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Tribal leaders: Maine governor’s consultation order is ‘a step forward’

AUGUSTA, Maine – Gov. John Baldacci has signed an executive order directing state agencies to develop and implement policies to consult with the Wabanaki nations when developing legislation, rules and policies on matters that affect them.

Baldacci, who is leaving office in November, signed the executive order late last month. It is based on Executive Order 13175 signed by President Barack Obama during the White House Tribal Nations Conference Nov. 5.

“We know that we cannot truly succeed as a state unless all our people and all of our communities succeed,” Baldacci said at a signing ceremony Feb. 24 that was attended by tribal leaders, tribal legislative representatives and state legislators. “We can accomplish great things when we work together collaboratively. This is true between state government and tribal governments. That’s why I am ordering all state agencies to promote positive and effective communications with tribal governments.”

Penobscot and Maliseet leaders said the executive order is a step in the right direction, but they are waiting to see substantive changes on the ground. The executive order comes almost three years after Wabanaki leaders asked the governor to develop a consultation policy.

“The value of the consultation order is in the fact that it exists,” said Penobscot Indian Nation Chief Kirk Francis. “It recognizes the unique and distinct governmental status of our tribes. It tacitly admits there are other sovereign governments in the State of Maine and they do have to deal with us.”

The executive order directs state agencies to develop and implement a policy to promote communication and “government-to-government relations” with the Penobscot, Passamaquoddy, Maliseet and Micmac nations. The order aims to enable the nations to have “meaningful and timely input” into proposed legislation, rules and policies on matters that affect them.

Agencies are to “establish a method” to notify employees about the executive order and designate a tribal liaison as a contact person between the state and the nations, which are referred to as “Maine’s Native American Tribes.”

In a photo taken at the signing ceremony, there is no expression of joy on the faces of tribal leaders.

“I noticed that too,” said Houlton Band of Maliseet Chief Brenda Commander. “I don’t think we were overly excited, but we felt that we should all be in attendance to show unity and support for each other, because, you know, it is a step forward and we felt it could be positive. The relationship has been so strained, but we all made the decision to be there.”

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Commander asked the governor to consider a consultation policy at a meeting in Augusta around three years ago. Later, she was told the attorney general had “a problem” with it.

“I said how could that be when the federal government has no problem with it? So another year went by and it was obviously not a priority.”

Donald Soctomah, the Passamaquoddy legislative representative, introduced a consultation bill last December. After a legislative hearing on Soctomah’s bill that indicated it was likely to pass, Baldacci announced he would sign a consultation executive order. Soctomah’s bill was relegated to the legislative files as a “dead” bill March 11.

But Francis said he would much rather have a consultation policy codified in law than an executive order that can be rescinded or ignored by the next governor.

“I should start off by saying the executive order is positive for what it is, but the thing that concerns me is it does very little to address the grievances of the tribes and there are no repercussions if it’s not followed. It’s not binding legislation. I think consultation is important, but the problem is all that communication is still taking place within the same system.”

Maine and Rhode Island are perhaps the two most intransigent states in the country in opposing the rights of the indigenous nations living contiguously with state borders. Both state governments and courts have interpreted settlement acts to the state’s benefit, claiming jurisdiction over almost all internal tribal matters.

Francis pointed to the adoption of the United Nations Declaration on the Rights of Indigenous Peoples by the Senate and House in 2008 on a resolution introduced by former Penobscot representative Donna Loring.

“Certainly, the tribes have not seen any different approach that’s in line with the principles of the Declaration,” Francis said. “Basically, the executive order says in my mind, ‘We’ll give you a call and let you know when we encroach on your land.’ It’s not backed up by any systemic change so you have the same policies, the same system and the same mindset that believes the state has control over the tribes and that we’re somehow wards of the state. Until really substantive change takes place to address the jurisdictional issues, the inherent sovereignty issue, the internal tribal matters issue nothing much will happen. Everybody wants to duck those issues because they’re too difficult, but without dealing with them, everything else really has no place.”

Around the time Baldacci signed the consultation order, the nations were notified that the state would no longer cover co-payments for recipients of Maine Care, the state’s health care system. The nations also learned that the University of Maine System had altered its Native American tuition waiver program, causing students to transfer, take fewer credits or drop out. With a 46 percent average unemployment rate and some of the highest poverty rates in the county, the nations will be hard hit by the cuts. The nations were not consulted before these changes were made.

“This came out of the blue. These are perfect examples of the kind of consultation we want to have,” Commander said.