A bill requiring the state to include its original treaty obligations to Indigenous tribes in the printed Maine Constitution is once again highlighting a chasm between the governor and the tribes and lawmakers in her own party.
Tribal members and supporters of restoring the printed language to the constitution argued Tuesday that the proposal is a “powerful truth-seeking measure.” The secretary of state and attorney general argued that it’s important to make the state’s constitution more transparent. However, the governor’s office says the legislation is “a misguided attempt to right a historical wrong that never occurred.”
Gov. Janet Mills speaks with a visitor in her office at the State House on Jan. 17 in Augusta. Robert F. Bukaty/Associated Press
The state’s obligations were inherited from Massachusetts when Maine became a state in 1820 but were removed from the printed version along with several other sections of the constitution after a constitutional convention and statewide vote in 1876. The treaties and other sections are technically part of the constitution even though they are not included in the printed language. One researcher told lawmakers Tuesday that it’s unclear why the language was removed from printed versions.
Tuesday’s hearing before the Legislature’s Judiciary Committee marks the first dispute of the session regarding tribal rights and sovereignty, and comes a week before Indigenous leaders are planning to deliver a State of the Tribes address before a joint session of the Legislature. The previous and only other tribal address took place two decades ago.
Momentum has been building for the state to restore tribal sovereignty that exists for the 570 other federally recognized tribes around the country but is limited in Maine by the state’s 1980 land settlement agreement.
Lawmakers overwhelmingly passed a bill to restore that sovereignty last session, but it died after Mills threatened to veto it. Mills has favored narrower reforms, including giving tribes exclusive access to online sports betting, while lawmakers have signaled they will continue to press forward on the issue.
The effort to restore language to the printed version of the constitution would not change the legal relationship between the state and the tribes, Attorney General Aaron Frey said. But the effort is part of an ongoing reckoning about Maine’s historical treatment of Indigenous communities.
House Speaker Rachel Talbot Ross, D-Portland, and Sen. Rick Bennett, R-Oxford, both submitted bills to resume printing the treaty language in the constitution, although Bennett threw his support behind Talbot Ross’s bill.
“Simply enough, our constitution should not contain hidden sections,” Talbot Ross said.
VOTER APPROVAL REQUIRED
Her bill, L.D. 78, would add about 2,100 words that comprise the articles of separation from Massachusetts to the constitution. That section includes a host of issues, including arming militias and repaying debts, in addition to the new state’s obligation to Indigenous tribes. A constitutional amendment would be needed to resume printing the section, so the bill needs two-thirds support of the Legislature and statewide voter approval to take effect.
The unpublished articles of the constitution are available online and can be viewed by contacting the secretary of state, Maine State Library or the legislative law library.
Two of the sections mention tribes, including this passage: “The new State shall, as soon as the necessary arrangements can be made for that purpose, assume and perform all the duties and obligations of this Commonwealth, towards the Indians within said District of Maine, whether the same arise from treaties, or otherwise; and for this purpose shall obtain the assent of said Indians, and their release to this Commonwealth of claims and stipulations arising under the treaty at present existing between the said Commonwealth and said Indians.”
While the language was ostensibly left out to make the printed constitution more readable, Talbot Ross said “you can bet there was more behind this.” She said people should not have to “jump through hoops” and conduct additional research to find all of the provisions of the state’s constitution.
“In every way that we operate, transparency is critical to truly have an elected government that decides on how we live, what the norms of our society are, and ultimately who gets to participate,” she said. “Our constitution is the document that not only instructs us how we should live, but what our rights are and the history that led us to the point we are at today.”
No one from the governor’s office testified in person Monday. But Jerry Reid, the governor’s chief legal counsel, said in written testimony that Mills opposes the legislation because it would “perpetuate this baseless theory” that it was removed to “conceal or evade Maine’s legal obligations under the treaties.” He said the language has never been disputed.
“It appears to be a misguided attempt to right a historical wrong that never occurred,” Reid said.
Including the language in the constitution, he added, also would lead people to believe that treaties from the 18th and 19th centuries have been revitalized and remain fully in effect, even though state-tribal relations are now defined by the Maine Indian Land Claims Settlement of 1980. That agreement replaced those treaties and settled tribal land claims to two-thirds of the state by setting aside $81.5 million to benefit the tribes and allowing the state to treat tribal nations like municipalities.
“Any legislation that could be interpreted as invoking ancient treaties as the legal basis for modern obligations would be confusing and potentially destabilizing,” Reid wrote.
Supporters disagreed strongly, saying failure to include the constitutional language would continue state efforts to erase its responsibilities to the tribes.
‘POWERFUL TRUTH SEEKING MEASURE’
Maulian Dana, a tribal ambassador for the Penobscot Nation and board president of the Wabanaki Alliance, called the proposal a “powerful truth-seeking measure.”
“The Wabanaki people, my ancestors, were given space in this document and that should not be ignored,” Dana said. “The fact that they were hidden sends a message to the tribal nations that the agreements and relationships between the state and our governments are not important or worthwhile. We hope that is not the case and they we can honor this shared history together.”
Darren Ranco, one of two Penobscot Nation members serving on the Maine Indian Tribal State Commission, pushed back on claims that resuming printing the language was largely symbolic and meaningless, since the section remains in full effect. For him, “it’s all about meaning.”
“This forms the basis of our social contract with the state,” Ranco said. “To maintain this as an omission serves to erase this definitive and auspicious beginning, which so many of us, including the esteemed members of the Joint Standing Committee on Judiciary, have worked so hard to un-erase.”
Frey and Secretary of State Shenna Bellows, both of whom are constitutional officers elected by the Legislature, testified in the support of the bill, saying all effective portions of the constitution should be printed.
Judson Esty-Kendell, a retired attorney who researched the removal of the language last year, said the historical record does not explain why the language was removed from the constitution. But he believes that cultural racism and the state’s longstanding view that tribes were essentially wards of the state, rather than sovereign nations, likely played a role.
“To speculate, I don’t think the language was hidden because of animus toward the Wabanaki tribes – I think the situation was actually worse than that,” he said. “The Maine establishment at the time … didn’t hardly even think about the tribes. To them the relationship between the state of Maine and the Wabanaki people was guardian and ward. … That is a sorry statement about the way people felt at the time, but I think that was probably more of what was going on.”
The committee is expected to hold a work session on the bill in the coming weeks.
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