AUGUSTA, Maine — The veto letter Gov. Janet Mills wrote last week opposing a bill that would let Maine’s tribes benefit from more federal laws is six pages long.
But underlying it is decades of debate over the relationship between the state and its four federally recognized tribes that make up the Wabanaki Alliance — the Passamaquoddy, Penobscot, Mi’kmaq and Maliseet.
This year’s bill from House Speaker Rachel Talbot Ross, D-Portland, would let Maine tribes benefit from federal laws that do not currently apply to them due to a landmark 1980 settlement. The agreement gave Maine tribes money in exchange for being regulated like cities and towns, which left them without some of the powers that tribes across the country have.
So why does the Democratic governor oppose the legislation that tribes and many legislators in both parties support, and what have the tribes said in response? It comes down to Mills’ long list of legal concerns, and tribal concerns that she is doing little more than stonewalling.
Here are the five main sticking points ahead of key votes on a veto override scheduled for Thursday.
Conflict between state and federal law
The tribes said they would benefit from 151 federal laws that have passed since the 1980 settlement and any new federal laws going forward.
But Mills and her legal team have said only a few federal statutes — particularly ones relating to health care and disaster assistance — do not currently apply to Maine tribes, and she is willing to work with tribal leaders to change that, rather than signing a more sweeping bill.
The state legislation would attempt to “preempt” or “override” federal provisions in the 1980 Maine Indian Claims Settlement Act governing how U.S. statutes apply or do not apply in Maine, which Mills said is unconstitutional. The governor noted Attorney General Aaron Frey testified the bill “may not be effective at achieving its stated intent.”
In response to Mills saying she would negotiate with tribes on laws that do not currently apply to them, like the Stafford Act and Indian Health Care Improvement Act, Chief Kirk Francis of the Penobscot Nation said what she is “really saying is what we want is the status quo, and we want state veto authority.”
“It is my belief that this will be the last … governor, period, probably, to take these positions, protecting an old guard, an old mindset and personal legacies,” Francis said.
‘Imprecise language’ could lead to lawsuits
Mills, who was the attorney general before her 2018 election as governor, said the bill does not identify precisely which state laws would be “modified,” adding they could cover areas like the probate code, land use, fish and game regulations, labor, fire safety and school funding.
That would create “great uncertainty” for Maine residents, businesses and municipalities and lead to lawsuits that could take decades to resolve, Mills wrote in her letter.
Mills said an amendment to the bill that exempts environmental laws does not achieve its intended aim, as the carve-outs only apply to statutes that “directly or indirectly extend the jurisdiction” of the tribes beyond their territory. Mills said no federal statutes do that.
Francis said the state had previously indicated Congress should handle the issue, only for Mills to oppose a similar bill led by U.S. Rep. Jared Golden, a Democrat from the 2nd District.
Lobster fight is ‘cautionary tale’
Removing nearly 300,000 acres of land held in trust by the tribes and any new lands they acquire in the future from state or local regulation could lead to “federal meddling,” Mills wrote in opposing the bill.
She mentioned the protracted fight between Maine’s lobster fishermen and the U.S. government over proposed federal restrictions aimed at protecting endangered whales. A federal appeals court sided in June with the fishermen, finding the rules could put them out of business.
That case “should give us pause and serve as a cautionary tale of the unintended consequences that Maine people could suffer under such an agreement,” Mills wrote.
Changes would be ‘effectively irreversible’
Mills noted the unintended consequences of the bill would require the Legislature to fix them only with the “express agreement” of each tribe. Under the Maine Implementing Act, tribes have veto authority over any changes.
“This means that this bill would operate like a binding contract,” Mills wrote, “and these changes would be effectively irreversible.”
Francis, the Penobscot Nation chief, argued the Wabanaki Alliance has “tried to make every adjustment, and the fact of the matter is anything beyond the status quo is not going to be acceptable to her.”
Not enough public input
Lastly, Mills said the Legislature the public did not have enough time to weigh in on the legislation, as it was printed May 30 and then given a public hearing the next day before the Judiciary Committee approved a revised version during a June 15 work session.
She said the House and Senate each approved the bill on June 20, the same day the final language was printed and made public.
“It does not have to be this way,” Mills wrote, pointing instead to negotiations with tribes that led her to sign last year a bill to fix drinking water issues at Pleasant Point Reservation and support another bill this year related to a separate agreement with the Mi’kmaq reached after the 1980 settlement but never ratified.
But Francis said the vetoed bill came out of a years-long debate over sovereignty laws and that it is “disingenuous to say this was a late submission.”