Chiefs blast attorney general’s ‘distorted, revisionist account’ of Settlement Act negotiations

Gale Courey Toensing
7/28/09

AUGUSTA, Maine – While tribal-state relations improved in the Maine Legislature this year, the Wabanaki chiefs took offense at what they called “distorted, revisionist” comments Attorney General Janet Mills made to the judiciary committee concerning the federal Maine Indian Claims Settlement Act of 1980 and its companion, the Maine Implementing Act.

Maliseet Chief Brenda Commander, Penobscot Chief Kirk Francis, Sipayik Passamaquoddy Chief Rick Phillips-Doyle, and Motahkmikuk Passamaquoddy Gov. William Nicholas wrote to Senate Chair Larry Bliss and House Chair Charles Priest, both members of the judiciary committee, and to other committee members to set the record straight.

“Attorney General Mills presented a distorted, revisionist account of the negotiating process that culminated in the Maine Implementing Act and Maine Indian Claims Settlement Act. We disagree with her statement that ‘Every word was meticulously and carefully chosen,’ giving the false impression that the two acts are somehow perfect agreements that should not be changed. Though the MICSA negotiation process lasted a number of years and involved thousands of hours spent by the negotiators, the notion that the MIA should not be amended because some exceptional level of legislative drafting was achieved is false,” they wrote.

Mills, a Democrat, was appointed by the legislature last December and is serving her first year.

In 2008, a tribal-state work group toiled for months on eight recommendations to amend the MIA. The recommendations were presented to the legislature where it was taken apart by the judiciary committee.

During the work group’s process, two of the original MICSA and MIA negotiators – John Paterson, the state’s former deputy attorney general, and Tim Woodcock, the former staff director of the Senate Select Committee on Indian Affairs – told the group that MICSA and MIA were meant to enhance and recognize tribal authority, not diminish it, and that MIA was supposed to be an organic document that would be revisited and amended as needed.

That hasn’t happened. Instead, over the decades the state and courts have worked to impose state jurisdiction on the nations.

The chiefs provided a concise history of the settlement and implementing acts in their letter. They described how some of the language in the statutes was deliberately vague because the negotiators couldn’t agree on specific provisions. The negotiators hoped the good will which developed during the difficult negotiations would continue and support future required changes to the acts.

Disappointingly, the chiefs wrote, the negotiators’ understanding that further amendments were needed slowly evolved into “a fiction” on the part of some powerful Maine politicians that the acts should not be changed because “a deal is a deal.”

The letter provides an education for legislators and other officials such as Mills who may not be familiar with the tribes’ contemporary history.

In testimony to the Senate Select Committee on Indian Affairs in1980, for example, Gov. Joseph Brennan said, “I do not think anybody can boldly assert that this (Settlement Act) was the perfect resolution. I think it is a reasonable one, but where there are consequences that may not have been contemplated, I think they have to go back and be resolved.”

Attorney General Richard Cohen in 1997 said, “There seems to be a belief that the (Settlement Act) was signed and that it’s carved in stone. There has to be some disabusing about that. There were many issues that were subject to discussion and further legislation at that time.”

Those issues have never been addressed, and instead the erosion of self-governance which was intended “to protect the vitality of our unique tribal lifestyle, and the exercise of tribal rights in maintaining our distinctive spiritual and cultural connection to our land and water resources, borders on termination,” the chiefs said.

The chiefs appeal for communication and rapprochement.

“To restore the original agreement and recapture a sense of equity and justice, we need to return to negotiations to determine what is fair and just and not hide behind a shield of presumed statutory language,” they wrote.

The chiefs called for “political discussion, not distorted legal constructionism by people not even directly involved in the original negotiations. If we want to discuss the true intent of the Act we should consult with those individuals knowledgeable about why certain provisions were included.”

The nations will not accept anything that lessens their full inherent sovereignty, the chiefs said.

“Our Wabanaki Nations have safeguarded what we know today as the State of Maine for thousands of years. We intend to remain here until the end of time. We accept that we have these large and powerful neighbors. … The way to ensure our peaceful and prosperous co-existence is through genuine discussion and reaching agreements that benefit all our peoples. We will never accept anything less than the inherent sovereignty we derive from GhChe’Nawais, our understanding of God.”

The chiefs could not be reached for comment by press time. However, Wayne Mitchell, the legislative representative of the Penobscot Nation, said to his knowledge they have not received a response to the letter.

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