Donna Loring’s commentary provides an alternative perspective on Native American sovereignty in Maine, looking at the sometimes contentious process of tribal-state relations

Loring, Donna M.

English

University of Maine

Maine Policy ReviewVolume 13 | Issue 22004Tribal-State RelationsDonna M. LoringFollow this and additional works at: https://digitalcommons.library.umaine.edu/mprPart of the Indian and Aboriginal Law Commons, and the Public Policy CommonsThis Commentary is brought to you for free and open access by DigitalCommons@UMaine.Recommended CitationLoring, Donna M. . "Tribal-State Relations." Maine Policy Review 13.2 (2004) : 27 -29, https://digitalcommons.library.umaine.edu/mpr/vol13/iss2/5.View current & previous issues of MPR at: www.umaine.edu/mcsc/mpr.htm Fall/Winter 2004  ·  MAINE POLICY REVIEW  ·  27TRIBAL-STATE RELATIONSTribal-StateRelationsby Donna M. LoringStephen Brimley’s article is very good, and the historic facts and issuessurrounding the Maine Indian ClaimsSettlement Act are clear and accurate. He does an excellent job in presenting the importance of the settlement act andits implications in policy development.Brimley’s view, however, is that of a non-Indian. I would like to address tribal andstate relations involved in the settlementact from a tribal perspective. It is my beliefthat communication and education equalunderstanding, and with understandingcomes respect and equality.It is essential to know somethingabout the historic foundation upon whichthe relationship between the tribes andthe state is based. The situation is well-described in The Wabanakis of Maine and the Maritimes, A Resource Book AboutPenobscot, Passamaquoddy, Maliseet, Micmacand Abenaki Indians (1989: A21):When Maine became a State in1820 they immediately took overthe obligations that Massachusettshad with the tribes. Between 1821and 1839 the State Legislatureauthorized the harvesting of timberfrom Passamaquoddy land in viola-tion of the treaty of 1794. Over the years, also in violation of thetreaty, the Legislature authorizedsale or lease of various pieces ofPassamaquoddy land withoutcompensation and without consentof the Passamaquoddy tribe. Severalof the Penobscot islands were soldwithout compensation. In additionin 1833, in violation of its owndeed procedure as well as a formertreaty, four townships, or 95% ofthe Penobscot land at the time, were transferred to the State ofMaine…The State placed $50,000dollars into trust when it took thesetownships without tribal consent.One of the townships held the sacredmountain of the Wabanaki people—Mt. Katahdin. Maine then made the tribes settle inone place and put an agent in charge tomonitor them and to dispense clothes,food, wood, commodities, etc. The agentused monies from Penobscot resources to do this. The state of Maine also putmonies from the sale of lands and leasedtimber into a trust fund and distributed the money to tribal members. …The State’s treatment of thetribes was paternalistic and theLegislature assumed it had authorityto do whatever it wanted to dowhenever it wanted to do it…. The courts’ treatment of Indianswas no better. In a case decided bythe Maine Supreme Court in 1842Murch V Tomer 21 Me. 535, thecourt said: “[I]mbecility on their [theIndians’] part, and the dictates ofhumanity on ours, have necessarilyprescribed to them their subjectionto our paternal control; in disregardof some, at least, of abstract princi-ples of the rights of man”(Wabanakis1989: A21).Tribal members grew up believingthey were paupers and totally dependenton the state. They were left with little orno dignity or self-respect. They were notaware that the goods and services forwhich they were begging from the Indianagent were bought with the tribes’ ownmoney. The state of Maine stole triballands and resources and impounded thetrust fund monies during World War II topay for state expenses incurred by the war,totally draining the trust funds (Proctor1942). Through years of abuse andneglect, the tribes built up a total distrustfor the state of Maine. The state has kepttight control over the tribes, and hasmaintained a position that tribal govern-ments are not sovereign. The state ofMaine has challenged the tribes’ jurisdic-tion at every turn. The Maine Indian Claims SettlementAct was thought to be the instrument bywhich the tribes could become equal andrespected. The tribes saw it as a way out of poverty, abuse and control. The statelooked at the land claims act much differ-ently. Governor Longley used the situationto his political advantage by coining thephrase “Nation within a Nation” andplaying on the fears of the general publicthat the Indians were going to take awaytheir homes and land. Longley said hewould not pay one penny to the Indians,nor would he give up the state’s jurisdic-tion over the tribes. He also was deter-mined not to allow the state to be heldresponsible for any wrongdoing in thepast. The land claims act never went tofederal court, but was negotiated. Brimleycovers this well in his paper. GovernorLongley got most of what he wanted. The land claims settlement act was a state’sdream. The federal government paid everypenny, the state kept most of its jurisdic-tion, and most important of all, the statewas held harmless for all its past injusticesand abuses.After the settlement act was signedinto law on September 10, 1980, the stateof Maine eliminated its office of IndianAffairs, thereby cutting any formal ties theC O M M E N T A R Ytoxic discharges. The tribes would nolonger be considered tribal governmentsand would no longer enjoy federal truststatus. The tribes consider this case abreech of their sovereign status by thestate’s interpretation of 30MRSA 6206 ss1 of the Maine Indian Claims SettlementAct. The state claims the tribes are quasi-municipal entities and therefore are polit-ical subdivisions of the state subject tothe Maine Access Act. One could hope that fairness stillmight be found in the courts. But theMaine Supreme Judicial Court decidedthis case on May 1, 2001. They foundthat the Maine Access Act, which waswritten to give the public access to infor-mation about public officials and publicissues, applied to Maine Indian govern-ments. I find this ludicrous, since thegeneral Maine public does not elect ourtribal officials, nor do they have a say in our internal tribal matters. The landclaims settlement act has been used toerode the sovereignty of the tribes. Thisclearly was not the purpose of the act.As I have pointed out, there are manyareas in the settlement act that can beinterpreted in various ways. The mostcontentious is the section stating thattribes have municipal status. This section,the state contends, makes the tribes intopolitical subdivisions of the state andmunicipalities. The tribes say not so. Thislanguage was used for grant purposesonly. It is this section of the act that willcause more litigation in the future, as wecan already see in the recent case with thepaper companies. The state continues toerode tribal sovereignty at every turn. Thetribes see the state as an insatiable beastthat just cannot stop taking and takingfrom them. The tribes fear that the statewill erode their sovereignty until they nolonger exist as tribal governments.28 ·  MAINE POLICY REVIEW  ·  Fall/Winter 2004 View current & previous issues of MPR at: www.umaine.edu/mcsc/mpr.htmTRIBAL-STATE RELATIONSexecutive branch had with the tribes. Thisdid nothing but totally stop communica-tions between the tribes and state govern-ment. The settlement act now was the solesource that determined tribal-state rela-tions. Tribal-state views of the act werevery different.Some people feel that the settlementact was supposed to settle the question of jurisdiction once and for all. Thesettlement act created the Maine IndianTribal-State Commission to help reachconsensus on issues and to make deci-sions on some land use regulations as well as land purchases for Indian terri-tory. The act now defines the relation-ship between the tribes and the state. Itcontinues to be a relationship of litiga-tion and contention. This was evidencedby the walkout of Passamaquoddy andPenobscot representatives at the lastMaine Indian Tribal-State Commissionmeeting held in November 2003.Brimley mentions this walkout briefly inhis paper, but fails to articulate the realreason for it. The walkout was significantsymbolically, as it was a result of thetribes’ total loss of trust in state govern-ment. Governor Baldacci took such ahighly visible stance in opposition to thecasino initiative that the tribes felt totallyabandoned in their quest for economicself-sufficiency. In the 2003 elections,the “racino” referendum, with its 1,500slot machines, was approved by Mainevoters who voted against the tribes’casino initiative by a two-to-one margin.Having the governor add the “PowerBall” lottery in Maine only advanced theatmosphere of distrust and resentment.The tribes felt this was the absoluteheight of hypocrisy. Even before recent events surroundingthe casino vote and its aftermath, thestate-tribal relationship in Maine has, quitesimply, been an adversarial one, withdistrust as its foundation. For example,Maine was the last state in the country toallow Indians to vote in state elections.Maine Indians could not vote in state elec-tions until 1967! One of the most glaringinjustices perpetrated on Indian people by the state of Maine was disenfranchise-ment, an injustice upheld by Maine’shighest court in 1941 (Proctor 1942: 46).Another example of the depth ofthis mistrust is the litigious situation thatexists between the tribes, the state andthe paper companies. Great NorthernPaper, Inc. v. Penobscot Nation, 2001 ME68plays out the tribes’ fears that Maine isonly looking to eliminate them as tribalgovernments. In this instance, the stateintervened as a third party to supportseveral corporations (Great NorthernPaper, Georgia Pacific Corporation,International Paper). This court actionwas brought against the tribes by thepaper companies because the companiesfeared the tribes would want to controlthe amount of toxins they dump into therivers. The paper companies thought thetribes would have zero tolerance andwould basically put them out of business.The state claimed an interest in this casebecause it involved interpretations “ofjurisdictional relationship between theState and the tribes” (Penobscot IndianNation; Passamaquoddy Tribe v. GreatNorthern Paper, Inc.; Georgia-PacificCorporation; International Paper Company;and the State of Maine, 12).This case was a tremendously impor-tant issue for the tribes, in that it involvedclean water and the very survival of ourtribal members, tribal government andculture. If the paper companies couldbring the tribes totally under state juris-diction, with no federal protection, thenthey could do what they wanted withC O M M E N T A R YView current & previous issues of MPR at: www.umaine.edu/mcsc/mpr.htm Spring/Summer 2004  ·  MAINE POLICY REVIEW  ·  29TRIBAL-STATE RELATIONSRECOMMENDATIONSThe paradigm from the state’sperspective needs to be changed. Timeshave changed. Tribes should no longer tobe considered as imbeciles and liabilities.Tribes have much to offer in a partner-ship of equality. In this world of globalcompetition, tribes and the state need to work together. There is a lot we can do as partners to improve the direeconomic situation the state now faces.Tribes should be considered assets, and afoundation of trust must be established. Brimley recommends a return to theDepartment of Indian Affairs. Maine Indianshave bad memories and do not want toreturn to the same model that controlledand abused them. I therefore vigorouslydisagree with a return to such a model. To begin the groundwork towardrenewing a trust relationship, I recom-mend the following:• There should be a formal admis-sion of the state’s historicmaltreatment of the tribes. Thiswould be a beginning and wouldshow the tribes that the statetruly regrets its past actions and is willing to treat the tribes asequal partners.• Reestablish communication withthe tribes on an executive level by creating an office of tribal-state relations and appointing acommissioner of tribal-state rela-tions. (This should be a cabinet-level appointment.)• The office of the commissioner of tribal-state relations would be utilized to explore areas ofeconomic partnership and establishcommunication between variousstate agencies and tribal agencies,as well as act as a resource forboth the tribes and the state. Theresult would vastly improve thetribal-state relationship and wouldrecognize the importance of thetribal governments.• The governor should create anexecutive order recognizing tribalsovereignty. This would not jeopardize the state in any way.Other states have done this. Forexample, the former governor ofMinnesota, Jessie Ventura, made such a declaration.  C O M M E N T A R YDonna M. Loring is a tribalmember of the Penobscot IndianNation and served as the Nation’srepresentative to the Maine StateLegislature for four terms (1997-2004). She was appointed asHouse chair of the Casino StudyTask Force in 2002, the first tribalrepresentative to receive such an appointment. She also servedas the Penobscot Nation’s coordi-nator of tribal, state and interna-tional relations. In 1999, shereceived the Mary Ann HartmanAward from the University of Maine, which recognizesoutstanding Maine women fortheir accomplishments in the arts, politics, business, education,and community services.REFERENCESPenobscot Indian Nation; PassamaquoddyTribe v. Great Northern Paper, Inc.;Georgia-Pacific Corporation; InternationalPaper Company; and the State of Maine. On Petition for writ ofCertiorari PG 12.Procter, Ralph W. Report on Maine Indians.Prepared at request of LegislativeResearch Committee, September 1942.Available at University of Maine FoglerLibrary (St.Docs. L 38.10:In2/942).The Wabanakis of Maine and the Maritimes,A Resource Book About Penobscot,Passamaquoddy, Maliseet, Micmac andAbenaki Indians. Philadelphia: AmericanFriends Service Committee, 1989.

Tribal-State Relations

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