Bipartisan lawmakers, Wabanaki leaders propose next change to Settlement Act
Passamaquoddy Tribal Rep. Aaron Dana testifies in support of prohibiting eminent domain on tribal lands before the Judiciary Committee on April 4. (Emma Davis/ Maine Morning Star)
A bipartisan group of lawmakers presented legislation on Friday to prevent the state from being able to seize Wabanki land for public use without consultation.
For the past several Legislative sessions, leaders of the Wabanaki Nations have worked with lawmakers to try to overhaul the 1980 Maine Indian Claims Settlement Act that has resulted in the tribes being treated more akin to municipalities than sovereign nations.
So far, sweeping change has failed due to opposition from Gov. Janet Mills, but the executive, lawmakers and Wabanaki leaders have successfully made some targeted adjustments, including expanding tribal authority to prosecute crimes last year.
LD 958 represents the next area of focus, although an omnibus bill is still expected to be considered during the second regular session of the Legislature next year.
Sponsored by House Minority leader Billy Bob Faulkingham (R-Winter Harbor) and bipartisan co-sponsors, LD 958 would amend the Settlement Act and the 2023 Mi'kmaq Nation Restoration Act — as the Mi'kmaq Nation hadn't been included in the earlier act — to prohibit eminent domain, a protection already afforded to almost all other federally recognized tribes.
'Much of our land contains irreplaceable cultural, spiritual and ecological resources,' said Passamaquoddy Tribal Rep. Aaron Dana, a co-sponsor of the bill who sits on the Judiciary Committee. 'This bill ensures those places are safeguarded and are not subject to destruction or appropriation. Too often in our history, our tribal lands have been taken, divided and exploited under the guise of progress.'
The U.S. government can seize private property for public use, known as eminent domain, however that authority is restricted by the Fifth Amendment U.S. Constitution, which requires just compensation for land taken, as well as some federal laws.
Rep. Rachel Henderson (R-Rumford), a co-sponsor who sits on the Judiciary Committee, questioned whether the bill is in conflict with the Constitution. It is not, Faulkingham, tribal leaders and attorneys explained, because the Constitution outlines when eminent domain can be exercised but not that it can't be further restricted.
'There's nothing in the Fifth Amendment that prohibits a state from enacting laws that says we won't do that,' Faulkingham said.
LD 958 applies to land protected under federal law — trust and reservation land — but fee lands — private property for which the owner owns the title — would still be subject to state power of eminent domain. A constitutional amendment allows states to condemn individually owned plots within tribal reservations.
Maine has seized Wabanaki land from the start of their intertwined histories, as the state territory today had first been inhabited by the Wabanaki people.
One example of eminent domain those who testified in favor of the bill cited occurred in 1925, when Maine took land from the Passamaquoddy Tribe's Reservation at Sipayik to build Route 190 without tribal input.
In 1912, the state helped a paper company pursue building a dam in Grand Falls, which flooded 6,000 acres of Passamoody land and harmed native fish, said William Nicholas, chief of the Passamoquoddy Tribe at Indian Township.
'When we talk about the Constitution of the United States and how it affects all of us, the Passamoquoddy Tribe is still waiting for our compensation for 113 years,' Nichols said, referring to the impact of the dam.
Since the 1980 Act, Nichols said he views the state's efforts to build an offshore wind port as an example of attempted eminent domain. Though the effort has been effectively put on hold, Nichols criticized the state for not consulting the tribes when pursuing a 'possible invasion of our ancestral waters.'
Maulian Bryant, executive director of the Wabanaki Alliance, a nonprofit created in 2020 to advocate for the recognition of the Wabanaki Nations' inherent sovereignty, said the bill encourages collaboration, not conflict.
'If a project can truly benefit the public, the State and the Tribes, the state should work with tribal leaders to find a solution,' Bryant said. 'This legislation is a protective measure to guarantee consultation and mutual agreement before any action is taken on tribal lands.'
There is one component of the bill Wabanki leaders are advocating to amend.
The bill stipulates how the money received for seized land has to be reinvested and how the Tribes can reacquire land with such proceeds, which Passamaquoddy attorney Corey Hinton criticized as a paternalistic process.
'It puts an unnecessary restriction on a federal process,' Hinton said.
Tribal attorneys will be presenting proposed changes to the committee before the work session on Wednesday. The change will likely be to strike the language and simply point to the federal takings process.
Prohibiting eminent domain has unique bipartisan support, as some of the Republican co-sponsors of the bill previously voted against omnibus sovereignty legislation and piecemeal changes considered in past sessions.
Faulkingham described the bill as consistent with his political ideology, describing it as a measure to protect private property rights.
'I don't believe in the process of eminent domain against anybody, anywhere,' Faulkingham said.
Other co-sponsors include Republican Sen. Marianne Moore of Washington, Democratic Rep. James Dill of Old Town and Republican Reps. Jennifer Poirier of Skowhegan, Katrina Smith of Palermo, Elizabeth Caruso of Caratunk and Arthur Kevin Mingo of Calais.
Other piecemeal changes to the Settlement Act so far include establishing a formal Tribal-State collaboration process for policy making, allowed the Tribes to generate sales tax revenue from sales on their own lands — except for the Mi'kmaq Nation, though lawmakers are hoping to expand that ability to them with a bill this session — and permitting the Tribes to handle sports betting.
Another bill this session supported by Wabanaki leaders would allow the Tribes to expand gambling options through internet gaming, with 16% of revenue generated going back to the state to fund services such as substance use disorder and gambling addiction programs. But casinos in Maine are opposed, arguing such a change would allow the Wabanaki Nations to monopolize the industry.
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