House Subcommittee for Indigenous Peoples of the United States : Legislative Hearing on H.R.4715, H.R.5715, and H.R.6707 – March 31, 2022
Wabanaki Nations seek ‘equality’ for their tribal sovereignty
‘We’re denied one of the most fundamental rights’
Monday, April 4, 2022
Indianz.Com

WASHINGTON, D.C. — With one long-overdue legislative achievement under their belts, tribal nations from one of the furthest ends of Indian Country are asking Congress to fully recognize their sovereignty.

Maine is home to five federally recognized tribal governments. But the Aroostook Band of Micmacs, Houlton Band of Maliseet Indians, the Passamaquoddy Tribe at Indian Township, the Passamaquoddy Tribe at Pleasant Point and the Penobscot Nation are unable to exercise their rights in the same manner as every other Indian nation.

The outcome has been disastrous. Whether it’s safeguarding water in their communities, enhancing public safety or protecting Indian children through the Indian Child Welfare Act (ICWA), tribal leaders say they are being left behind when it comes to true self-determination.

“Not having full authority under ICWA that other tribes have stifles our ability to exercise jurisdiction and has created a cascade of ramifications for our children and families,” Chief Clarissa Sabattis of the Houlton Band said at a hearing in the nation’s capital last week.

“We’re denied one of the most fundamental rights as Indian tribes and the impact of not having full authority over child custody proceedings under ICWA has resulted in the removal of up to 11 percent of our children in the past,” Sabattis added.

H.R.6707, the Advancing Equality for Wabanaki Nations Act, attempts to rectify the situation, at least going forward. The bill ensures that tribes in Maine will be covered by any future laws that benefit Indian Country, without having to ask Congress to be included.

“For 30 years, we have been unable to negotiate a new jurisdictional agreement that gives us the legal authority to provide for health, welfare, and safety of our people,” said Chief Edward Peter-Paul of the Aroostook Band, also known as the Mi’kmaq Nation. “For 30 years, we have not been able to build our legal infrastructure, like a police department, a court system.”

“H.R.6707, if enacted, marks the first time that our nation would be able to assume jurisdiction over our most precious resources — our children,” said Peter-Paul, whose tribe is based in the northernmost county of Maine. “It will allow us to start our nation building efforts by helping us to create our first court system, the court system to oversee our Indian Child Welfare Act cases.”

The disparate treatment stems from the Maine Indian Claims Settlement Act of 1980. The federal statute, now more than four decades old, imposes a number of hurdles on the Houlton Band, the Passamaquoddy Tribe and the Penobscot Nation when it comes to their sovereign rights.

indianz · House Subcommittee for Indigenous Peoples Legislative Hearing on H.R.4715, H.R.5715 & H.R.6707
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The most egregious limitation — the one being rectified with the Advancing Equality for Wabanaki Nations Act — requires Congress to specifically mention Maine every time it enacts a law for Indian Country. For example, since neither the Violence Against Women Act of 2013, nor the Tribal Law and Order Act of 2010, contained such language, the tribes have been left out of these significant Indian policy developments.

And even though the Mi’kmaq Nation wasn’t a part of the 1980 settlement, the federal courts have imposed the same conditions on the Aroostook Band. The limitation essentially places the Wabanaki Nations not only at the whims of Congress — but under the thumb of the state of Maine, whose dealings with the tribes have been rocky, to say the least.

“When we passed the Violence Against Women Act and we were working hand in hand with tribes for partnership and when Maine was put in as a pilot program — the whole Congress, the whole Congress, the whole Congress — voted to give Maine that opportunity work with its tribal governments, sovereign nations, in my opinion,” Rep. Betty McCollum (D-Minnesota) emphasized at the hearing on March 31.

“Money was given to do a pilot project in Maine and the state of Maine just refused to participate. And I was outraged by that,” said McCollum, who serves as co-chair emeritus for the bipartisan Congressional Native American Caucus.

“I’m not a person who’s big on pre-emption but I really felt the state of Maine pre-empted the federal government from working in partnership with tribal, sovereign nations in Maine to uphold their obligation to protect the families, the women in the Violence Against Women Act,” McCollum added.

The VAWA oversight was just fixed last month, nearly a decade after Congress took initial action to recognize the inherent authority of tribes. An omnibus appropriations bill that was signed into law by President Joe Biden finally includes the Wabanaki nations, although they still have to play catch up with the rest of Indian Country due to lost opportunities.

“We lost out on millions of dollars that would have strengthened our tribal court and public safety efforts,” said Chief Kirk Francis of the Penobscot Nation.

Chief William J. Nicholas, Sr. of the Passamaquoddy Tribe at Indian Township pointed out that Congress has enacted more than 150 laws for the benefit of Indian Country since the 1980 land claim settlement in Maine. The list includes everything from the Indian Gaming Regulatory Act (IGRA) of 1988 to the Indian Health Care Improvement Act (IHCIA) of 2010. None of these laws are helping the Wabanaki tribes, he testified.

“Whether it’s enforcing our fishing game ordinances, providing tribal government services or working to bring economic development to Passamaquoddy territory and surrounding areas, we are a sovereign government that is always working to protect, preserve, and improve the quality of life,” said Nicholas, who added that the state of Maine tried to stop his tribe from hiring health care workers under the provisions of the IHCIA.

The state of Maine, however, was not present at the hearing before the House Subcommittee for Indigenous Peoples of the United States. A representative for Gov. Janet Mills (D), who has repeatedly tangled with the Wabanaki tribes, stemming from her days as the attorney general, promised to submit written testimony on H.R.6707 within the coming days.

Chief Sabbatis of the Houlton Band noted the state’s absence. She said having to gain consent from Maine goes against the fundamental nature of tribal sovereignty, as well as the U.S. government’s trust and treaty obligations to tribes and their citizens.

“So to address the question of why the state isn’t here, we still have a unique trust responsibility — or the United States has a unique trust responsibility to our tribes,” Sabbatis said. “And I don’t feel that we should have to ask permission, or have the state involved in a relationship that we have.”

The state’s powerful forestry industry, though, was on hand to raise objections to the Advancing Equality for Wabanaki Nations Act. The Maine Forest Products Council represents businesses like paper mills that have gone so far as to obtain internal tribal communications in order to prevent tribes from exercising their sovereignty.

Patrick Strauch, the executive director of the organization, in fact brought up the same concerns that were at the center of that decades-old dispute, which the paper companies won. Should H.R.6707 become law, he said tribes would be able to impose water quality standards in Maine that the forestry industry opposes.

“It might take years but eventually most, or all, of our Maine state jurisdiction over tribal lands and natural resources would be displaced,” Strauch told lawmakers. “With respect to environmental regulation, which is the thrust of our concern, if the tribes obtained treatment as state status, a two-tiered system would emerge where we’d have to we’d have to meet state environmental standards, which are strict and demanding as they should be, and tribal standards, which could be much stricter.”

“Such a system would bring great uncertainty and complexity to the forest products sector,” said Strauch, whose organization claims to have generated 30,000 direct and indirect jobs in the state of Maine.

Rep. Jared Golden (D-Maine) introduced H.R.6707 on February 11. Objections from the forest industry are overblown because he said his bill only applies to future laws — not to prior statutes that affect environmental regulations.

“This bill only affects the application in Maine of future laws that Congress may pass,” said Golden. “Laws like the Clean Air Act and Clean Water Act are already on the books and do not require reauthorization. So our bill does not implicate them.”

Even if H.R.6707 becomes law, Golden pointed out that the disparate treatment of the Wabanaki Nations will continue. Of the 150-plus Indian Country laws that Congress has enacted since 1980, only one includes tribes in Maine, he said.

“Out of the hundreds of beneficial tribal laws passed by Congress in the last 40 years, Congress has acted to apply only one of them specifically in Maine — and that was this year’s reauthorization of the Violence Against Women Act,” Golden told his colleagues.

Despite the doubts, the tribes have been marshaling support for their sovereignty at home. According to the Wabanaki Alliance, which consists of representatives of the Wabanaki Nations, more than 100 people testified in support of legislation to fully recognize their sovereignty during a hearing before the Maine Legislature in February. More than 1,600 written letters of support have been submitted, the tribes said.

Gov. Mills opposes the state legislation, as currently written. Her administration has submitted a counter-proposal to one bill under consideration, known as the Tribal-State Collaboration Act. The measure addresses a wide range of issues that have been in dispute since the 1980 land claim settlement.

A second bill would implement reforms to the Maine Indian Claims Settlement Implementing Act, a state law, that were suggested by an official state task force. A third bill enables the Passamaquoddy Tribe at Pleasant Point, also known as Sipayik, to exert more control of the water that serves the community. A rally in support of the Pleasant Point water measure takes place at the state capitol on April 11.

Note: Thumbnail photo of Dwayne Tomah from the Passamaquoddy Tribe at Pleasant Point (Sipayik) during the Rally for the River and Wabanaki Sovereignty on August 1, 2021 by Nolan Altvater / Sunlight Media Collective

House Subcommittee for Indigenous Peoples of the United States
Committee Notice: Legislative Hearing on H.R.4715, H.R.5715, and H.R.6707 (March 31, 2022)
Additional Documents (docs.house.gov)

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