The Mills administration is opposing a bill that would allow four federally recognized tribes in Maine to benefit from more federal laws, saying the bill would lead to a new era of litigation to resolve constitutional uncertainty.
The governor’s chief legal counsel, Gerald Reid, also contended that state lawmakers do not have the authority to grant tribes access to federal laws without the approval from the U.S. Congress. He reiterated Mills’ willingness to work with tribes on specific issues, rather than supporting sweeping reforms that would result in more litigation.
Gov. Janet Mills is opposing a bill that would allow four federally recognized tribes in Maine to benefit from more federal laws. Brianna Soukup/Staff Photographer, file
“She wants to be part of the solution,” Reid told lawmakers during a public hearing at the State House Wednesday. “Unfortunately, I don’t think there’s anything that the Maine Legislature can do unilaterally that’s going to solve the problem, and however well-intentioned this bill is, I do think that, if enacted, it would make the situation far worse.”
Tribal leaders argued the opposite, saying the bill would lead to fewer lawsuits with the state while allowing tribes and surrounding nontribal communities to address longstanding concerns about public health, childhood poverty and economic development by accessing federal laws and assistance that helps the nation’s 570 other federally recognized tribes.
Rena Newell, chief of the Passamaquoddy Tribe at Sipayik, said the tribes and state have been at odds ever since the enactment of the 1980 Maine Indian Land Claims Settlement Act, which allows the state to regulate and oversee tribal communities.
That agreement contains what tribal leaders called a last-minute addition without their consent that requires congressional approval before Maine tribes can benefit from federal legislation that affects the state’s jurisdiction.
“New conflicts seem to rise with every new law passed by Congress,” Newell said. “Now is time for Maine to make a policy decision to move away from dynamics that were included to hold back the tribes and to instead support tribal self-determination.”
L.D. 2004, sponsored by House Speaker Rachel Talbot Ross, D-Portland, and co-sponsored by six Republicans, including House Minority Leader Billy Bob Faulkingham, of Winter Harbor, would allow tribes to benefit from most federal laws – past, present and future. Jurisdiction over serious crimes and gambling would remain under the state’s purview.
Currently, Congress must specifically make Maine tribes eligible for any new federal program or law that affects the state-tribal relationship, which tribal leaders say can include almost anything. Talbot Ross’ bill seeks to flip that paradigm, forcing the state to lobby Congress to exclude tribes from any future legislation that applies to the nation’s Indigenous tribes.
The bill was released Tuesday and lawmakers on the Judiciary Committee held a public hearing on Wednesday in hopes of bringing the proposal to a vote before the first legislative session ends later in June. It represents part of the broader push for full tribal sovereignty, which is expected to be reintroduced later this year.
TRIBES’ GRIEVANCES
Newell said the state “wielded the settlement act as a weapon” a decade ago, when tribes tried to take advantage of a provision in the Affordable Care Act, allowing tribes to hire medical professionals holding out-of-state licenses. She said the state’s opposition prevented them from hiring a much-need pharmacist.
Tribal leaders provided other examples of past exclusions. They noted that the Penobscot Nation was prevented from being one of five tribes in the nation to pilot the federal Violence Against Women Act, which gave tribes the authority to prosecute non-native people who commit domestic violence against tribal members on tribal lands. It took eight years for the tribe to finally get included.
Leaders also pointed to the tribe’s exclusions under the Stafford Act, which allows other federally recognized tribes to seek federal disaster funding directly from federal agencies, rather than waiting for the state to declare an emergency. That funding could be used to address natural disasters and public health emergencies, like the opioid crisis, they said.
Clarissa Sabattis, chief of the Houlton Band of Maliseets, said the settlement agreement also prevents her tribe from accessing important resources under the Clean Water Act to improve water quality and restore native salmon populations, which are critical for sustenance, ceremonial and cultural practices.
Sabattis said she cannot begin investing scarce tribal recourses in new federal programs, because they never know when the state might make a jurisdictional objection, which can come long after a federal law has passed.
“As a result, for decades, we have watched as tribes across the country celebrate laws enacted by Congress that promote self-government and self-determination and economic development in a host of ways,” Sabattis said. “But we watch from the sidelines.”
Reid, however, noted that the Wabanaki Nations have benefited directly from federal programs, having received $423.6 million from federal grants, direct payments and contracts since 2019.
Mills spokesperson Scott Odgen said in a written statement that the governor hopes to find common ground through negotiations to provide “clarity and certainty, while avoiding confusion, litigation and unintended consequences that would inevitably result from L.D. 2004.”
“The governor does not want to see the Wabanaki Nations unfairly excluded from certain benefits that are generally available to federally recognized tribes, and she believes there is potential for negotiated agreement that would address this concern,” Ogden said.
“To that end, the governor is proposing to work together with the Wabanaki Nations to identify those statutes that they believe would provide significant rights or benefits and that are not applicable in Maine and then work with Maine’s congressional delegation to develop legislation to enact necessary changes.”
While the state’s relationship with tribes has improved under Mills, the two sides remain far apart on the issue of sovereignty. Mills did not attend the first State of the Tribes address in two decades earlier this year. She invited tribal leaders to a private meeting, but they have not taken her up on that request.
In December, Harvard Kennedy School released a report concluding that the settlement act is causing Maine tribes to fall behind other federally recognized tribes in addressing income growth, childhood poverty and substandard housing.
The study found that from 1989 to 2020, the average per capita gross domestic product growth for Maine tribes was 9%, which was far below the 61% growth for tribes in the other contiguous states and below the average of all U.S. citizens of 11%.
Talbot Ross became emotional while reciting the report’s findings, especially about childhood poverty rates, which ranged from 40.2% for at Passamaquoddy Indian Township to 76.9% for the Mi’kmaq, compared to 15% for the rest of the state.
“All of these numbers and figures are unacceptable,” Talbot Ross said, fighting back tears. “Every number, every figure represents a human being.”
UNINTENDED CONSEQUENCES
Reid dismissed the report because it was commissioned by the Wabanaki Alliance, a political advocacy group.
“I don’t think the Harvard report is an objective treatment of these issues,” Reid said. “If you review the Harvard report, it becomes apparent that it was presented in a way that was designed to reach a certain conclusion and the statistics that are presented.”
Attorney General Aaron Frey didn’t take a formal position on the bill and suggested that congressional approval may be needed for the bills to achieve its stated goals. Like Reid, Frey was concerned that the bill doesn’t specify exactly which state laws or program would be nullified by the bill.
“Each law is different,” Frey said. “It’s hard for me to think of how you would do this in a way that’s concise without specifically identifying what it is you’re changing so everyone knew exactly what was happening by virtue of that change.”
Other opponents, including forestry companies, also criticized the late introduction of the bill, leaving little time for public notice and deliberation with only a few weeks left in the session. They warned of unintended consequences.
Attorney Matthew Manahan testified in writing against the bill on behalf municipal, sanitary and sewer officials from 11 communities, including Calais, Carrabassett Valley, Lincoln and Veazie, arguing that the bill would give tribes the ability to regulate nontribal communities, companies and citizens.
Benjamin Carlisle, president of Prentiss & Carlisle, a Bangor-based forest management company, urged lawmakers to carefully consider the bill and its possible unintended consequences.
“After less than 24 hours, I have not been given an opportunity to consider all of these impacts,” Carlisle said. “It’s dangerous that this bill is being put forward with only one sunrise worth of time to consider. I think this is the birthplace of unintended consequences. It’s stunning and quite disheartening to me that this has played out like it has.”
While the administration opposed L.D. 2004, it fully endorsed a bill sponsored by Sen. Donna Bailey, D-Saco, that would adopt the Maine Indian Child Welfare Act, a proposal that has a bipartisan coalition of 80 co-sponsors.
That bill was presented as a backstop in the event the U.S. Supreme Court overrules or weakens the federal law that seeks to keep children who are removed from their homes because of neglect or abuse in their tribal communities.
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