In defense of tribal rights
Written by Tom Bulger
from Bangor Daily News
The Bangor Daily Newsí support for the Tribal-State Work Groupís proposed legislation, LD 2221, is a help to moving Maine forward. I wish the BDN would re-examine its stance on asking tribal compliance with Maineís Freedom of Access Act.
The Tribal-State Work Group is a pleasure to witness in its deliberations. Its cooperative bipartisan problem solving, integrity, commitment, and leadership are exactly what America is aching to see in Washington. The efficiency with which the chairmen respectfully guide the parties through the agenda, their focus on purpose, doing the peopleís business, are talents to behold. As a taxpayer, you not only feel youíre getting your moneyís worth, but you also want to leave a tip.
The groupís historic work includes the determination that the Freedom of Access Act does not apply to the tribes, any more than it applies to any other sovereign entity. Substitute the word "Canada" for the word "tribes" and the illegality of it jumps right out at you. LD 2221 will clarify the reality and correct years of an illegal and erroneous perception.
A helpful thing to remember is that Maine didnít even exist when the treaty was agreed to between the United States and the Wabanaki. George Washington was acting on behalf of the United States. The role that our state is entrusted with is that of an agent of the federal government in honoring the treaties. We donít get to rewrite the treaties.
The BDN states, "The group noted that the tribes are not municipalities, counties or parts of state government. While this is true, it is beside the point." No, it is precisely the point. Is it legal for Maine to demand that New Hampshire towns comply with Maine laws? Maine has no jurisdiction in this matter.
The BDN states, "They are government entities." Yes, they are, but not Maine government entities. They are sovereign governments and would have been so even if that hadnít been acknowledged in the treaty of friendship signed by the United States.
Just because from time to time tribes enter into agreements and partnership with the state of Maine, it does not mean that they are obliged to agree to anything and everything Maine comes up with. The Handbook of Federal Indian Law defines tribal sovereignty: "As a consequence of the tribeís relationship with the federal government, tribal powers of self-government are limited by federal statutes, by the terms of the treaties with the federal government, and by restraints implicit in the protectorate relationship itself. In all other respects the tribes remain independent and self-governing political communities."
Penobscot Nation member and lawyer Mark Chavaree helps clarify the legality. "Implicit in this principle is that only the federal government has the authority to change tribal powers, not the states. Another principle of federal Indian law is that tribes keep all rights and powers that they have not expressly given up."
The tribes have always practiced open government, but with the governed, not with the neighbors. Tribal matters are tribal matters, and the state should not try to assume jurisdiction.
Tom Bulger of Avon is a member of the Friends Committee on Maine Public Policy and an observer at the Maine Indian Tribal-State Commission.
Maine Indian Tribal-State Commission (MITSC)
13 Commissary Point Road, Trescott Township, ME 04652
Paul Thibeault, Managing Director: 207-271-7762