I am writing to express concerns with a recent column authored by three Harvard researchers (“Tribes in Maine left out of Native American resurgence by 40-year-old federal law,” Feb. 19). The column, and report upon which it was based, contends that the Maine tribes are economically underperforming their peers nationally because of the Maine Indian Claims Settlement Act (MICSA), and urges that Congress reconsider legislation from last year that would have made all future federal Indian legislation applicable in Maine automatically, regardless of potentially disruptive effects on the settlement the state and tribes reached in 1980.
Let me be clear: I am not arguing to maintain the status quo. My concern is only that the law be amended based on good information and objective analysis. Regrettably, the Harvard report falls well short of that standard.
For starters, the authors failed to disclose in their column that they were paid to prepare their report by the Wabanaki Alliance, a political advocacy organization. That is significant information.
The statistics presented in the report appear to be cherry-picked to support the thesis that MICSA is holding the tribes back economically. For example, the report cites data beginning in 1989, rather than 1980 (when MICSA became law), thereby overlooking the dramatic economic improvement the tribes realized from the influx of federal and state funds in the years immediately following the settlement. Similarly, the report compares the economic fortunes of the Passamaquoddy Tribe with the state of Maine as a whole, as opposed to Washington County, where it is located.
The report also contained errors that demonstrate the authors do not understand how MICSA works, like suggesting that the Indian Self-Determination and Education Assistance Act does not apply to the Maine tribes. In fact, MICSA provides that such federal Indian laws are generally applicable to the Maine tribes.
The authors also fail to mention that the Passamaquoddy Tribe and Penobscot Nation each received substantial trust funds under MICSA with exclusive authority to control the investment of those monies. And the Maine tribes are the only tribes in the U.S. that receive state aid to education – an enormous benefit.
Similarly, the authors suggest that state government has discretion to block the application of federal laws to the tribes. That is not so. MICSA has no such provision.
The report refers to examples of federal laws that the tribes have recently identified as not applying in Maine due to MICSA. But those laws have nothing to do with economic development. The Indian Health Improvement Act addresses licensing of health care professionals; the Stafford Act governs disaster relief, and tribal provisions in federal environmental statutes are regulatory in nature. The notion that these laws are the key to unlocking a new era of prosperity is, at best, dubious.
The tribes have extensive powers of self-government and can organize as governments with fewer restrictions than other federally recognized tribes. MICSA and the Maine Implementing Act bar the state from interfering in tribal governance. They have the power to run their own police, fire, education, public works, economic development and housing authorities; can do their own zoning, and can regulate hunting and fishing. They have all the same economic development tools of municipalities – with one major advantage.
The tribes do not have to tax real and personal property, and thus could attract development by offering property tax free havens. And just last year, the Maine Legislature, with Gov. Mills’ support, granted the tribes the exclusive opportunity to engage in mobile sports wagering. The authors acknowledge none of this, and fail to explain exactly what powers the tribes lack which the authors think would improve their economic condition.
The report leads one to believe MICSA broadly deprives the Maine tribes of the benefits of federal legislation. In fact, precisely the opposite is true. MICSA expressly provides that the Passamaquoddy Tribe, the Penobscot Nation and the Houlton Band of Maliseet Indians:
“…shall be eligible to receive all of the financial benefits which the United States provides to Indian nations, or tribes or bands of Indians to the same extent and subject to the same eligibility criteria generally applicable to Indians, Indian nations or tribe or bands of Indians.”
MICSA makes only a small number of statutes – none with a connection to true economic development – inapplicable in Maine because of their disruptive effects on state law.
In my view, the better way to approach this issue is for the tribes, the state and the congressional delegation to meet regularly to discuss whether there are individual federal laws that are not currently applicable in Maine that could offer the Maine tribes meaningful new economic opportunities. The parties could discuss potential statutory changes and negotiate possible legislation. Both Sen. Angus King and Gov. Mills have expressed openness to proceeding this way. The tribes should meet them halfway.
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