INDIAN ISLAND, Maine - Charging that Maine has three strikes against it in its recent dealings with Indian tribes, Penobscot Governor Barry Dana called for a repudiation and Congressional rewrite of the Maine Indian Claims Settlement Act, the foundation of tribal-state relations since 1980.
The third strike, he said in a Nov. 20 interview with Indian Country Today, was a just announced Environmental Protection Act decision to turn over water pollution control in tribal watersheds to the state government. The decision, a sharp tribal defeat in a long-standing controversy, cut just as deeply in its way as the second strike, the state voters' overwhelming rejection Nov. 4 of a referendum that would have allowed a joint Penobscot - Passamaquoddy tribal casino.
The first strike, said Dana, was a Maine Supreme Court decision two years earlier repudiating tribal sovereignty on the basis of the federal 1980 Land Claims Settlement Act for the Penobscot and Passamaquoddy tribes. Maine had so violated the Congressional intent of the act, said Dana, that the tribes could no longer accept it as their basic law.
"What happens when you have three strikes," he asked in his office in the Penobscot Cultural Center at his tribe's island reservation. "You're out."
Although a specific strategy for revising the act is still in the works, the Penobscot and Passamaquoddy tribes have already staged a dramatic protest against one of its institutions. Delegates from the two Passamaquoddy reservation governments and the Penobscot Indian Nation walked out of the annual meeting of the Maine Indian Tribal - State Commission several days after the referendum vote.
The Commission was set up to handle issues remaining after the land claims settlement, although it has not been a factor in the dispute over tribal sovereignty. The two other tribal members, the Houlton Band of Maliseet Indians and the Aroostook Band of Micmacs, were not covered by the 1980 act. The Micmacs now maintain in a federal lawsuit that they never signed a state act implementing their federal recognition and thus preserved their original tribal sovereignty.
Dana spoke for a reservation still in high emotion over the two-to-one referendum defeat, made even more galling by the voters' simultaneous approval of slot machines for two non-Indian harness racing tracks. Because of local opposition to one such project, the state's first and only "racino" will open soon at the Bangor Raceway, 10 miles away from the Penobscot Reservation.
But the defeat has not demoralized the tribe, Dana said. "It will show our resilience."
"It's unified us," added tribal member Martin Neptune.
Dana portrayed the campaign against the Two Tribes Casino as an attempt by the state's rich minority to block economic advancement by thousands of low-income families, Indian and non-Indian alike. He cited complaints by several of the state's largest employers that the potential competition of casino jobs would force them to raise wages.
In an angry statement released the day after the vote, Dana said, "On November 5th there are still two Maines. Two Maines delineated not by any geographic boundaries, but drawn along straight economic lines. The wealthy minority wanted to stay just that. A minority in a state with thousands of residents living near or below the poverty line."
He charged that the anti-casino campaign used "lies, scare tactics and intimidation to keep a majority of the state's wealth, power and resources in the hands of a select few."
Dana said that he had been sharply criticized for the tone of his statement but that he also received thanks "for telling the truth."
The last strike, however, was the EPA decision based on a highly-controversial interpretation of the 1980 Settlement Act. A release from the EPA's New England office in Boston said the agency concluded that in the act "Congress gave the state authority to regulate in the tribe's territories where the impacts are felt substantially by non-Indians." The decision, stalled two years by intense state lobbying, reversed an earlier ruling from the Department of Interior's Solicitor rejecting state jurisdiction over potential polluters in the watersheds of the state's two river-based tribes, the Penobscots and the Passamaquoddys.
This issue, affecting the state's largest paper companies, has been at the core of an intense tribal sovereignty dispute since 2000. In the course of the fight over the discharge permits, a coalition led by the paper companies sued the tribal governments for access to internal documents. Tribal leaders refused to accept application of the state's Freedom of Access Law and were hit with a contempt of court citation that threatened them with a year jail term. This emotional conflict, ended by the state Supreme Court ruling, predated the idea of the Two Tribes casino but shaped the Penobscot-Passamaquoddy alliance behind the referendum drive.
These conflicts originated in the gray areas of the 1980 act and even more in a conflict between the Congressional understanding of the act and the terms of a subsequent state Implementing Act. The Senate committee report on the act emphasized that it would free the tribe from state control. (Maine supervised tribal affairs through Indian Agents well into the preceding decade.) The state implementation said the Penobscot and Passamaquoddy governments "shall be subject to all the duties, obligations, liabilities and limitations of a municipality," and the state Supreme Court ruled that state law would govern their dealings with non-Indians, as opposed to a limited category of internal tribal affairs.
Talk of revising the act to strengthen sovereignty emerged during the paper company suit, but Dana said it would now become a top priority. The Maine tribes will be following the fresh trail of another New England tribe, the Narragansetts of Rhode Island, who are seeking repeal of a "midnight rider" in 1997 that excluded them from the Indian Gaming Regulatory Act.
In a historic irony, a lawyer instrumental in negotiating the Settlement Act, Thomas Tureen, was also a leader in this year's drive for the Two Tribes Casino. Dana said that shortly after the vote, both Passamaquoddy and Penobscot tribal councils voted to terminate their contracts on casino affairs with Tureen.