INDIAN TOWNSHIP — The historic land claims settlement agreement not only helped create a harmful legal vacuum within the Passamaquoddy tribe, it also put Maine tribes and the state on a collision course in regards to what powers each believes they exercised on tribal land.
The parties are still fighting over the act’s meaning today.
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State legal experts say the Maine Land Claims Settlement Act of 1980 was clear and that the tribe’s representatives were entirely aware of its meaning.
Under the law, the Passamaquoddy and Penobscots are “subject to the law of the state” except in regards to “internal tribal matters, including membership in the respective tribe or nation, the right to reside within the respective Indian territories, tribal organization, tribal government, tribal elections and the use or disposition of settlement fund income.”
These two tribes also have “exclusive authority” within their territories to regulate hunting and trapping and fishing “on any pond” of less than 10 acres. (A joint body – the Maine Indian Tribal-State Commission – has regulatory power over fishing on other ponds, lakes and rivers lying within or partly within tribal land.)
They can – and have – set up tribal court systems to try misdemeanor offenses between tribal members on tribal land, and their governments have the powers and privileges of municipalities.
And from the state’s perspective, that’s essentially it. Any other powers the Passamaquoddy or Penobscots might have enjoyed – either before direct contact with Europeans in 1604 or from 1976-1980 when they were under federal jurisdiction – were surrendered in the settlement.
“The fact is the tribes willingly accepted the jurisdictional deal as the price for getting the settlement,” says former Deputy Attorney General John Paterson, head of the state’s negotiating team at the time. “Later, for a new generation of tribal leadership, it all became that ‘the state pushed this down our throat and made us accept this.'”
Successive state attorneys general have vigorously defended this interpretation, including the current one, Janet Mills, who has advised that federal Indian laws “are not applicable in Maine if they affect Maine’s jurisdiction” unless Congress specifically stated otherwise in the law’s text.
“The overall message from the courts is that the settlement acts are what prescribe the relationship between the state and the tribes – not general Indian law,” she told the Legislature’s Judiciary Committee last year.
The tribes disagree. They believe their sovereign powers were given by their creator, and the only powers they gave up are those explicitly described in the Settlement Act: being subject to the laws and jurisdiction of the state in matters not internal to the tribe. The Act, they argue, gave them additional enumerated rights – the bond-issuing privileges of a municipality, for instance – but those were in addition to their God-granted ones, not instead of them.
“The state of Maine thinks that the tribes only have the powers given to them by the state of Maine, but if you ask the tribe they say, no, we were given those powers in addition to their sovereign powers,” says Stephen Brimley, a Belfast-based consultant on tribal justice issues and former director of the Penobscots’ judicial department, who says the state’s stance is incorrect.
Maine officials essentially hold that the Settlement Act cleaned the slate in 1980 with regards to the Maine tribes’ sovereignty, eliminating their inherent powers, including those that had been recognized by the federal government as a result of Tom Tureen’s successful suit against the U.S Secretary of Interior several years earlier.
“That’s not true,” Brimley asserts. “There is no case law in the country that would establish that premise, and to think otherwise is ludicrous.”
This basic difference of interpretation has poisoned relations between Maine and the tribes ever since, and two subjects have provided regular flashpoints: fishing and gambling.
In the fall of 1982, state authorities threatened to shut down high-stakes beano games the Penobscots were holding on their reservation at Indian Island near Old Town. The games – which had been going on since the tribe won federal recognition (and, thus, sovereignty) in 1976 – featured pots of up to $10,000, or 10 times the state limit at the time.
That winter the Penobscots sued in state court to permanently prohibit state authorities from interfering with their games, arguing that since the beano proceeds were used to finance tribal government operations, they were an “internal tribal matter” under the Settlement Act.
The court disagreed, saying the term applied to “at most, the relationship between the tribe and its own members” not “its operation of gambling activities for the public at large.” The games were shut down, depriving the tribe of $125,000 in annual revenues – or about a quarter of their operating budget at the time.
In 1996, the tribe sued in federal court to be allowed to conduct gambling under the 1983 Indian Gaming Regulatory Act. They lost, the court finding that post-settlement Indian laws do not apply to the Maine tribes under the Settlement Acts.
The tribe has tried several times since to gain state approval for a casino, a potentially enormous source of revenue. A 2003 bid to build a $650 million casino in Sanford was rejected by Maine voters by a 2-1 ratio, even as they approved another referendum question allowing the creation of what became the Hollywood Slots casino in Bangor. Voters rejected their 2007 racino proposal. This year the state senate declined to authorize a proposal to build a $150 million facility in Calais, even as a second non-tribal casino has opened its doors in Oxford.
For many in the tribe, it’s hard not to draw a harsh conclusion. “It’s related to race, color, and creed,” says Clayton Cleaves, the current chief at Pleasant Point. “If God was my attorney and Moses was my adviser and the Apostles were my team and we went to Augusta we would still get turned down because of the DNA of Native Americans.”
Fishing rights have also been contentious.
In 1997, a group of Passamaquoddy claimed the aboriginal right to harvest clams and scallops off-reservation without licenses, and argued that saltwater fishing was an “internal tribal matter.” Maine’s highest court disagreed. Today the Passamaquoddy government can issue certain permits for the harvesting of marine resources, but only because the state Legislature passed a law allowing it.
Last year marine patrol officers wound up in a standoff with Passamaquoddy elver fishermen, who were fishing with licenses issued by the tribe that were invalid under state law. The state’s attempt to bring criminal charges against the fishermen continues to chill relations with the tribe.
“The tribe is exercising its inherent right and responsibility to fish, and we’ve never stopped fishing elver at any time,” says Vera Francis, a tribal activist who also makes a living fishing. “You can’t grow and strengthen the traditional economy from traditional activities without full access to engage in those activities, to learn about them, and gain and maintain the knowledge.”
“We’re Passamaquoddy – this is who we are,” she says forcefully, echoing a widespread sentiment among tribal members in regards to their right to such natural resources.
Others point to the fact that when there are disputes over the meaning of the settlement act, it’s the state’s courts that decide who is right.
“There’s a basic unfairness in the fact that conflicts with the state on Indian issues come to State of Maine courts. Because, wait a minute, they are one of the sides,” says retired attorney Cushman Anthony, who served as chair of the Maine Indian Tribal State Commission in the early 2000s. “If one said we should take the dispute to the tribal courts, white people would complain, but it’s exactly the same situation.”
“I’ve heard people say there ought to be a way that it would go to federal court instead, and I tend to agree,” he adds.
Colin Woodard can be contacted at 791-6317 or at:
cwoodard@pressherald.com
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