Speakers at a recent conference sponsored by the student-run Law Review of the Maine School of Law argued that it is long past due for the state of Maine to accord tribes in Maine “full sovereignty.” More recently, in the March 26 Maine Sunday Telegram, Jerry Reid, attorney for Gov. Mills, laid out the argument for expanding the autonomous decision-making prerogatives (and benefits) of these tribal groups beyond those stated in the federally approved 1980 Maine Indian Claims Settlement Act. Mr. Reid’s/the governor’s position, however, stopped short of granting these tribal groups “full sovereignty.” What they call for is principled compromise between the powers of the state and the autonomous decision-making powers of Indigenous individuals and tribes.
It is universally acknowledged that the historical treatment of Indigenous individuals and tribes by successive Massachusetts and Maine governments was deplorable. These discriminatory practices were slowly (too slowly) ended in the early-mid 1900s, culminating in the 1980 Settlement Act. The Settlement Act, though it significantly expanded the autonomous decision-making prerogatives of Indigenous individuals and tribes, did not grant “full sovereignty.” That status is now being sought by Maine tribal leaders. But the term “full sovereignty” raises a critical question – what does it mean? How should it be interpreted?
“Sovereignty” is the power to govern. “Full sovereignty,” as defined by Maine tribal leaders, means that Maine laws will no longer apply on tribal lands. Visitors to and people and businesses on tribal lands will be governed by applicable federal laws and by laws passed by elected tribal leaders. Maine laws would continue to exist in all other areas of the state. However, unlike tribal land in all other states, tribal land in Maine is widely dispersed. It now encompasses nearly 250,000 acres and about 25 separate parcels. The 1980 Settlement Act permitted an expansion of tribal land to 300,000 acres. As the additional 50,000 acres are acquired, it is likely that the number of separate parcels and their geographic distribution will increase. The back and forth of people, visitors and businesses subject to tribal law (on tribal land) and to Maine law (on non-tribal land) portends an unprecedented level of chaos. Given Maine’s patchwork of tribal land, “full sovereignty” seems untenable. Principled compromises seem necessary.
The logical consequences of “full sovereignty” as defined by Maine tribal leaders is that those visiting and living and working on tribal lands would no longer be bound by or have the benefits of Maine’s environmental laws, e.g., pollution control laws, the site law, shoreland zoning, well drilling laws, etc. Nor would they be bound by or have the benefits of Maine laws protecting the rights of individuals, e.g., minimum-wage, occupational safety, child protection and human rights laws, including laws protecting relationships and abortion rights. This too seems untenable.
Beyond the cross-border flow of people and business activities, infrastructure needs – e.g., roads, bridges, power lines, water lines, etc. – must be met. As well, natural phenomena – e.g., air masses, ground water, navigable waters – pass onto and out of lands subject at one point to tribal laws and at another point to Maine laws. What body of law (state or tribal) coordinates meeting infrastructure needs? Whose law (state or tribal) regulates natural phenomena? Again, the potential for chaos seems obvious. “Full sovereignty” puts infrastructure needs and natural phenomena at risk.
Rather than seeking to legislate an ill-defined status, “full sovereignty,” Maine tribal leaders will almost certainly be better served by putting a series of concrete proposals expanding tribal rights on the table – proposals that enlarge powers granted by the 1980 Settlement Act, but that leave the larger body of Maine laws in place statewide. Remember, “full sovereignty” is seemingly unworkable in Maine, given the fragmentation of tribal lands. The benefits it seems to offer do not outweigh the harms it will give rise to. In short, legislation granting “full sovereignty” is fraught with harms and risks (noted above); its asserted benefits for Indigenous individuals and tribes and the state are illusory. Indeed, “full sovereignty” arguably harms both.
In sum, the 1980 Settlement Act ceded a wide range of autonomous decision-making powers to Indigenous Maine individuals and tribes. Today, these powers and benefits can and should be expanded. Concrete proposals to expand the prerogatives of Indigenous people and tribes will sharpen the dialogue between the governor’s office and legislative and tribal leaders. They open the door to the fashioning of principled compromises and real benefits that will serve the interests of both the tribes and the state. Maine tribal leaders can begin the process by putting such proposals on the table. The door is open. The time to act is now.
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