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Penobscot chief: Settlement Act doesn't work for tribes.

By Gale Courey Toensing -- Today staff

INDIAN ISLAND, Maine - Penobscot Indian Nation Chief Kirk Francis spoke with Indian Country Today Aug. 14 about a recent 1st Circuit Court ruling that eliminated the Penobscot and Passamaquoddy nations' authority to regulate water quality standards on their lands. The ruling was the latest in a series of rulings asserting that the Maine Settlement Act of 1980 gave the state total jurisdiction over Maine tribes. A Work Study Group created by Gov. John Baldacci begins its job of reviewing the act.

Indian Country Today: What is your response to the 1st Circuit Court ruling?

Kirk Francis: It's a disappointing decision on a lot of fronts. We believe that it breaks down the trust responsibility relationship between the tribes and the federal government, in this case, the EPA, who has that trust responsibility with the tribes, and I think our point is, look, we have that relationship, they have that responsibility, we're more comfortable with them regulating water quality in Maine, and certainly in our river [the Penobscot River].

The whole thing leads to the erosion of sovereignty. So we're concerned about where we'll go from here.

The Supreme Court is not a great place for Indians to be these days. In most cases, the tribes or other entities go to court and at the end of the day the worst-case scenarios is you lose. For us, it's the effects [those rulings have] that continue to impact our people in terms of how sovereignty is looked at and how our independent authority to regulate ourselves is being respected. So these cases not only have to be weighed on our ability to win, we have to be absolutely sure because, obviously, a decision like this sets a precedent that's not very favorable to us.

ICT: Do you have the option of seeking an en banc hearing?

Francis: That's something the attorneys have mentioned. We're going to huddle up again at the end of the week and try to figure it out. I think we're all a bit stung by this decision even though we had the feeling all along it was a long shot. The thing the thing that really hurts the most out of all this is us trying to get over the hump with all the restrictions against us with the Indian Land Claims Settlement Act, and to have that act continually quoted as the reason why we lose these important cases is just another example of how that document has really not benefited Indian people in Maine. And it not only has a negative effect here, but all over the country, as these cases are referred to when other tribes have similarly situated cases.

ICT: It does seem to all go back to the language of the Settlement Act.

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Francis: It's a document that doesn't work for us and we're getting to the point here where we have to just start asserting our sovereignty by fact and let those chips fall where they may. And I don't mean doing things that are inappropriate. I'm talking about starting to exercise business practices that are proved to be acceptable in this state that tribes are being denied access to.

We've played the game for 35 years. You can go to tribal leadership back then and compare it to today, and we're trying to do the exact same - be the diplomats, go through the system, educate people, develop relationships, partnerships; and even today we're still having conversations about what that document means and who has authority in what situation, and the tribes don't have the resources to continuously fight this. We have all this bad precedence and a bad document and we're really up against it.

ICT: Is there any possibility that the work study group will come out with recommendations for amendments that will establish the tribal sovereignty and immunity that other tribes have?

Francis: The state's approach has been, ''Why don't we put three or four non-contentious issues out there, get them passed, and start the ball rolling that way.'' Well, our concern is if we get a few things that don't really matter changed in the Settlement Act, we'll get to a point where we'll want to put the more difficult things on the table - the things we really need changed - and they'll say, ''Well, we really don't want to change that, and we've worked with you on the three or four things.''

I think our approach is to put the two most important things on the table and test the integrity of the group and how serious they are about it, because one of the biggest problems is that the document talks about the benefits of federal acts not applying to the Maine tribes unless they're specifically mention in the act. So that language in itself prevents us from access the Indian Gaming Regulatory Act and some arguments in the Clean Water Act [and other federal benefits established after 1980].

ICT: You want the same status as every other tribal nation.

Francis: That's right. John Banks [director of the tribe's Department of Natural Resources] said it right: We don't want no more, we just don't want any less than any other federally recognized tribes.

As we started to do the research from that time, we discovered that the language in the document is not what the tribe approved. The tribe approved language up to that point and that language was added to the bill before it went to Congress by Sen. Cohen [Sen. William Cohen, who served three terms as Maine senator, beginning in 1978], so to us that language never received the tribal approval it was supposed to receive, and it's prevented the tribe from a lot of success.

There was a mistake made. OK, let's sit down and agree to that; but also it's 30-something years later and, as we all know, these documents get looked at and they get changed. We keep screaming it's not effective, but the courts keep saying it's working fine. It's working fine for the state, but not for us. We have to figure out a way to move our tribe forward.