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Penobscot chief calls on Obama to help stop state erosion of tribal so
Written by Gale Courey Toensing
from Indian Country Today
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 Indian Tribal-State Commission (MITSC)
13 Commissary Point Road, Trescott Township, ME 04652
Office: 207-733-2222
Paul Thibeault, Managing Director: 207-271-7762

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