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Penobscot chief calls on Obama to help stop state erosion of tribal sovereignty

INDIAN ISLAND, Maine – When the Maine Indian Claims Settlement Act was passed in 1980, a Senate report celebrated the event with the statement that “from this day forward the tribes of Maine will be forever free from state interference when it comes to matters internal to their tribes.”

Fast-forward 30 years and the tribes can’t even develop the resources on their lands without the threat of state interference, or worse.

Penobscot Indian Nation Chief Kirk Francis has written to President Obama seeking intervention on behalf of Maine’s Wabanaki tribes to restore both the spirit and intention of the 1980 law that was meant to enhance the tribal nations’ inherent sovereignty, not increase and consolidate state power over the tribes.

“The tribes are under constant attack by state government through its courts and its political process to erode the spirit of the agreement and our inherent sovereignty in order to protect corporate interests and to perpetuate the treatment of the tribes as wards of the state,” Francis wrote to Obama Dec. 1.

Last month, Houlton Band of Maliseet Indians Chief Brenda Commander wrote a similar letter to Obama.

The letters were inspired by the first Tribal Nations Conference Obama hosted in early November in fulfillment of a campaign promise, and his campaign statement that “treaty commitments are paramount law.”

“Congress passes legislation for the benefit of all federally recognized Indian tribes, but you have a lot of state interference blocking tribes from accessing those tools, which to me is blocking the trust responsibility of the federal government and eroding tribal sovereignty that’s recognized in the Constitution,” Francis said.

Part of the problem in Maine, Francis wrote, “is that language was inserted without tribal approval into the federal portion of the Settlement Act that provides that laws generally applicable to Indian tribes will apply in Maine except to the extent such laws affect or preempt state jurisdiction.”

When the Penobscot signed the Settlement Act, they were assured that any laws that applied to federally recognized tribes would apply to them, “but the state has argued successfully in its courts that if it (the legislation) doesn’t specifically mention us by name that it doesn’t apply,” Francis said.

That means the state and courts have successfully deprived the Penobscot and other Maine tribes of basic rights enjoyed by other nations, including the right to conduct gaming, the right as a sovereign nation to protect its government documents from Freedom of Information Act requests that serve the corporate interests of the state’s big paper companies, the right to develop resources on tribal land and more.

For example, Penobscot developed a plan over the past five years for two wind power projects on its land in western Maine. Much of the initial planning has been done, but the project has been blocked by Attorney General Janet Mills, who claims that only the state has the authority to issue permits for the project, Francis said.

“We say they don’t, but investors with $150 million investments aren’t crazy about being in the middle of that pissing contest,” Francis said.

A recent report in the Bangor Daily News quoted Mills saying there were “no special limitations or restrictions” regarding tribal wind farms or other projects. Mills said she has spent “a great deal of time” assisting Maine tribes with legislative and regulatory issues, including a provision to allow a tribal court for the Houlton Band of Maliseets, the report said.

Asked to clarify her position on permitting authority on tribal land, Mills avoided a direct answer and instead quoted attorney Tom Tureen, who represented the Maine tribes in negotiating the Settlement Act, which Mills referred to as “the bargain.”

“The tribes’ attorney, Tom Tureen, summarized the bargain as follows: ‘For the state this meant, among other things, understanding the tribes’ legitimate interest in managing their internal affairs, in exercising tribal powers in certain areas of particular cultural importance such as hunting and fishing, and securing basic federal protection against future [loss] of land to be returned in the settlement. For the Indians it meant, among other things, understanding the legitimate interests of the state in having basic laws such as those dealing with the environment apply uniformly throughout Maine,’” Mills said.

Paul Bisulca, chairman of the Maine Indian Tribal-State Commission, refutes Mills claim of helpfulness toward the tribes.

“She never had anything to do with the Maliseet and its tribal court. That was part of the Tribal State Work Group recommendations. It’s not like she jumped in and did something Herculean to help the Maliseets establish a tribal court.” In any case, the Maliseets as a federally recognized tribe and should not be required to seek state permission to establish a tribal court.

The attorney general’s office has the reputation of “actively trying to stymie anything the tribes try to do,” Bisulca said. “That’s always been the case. We did see some changes with (former attorney general) Steve Rowe, but in my opinion, it’s gone back to business as usual and that means the AG blocking any legislative fixes to the Settlement Act.”

In his letter to Obama, Francis cited the wind energy project as an example of the way the state has successfully distorted the Settlement Act to impose its will on the nations.

“‘While there are many other examples, the important point we want to emphasize is our sense that the federal government has failed in its trust,” he wrote.

The hope is for the federal government to examine the evidence of the past 30 years and clarify the meanings of the Settlement Act and tribal sovereignty to the state.

“The state needs to get back to the spirit of the agreement and realize that the tribes are to have total control over internal tribal matters. We need the federal government to say, ‘We’re going to look at this and have hearings on it.’ And it’s not just for us, they need to have hearings on all the settlement tribes, and look at the treaties to see if they’ve been breached,” Francis said.

Maine state power

The following 1829 letter from the Penobscot ‘Governors and Indians in Council’ to the governor of Maine is from the Maine Archives. In answer to the application made by John G. Deane Esq, in the name of this State, that we the Penobscot Tribe of Indians will sell to the government of this State our two Townships, we say as follows: The white people have repeatedly asked us to dispose of our lands, and we have sold to them one portion after another till we have but very little left. The prospect is that in two or three generations there will not be enough for our children. To us it looks strange that white people knowing this should ask us to sell nearly half [of] what we have left, when at the same time they have in this State so many thousand acres of wild land. If all their lands were cleared and settled, and consequently they wanted more, we should be willing to yield them a share of our own, for we are brothers, & one God made us all. Till this is the case, leave to us this little pittance, the miserable remains of the wide lands our fathers left us, enough to sleep on while we live & to bury us when we die. And what do white people suppose we must think when we see they wish to take from us one piece of land after another, till we have no place to stand on, unless it is to drive us, our wives, & our little children away? But if so great & so free a country as this would exterminate us, we have no chance any where else; we or our children must sooner or later be driven into the salt water & perish. But you say it is necessary that our Townships be settled, that there should be taverns on the military road [road built during the Aroostook War passing through Indian land at Mattawamkeag to northern Maine]. Have not the Indians tried already to settle the Township you want most because they needed it for its advantages of farming, hunting & fishing? Our Governor undertook this. Why did he not stay there? Because a bad white man, in his absence, by continually alarming his family, at last frightened his wife & children away. Nor was this all. He had with great labor constructed an eel weir with which great lots of that fish were taken & and quantities of them salted down. This they destroyed. They also dug up & carried away his provisions, his pork, his fish, his potatoes etc. Finally they burnt his cabins to the ground. It is treatment of this sort that has prevented the Indians hitherto from settling on some of their Islands, & on their Township. By & by they will try again. As to opening taverns on the military road, Indians have had talk among themselves sometime ago. They know that white men who travel that road must want taverns. They wish such men to be accommodated, & they have done last year & this present year what they were able by giving permits to white men to open a tavern at Matahwamkik Point, where it was most needed. Next year they will contrive with their Agent to have other taverns provided when and where they are wanted, so that travelers shall have no reason to complain on this point. This we have done and are willing to do all that is reasonable to accommodate our white brethren. Why then do they seem as if they wished to reduce us to extremity? When the United States were fighting for liberty, Gen. Washington sent for the Chiefs of our Tribe, and gave them his promise that, if we would remain neutrals in the war, he would secure to us our rights. We have been faithful to our white brethren & all we ask in return, is, that their contract towards us should be just & reasonable. Old Town Nov. 5. 1829