Tribes Ask UN for Help Fighting Anti-Indian Laws in Maine

Gale Courey Toensing
August 22, 2013


A mix of anti-Indian laws and court rulings along with the Maine state attorney general’s unilateral interpretations of the Wabanaki nations’ settlement acts have imposed restrictive conditions on the tribes that now rise to the level of human rights violations, the Maine Indian Tribal-State Commission (MITSC) has reported to the United Nations Human Rights Council.

On August 8, the commission sent James Anaya, the council’s Special Rapporteur on the Rights of Indigenous Peoples, a 14-page letter with 21 documents supporting its claim that the Penobscot Indian Nation, the Passamaquoddy Tribe, the Houlton Band of Maliseet Indians and the Aroostook Band of Micmac Indians face a humanitarian crisis due to the state’s misinterpretation and  manipulation of the 1980 federal Maine Indian Claims Settlement Act (MICSA) and its state companion, the 1980 Maine Implementing Act (MIA). The commission hopes Anaya’s discussions with the federal government will help bring about changes to the settlement acts’ “structural inequities” to bring them in line with the United Nations Declaration on the Rights of Indigenous Peoples and other covenants and international laws.

The filing may have far-reaching impacts on other east coast tribal nations who also struggle under flawed settlement acts and colonial-minded anti-Indian state governments that continue to impose oppressive restrictions on the Indigenous Peoples whose land their ancestors settled, according to Penobscot Chief Kirk Francis. “This isn’t just about the Wabanaki Nations,” Francis told Indian Country Today Media Network. He heads up the United South and Eastern Tribes’ Restrictive Settlement Acts Initiative, a three-year old effort to amend restrictive settlement acts that “substantially restrict [tribes’] sovereign rights, essentially limiting them to a form of second class tribal sovereignty.” The initiative is currently focused on the Wabanaki nations, the Wampanoag Tribe of Gayhead on Martha’s Vineyard in Massachusetts, the Narragansett Indian Tribe in Rhode Island and the Cawtaba Indian Nation of South Carolina. “My hope is that collectively we all bring a greater power to this argument and these [MITSC] documents are not just helpful to the Maine tribes but to all the tribes experiencing this kind of [state] intrusion and restriction and encroachment that we’re living with. I think it’s a huge piece,” he said applauding MITSC’s action.

Maine State Attorney Janet Mills received but did not respond to an e-mail seeking comment.

MITSC is an inter-governmental entity created by the Maine Implementing Act consisting of tribal and state representatives. Its principal responsibility is to “continually review the effectiveness of (the MIA) and the social, economic and legal relationship” between the Wabanaki nations and the state. For the past two years, the commission has thoroughly researched and documented the impacts that the MICSA and MIA are having on the Wabanaki tribes, Jamie Bissonette Lewey, MITSC chairwoman, said in a statement.

“MIA and MICSA are not working,” Bissonette said. “No tribe negotiates to deepen its people’s poverty. Provisions included in the MIA and MICSA designed to provide flexibility have been either blocked or unused. Unilateral interpretations of the Acts by the Office of the Maine Attorney General and state and federal courts contrary to the process that produced the laws have magnified the inequities of MIA and MICSA. As the nation states of the world and the United Nations recognize today [August 9] as International Day of the World’s Indigenous Peoples, Maine and the U.S. can truly honor the meaning of this day by addressing the structural problems in MIA and MICSA causing a human rights crisis for the Wabanaki Tribes within the State of Maine.”

John Dieffenbacher-Krall, MITSC’s executive director, provided Anaya with information about the settlement acts in an initial filing in 2012 and at a meeting during the U.N. Permanent Forum on Indigenous Issues in New York that year. Anaya was on his first official visit to the United States to gather information and evaluate the situations of Indigenous Peoples and find ways to protect their human rights. In his report on the visit, Anaya wrote, “The Maine Indian Claims Settlement Act and Maine Implementing Act create structural inequalities that limit the self-determination of Maine tribes; structural inequalities contribute to Maine tribal members experiencing extreme poverty, high unemployment, short life expectancy, poor health, limited educational opportunities and diminished economic development.”

The current filing responds to a request from Anaya for more information about how the MICSA and MIA’s “framework severely limits Wabanaki tribes in Maine with regard to economic self-development, cultural preservation and the protection of natural resources in tribal territories.”

The filing’s 21 supporting documents include two formal State of Maine investigations into the effects of the Maine Implementing Act on the Wabanaki tribes, several state and federal court cases, letters, MITSC’s own policy position statement on river herring restoration in the St. Croix River, and health advisories warning against consuming fish and game due to toxic contamination in and on Indian waters and territories as evidence to support its claims that the state has imposed “limits on tribal self-determination” through court rulings and its own interpretations of the settlement act that were not inherent in the agreement.

In addition, the settlement act itself contains inherent flaws, the filing says. “Certain provisions of the legislation. … align closely with tribal termination provisions. … The ways in which these provisions have been interpreted by state and federal courts constitute the partial termination of tribal self-governance and thus the tribes’ ability to provide for the protection of natural resources, the provision of an economic base, and preservation of their unique cultures.”

A particularly bad section of the settlement act limits Wabanaki access to beneficial federal laws passed after October 10, 1980, unless the legislation includes specific language including the tribes, an almost impossible criteria for Congress to meet. This was clearly illustrated earlier this year when Maine Sen. Susan Collins argued against including the Wabanaki nations from Stafford Act amendments that included a provision allowing federally recognized tribes to apply directly for disaster relief under their status as sovereign nations on par with states instead of having to apply through states. Once again the attorney general’s office intruded into tribal affairs, Wayne Mitchell, Penobscot’s representative in the Maine legislature said, in a Bangor Daily News report. Mitchell gave a legislative committee copies of Collins’ testimony as well as an e-mail between her office and the Maine attorney general’s office. “It’s clear that the attorney general wrote this for the senator without consultation and we argue with the much-skewed facts,” Mitchell said.

What that shows, Francis said, is “at the end of the day, it can all come down to one senator.”

The filing also documents the state’s continuing success in thwarting the tribes’ efforts at economic self-determination through Indian gaming while permitting non-Indians to own and operate two Class III casinos. “The tribes face not only the anti-gaming organizations but are confronted with virulent open racism,” the filing says.

That’s why MITSC’s filing in the international arena is important, Francis said. “It puts the factual substance behind the conditions the tribes have been screaming about for over a decade in saying this is not what we intended this agreement to be and we now see intrusion into tribal life at every level.”

The contentious lawsuits filed every two to three years for the past 30 years prove a total lack of common ground or government to government consultation on the settlement agreement and the state consistently bypassing MITSC whose purpose is to deal with these issues, Francis said. “So the state gets to tell us what our place is under this agreement that was supposed to turn around a century of the tribes being wards of the state, but it’s become another document to ensure that that stays in place.” When Anaya speaks about the Wabanaki condition as a human rights crisis it’s significant, because he tells the international community and the U.S. that states don’t have the legal or moral right to do what they want to Indian tribes, Francis said. “It compromises the federal relationship, it compromises the trust responsibility and what it says to the federal government is ‘We don’t care what level of standards you hold this relationship to, we have states’ rights and we’re going to do whatever we want and these Indian tribes are never going to be successful under our watch.’”