive Dore.
Proponents of their disenfranchisement argued that the “off-reservation vote” had been abused. “Relatives and friends of candidates have been shipped in by the carload during tribal elections, from as far away as New York and the Canadian provinces, to support candidates and issues they knew nothing about, and the consequences of which would be felt only on the reservation,” tribal member Roger Gabriel Ritter wrote the Bangor Daily News at the time.
If so, however, it was still unclear why a tribal member in Machias or Cherryfield would be more versed in reservation issues than one in St. Stephen, New Brunswick, just over the border from both reservations.
“We have a lot of Passamaquoddy living in St. Stephen and St. Andrews who have been family for a long time,” says Bobby Newell, who became chief at Indian Township in that contentious election year. “I’ve gone back and forth on this issue in the past, but now I think they should have a say in what happens here, because they should have a say in what happens in the land and in laws that pertain to every Passamaquoddy. After all, one day they may retire here.”
The proceedings were chaotic. “The caucus was a carnival or circus, noisy with many sideshows,” an unnamed tribal council member told the Bangor Daily News shortly thereafter. “Order did not prevail.” When the dust settled, the measure had been approved.
The move was unprecedented for a Maine tribe. Around this time, the Penobscots rejected a similar provision and to this day allow nonresident members to vote, since the resources, settlement funds and tribal government belong to all members. “It’s been that way since as long as I can remember,” says Wayne Mitchell, the Penobscot’s current representative to the Maine Indian Tribal-State Commission.
The Passamaquoddy’s decision was extremely controversial, as it may have violated the Indian Civil Rights Act, which guarantees equal protection – presumably to include voting rights – to all tribal members. Former Chief Allen Sockabasin and Gail Dana, both of whom were living in Penobscot County at the time, were shocked when they were turned away from the voting booths at the general election that September.
“I was born Passamaquoddy, grew up at Indian Township, was governor there and served on the council, and suddenly I was disenfranchised because I was living in Bangor,” Sockabasin says. “They just took away my right to vote just like that!”
In the rest of Maine, the United States and most of Indian country, the solution would have been obvious: Challenge the constitutionality of the act in court.
But the tribe had no constitution, and that, as Sockabasin and Dana were about to learn, would make challenging the government’s actions effectively impossible.
Colin Woodard can be contacted at 791-6317 or at:
cwoodard@pressherald.com
Coming tomorrow:
Jurisdictional limbo
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