Tribes in Maine looking to restore treaty language to state constitution

Many are the ruses employed over history to marginalize tribes and eliminate the treaties the states in which they reside signed with them. The state of Maine is presently the most prominent example of this historical pattern. Starting in 1807 Maine attempted to separate from the state of Massachusetts, citing fundamental disagreements over land and other economic matters. The War of 1812 interrupted this separation clamor but by 1819 Massachusetts agreed to let Maine go. When Maine drafted their new state constitution they were deliberate in their efforts to remove any references to treaty agreements between tribes and the parent state of Massachusetts.

Historians have little documentation to ferret out the specific rationale and actions that brought this about, but removing the treaty obligated sections from the constitution certainly freed up the state from any land obligations to these tribes, an issue which would have been on the front burner at that time, given Maine had left Massachusetts over land issues.

Maine stopped printing key portions of the in 1875, a special commission recommending such, in the interest of “cleaning up” the state’s constitution. Article X Section 5 required that Maine continue honoring the treaties between Massachusetts and tribes now residing in Maine. Historical researcher and retired lawyer, Judson Esty-Kendall, said Maine considered their relationship to tribes as “guardian-to-ward” Etsy-Kendall said, “And that is a sorry state about what people felt at the time. But I think that was probably more of what was going on.”

A look at the macro reality of the time indicates that in the 1822 McIntosh decision, Chief Justice Marshall clearly laid out the government’s position on tribal sovereignty, and defined the Christian Doctrine of Discovery in no uncertain terms, as a doctrine of assimilation and acquisition. Marshall made it clear that tribes “were domestic dependent nations” and that the conquering Christian power, had a moral obligation to assimilate them into a society where they could prosper as equals, equal in the sense they internalized the values and abandoned allegiance to an independent identity and destiny. Maine was simply acting on the “principle” of that decision.

At present House Speaker Rachel Talbot Ross called a hearing to address her bill, L.D. 78, which proposes asking Maine voters to reverse the 1875 action, and restore the sections removed from the Maine Constitution, specifically Article 10 Section 5. Talbot-Ross asserts this section remains in “full force,” even though it is not currently in print. Apparently, back in 1875, they were simply omitted, not officially abolished.

Tribal leaders consider Talbot-Ross their ally, and she alleges that the state government is making Maine citizens “jump through hoops” to find the original sections, which matters because technically those sections still apply, have always applied, but that this is now being debated, speaks to the long term efficacy of out-of-sight-out-of-mind. The tribes themselves, specifically Penobscot Nation ambassador Maulian Dana, consider the amendment a “powerful truth seeking measure” Like few other tribal spokesmen, Dana appears to understand that the sovereignty at stake is not tribe to federal government but tribes to state government, which is the true critical nature of sovereignty for any tribe as evidenced by the Supreme court decision in 1886 Kagama, where the court clearly identifies the states in which they reside, as the greatest enemies tribes have.

“We have made some really great progress. So why not let these original treaty obligations be seen and printed?” Dana said. “The fact that they were hidden sends a message to the tribal nations that the agreements and the relationship with the state and our people are not important or worthwhile.”

(Some information is this article courtesy of Maine Public)

(Contact James Giago Davies at


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