Maine tribes hope settlement act revisions will affirm sovereignty


AUGUSTA, Maine - When more than 200 Wabanaki people and their supporters held a two-day march and rally five years ago to protest a state order compelling the Penobscot and Passamaquoddy tribes to hand over documents to Maine's powerful paper companies under the state's Freedom of Access Act, they were protesting an assault on tribal sovereignty and immunity.

Now, state lawmakers are considering a bill to support the work of a study group that tribal leaders hope will effect revisions to a state law that will affirm tribal sovereignty and usher in the government-to-government relationship the tribes and state should enjoy under the law.

The resolution ''To Continue the Tribal-State Work Group'' would give a legislative stamp of approval to the group that was created last summer by an executive order from Gov. John Baldacci.

The work group consists of two state senators; two state representatives; seven representatives from the Aroostock Band of Micmacs, the Houlton Band of Maliseet Indians, the Passamaquoddy Tribe of Indian Township, the Passamaquoddy Tribe at Pleasant Point and the Penobscot Nation; one governor-appointee; and one representative from the Maine Indian Tribal-State Commission.

The group will review the Maine Implementing Act, which was passed to put into action the Maine Indian Land Claims Settlement of 1980, a precedent-setting land claim lawsuit that was the first to use the 1790 Non-Intercourse Act.

The work group has an early January 2008 deadline to produce a report of its findings and recommendations for legislative action.

The Maine Implementing Act also created the Maine Indian Tribal-State Commission, a nine-member commission that includes four people appointed by the state, two Passamaquoddy members, two Penobscot members and a chairman appointed by the commissioners. Current pending legislation will add two representatives from the Houlton Band of Maliseet Indians.

The commission was charged with reviewing the effectiveness of the Implementation Act and the relationship between the tribes and states, among other responsibilities.

But the commission didn't function as planned, said Penobscot tribal councilor and former Chief Jim Sappier.

''From the tribes' perspective, we had a difficult time for the last 25 years getting here. It looked like it was always one-sided for the state. We always ended up in court with high legal fees for the tribes. I think that was a mistake,'' Sappier said.

The friction between the tribes and state centers on the interpretation of settlement act language dealing with ''internal tribal matters'' and delineating the ''municipal powers'' of the tribes.

From the state's perspective, ''internal tribal matters'' has meant the tribes have the authority to elect their leaders and decide which are tribal members. From the tribes' perspective, ''internal tribal matters'' means what it has meant since time immemorial - that each tribe is an independent, distinct sovereign nation with the inherent authority of self-government and the right to have a government-to-government relationship with other sovereign entities.

The 25 years of court battles and contentiousness between the state and tribes culminated in November 2003, when state residents voted to approve a non-Indian racino while denying an Indian casino.

''I looked hard at that vote and I reviewed it over and over. I don't want to believe that this was a racist vote against Indians. I really want to say it was [an issue of] location. However, I still have lingering questions,'' Sappier said.

''If the vote was racist after 25 years of the settlement act, perhaps maybe if this [new work group's efforts] doesn't go, there might have to be a federal review. The tribes could request it based on discrimination and not carrying out the settlement act,'' Sappier said.

Two days after the casino vote, the tribes walked out on the commission. The commission was essentially shut down for more than a year, but has revived and become increasingly activist since then.

Paul Bisulca was elected chair in December 2005 and is the first person of Wabanaki heritage to serve as a regular commission chair. John Dieffenbacher-Krall became the executive director in September 2005. He has extensive experience in as executive director of the Maine People's Alliance, the Maine People's Resource Center and the Maine Coalition for Tribal Sovereignty.

''With the leadership on the commission now, it's possible there can be some significant changes. The tribes aren't in any better economic position now than they were 25 years ago. Both the Passamaquoddy and the Penobscot are the biggest employers in their areas, but think of how they could have been doing business if they'd had a sweet-tasting settlement act,'' Sappier said.

The commission was instrumental in encouraging the creation of the work group.

''It's the thing that has been most important to tribal leadership,'' Dieffenbacher-Krall said.

''I can't emphasize enough what a sea change it was to have Gov. Baldacci say, 'I will entertain changes to the Maine Implementing Act,' because every governor before this has said no. It was a huge breakthrough,''

Dieffenbacher-Krall said.

''The favorite phrase people liked to use was, 'A deal is a deal. The tribes were represented by counsel and they knew what they were signing. This act will never be changed': which is ridiculous because a negotiated act is a living agreement that they knew would be changed over time as different understandings came and as the capacity of the tribes increased,'' Dieffenbacher-Krall said.

The work group has already benefited the Houlton Band of Maliseet Indians, said Chief Brenda Commander, a member of the group.

''We're getting two seats on the Maine Indian Tribal-State Commission and that came out of the work group. It's been very difficult for our tribe from the very beginning of the settlement act. The people in the state government didn't really look at us as a bona fide tribe. We were invisible for so long that they ignored us,'' Commander said.

But other positive things have happened, including the first Indian children's welfare agreement, and the tribe is optimistic about the work group's outcomes, Commander said.

''It seems the state never really wanted to talk about the implementation of the settlement act and changing some of the language. It's something the tribes have always wanted to talk about, so it's a very positive step to have the work group,'' Commander said.