As the House chair of the Judiciary Committee in the 130th Maine Legislature and as an attorney, I have worked hard to better understand the restrictions facing the Wabanaki nations and the unique federal and state laws – the Maine Indian Claims Settlement Act (MICSA) and the Maine Implementing Act (MIA) – that govern the tribes’ status. One issue raised to the Judiciary Committee was the challenge created by Section 1735(b) of MICSA, which states that no federal law passed to benefit tribes applies in Maine unless the law itself specifically mentioned the Wabanaki nations by name. No other federally recognized tribe is subject to such a sweeping exclusion, which has barred the Wabanaki tribes from accessing federal resources for disaster relief, domestic violence prevention and public health challenges.
A group from the Wabanaki Confederacy drums and sings April 20 before a news conference in support of the tribal sovereignty bills in front of the Maine Legislature in Augusta. Federal legislation to expand the rights of the Wabanaki tribes has passed the U.S. House of Representatives and now sits in the U.S. Senate. Joe Phelan/Kennebec Journal, File
While the state Legislature has attempted to address this issue, the Maine Attorney General twice made clear that he believes this issue is best addressed by Congress. That is why I was heartened to see U.S. Rep. Jared Golden introduce HR 6707, legislation that corrects this inequity prospectively. This legislation has passed the House of Representatives and now sits in the Senate. To encourage its passage, many constituents reached out to Sen. Angus King for assistance. Unfortunately, his response left me perplexed. For the sake of the many Mainers who received a similar response, I want to try to clear up some misconceptions.
First, Sen. King argues that any changes to the settlement act “must be the result of good faith negotiations between all parties, and not be unilaterally imposed by Congress.”
Upon close examination, it is clear that he believes the position of the “state” is embodied in one single individual: the governor. I think it is important for Mainers to remember that the state Legislature, a co-equal branch of government, passed legislation to address this issue on a bipartisan basis, and the bill died under threat of a veto. As a very recent legislator, I do not believe the state’s position should be reduced to the opinion of one of the three co-equal branches of government, the executive. Speaking of “all parties” involved in this decades long process, I would be remiss to fail to note that the U.S. Department of the Interior, which had to give its stamp of approval to MICSA in 1980, supports Rep. Golden’s legislation.
Second, Sen. King argues that “the Settlement Act was just that – a settlement – which entailed benefits and burdens to each of the parties.” This characterization is not accurate. While it is fair to say that the tribes and the federal government each realized benefits and burdens through the negotiations, one key actor – the state – gave up nothing and gained a great deal, recovering jurisdiction over tribal lands that it had lost in litigation in the 1970s while not contributing a single penny toward the settlement.
At the time, the state’s negotiators touted their perceived coup as a selling point. In 1980 testimony before the state Legislature, then-Maine Attorney General Richard Cohen described the settlement as “by far the most favorable state-Indian jurisdictional relationship that exists anywhere in the United States.” Continuing, he stated that MIA “recovers for the State much of the jurisdiction over the existing reservations that it has lost,” adding that “in all instances the State’s essential interest is protected.” Given this characterization, it is clear why Maine governors of all persuasions believe it is in their best interest to leave the settlement act unchanged, as if it were carved in stone.
Sen. King also claims that “… every line of the agreement was subject to extensive and detailed negotiation… nothing was ‘snuck into’ the agreement.” Again, I do not think this is accurate. Extensive analysis by researchers at Suffolk University Law School noted how “very late” in the drafting process Section 1735 appeared. As the Suffolk researchers concluded: “The absence of materials explaining how, why and by whom section 1735(b) was included … calls for a re-visitation of these sections,” which makes it clear that these documents should be considered living documents subject to change based on current realities.
While I disagree with many of the assertions in his constituent letter, Sen. King does end it by stating his intention to “continue working to help facilitate discussions between the Tribes and the State” on HR 6707. I trust that the senator is serious about that commitment; I have no reason to believe otherwise, and I know that this issue is too important and has come too far in this Congress to wither on the vine. Though I cannot speak for them, I do believe that many members of the recently sworn-in members of the state Legislature stand ready to participate in those discussions.
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