Maine governor vetoes tribal sovereignty bill

AUGUSTA, MAINE—Despite having a Democrat in the governor’s chair, Maine tribes were dealt a blow last week when Governor Janet Mills vetoed a bill designed to ensure federal law applied to Maine tribes when it came to sovereignty. The nature and focus of tribal sovereignty has long been misunderstood by most tribes across this nation, not just their detractors. The tribes in Maine are some of the few who understand it correctly, but the governor’s veto made that understanding moot.

Proponents of the bill understood the political landscape and had worked hard to establish the votes to override the expected veto, but they could not overcome the combined influence and pressure of the state Democratic party, especially when it was backed wholeheartedly by the Biden Administration.

The rationale used by the Biden Administration in the past to oppose tribal interest has been that it opens the door to endless litigation which could cost the government a lot of money. This rationale, Governor Mills used as well, rationale more talking point than reality.

In the 1886 Kagama decision, the United States Supreme Court opined in unambiguous language that the greatest enemy any tribe had was the state in which they lived. This opinion laid the intellectual foundation for understanding that as domestic dependent nations, tribes actually have no sovereignty when it comes to the federal government, since Congress can apply Plenary Power and abrogate any treaty or agreement with any tribe at any time for any reason. However, states do not have Plenary Power, and in 1953, Public Law 280 gave certain states jurisdiction over tribes (Alaska, California, Minnesota, Nebraska, Oregon and Wisconsin), with some tribes within those states excepted. Other states were allowed by referendum to vote whether the state should have sovereignty, and South Dakota was one of those states.

As a result, the state moved immediately for a statewide referendum to assume jurisdiction inside reservation borders, but the South Dakota Supreme Court ruled that they must assume all jurisdiction, foot the entire bill, not just take control of the highways. Now, the state had to regroup and rally support against their own referendum, and they were successful, as it was defeated in 1964. An amendment to the 1968 Civil Rights Bill, changed the referendum vote from statewide to only enrolled tribal members. This effectively killed any future attempt to establish state jurisdiction over South Dakota tribes. Had the 1968 amendment not been in place, the state of North Dakota would have surely pursued a statewide referendum during the Standing Rock protest.

Maine was not one of the jurisdiction states listed in 1953, and it was not one of the referendum states listed, and so tribes within Maine were in a grey area, and any specifics about jurisdictional status would be determined by language in specific treaties. The bill dropped on the desk of Governor Mills was an attempt to clear up this ambiguity and empower tribes with protection from their “greatest enemy,” in this case, the state of Maine, but the Governor and the Biden Administration were having none of that.

The Bill fell 10 votes shy of a 2/3 majority needed to override the veto. Speaking on behalf of the bill, State Representative Aaron Dana (Passamaquoddy), said: “We seek equality. We seek life, liberty, and the pursuit of happiness. And we seek the liberty and the pursuit of happiness under a relationship where we have access to the laws passed by Congress to make Native communities safer and healthier. Nothing more, nothing less.”

But what wasn’t addressed in the rhetoric from both sides was the four-hundred-pound gorilla in the room—no state is going to surrender sovereignty to any tribe if it has the power to stop it, and this holds true, regardless of which party occupies the governor’s chair or controls the legislature. Those voting in favor of tribes can do so and not offend their fellow party members, because a critical number of their colleagues have been convinced to oppose the bill, this critical number coming from constituencies not beholden to tribes. In the future, those that supported the bill can point their support out to tribes, even though their support was only offered because they knew the bill would fail. Tribes are then stuck having to sort genuine supporters from these duplicitous supporters.

Tribal leaders called Governor Mills an impediment to progress. Passamaquoddy Chief Rena Newell stating: “It’s extremely disappointing that the governor insists on keeping her thumb on the tribes and the Legislature. She clearly will not be deterred from using any authority she has to oppress the tribes.”

Mills assures tribes she is willing to work with them, calling for a “Collaborative, respectful approach,” which is code language for the state having a say in matters which they would be excluded from in a state like South Dakota.

However, Maine tribes are not blameless in this situation. They may understand the importance of sovereignty as a protection against the state, but back in 1980 and 1991 they did not, and surrendered some of that jurisdiction in a settlement and an agreement. During those years, the legal teams tribes hired did not grasp the deeper implications of Indian Law as many do today, and tribes trusted their advice, and have suffered accordingly.

Mills doesn’t want the federal government to have a direct relationship with tribes. She wants the state to have the power to interject itself into healthcare and disaster relief and any other situations where tribal sovereignty would otherwise keep the state from having any say. Tribes in Maine need to understand that they will need the state legislature to override a veto which runs counter to state control over tribal interest and that this is probably never going to happen. Tribes need to seek out legal advice which factors in long-term political reality, not just expedient legal strategy and specifics.

(Contact James Giago Davies at skindiesel@msn.com)

  

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