Bill will facilitate, strengthen tribal-state relations

The Maine Indian Tribal-State Commission, or MITSC, is a creation of the Maine Implementing Act, Maine’s ratification of the land claims settlement between the Houlton Band of Maliseets, Passamaquoddy Tribe, Penobscot Nation, Maine, and the U.S. government. It exists to “continually review the effectiveness of the Act and the social, economic and legal relationship between the Passamaquoddy Tribe and the Penobscot Nation and the State.”

Soon the Houlton Band of Maliseets, who originally were not members of MITSC, will join thanks to pending legislation. And in the absence of a Maine Office of Indian Affairs, MITSC also helps to facilitate diplomatic relations between all the Wabanaki tribes, including the Aroostook Band of Micmacs who have a separate settlement agreement with the United States, and the state of Maine.

Though MITSC has responsibility for helping to facilitate tribal-state relations and resolving conflicts between sovereigns, it enjoyed limited success in the past. MITSC repeatedly found itself on the sidelines when disputes arose between the tribes and the state. Instead of pursuing diplomacy and dialogue to solve differences, the parties to the Maine Indian Claims Settlement resorted to litigation. The outcome has been a winner-take-all approach that has strained tribal-state relations.

When President Carter signed the Maine Indian Claims Settlement Act into law on Oct. 10, 1980, all the parties expected a new era of tribal-state relations would result stressing increasing understanding and mutual benefit. Unfortunately, the tremendous good will developed after years of difficult negotiations steadily eroded reaching a low point earlier this decade.

Maine’s recent effort to seek sole authority for issuing wastewater discharge licenses under the Clean Water Act pushed tribal-state relations to a near breaking point. During the process, three paper corporations that no longer do business in Maine filed Freedom of Access Act requests seeking documents from the Passamaquoddy Tribe and Penobscot Nation that the tribes considered protected under the internal tribal matters language of the Maine Implementing Act.

Twice MITSC considered this question in the context of the specific circumstances of the paper corporations’ Freedom of Access Act request. Both times MITSC commissioners found “that this decision does not reflect our understanding of the Maine Indian Claims Settlement Act and its companion Implementing Act.”

Though the political entity created by the parties to the Settlement Act offered an opinion, the state disregarded it. The Maine Supreme Judicial Court issued a decision May 1, 2001, compelling the Passamaquoddy Tribe and Penobscot Nation to turn over the documents requested as previously ordered by Superior Court Judge Robert Crowley. Litigation involving this case continues, currently before the 1st Circuit Court of Appeals, reflecting the unfortunate zero-sum approach of “I win, you lose.”

Tribal-state relations further deteriorated during the 2002-2003 initiative campaign concerning the Passamaquoddy and Penobscot desire to construct and operate a casino in Sanford. At a MITSC meeting held two days after the November 2003 casino vote, the Passamaquoddy and Penobscot MITSC representatives walked out, effectively shutting MITSC down for 15 months. In the eyes of tribal leaders, MITSC lacked political relevance and effectiveness.

From the low point of Nov. 6, 2003, determined work by MITSC and Wabanaki and state leaders has significantly improved tribal-state relations. MITSC has fully embraced its responsibility to monitor “the social, economic and legal relationship” between the signatories to the Settlement Act. MITSC no longer limits itself to advising but also acts to ensure recommendations supported by all the parties are implemented.

MITSC began rebuilding its political relevance by insisting that any issues any party wanted to consider would be discussed at the 2006 Assembly of Governors and Chiefs. For decades, the tribes have wanted to enter into dialogue with the state regarding the MIA to seek clarifying language more appropriate to their understanding of certain provisions such as internal tribal matters and the tribes’ municipal powers.

In response, MITSC developed a framework document for tribal and state leaders to discuss these issues at the 2006 Assembly that led to the creation of a Tribal-State Work Group to consider possible changes to MIA. The Tribal-State Work Group issued an interim report Dec. 6, 2006, and a bill before the Legislature, LD 1263, Resolve, To Continue the Tribal-State Work Group, proposes to continue it and expand its representation. The parties expect the Tribal-State Work Group to deliberate during the spring, summer and fall of 2007 and issue recommendations for consideration during the second session of the 123rd Legislature in 2008.

Maine and the Wabanaki tribes have much to gain by working together. The equitable resolution of differences in interpretation held by the signatories to the Maine Implementing Act will strengthen tribal-state relations. LD 1263, supported by all the parties to MIA, can serve as the vehicle to resolve some of these longstanding differences.

John Dieffenbacher-Krall is executive director of the Maine Indian Tribal-State Commission.