Penobscot chief calls on Obama to help
stop state erosion of tribal sovereignty
By Gale Courey Toensing
Story Published: Dec 22, 2009
Story Updated: Dec 18, 2009
INDIAN ISLAND, Maine – When the
Maine Indian Claims Settlement Act was passed in 1980, a Senate
report celebrated the event with the statement that “from this day
forward the tribes of Maine will be forever free from state
interference when it comes to matters internal to their tribes.”
Fast-forward 30 years and the tribes can’t even develop the
resources on their lands without the threat of state interference,
or worse.
Penobscot Indian Nation Chief Kirk Francis has written to President
Obama seeking intervention on behalf of Maine’s Wabanaki tribes to
restore both the spirit and intention of the 1980 law that was meant
to enhance the tribal nations’ inherent sovereignty, not increase
and consolidate state power over the tribes.
“The tribes are under constant attack by state government through
its courts and its political process to erode the spirit of the
agreement and our inherent sovereignty in order to protect corporate
interests and to perpetuate the treatment of the tribes as wards of
the state,” Francis wrote to Obama Dec. 1.
Last month,
Houlton Band of Maliseet Indians Chief Brenda Commander wrote a
similar letter to Obama.
The letters were inspired by the first
Tribal Nations Conference Obama hosted in early November in
fulfillment of a campaign promise, and his campaign statement that
“treaty commitments are paramount law.”
“Congress passes legislation for the benefit of all federally
recognized Indian tribes, but you have a lot of state interference
blocking tribes from accessing those tools, which to me is blocking
the trust responsibility of the federal government and eroding
tribal sovereignty that’s recognized in the Constitution,” Francis
said.
Part of the problem in Maine, Francis wrote, “is that language was
inserted without tribal approval into the federal portion of the
Settlement Act that provides that laws generally applicable to
Indian tribes will apply in Maine except to the extent such laws
affect or preempt state jurisdiction.”
When the Penobscot signed the Settlement Act, they were assured that
any laws that applied to federally recognized tribes would apply to
them, “but the state has argued successfully in its courts that if
it (the legislation) doesn’t specifically mention us by name that it
doesn’t apply,” Francis said.
That means the state and courts have successfully deprived the
Penobscot and other Maine tribes of basic rights enjoyed by other
nations, including the right to conduct gaming, the right as a
sovereign nation to protect its government documents from Freedom of
Information Act requests that serve the corporate interests of the
state’s big paper companies, the right to develop resources on
tribal land and more.
For example, Penobscot developed a plan over the past five years for
two wind power projects on its land in western Maine. Much of the
initial planning has been done, but the project has been blocked by
Attorney General Janet Mills, who claims that only the state has the
authority to issue permits for the project, Francis said.
“We say they don’t, but investors with $150 million investments
aren’t crazy about being in the middle of that pissing contest,”
Francis said.
A recent report in the Bangor Daily News quoted Mills saying there
were “no special limitations or restrictions” regarding tribal wind
farms or other projects. Mills said she has spent “a great deal of
time” assisting Maine tribes with legislative and regulatory issues,
including a provision to allow a tribal court for the Houlton Band
of Maliseets, the report said.
Asked to clarify her position on permitting authority on tribal
land, Mills avoided a direct answer and instead quoted attorney Tom
Tureen, who represented the Maine tribes in negotiating the
Settlement Act, which Mills referred to as “the bargain.”
“The tribes’ attorney, Tom Tureen, summarized the bargain as
follows: ‘For the state this meant, among other things,
understanding the tribes’ legitimate interest in managing their
internal affairs, in exercising tribal powers in certain areas of
particular cultural importance such as hunting and fishing, and
securing basic federal protection against future [loss] of land to
be returned in the settlement. For the Indians it meant, among other
things, understanding the legitimate interests of the state in
having basic laws such as those dealing with the environment apply
uniformly throughout Maine,’” Mills said.
Paul Bisulca, chairman of the
Maine Indian
Tribal-State Commission, refutes Mills claim of helpfulness
toward the tribes.
“She never had anything to do with the Maliseet and its tribal
court. That was part of the Tribal State Work Group recommendations.
It’s not like she jumped in and did something Herculean to help the
Maliseets establish a tribal court.” In any case, the Maliseets as a
federally recognized tribe and should not be required to seek state
permission to establish a tribal court.
The attorney general’s office has the reputation of “actively trying
to stymie anything the tribes try to do,” Bisulca said. “That’s
always been the case. We did see some changes with (former attorney
general) Steve Rowe, but in my opinion, it’s gone back to business
as usual and that means the AG blocking any legislative fixes to the
Settlement Act.”
In his letter to Obama, Francis cited the wind energy project as an
example of the way the state has successfully distorted the
Settlement Act to impose its will on the nations.
“‘While there are many other examples, the important point we want
to emphasize is our sense that the federal government has failed in
its trust,” he wrote.
The hope is for the federal government to examine the evidence of
the past 30 years and clarify the meanings of the Settlement Act and
tribal sovereignty to the state.
“The state needs to get back to the spirit of the agreement and
realize that the tribes are to have total control over internal
tribal matters. We need the federal government to say, ‘We’re going
to look at this and have hearings on it.’ And it’s not just for us,
they need to have hearings on all the settlement tribes, and look at
the treaties to see if they’ve been breached,” Francis said.
Maine
state power
The following 1829
letter from the Penobscot ‘Governors and Indians in Council’
to the governor of Maine is from the Maine Archives.
In answer to the application made by John G. Deane Esq, in
the name of this State, that we the Penobscot Tribe of
Indians will sell to the government of this State our two
Townships, we say as follows: The white people have
repeatedly asked us to dispose of our lands, and we have
sold to them one portion after another till we have but very
little left. The prospect is that in two or three
generations there will not be enough for our children. To us
it looks strange that white people knowing this should ask
us to sell nearly half [of] what we have left, when at the
same time they have in this State so many thousand acres of
wild land. If all their lands were cleared and settled, and
consequently they wanted more, we should be willing to yield
them a share of our own, for we are brothers, & one God made
us all. Till this is the case, leave to us this little
pittance, the miserable remains of the wide lands our
fathers left us, enough to sleep on while we live & to bury
us when we die.
And what do white people suppose we must think when we see
they wish to take from us one piece of land after another,
till we have no place to stand on, unless it is to drive us,
our wives, & our little children away? But if so great & so
free a country as this would exterminate us, we have no
chance any where else; we or our children must sooner or
later be driven into the salt water & perish.
But you say it is necessary that our Townships be settled,
that there should be taverns on the military road [road
built during the Aroostook War passing through Indian land
at Mattawamkeag to northern Maine]. Have not the Indians
tried already to settle the Township you want most because
they needed it for its advantages of farming, hunting &
fishing? Our Governor undertook this. Why did he not stay
there? Because a bad white man, in his absence, by
continually alarming his family, at last frightened his wife
& children away.
Nor was this all. He had with great labor constructed an eel
weir with which great lots of that fish were taken & and
quantities of them salted down. This they destroyed. They
also dug up & carried away his provisions, his pork, his
fish, his potatoes etc. Finally they burnt his cabins to the
ground. It is treatment of this sort that has prevented the
Indians hitherto from settling on some of their Islands, &
on their Township. By & by they will try again. As to
opening taverns on the military road, Indians have had talk
among themselves sometime ago. They know that white men who
travel that road must want taverns. They wish such men to be
accommodated, & they have done last year & this present year
what they were able by giving permits to white men to open a
tavern at Matahwamkik Point, where it was most needed. Next
year they will contrive with their Agent to have other
taverns provided when and where they are wanted, so that
travelers shall have no reason to complain on this point.
This we have done and are willing to do all that is
reasonable to accommodate our white brethren. Why then do
they seem as if they wished to reduce us to extremity? When
the United States were fighting for liberty, Gen. Washington
sent for the Chiefs of our Tribe, and gave them his promise
that, if we would remain neutrals in the war, he would
secure to us our rights. We have been faithful to our white
brethren & all we ask in return, is, that their contract
towards us should be just & reasonable.
Old Town
Nov. 5. 1829 |
|