Former officials: Maine's settlement act intended to protect tribal sovereignty

Testimony may help amend act to original intention

AUGUSTA, Maine - The state's former chief negotiator has said that the legislation passed almost three decades ago to govern the Maine Indian Claims Settlement Act was meant to recognize tribal authority and sovereignty on Indian lands, not diminish it.

John Paterson, the state's former deputy attorney general, told the Tribal-State Work Group Nov. 19 there was no intention on the part of the state's negotiations to limit the Passamaquoddy, Penobscot and Maliseet tribes' authority over internal tribal matters or erode their sovereignty on tribal lands when the Maine Implementing Act was negotiated. The legislation was passed in 1980 to ratify and activate the Maine Indian Claims Settlement Act between the state and the three tribes.

The Tribal-State Work Group is reviewing possible amendments to MIA for legislation next year that would bring historic changes in the relationship between the tribes and the state.

The meeting was organized by the Maine Indian Tribal-State Commission, a body created by the MIA to continually review the act's effectiveness and make recommendations for changes to the Legislature.

Paterson's remarks support the tribes' contention that the settlement acts were intended, among other things, to uphold their sovereignty, not turn the tribes into ''municipalities'' as the state has argued successfully over the years in court rulings that have eroded tribal sovereignty to such things as funding, membership and leadership.

Because the word ''sovereignty'' was a hot-button term, Paterson said, ''We tried [to] not talk about sovereignty in our negotiations, but to talk about powers; and that's why we used the municipal model, because it carried with it a bunch of concrete powers. And to my way of viewing it, the tribes did have sovereignty and do have sovereignty.''

Under the act, the tribes were supposed to have the power, among other things, to manage their own land; run their own schools; zone their own lands; tax or not tax; run police, fire and health departments; and exercise environmental regulations, he said.

''The only limitation was that state laws would still apply so that, by way of example, a major industrial project or commercial project on tribal land would still be subject to the site location act; air and water pollution which might emanate from an industrial project on tribal lands would be subject to state regulation. So that the overlay was that state law would apply, but that the tribes would have sovereignty on their own lands to the extent that a town did,'' Paterson said, adding that in some cases tribal authority would exceed the powers of a municipality.

Ironically last summer, a 1st Circuit Court of Appeals ruling blocking the tribes' sovereign claim to regulatory authority over their historic waterways intersected with a 100-mile-long potentially toxic algae bloom in the Penobscot River caused by a paper company's unlawful chemical discharges.

Under the original intention of the MIA, the tribes would have the authority to enact meaningful water quality regulations on their aboriginal waterways.

The negotiators also didn't intend to limit the scope of the tribes' authority over internal affairs - they didn't really think about it, according to Paterson.

''I think we did the best we could under the circumstances and I think disputes have arisen about the meaning of internal affairs, which nobody anticipated back then. I mean, I can't tell you I knew in its entirety what internal tribal affairs mean. I certainly knew it meant deciding who is a member of the tribe and your method of governance. We didn't really discuss it beyond that, as I recall. I'm not sure we really knew,'' Paterson said.

MITSC Chairman Paul Bisulca welcomed Paterson's comments, saying: ''He validated everything the tribes have been saying for over a decade. We need to have legislation that will make some adjustments to the MIA to make it more in line with what was understood and what its intentions were.''

Penobscot elder Reuben ''Butch'' Phillips, who was on the tribal negotiating team 27 years ago, reminded the panel that Maine's governor at the time, Joe Brennan, ran on the campaign pledge of ''not an inch of land, not a penny of money'' to be contributed to the Indians by the state.

''So that's how the municipality thing came on. We did not give up our nationhood. We did not become a municipality. We wanted the services,'' Phillips said.

The most important part of the settlement for the tribes was ''that we would exercise self-government without interference of the state of Maine as they had controlled our lives for the last 160 years,'' Phillips said. ''We said that was never, ever going to happen again and we were satisfied that when [the act] was written, that it answered those concerns. ... And the state and the federal officials testified to that, and we believed that and we sold that to our people ... and that has come back to haunt us in the last decade or so by the court decisions.''

Tim Woodcock, former staff director of the Senate Select Committee on Indian Affairs during the negotiations, said he views tribal sovereignty as inherent.

''My own perspective - and I think the law supports me on this - is that tribal sovereignty is exercised by the tribes present in this gathering, and predates the U.S. It does not come from the U.S.; it does not come from the state of Maine; it comes from those communities as pre-existing entities, communities with political dimensions,'' Woodcock said.

Woodcock presented other evidence that the act was intended to uphold tribal sovereignty. When the legislation was first presented, it included a provision saying that U.S. laws giving special status to Indians or Indian tribes would not apply in Maine.

''That is not the way the law ended up,'' he said.

The law ended up providing that any law that generally applies in Indian territory would apply in Maine on condition that it would not affect the state's civil, criminal and regulatory jurisdiction.

Additionally, the act said that no law passed by Congress, which would affect Maine's civil, criminal or regulatory jurisdiction, could apply in Maine unless Congress specifically says so. That means the tribes have been left out of hundreds, if not thousands, of potentially beneficial bills since 1980 unless they specifically say Maine is included.

That provision has created enormous stumbling blocks for the tribes, according to Penobscot elder Chief James Sappier, a member of the tribal negotiating team 27 years ago. He said the tribes were told - and believed - that federal law superseded state law and that the tribes would receive the full benefits of federally recognized tribes.

''Why do the laws that suppress us apply, but the beneficial laws don't apply when we're supposed to be receiving the full benefits of federally recognized tribes?'' Sappier asked.

''We ended up with something that really is - I say it's corrupted. Somewhere, the Settlement Act is corrupted. I don't think we've been full participants and nobody really listens to us when we say what the Settlement Act means.''

Those limitations that have become ''burdens to the tribes'' are the unintended consequences of federal legislation and ruling-making that don't always take everything into consideration, Woodcock said. ''But the tribes and the state - I don't know why they couldn't go back and roll those back and give the tribes more latitude.''