Tribes battle Maine on tribal sovereignty issues

AUGUSTA, ME—Tribes in Maine continue to take action to solidify their tribal sovereignty. Question 6 on the November 7 ballot will ask voters if language taken out of the state Constitution in 1875 pertaining to the legal obligations the state of Maine has to tribal nations, should be returned.

Although these obligations at present do not appear in most copies of the state constitution, they are still legally binding and have been applied with that understanding since 1875. In that year Governor Norman Dingley said in his address that he wanted to remove “patches and out-of-date threads.”

Maine split from Massachusetts in 1820, and so these patches and threads were exactly 55 years old, hardly ancient by political standards. Whether the governor’s stated reasoning was the actual reasoning, restoring the language to the present day constitution will change nothing from a legal standpoint. It serves only two purposes: to provide citizens with a complete and transparent document, and to send a message to the public that tribes are still here and are still acknowledged and respected by the law of the land.

Proponents of the amendment argue that this strikes a blow for tribal sovereignty, but tribal sovereignty is a topic often misunderstood by the public as well as tribes. There is not a single definition, a single legal reality, that applies to all 574 federally recognized tribes. In 1953, Congress passed Public Law 280, addressing tribal sovereignty definitively for a handful of states, but leaving most states in a grey area. A July 2013 NSNT article read: “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 (Janet) 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.”

Because Maine is a grey area state, Maine tribes are spot on when they fret and fuss over matters like language in the state constitution that will not impact law. Their specific tribal sovereignty is nebulous compared to South Dakota’s tribal sovereignty. The nature of it will be determined over time in battles like the sovereignty bill back in July and the constitution language amendment coming up on November 7.

The specific language on the ballot regarding the amendment reads: “Do you favor amending the Constitution of Maine to require that all of the provisions of the Constitution be included in the official printed copies of the Constitution prepared by the Secretary of State?”

Most voters will not be aware they are returning language that addresses state obligations to tribes, and so it will strike most as an amendment addressing transparency and understanding. Opponents of the amendment have not sought specific language in the amendment that addresses tribal interest.

As for the tribes themselves, Penobscot Nation Tribal Ambassador Maulian Bryant said, “…this is important to the Wabanaki, because while practically it might not have a huge day-to-day impact, it is important in our kind of quest for recognition of our sovereignty. Because you need to be a sovereign nation to enter into treaties with other governments.”

If by “other governments’” Bryant meant the federal government, she is spot on. But tribes are “domestic dependent nations” and the federal government does not recognize a tribal sovereignty that would allow any tribe to enter into treaty agreements with any nation besides the United States. Almost fifty years ago the German Bundestag was warned off by the United States from hearing a delegation of Lakota trying to get German recognition of their sovereignty. The United States preemptively contacted many European governments to sandbag that particular delegation and their pursuits for international recognition.

On this issue, following the lead of the Biden Administration, Maine Democrats oppose the amendment. Gerald Reid, chief legal counsel to Governor Mills wrote that “this legislation would not solve any real-world problem, but would instead create new confusion.”

Reid asserted that the proposed amendment appears to be a misguided attempt to right a historic wrong that never occurred,” while touting Mills’ commitment to solving “specific, identifiable problems.”

This assertion would carry more weight had Mills not also opposed the sovereignty bill back in July.

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

 

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