Maine needs to build new relationship with our tribes - now

 Graphic by Ramona du Houx

November 28, 2018

Op-ed by Mark Dion, a career law enforcement officer, was Portland’s deputy police chief and served three terms as Cumberland County sheriff. He was elected to the Maine House in 2010 and to the Maine Senate in 2016.

Maine’s Nov. 6 election could mark a new beginning on many fronts where we have made little progress in recent years. One of these pressing issues is the relationship of the state to its federally recognized Indian tribes, especially as governed by the landmark Indian Land Claims Settlement Act, which was passed by Congress in 1980 and signed into law by then-President Jimmy Carter.

The Settlement Act ended territorial claims made in federal court by the Passamaquoddy and Penobscot tribes. It provided federal funds for the tribes to purchase land, which they used to expand their reservations and restore at least some of the ancestral territory of the Wabanaki peoples who inhabited Maine for at least 10,000 years before European settlers arrived.

The act was also supposed to lead to a new relationship between the state and the tribes, one based on equal status and mutual respect. That has, quite simply, never happened.

Over the years, tribal leaders have sometimes abandoned, in frustration, the Maine Indian Tribal-State Commission established by state law to implement the Settlement Act. Discontent peaked during the LePage administration, and in 2015 the Penobscot and Passamaquoddy tribes withdrew their representatives to the Legislature.

Frankly, neither the state nor the tribes benefit from the current relationship, marked by acrimony and misunderstanding. The state has had to defend multiple federal lawsuits filed on behalf of the tribes, who believe they have no other recourse

The tribes have undertaken repeated efforts, at the Legislature and by referendum, to establish a casino similar to those opened by Indian tribes throughout the United States, but which in Maine – as the courts have ruled – requires state consent under the Settlement Act. None of these efforts has succeeded.

It wasn’t until I campaigned statewide for governor earlier this year that I began to understand how deeply flawed implementation of the Settlement Act has been. Under the Act, the tribes are not considered as sovereigns in partnership with the state, but as municipal governments – and even there, not always respected ones. Consequently, it becomes difficult to sort out a meaningful distinction between internal tribal issues from those interactions that naturally occur between a municipal and a state government.

For example, I learned from a tribal police chief that their arrest warrants are not always accepted and served by other municipal law enforcement agencies. The ability of tribal officers to arrest and prosecute domestic violence cases, involving non-tribal suspects, in a tribal court have been rebuffed. The tribes were also denied even one member on the Maine Criminal Justice Academy’s 17-member board of directors – which offers no curriculum concerning tribal laws. As a result, tribal officers have to be trained at federal academies more than 2,000 miles away.

The reasons why the Settlement Act has failed to serve Maine and native people well are legally complex, and state officials often seem equally frustrated about the relationship. It is my experience – as a law enforcer, attorney, and legislator – that when this level of dysfunction occurs, it’s necessary to go back to the beginning and reconsider.

I’ve proposed that the state reopen discussions about the Settlement Act, and invite the Indian tribes to participate in a new effort to amend the law, where necessary, and to figure out how to make it work better.

It’s one of the reasons I’m now seeking to become Maine’s next attorney general. The attorney general’s office has often been in the middle of litigation and conflict over the Settlement Act, but I believe the state’s top law enforcement official also has a responsibility to help make good-faith negotiation, and not lawsuits, central to this relationship between sovereign peoples.

Among the 50 states, Maine has a unique relationship with its indigenous peoples. While most tribes in the East disappeared under the wave of European settlement and conquest, Maine’s tribes endured, in significant numbers, and their cultures are unbroken, stretching back thousands of years.

There has never been a satisfactory accommodation of the tribes’ distinctive needs and interests through Maine’s legislative process, however, and the misunderstandings only seem to have grown with the years. This is not a time for blame or recrimination, but for real listening, dialogue and perhaps – in time – healing.

No one knows exactly where a new effort will lead us, or how long it will take. But I do know we must try, and that we must begin that journey now.