How is it that every other state in the country with Indian tribes can accommodate the tribes in their states as being under federal jurisdiction, but here in Maine, our governor and her legal counsel find it too difficult?
A group from the Wabanaki Confederacy drums and sings last year before a news conference in support of the tribal sovereignty bills in front of the State House in Augusta in 2022. On Friday, Gov. Mills vetoed L.D. 2004, the latest bill that would have restored some elements of sovereignty to the Wabanaki Nation. Joe Phelan/Kennebec Journal, File
As a result, Gov. Mills on Friday vetoed the latest bill that would have restored some elements of sovereignty to the Wabanaki Nation.
Gerald Reid, Mills’ legal counsel, said in testimony that Maine shouldn’t enact L.D. 2004, An Act to Restore Access to Federal Laws Beneficial to the Wabanaki Nations, because it raised so many legal questions as to be “constitutionally vague.” Yet, more than 550 tribes all over the country have legal rights that our tribes here in Maine are denied.
In actuality, what has raised and continues to raise legal questions is deciding what federal laws affect the laws of Maine under the act, which has been in effect for the last 43 years.
My friend John Paterson, a longtime attorney like me, negotiated for the state the original 1980 deal with the tribes. Paterson says it isn’t true that the tribes weren’t aware of the compromise they were forced to make because the tribal negotiators and their legal counsel were. What I hear him saying is: A deal’s a deal, they knew what they were signing and they must stick to their contracts.
To me, whether the provision was or was not fully understood by the tribes isn’t the question.
The fact that the tribe agreed to the deal doesn’t mean it was fair. Why did the negotiators accept it? Because they had to. As Paterson recounts in a June 2012 Maine History article, when Tom Tureen, the tribes’ attorney, was asked at the Joint Committee on Indian Land Claims’ 1980 public hearing why the tribes agreed to it, he responded: “The answer is that (they) were obliged to if they wanted to effectuate the settlement of the monetary and land aspects of the claim which they had already worked out with the Carter administration.” And who would have known of the great number of federal Indian laws that were to be adopted in forthcoming years?
The negotiators may have taken some comfort in that the act created the Maine Indian Tribal-State Commission which, to quote Paterson’s article, “might serve as an official body to explore possible future changes in the agreement.” The commission has done so, recommending changes now sought by the tribes in this bill. Those changes have not been acceptable to the governor.
Opponents of this bill make two other arguments. Prove it to me, one argument goes. Prove it that nonaccess to federal laws is what stands in the way of the tribes’ capacity to achieve real progress in education, health and the economy. This “prove it to me,” beyond a reasonable doubt, is a burden of proof required in criminal cases. To me, the evidence in the research report released late last year by the Harvard Kennedy School clearly does so. However, for those who disagree, there can be little argument that the standard of civil cases – a preponderance of the evidence, i.e., more likely than not – hasn’t been met. This should be enough for them, assuming they aren’t bent on perpetuating control of the Maine tribes.
The second type of argument, made by professor Orlando Delogu in a recent Press Herald column (“In state with dispersed tribal land, ‘full sovereignty’ seems unworkable,” May 12), claims that because the tribal lands are scattered around the state on 25 parcels over 250,000 acres, “the back and forth of people, visitors and businesses subject to tribal law (on tribal land) and to Maine law (on nontribal land) portends an unprecedented level of chaos.”
We must ask: Why are the Wabanaki Nations’ properties scattered around the state? Historical documents in the Maine State Library suggest that the state deliberately dispersed the tribal lands to make sure that there wouldn’t be a nation within a nation. If there’s a chance of that, it strikes me as unfair to continue nonaccess to federal laws based on dispersed locations when that situation could well have been created by the state to disempower the tribes in the first place.
It’s time to give it up, all this palaver about what a deal is. A deal is just that – a deal, until another deal can be made. And we should do this, not just because it’s possible or because every deal is open to renegotiation, but because it’s the right thing to do.
My plea to the Legislature is: Stick to your guns, override the governor’s veto. You are doing what is long overdue for the tribes.
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