Ban on state seizure of Wabanaki land passes Legislature, but likely to be vetoed
William Nicholas, chief of the Passamoquoddy Tribe at Indian Township, testifies in support of prohibiting eminent domain on tribal lands before the Judiciary Committee on April 4. (Emma Davis/ Maine Morning Star)
Legislation that would prevent the state from being able to seize tribal land for public use passed with bipartisan support in the Maine Legislature Friday, winning over many Republicans who generally were less supportive of previous attempts to provide the Wabanaki Nations greater sovereignty. However, initial votes show that support may not be enough to override an expected veto from Gov. Janet Mills.
With 11 Republicans joining the Democratic majority, the Maine House of Representatives voted 86-60 on Friday in favor of the bill, preceded by ample debate. The Senate followed suit with a 20-12 vote but no discussion.
However, a two-thirds vote in both chambers would be needed to override a veto.
LD 958, which has bipartisan co-sponsors and received a favorable committee vote, would prohibit the state from exercising something called eminent domain on current trust and reservation land.
'This is an issue that small government conservatives and civil justice liberals can agree on,' bill sponsor House Minority Leader Billy Bob Faulkingham (R-Winter Harbor) told Maine Morning Star.
However, others in his caucus spoke against the bill during floor debate, highlighting that their opposition to this issue is attached to their overall opposition to tribal sovereignty efforts.
'I cannot support this measure because I believe the issue is an issue to some degree less about eminent domain than it is about tribal sovereignty,' Rep. Ken Fredette (R-Newport) said. Fredette went on to compare the Wabanaki Nations to states and municipalities.
Governor opposed to latest change to Settlement Act backed by Wabanaki Nations
'Our states are not absolute sovereign from our federal government,' Fredette said. 'Our towns are not absolute sovereign from the state in and the reality is that the tribes are not absolutely sovereign from the state of Maine.'
Most other federally recognized tribes are already afforded protection against states being able to seize tribal land for public use. However, the Wabanaki Nations are not, due to repercussions from the 1980 Maine Indian Claims Settlement Act.
This land settlement agreement has resulted in the tribes being treated more akin to municipalities than sovereign nations like other federally recognized tribes. Overhauling this act in its entirety is the Wabanaki Nations' broader goal for greater recognition of their sovereignty.
The U.S. government can seize private property for public use, a principle known as eminent domain, however that authority is restricted by the Fifth Amendment of the U.S. Constitution, which requires just compensation for land taken, as well as some federal laws.
In 1834, the federal Indian Nonintercourse Act prohibited land transactions with tribes unless authorized by Congress, but the Settlement Act specified that that federal law was not applicable to the Wabanaki Nations.
'As an ardent supporter of the Constitution and the Bill of Rights I stand opposed to the government taking people's property through eminent domain,' Faulkingham said. 'It is even more egregious to threaten seizure of property from sovereign tribes who have suffered from historic injustices of land seizures in the past.'
LD 958 would amend the Settlement Act to prohibit the state from exercising eminent domain on trust and reservation land, which is protected under federal law, though fee land — or private property for which the owner owns the title — would still be subject to the state taking.
The bill would also amend the 2023 Mi'kmaq Nation Restoration Act to make this change for the fourth Tribe of the Wabanaki Nations, the Mi'kmaq Nation, which wasn't included in the Settlement Act.
'I feel like this is a no brainer,' Executive Director of the Wabanaki Alliance Maulian Bryant told Maine Morning Star. 'We should have tribal land protected from state seizure, just like other tribes around the country.'
Throughout committee consideration of the bill, it was amended to incorporate a proposed change from the Maine State Chamber of Commerce that the prohibition would only apply to current reservation and trust lands, and not land that may be put into trust in the future.
Each of the Wabanaki Nations are eligible to acquire up to 150,000 acres of trust land in specific areas identified in the Settlement Act. Several tribes have already acquired most of that.
While the Judiciary Committee accepted that amendment, Passamaquoddy Tribal Rep. Aaron Dana, who is on the committee, told Maine Morning Star that some tribal leaders believed that compromise shouldn't have been made.
'We don't want to keep negotiating away everything,' Dana said. 'We've been negotiating everything away since the 1980s.'
'What we don't know is what we don't know,' Fredette said on the floor. 'Would we, as a state, for the best interest of the state, require a sliver of a piece of land? I don't know the answer to that.'
Fredette repeated many of the same talking points that the governor's counsel, Jerry Reid, told the Judiciary Committee during a work session in which he shared that Mills is opposed to the bill.
After not testifying during the bill's public hearing, Reid said on April 9 that Mills is concerned the bill could prevent the state government from addressing unpredictable future infrastructure needs, an issue also raised in written testimony from the Maine Department of Transportation.
When pressed by committee members, Reid said he didn't have a specific example of an infrastructure project that would warrant seizing tribal land but that, 'We need to write the law mindful of the potential for problems.'
Republican Sen. David Haggan of Penobscot, who was one of four committee members to vote against the bill in committee, invited Reid and Tim Woodcock, attorney with Eaton Peabody, to provide a question and answer session about the bill, which was only attended by Republican legislators on May 8.
A handout from that meeting listed similar key points, pointing to uncertain future needs and arguing that the state needs to be mindful of the interests of the 1.4 million non-tribal Maine citizens, as well.
'Informational sessions like this are not unusual,' the governor's press secretary Ben Goodman said when asked why the session was held.
So far, sweeping changes to the Settlement Act have failed due to opposition from Mills, though an omnibus sovereignty bill has been carried over into next year. Instead, the governor, lawmakers and Wabanaki leaders have successfully made some targeted adjustments, including expanding tribal authority to prosecute crimes last year.
Craig Francis, a tribal attorney and Passamaquoddy citizen, told Maine Morning Star that the Wabanaki Nations hadn't expected the eminent domain issue to garner the pushback from the Mills administration that it has.
'We're trying to approach change that way because of what the governor has laid that out as a path forward,' Francis said, referring to the piecemeal approach. 'We didn't really see eminent domain as that big of an issue as her office is making it out to be.'
The state has not exercised eminent domain over tribal lands since the Settlement Act, a point Fredette also made on the House floor. This also means that, currently, the state's ability to exercise eminent domain over tribal lands is not actually clear.
'I suspect that even if the state were going to attempt to take a piece of tribal land by eminent domain, it would be sufficiently litigated frankly for years before that were to happen,' Fredette said on the floor, 'and so I think this is a bill that's in search of a problem.'
Meanwhile, Francis said the likelihood of litigation is a reason to clarify rights now in the bill.
'It leaves open legal questions that ultimately will end up having to be resolved by a court,' Francis said. 'We're trying to resolve it amicably because there's always room for conversation in the future if [the state] needed land.'
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