Governor opposed to latest change to Settlement Act backed by Wabanaki Nations
Passamaquoddy attorney Corey Hinton requests the Judiciary Committee amend legislation prohibiting eminent domain on tribal lands on April 4. (Photo by Emma Davis/ Maine Morning Star)
Discussion of legislation to afford the Wabanaki Nations more authority over their land revealed that Gov. Janet Mills does not support the change, presenting a steep path for a plan that otherwise has bipartisan support.
After not testifying during the public hearing last week, the governor's counsel, Jerry Reid, told the Judiciary Committee on Wednesday that Mills' concerns stem from the inability to predict the future needs of state government, an issue also raised in written testimony from the Maine Department of Transportation, which was made available after the hearing.
When pressed by committee members, Reid said he doesn'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.'
While Reid and Wabanaki leaders noted that progress has and continues to be made to improve the relationship between the state and Wabanaki Nations, Reid added, 'the fact that we have such a good relationship right now might not always be true.'
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.
The 1834 federal Indian Nonintercourse Act prohibited land transactions with tribes unless authorized by Congress. However, the 1980 Maine Indian Claims Settlement Act specified that that federal law was not applicable to the Houlton Band of Maliseet Indians, the Passamaquoddy Tribe and the Penobscot Nation.
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This is the act that has overall resulted in the Tribes being treated more akin to municipalities than sovereign nations. So far, sweeping changes to the act have failed due to opposition from Mills, but the governor, lawmakers and Wabanaki leaders have successfully made some targeted adjustments, including expanding tribal authority to prosecute crimes last year.
The legislation being considered this session, 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 Mi'kmaq Nation, which wasn't included in the Settlement Act.
On Tuesday, the Taxation Committee unanimously voted in favor of a bill to ensure equal tax treatment among all of the Wabanaki Nations, which Mills supports. LD 982 would provide the Mi'kmaq Nation the same rights to sales tax revenue on its land that the other three tribes of the Wabanaki Nations were granted in 2022 through an amendment to the Settlement Act.
The state hasn't exercised eminent domain over tribal lands since the Settlement Act. However, testimony from Wabanaki leaders and state government officials underscore that it is a possibility.
In its testimony, MDOT raised concern about the uncertainty over the future location of tribal trust land, which is land the federal government holds the legal title of on behalf of a tribe.
Bipartisan lawmakers, Wabanaki leaders propose next change to Settlement Act
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.
'It is impossible to know how the eventual location of these lands could impact public transportation needs in coming years, and certainly not decades into the future,' wrote Meghan Russo, director of government affairs at MDOT.
Reid said the governor shares that concern. While noting that Mills doesn't like the concept of eminent domain, he said, 'it's one of those things that when you need it, it suddenly is critically important and it's an essential tool that government needs in order to be able to deliver on the needs of modern society.'
The governor believes the state needs to be mindful of the interests of the 1.4 million non-tribal Maine citizens as well, Reid said, to which Passamaquoddy Tribal Rep. Aaron Dana questioned whether the relatively small acreage the tribes could acquire would make a sizable impact on the state's ability to do so.
'We don't know,' Reid said, 'but it could be.'
While arguing for the state's right to eminent domain over tribal land, Reid emphasized the state's record in the past several decades of negotiating with the Tribes rather than exercising that authority, an apparent contradiction pointed out by lawmakers.
'If the state is saying that they won't do this and they don't need to and they would never be bad neighbors like that, then ask the state, why can't they abide by this law?' questioned the bill sponsor, House Minority Leader Billy Bob Faulkingham (R-Winter Harbor). 'Then put it into statute that they won't do that, because if you need some land or access to some land for a project or something, then go to them and make a deal and buy it.'
Faulkingham also pushed back on what he described as a false notion of trust land being the 'boogie man,' given the limited acreage permitted to the Tribes.
While eminent domain of tribal land hasn't been used recently, Maine's proposal to build an offshore wind port, although effectively stalled at the moment, has given the Wabanaki Nations cause for concern.
Reiterating worry shared by William Nicholas, chief of the Passamoquoddy Tribe at Indian Township, during the bill hearing, Passamaquoddy attorney Corey Hinton said on Wednesday that the state did not appropriately involve the Wabanaki Nations in planning discussions, particularly when considering Estes Head in Eastport as a possible location.
The more distant past should also not be dismissed, Hinton added.
'The State of Maine has numerous times relied on the taking of tribal lands and resources to promote industrialization and infrastructure development,' Hinton said. 'It's a simple fact of the history of Maine.'
A related line of questioning revealed the persistent tension around tribal sovereignty.
Rep. Adam Lee (D-Auburn) said, for him, this bill is easy: the state of Maine can't take another government's land.
'I fundamentally think of our relationship with the tribes as a government to government relationship,' Lee said.
The State of Maine has numerous times relied on the taking of tribal lands and resources to promote industrialization and infrastructure development. It's a simple fact of the history of Maine.
– Corey Hinton, attorney and citizen of Passamaquoddy Tribe
'We can't take a part of New Hampshire. We can't take a part of Greenland or Panama,' Lee added, referring to President Donald Trump's desires to do so, a comment that received some laughs from other committee members.
Reid argued that Lee's view is overly simplistic since the federal government has the authority of eminent domain.
The Mills administration, lawmakers and tribes are also at odds regarding whether changes to the Settlement Act are permanent.
'An amendment to the main implementing act is, for all intents and purposes, a permanent change in the law,' Reid said. 'It's the only context in which you all can bind future legislatures. It is a more profound commitment than an amendment to the state constitution, which can be undone by the will of the Maine voters.'
Russo with MDOT also made the same point in written testimony, that the Legislature cannot unilaterally repeal or amend the new language if issues arise once implemented.
Federal law authorizes the Maine Legislature to make changes to the Settlement Act and Mi'kmaq Restoration Act but only with the consent of the affected Tribes.
Dana, the representative for the Passamaquoddy Tribe, asked Reid how he squared that idea of permanence with the fact that the Legislature is currently with this bill deciding whether to amend the Settlement Act, and has made changes in the recent past.
'That's one of the biggest things that you and your office really fight against with the Tribes, yet we have the ability to make those changes as of right now, and why can't we do those in the future?' Dana questioned.
Mills' philosophy when it comes to the Settlement Act has been to ensure any changes and consequences are understood by all parties, Reid said, adding that the consequences are too uncertain for the governor in this instance.
'I take your point that it's theoretically possible that, with the consent of the Tribes, this amendment could be repealed,' Reid said, 'but presumably, if there comes a point when there's a contentious issue involving the use of eminent domain in the future the affected Tribe wouldn't be in a position to agree to repeal this law because they wouldn't be on the same page as the state.'
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