Ignoring Maine history

Not nearly enough time has passed since the approval of the Maine Indian Claims Settlement Act in 1980 to explain the new, unusually strained misinterpretation of it by the Department of the Interior. Whatever else Interior officials are trying to accomplish by conferring to Maine Indians authority that the act specifically prohibits, they are surely and needlessly worsening relations between Maine and the Penobscots and Passamaquoddys.

At issue is whether Maine has the authority to regulate water quality within the territories of the Penobscot Nation and the Passamaquoddy Tribe. Late last year, Maine requested approval from the Environmental Protection Agency for a program called the National Pollutant Discharge Elimination System, under the Clean Water Act. The EPA checked with Interior, which concluded that water quality within Indian lands is an internal tribal matter and, therefore, not under the jurisdiction of the state. Currently, the EPA is considering granting only partial approval to Maine’s Clean Water Act request.

If water quality is an internal tribal matter, the King administration justifiably fears, permitting processes on the affected rivers will grow more elaborate and more expensive. Worse, further, broad environmental powers within Maine’s borders could be taken away from the state.

But the settlement act makes starkly clear that the state retains jurisdiction in this issue. Laws that are generally applicable to Indians nationwide apply in the state of Maine, the act reads, “except that no law or regulation of the United States which accords or relates to a special status or right of or to any Indian, Indian nation, tribe or band of Indians, Indian land, Indian reservation, Indian country, Indian territory or land held in trust for Indians, and also which affects or pre-empts the civil, criminal or regulatory jurisdiction of the State of Maine, including, without limitation, laws of the State relating to land use or environmental matters, shall apply within the state.”

That is a long way of saying that Maine specifically retained civil, criminal and regulatory authority, including jurisdiction over environmental matters. This is unmistakable, and applies directly to EPA’s question. The “internal tribal matters” referred to by Interior, on the other hand, refer to issues such as tribal membership and residency, tribal elections and the disposition of the settlement fund. Interior’s argument, passed off as a footnote in its opinion, that Indian authority under the Clean Water Act is not “a special status or right” badly misrepresents their entire idea of the status of Indians under the law. Their rights are “special” because they, alone among groups of Americans, have unique political status with the federal government, which is recognized specifically in acts of Congress, including the Clean Water Act.

That Maine Indians agreed to circumscribed sovereign status is found in an earlier draft of the settlement act, which actually excluded Maine Indians from rights generally assumed by Indians nationwide: “laws of the United States which relate or accord special status or rights to Indians … shall not apply in the State of Maine.” The law then spelled out particular exceptions to this. The problem with this passage was prospective — no new federal rights would apply to Maine Indians unless they were specifically identified as applying and were outside the rights reserved by the state of Maine. Because that prohibition was not the intent of the act, the language was switched, the not removed and instead of listing in the exceptions the remaining Indian rights, the law instead described the very broad rights of the state. In 1980 anyway, it was well understood that Maine Indians had forgone inherent special status or rights except where specified by the act.

A report from the Senate’s Select Committee on Indian Affairs at that time anticipated the confusion that Interior and the EPA are spreading today, and used concrete examples to make the intent of the act clear. Air quality was one topic used in the report to explain jurisdiction, but the same principles apply to water. “For example,” the report says, “although the federal Clean Air Act accords special rights to Indian tribes and Indian lands, such rights will not apply in Maine because otherwise they would interfere with State air quality laws which will be applicable to the lands held by or for the benefit of the Maine tribes.”

As unambiguous as that example is in throwing doubt on the Interior’s position, there is no question the settlement act is complicated and that honest disagreement over it continues to exist among the parties. But it is important to remember the settlement act was just that, a settlement, a compromise. Each of the parties — Indians, the state, the federal government — gave up something to make it work. Among the items given up by the Indians was some measure of sovereignty — they became in specific ways more like municipalities in Maine. Perhaps they would not make the same deal today, and perhaps today the federal government would seek other ways to bring the land claims to conclusion.

But that is not at issue with Interior’s opinion. The question is what does the 1980 act say and what was its intent. On both counts, the federal government has failed to respect the product of a long and painful process in Maine’s history. By doing so, they are compelling all citizens of Maine to repeat it.