Three of Maine's Native American tribes affirm their right to govern themselves

By Ramona du Houx

Citing growing concerns about Governor Paul LePage’s lack of respect for tribal sovereignty, the Passamaquoddy and Penobscot tribes announced on May 26, 2015, that they were withdrawing their representatives from the Maine Legislature.

Rep. Matthew Dana II of the Passamaquoddy Tribe and Rep. Wayne Mitchell of the Penobscot Nation both spoke briefly from the House floor before leaving the chamber, for the last time.

“The Maine tribes have reached a very critical juncture in our history,” said Rep. Mitchell. “As sovereign nations we must find a better path forward—one that respects our inherent tribal authority and allows for all of our people to prosper in all areas of their life.”

The tribal representatives joined a rally outside the Statehouse, where speeches were made and Native Indian drums played. Many other lawmakers joined the demonstration disheartened that LePage has obstructed the state’s relationship with Maine’s tribes.

“We have gone to great lengths to demonstrate good faith and cooperation, only to be lied to,” said Fred Moore, tribal chief of the Passamaquoddy at Pleasant Point, at the rally.

There are three nonvoting tribal members in the Maine House from the Penobscot Nation, the Passamaquoddy Tribe and the Maliseet Tribe. The special Representatives can sponsor legislation relating specifically to the tribes or in relation to tribal-state land claims, as well as cosponsor any other legislation brought before the House, but they do not cast a legislative vote, because of their unique tribal status representing only tribal members.

They are not entirely without the power to vote. The Penobscot, Passamaquoddy and Maliseet tribal representatives can sit as members of joint standing committees during hearings and deliberations, where they do cast votes, which can be very important with respect to specific legislative proposals.

Not all of the state’s tribal representatives walked out of the Statehouse. Rep. Henry Bear of the Houlton Band of Maliseets didn’t. “Our chief and council have expressed total support for the Penobscot and Passamaquoddy, but they’re taking a different direction,” said Bear.

Both other tribes said they would look internally for guidance about the future of tribal-state relations.

“We have gotten on our knees for the last time,” said Kirk Francis, Chief of the Penobscot Nation. “From here on out, we are a self-governing organization, focused on a self-determining path.”

“The Passamaquoddy and Penobscot people will always have a place in the Maine House,” said House Speaker Mark Eves. “I hope they will reclaim their seats.”

Of all the fifty states in the Union, Maine is the only one that has representatives in its Legislature for its Indian tribes. The earliest record of representatives being sent from the Penobscots is in 1823 and of the Passamaquoddies in 1842.

“We regret that their rift with the executive branch was so deep that it prompted their withdrawal. It is our sincere hope they will reclaim their seats,” said Assistant House Majority Leader Sara Gideon.

The rift between LePage and the tribes climaxed in April, when the governor rescinded his own three-year-old executive order that recognized the “special relationship” between the State of Maine and Indian tribes. The order created a consultation policy for tribal input before laws, rules and policies affecting them were passed. But he’s completely turned his back on that agreement.

LePage’s new executive order was issued on April 16, 2015, and is called, “An Order Respecting Joint Sovereignty and Interdependence.” The name is misleading, as the document asserts the State’s dominance over the tribes—in effect denying them sovereignty, unless the tribes do as they are told by the State. And it rejects the sovereignty over tribal lands held in trust by the federal government.

“What they are saying, at the end of the day, is that we will respect your sovereignty as long as you do what we tell you. That’s not how sovereign relationships work,” said Chief Francis.

Maine’s Attorney General should review the executive order with the sovereignty issue first and foremost in her mind.

The order reads: “Whereas, all tribe members, Indian nations, and tribes or bands in the State of Maine and any lands or natural resources owned by them or held in trust for them are subject to the laws of the state and to the civil and criminal jurisdiction of the courts of the state to the same extent as any other persons or lands or natural resources therein.”

“It’s really a retaliation for the EPA (Environmental Protection Agency) letter to Maine DEP (Department of Environmental Protection) concerning Maine’s water quality standards and the fact that they impact Passamaquoddy sustenance fishing rights, and those rights are a federally protected right,” said Passamaquoddy Tribal Chief Fred Moore in the Bangor Daily News.

This could be considered a land-and-water grab by the State of Maine. The amount of elvers (highly valued eel-type fish) that can be fished has created friction between the LePage administration and the tribes over fishing rights.

Moore says the tribes will now have rely on each other to govern such issues such as control over the Penobscot River and other tribal waterways, to make determinations over sustenance fisheries, including the elver harvest.

“We have not collectively seriously considered how our people are going to feed themselves; sustenance, for example, is defined by us by the undertaking—not the disposition,” said Moore.

Logically that means tribes should have control over who has access to tribal waters, but LePage disagrees, and Maine Attorney General Janet Mills is suing the federal government on behalf of the State of Maine. Mills is challenging the Penobscot Nation’s position on control.

That brings us to the question: Will Attorney General Mills even look at the validity of LePage’s executive order, which essentially tries to strip the tribes of their sovereignty?

The executive order ends with a statement affirming the State’s sovereign immunity from being sued because of anything in the document.

“Native American representation in Maine legislative assembly goes back to before we even became a state in 1820. It was incorporated in the Massachusetts General Court at its inception in the 1600s. Governor Paul LePage calls himself a conservative. He has just destroyed an American tradition that is more than three centuries old. The man’s a flaming radical,” said historian, former lawmaker Neil Rolde.

Native Americans have been treated like second-class citizens. Often in the 1800s officials made promises to tribal leaders only to deliberately break them. Native American lands were taken away from Native people; they were forced into camps and told to forget their traditions. Their children were made to feel ashamed of their heritage and schooled in “Western ways.”

It took Sen. Muskie, from Maine, to start to turn the atrocities of our federal government around. Then came the Maine Indian Claims Settlement Act of 1980—a historic agreement that tribal leaders said they had believed would mark the beginning of a real relationship with the state.

A day after the Passamaquoddy and Penobscot tribes announced that they were withdrawing their delegates from the Maine Legislature, they, along with the Micmac tribe, signed a joint declaration affirming their right to govern themselves. They also called for a congressional inquiry into State actions.

“We do not recognize the authority of the State of Maine, its Governor, Legislature or Courts to define our sovereignty or culture or to interfere with our self-governing rights,” the tribes wrote in their declaration. “We recognize the Maine Indian Claims Settlement Act of 1980 and the Aroostook Band of Micmac Settlement Act of 1991.”

In the joint declaration, representatives of the Penobscot, Passamaquoddy and Micmac tribes state that because their sovereign status was recognized and affirmed in the two federal settlement acts, LePage had no right to assert in his recent executive order that the tribes, their land and their resources are subjects of the State.