Maine event: Casino referendum follows bitter fight for sovereignty

Jim Adams
10/31/03

OLD TOWN, Maine - With opinion polls in a dead heat, three of Maine's tribal governments are campaigning to the wire in what is probably this year's most important vote for Indian country after the California recall.

A Nov. 4 referendum to allow an Indian casino in southern Maine is dominating the off-year election season in New England. The $650-million project is being pushed by the Penobscot Indian Nation and the two reservation governments of the Passamaquoddy Indians, whose leaders were immersed in the last two years in a bitter sovereignty struggle with the state of Maine. The referendum would not only allow a casino, it might also help regain some of the tribal rights that Maine claims were bargained away in its 1980 land claims settlement with the tribes.

The sovereignty issue lies beneath the surface of the campaign, which the tribes are focusing tightly on the issue of jobs for an impoverished state. But the lineup on the casino closely parallels the fight that erupted two years ago, when paper companies demanded internal documents from the Penobscot and Passamaquoddy tribes, saying their Settlement Act subjected them to the state Freedom of Information Act. Two other Maine tribes were not affected by that suit, maintaining that they never accepted the Settlement Act terms, and they have not joined the casino project.

On commercials and press conferences, the hard-fought referendum campaign pits two images of Maine against each other.

Opponents of the casino argue that it would spoil the idealized world of rugged seacoast and forest that attracts the wealthy summer crowd, and that some commercial interests shrewdly market. The tribes and their backers reply they want to bring jobs and opportunity to the real Maine of poverty and isolation that Indians know too well.

Erin Lehane, campaign manager for Think About It, the pro-casino group, in a recent statement called the opposition, "just another example of the haves not caring for the have-nots."

The upscale catalog clothier L.L. Bean set the tone for the anti-casino effort when its executives said in an e-mail message to employees, "The proposed casino does represent a clear threat to our brand.

"The images of Maine that the casino will be marketing will stand in stark contrast to the Maine values for which our state has become known. The Maine attributes the state seeks to promote will be swamped by the messages from casino advertising portraying roulette wheels, dancing girls and popping champagne bottles."

Lehane and her troops retort that the real Maine has lost 17,000 manufacturing jobs in the last three years, and that laid off mill workers face a year-round fight for survival. The proposed casino, based in the working-class town of Sanford, would provide at least 4,000 jobs, they say, and would launch one of the largest construction projects in state history.

Once in operation, the Sanford casino would provide direct financial support to the Maine government through tax payments and revenue sharing. The casino legislation would give the state 25 percent of the net slot machine drop (money in minus prize payouts). In five years, say proponents, the state would be gaining more than $100 million a year earmarked for education and property tax relief.

This argument leads into sensitive ground, however. The ballot measure consists of one sentence, "Do you want to allow a casino to be run by the Passamaquoddy Tribe and Penobscot Nation if part of the revenue is used for state education and municipal revenue sharing?" But if it passes it would enact a 7,248-word Maine Tribal Gaming Act to amend the highly controversial 1980 Maine Tribal Claims Settlement Act. Critics of the 1980 Settlement Act say it gave the Passamaquoddy and Penobscot tribes a very bad deal, among other things making the current referendum necessary to gain them rights that the federal Indian Gaming Regulatory Act (IGRA) provides to almost all other federally recognized tribes.

Not only have courts barred the application of IGRA to Maine, they have severely limited Penobscot efforts to offer high-stakes bingo, Class II type gaming which in most other states is not even subject to a tribal-state gaming compact.

The subtext of the campaign, hotly debated by legal analysts but not the ads, is to what extent the referendum would restore tribal rights that were bargained away in 1980. In the paper company lawsuit, Penobscot Chief Barry Dana and the governors of the Passamaquoddy - Indian Township and Passamaquoddy - Pleasant Point reservations faced jail terms in defying state court demands for internal tribal documents. Yet the Gaming Act continues to make concessions to the state.

The act extends state criminal jurisdiction to the tribal casino. It provides a state gaming authority with licensing and investigative powers over all casino employees, and in a step beyond IGRA, all unions and larger businesses providing it services. It makes the casino subject to local property taxes and state sales and use taxes.

The act also adopts the model of the Connecticut compact with the Foxwoods Casino Resort and the Mohegan Sun, under which those tribal casinos contribute hundreds of millions to the state budget. The Maine provision would go further, however, earmarking 50 percent of the casino fund for property tax relief.

Chief Dana and the Penobscot tribal council have adopted a conciliatory stance toward state authority over the proposed casino, a significant gesture since he is the only one still in office of the three tribal leaders under the gun in the paper company suit. But there is also a historical rounding of the circle. The pro-casino campaign is being run out of the Portland law office of Thomas Tureen, who helped draft the Gaming Act. As lawyer for the Penobscot and Passamaquoddy in their late 1970s land claims suit, Tureen was a principal negotiator of the 1980 Settlement Act.

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