Tribal-state relations

Having found no satisfaction in their recent passage through the state and federal court systems, the Penobscot Nation and Passamaquoddy Tribe now confront the unwelcome but widespread interpretation of the 1980 settlement act: Except in narrow cases of internal tribal matters, they are considered municipalities, and this designation applies to environmental questions beyond the tribes’ boundaries.

This legal interpretation affects practical questions of sovereignty, from fishing rights to bingo halls, and it is important to the identity of the tribes. But it is not the only issue worth discussing, and if the two tribes and Maine are to find some measure of harmony in the coming years, it cannot be the sole lens to view state-tribal relations.

The question most recently in dispute dealt with the tribes’ refusal to turn over

to paper companies documents under the Freedom of Access Act. The documents relate to a larger question of whether the state or federal government will regulate water quality in Indian territory. The tribes maintained that “the Maine Freedom of Access Act is inapplicable to [the Tribes],” because “the application of that law … would amount to state regulation of [the tribes’] governmental process, policies,

and procedures.”

Whether the Penobscot and Passamaquoddy have the right to regulate natural resources, as they assert, was partly answered in 1979, when they agreed to remove from state law their ability to affect air-quality classifications in nearby areas by changing the classification within their own territory, a power they otherwise would have had under the Clean Air Act. The repeal of that power turned on the passage of the settlement act, and Congress referred to the Clean Air Act in discussions of the limits to tribal sovereignty under the settlement. It’s hard to believe that what applies under the Clean Air Act does not also apply under the Clean Water Act.

Yet the tribes continue to point, accurately, to a 1980 report from the Senate Select Committee on Indian Affairs that declares tribal sovereignty would be strengthened under the settlement. The apparent contradiction of saying sovereignty would be strengthened while at the same time outlining its limits might be explained this way: The settlement strengthened sovereignty because it resolved once and for all the long-held presumption by the state that it could act any way it liked toward the tribes, including interfering in elections or dissolving the tribes altogether. That is, it specified instances of sovereignty where, before federal recognition, the state assumed there was none at all, although as a 1st Circuit Court decision (Bottomly v. Passamaquoddy Tribe) made clear the year before, the tribes had always enjoyed inherent, if limited sovereignty no matter what the state thought.

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The state’s view, of course, changed with the settlement act, but it is difficult to look back over two decades since the agreement – even while recognizing the benefits brought by the settlement money – and not believe that the tribes as sovereign entities got a lousy deal. Practically, the tribes cannot act in ways to defend themselves if that means affecting anyone outside tribal boundaries (which means Maine), yet also do not have, nor as sovereign entities could they seek, full representation in state government.

The resulting frustration has shown up countless times, with the Freedom of Access question, brought as far as the U.S. Supreme Court, only the latest example. More conflict undoubtedly will arise as the cumulative effects of the limits of tribal sovereignty are exposed. This is a situation neither the state nor the tribes should want.

Gov. Angus King, who met with tribal leaders last week, says he is willing to discuss any issue with the tribes except sovereignty; the tribes say all issues turn on sovereignty. Small questions between the state and tribes may still be solved under this condition, but working to avoid this stalemate, preferably out of court, should be a priority for both sides.

Maine could help first by acknowledging the tremendous pressure the tribes were under to sign an agreement that placed a lot more responsibility on them than on the state itself (which, after all, had the federal government to pay the settlement money). Maine could further help by recognizing the especially difficult “not world” – not fully sovereign, not a municipality, not a state entity, not treated like other tribes – these Maine tribes are required to live in.

The state could further recognize the hard work of the Maine Indian Tribal State Commission and propose it be strengthened by changing its membership to include tribal governors, the Maine governor and, perhaps, the chairs of key legislative committees, such as Judiciary. The commission provides the best place to work out differences, and it would be helpful to have in attendance the people making final decisions. Putting these leaders on the commission would also properly help to elevate tribal-state relations. They are unique, important relationships that deserve unique consideration by the state.

While the tribes should recognize and abide by the recent court rulings – as they agreed to do in the settlement act – the state should ask whether the act provides for even the possibility of a strong relationship based on mutual respect. If it does, the state has an opportunity to improve relations. If it does not, Maine has a much harder challenge ahead, but one that is inescapable.