An editorial in the March 27-28 edition of the Bangor Daily News commenting on the Maine Indian Tribal/State Commission (MITSC) suggested that Gov. Baldacci should nominate new, “… sufficiently influential” members to the commission.”

As the longest-ranking member in MITSC, my experience tells me that the answer to solving issues upon which the tribes and the state of Maine disagree lies well beyond the idea of appointing “members of stature” from the Baldacci administration. The true reasons underlying MITSC’s recent dissolution are complex and much deeper than any one issue (like the casino referendum) and will not be resolved simply by making cabinet level appointments to fill state vacancies.

MITSC was created with the 1980 Maine Indian Land Claims Settlement Act so that provisions in that Act could be revised and clarified over time. Early on, MITSC realized that many of the issues with which it was wrestling contained a common thread: a general lack of understanding of the governmental nature of tribes. This realization, in part, resulted in MITSC developing an educational initiative which led to the passage of a state law requiring that Wabanaki history and culture be taught in our school systems. This law provides a path to a long-term solution, which, it is hoped, will result in future generations making better-informed decisions leading to improved state/tribal relations.

I attribute the above-mentioned lack of understanding of the governmental nature of tribes to a combination of historical facts and unwillingness, on the part of some, to accept the truths of Maine’s past. Most of the present day tribes in the northeastern United States came to be federally recognized later in history than our counterparts to the west. This is because the 13 original colonies, all located in the east, were in various stages of achieving statehood when early treaties were being drawn up.

In the case of the Penobscot Nation, the first treaties were with Massachusetts, followed by treaties with Maine when Maine became a state in 1820. Those treaties were later deemed invalid due to their non-compliance with federal Indian law, which requires that Congress ratify treaties with native American tribes. Federal recognition of the Penobscot Nation was formally confirmed in the late 1970s which led to a U.S. government obligation, by law, to represent the Penobscot Nation in its land claims against the State of Maine, resulting in the out-of-court settlement in 1980. This Federal Trust Responsibility is rooted in the U.S. Constitution.

The historical unfolding of issues in the northeastern United States have confused the majority of us, both inside and outside of government, about the true role of federally recognized tribes in the federal/tribal/state governmental structure of our country. A general lack of knowledge, combined with the inappropriate influence of corporate/ industrial interests, has produced an institutional roadblock to implementing successful solutions.

Although a few of MITSC’s initiatives have produced successful remedies, many more of it’s recommendations have either fallen on deaf ears or have failed at the judicial, executive and/or legislative branches of state government. The most recent example is the issue of applicability of the Freedom of Access Act to the tribes in Maine. When MITSC unanimously took the position that the tribes should not be required to provide documents to paper companies in a dispute over water quality, Maine did not listen.

While members of MITSC hope that roadblocks of this nature will become dismantled through time and re-education of the public, they are faced today with many current differences of opinion in the intent of the 1980 settlement act – differences of opinion that serve as fodder for many lawyers on both sides to chew on. In disappointment and frustration, my colleagues have often heard me refer to the Maine Indian Land Claims Act of 1980 as the “Attorney’s Employment Act of 1980.”

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With these thoughts in mind, I can say with confidence that if MITSC is to be successful in its mission, a change in its fundamental authority is required. Commissioners appointed in the past by state governors have been of the highest caliber and stature within the administration. They have taken the necessary time to understand the many complex inter-governmental issues at play and have worked cooperatively and collaboratively with tribal representatives, only to find their MITSC recommendations checked at the door of state government.

The MITSC structure for resolving differences in interpretation of provisions of the 1980 Settlement Act is an appropriate model. It provides for each government to have equal representation. It provides the forum to fully flesh out and discuss issues in a mutually safe environment. It has the institutional knowledge of the Settlement Act. It provides the opportunity for each side to select their representatives who they feel can best represent each party’s interest.

However, with no independent authority, and without a clear process to insure that its recommendations are seriously considered and implemented, MITSC’s role in improving tribal-state relations will continue to be compromised by the dominant political forces in Augusta.

John S. Banks has been an MITSC member since 1987 and director of Natural Resources for the Penobscot Nation since 1980.