peeling birch bark

What Would Tribal Sovereignty Mean for the Wabanaki? 

For more than 40 years, the tribes in Maine have had to play by different rules than other indigenous groups across the country, and they have suffered in tangible ways as a result. Now, a push for greater tribal autonomy has come to a head.

By Rachel Slade
Photos by Tara Rice
From our March 2024 issue

The Houlton Band of Maliseets’ administrative headquarters, built to resemble a log cabin, sits on a small tract of tribal land in Aroostook County, just north of where I-95 intersects the Canadian border. A few steps away, the Meduxnekeag River roars past, the sound of rushing water a reminder of the harm done by 19th-century log drives, when clearing the river of obstacles turned the flow fast and shallow. A decade ago, the Maliseets took it upon themselves to start a restoration project, partnering with federal and state agencies and nonprofit groups to add boulders and bends to the Meduxnekeag. To date, they have covered a four-mile stretch, recreating conditions that will cool and oxygenate the water, in order to help insects, birds, and fish thrive. The work requires patience. So does much else. The river is hardly the only historical damage tribal leaders around the state have been attempting to repair.

One of the four remaining Wabanaki tribes whose forebears arrived in Maine more than 10,000 years ago, the Maliseets inhabited an area now split between the United States and Canada long before the existence of an international border. Chief Clarissa Sabattis, who wears her heather-brown hair in two long, thick braids that drape over her shoulders, was elected to lead the Maliseets in Maine in 2017. Since then, she says, she has struggled daily with the complex legal relationships the tribes have with the state government, dictated by the 1980 Maine Indian Claims Settlement Act

The terms of the settlement were the result of a decade of legal wrangling (and centuries of fraught dealings before that) that resulted in the state wielding unprecedented power over tribal affairs. The tribes have come to find the arrangement both burdensome and unjust. “Our tribal council is our governing body,” Sabattis said when I met her at the Maliseet administrative offices. “We should have full authority to make the laws and serve our people without interference from other governments.”

Several years ago, the Maliseets, Mi’kmaq, Passamaquoddy, and Penobscot banded together and formed Wabanaki Alliance to collectively push for tribal sovereignty. Most of the country’s 570 other federally recognized tribes are sovereign, which in the context of tribal affairs implies a sort of quasi-independence: through a direct nation-to-nation relationship with the federal government, indigenous groups can run their own communities. They administer their law enforcement, courts, schools, health care, and civil infrastructure on their reserved lands with federal assistance and funding — and, unlike in Maine, can do so without state-level interference. Sovereignty also means that if the tribes believe the state has violated their federally protected rights, they have recourse both through federal agencies and courts. It’s a system under which tribes across the nation have begun to flourish in recent decades.

A recent study by Harvard’s Kennedy School of Government, commissioned by the Wabanaki Alliance, found that the Wabanaki are generally poorer, less educated, and more likely to be unemployed than the members of tribes in the 49 other states. Between 1989 and 2018, the inflation-adjusted per capita income of Indians outside Maine grew 61 percent, versus just nine percent in Maine. Due to the “subjugation of the Wabanaki Nation’s self-governing capacities,” the authors of the study concluded, “the development of the Wabanaki Nations’ economies and governmental capacities have been stunted.”

State laws and bureaucracy have often gotten in the way of tribal well-being. On the Passamaquoddy’s Sipayik reservation, for instance, tribal residents were exposed to dangerous chemicals for more than 40 years because the water district the legislature had created for it and neighboring Eastport drew from bodies of water with high levels of decaying organic matter. It wasn’t until two years ago that the legislature passed a bill to bolster the water district’s finances and grant the tribe authority over its water supply, with greater power to seek alternative sources. 

When Janet Mills was elected governor in 2018, the tribes hoped the Democrat’s progressive agenda — at least relative to Republican predecessor Paul LePage, who had a contentious relationship with the Wabanaki — would include addressing the terms of the settlement act. And while she has signed off on a handful of bills that selectively expanded tribal rights, she has proven averse to upsetting the larger status quo. In the past two years, a pair of bills to overhaul tribal-state relations garnered bipartisan support, but Mills vetoed one and her administration helped mobilize opposition to kill the other. 

Mills also came out against a ballot initiative requiring copies of the Maine constitution issued by the secretary of state’s office to include the entirety of the original text — for more than a century, portions that describe Maine’s treaty obligations to the tribes had been omitted. The measure wouldn’t impact the enforceability of any aspect of the constitution, but the tribes viewed it as symbolically significant. (It passed with the support of 73 percent of voters.) The latest opposition from Augusta has left proponents of tribal sovereignty feeling stuck with an inherently flawed agreement. “The Maine settlement act, in my mind, is the worst and most archaic in the country,” says Allison Binney, a former chief counsel of the U.S. Senate Committee on Indian Affairs who, as a private attorney, has represented Maine tribes. “It keeps the Indians down in a very paternalistic way.”

The origins of the settlement agreement — and answers to why the tribes agreed to it in the first place — start long before 1980. To our meeting, Sabattis had invited other Maliseet tribal officials and elders, including Ambassador Osihkiyol “Zeke” Crofton-MacDonald, who’s pursuing a master’s degree in history at the University of New Brunswick, focusing on understudied Wabanaki treaties that established hunting, trading, and military relationships with European settlers. He stressed that 18th-century treaties were never intended to deed away land. Like many American indigenous groups, the Wabanaki viewed stewardship as a communal undertaking — they didn’t share European conceptions of private land ownership. Unattuned to this foreign mindset, the Wabanaki signed treaties assuming the documents outlined land use, not ownership.

Still, the tribes understood nationhood, long using diplomacy to establish hunting, defense, and trade relationships with each other. Drafting treaties with foreign crowns, the revolutionary government, and then the United States and state of Massachusetts, made sense from the Wabanaki perspective. Without guidelines for land use, neighboring peoples couldn’t live in harmony. But the land, Crofton-MacDonald said, “was not ours to give away.”

At first, these treaties that Europeans viewed as giving them dominion over large swaths of land had limited practical impacts, as settlers largely clung to the coast. One map from the early 1800s, archived at the Library of Congress, shows a nearly featureless interior of Maine, except for a simple note near what came to be called Moosehead Lake: “Here has been discovered a very large lake but it has not yet been surveyed.”

After 1820, when Maine separated from Massachusetts, the leaders of the new state accelerated land sales in the north and west, eager to expand both in population and industry. Before the 19th century was up, nearly all of Maine was privately owned and the work of converting spoils into cash was well underway, with mining, logging, farming, milling, tanning, and countless other ventures. Tribal lands dwindled, and the degradation of woods and waters upended traditional hunting and fishing practices. “We were gradually pushed into this pocket of territory,” Sabattis said. “It wasn’t because we gave up. We didn’t cede any land. The state was giving away or selling parcels, and our resources were taken away by all the people coming in. We became paupers in our own territory.”

“When you think about the condition of these communities and the compounding trauma throughout history, you don’t just bounce back from that. You don’t just heal from that.”

In the eyes of Maine officials, members of the tribes had been reduced to wards of the state. “Imbecility on their part, the Indians, and the dictates of humanity on ours, have necessarily prescribed to them their subjection to our paternal control; In disregard of some at least, of abstract principles of the rights of man,” the state’s Supreme Judicial Court declared in an 1842 opinion. The case, Murch v. Tomer, began with a dispute between a Penobscot man and a white man over a debt of about $30. 

White Mainers’ prejudice didn’t abate. Crimes against Wabanaki often went unpunished. Widespread employment discrimination prevented them from getting steady jobs. Instead, many resorted to low-paying seasonal labor — picking blueberries and potatoes and working log drives. Children were taken from their families and put into boarding schools where they were forbidden to speak their own language. Programs for indigenous legal support, food subsidies, and health care were underfunded and riddled with corruption. Tribal members weren’t even allowed to vote in Maine state elections until 1967.

With scant land and few rights, the Wabanaki struggled to see a way forward. Dayna Boyce, a Maliseet elder, grew up in Houlton in the 1950s, under what she described as a constant barrage of racism. “We were nobody — I could tell you horror stories,” she said, before stopping herself. “It was bare-bones living. The home I lived in as a child, half of it was a dirt floor. No one had indoor plumbing. At times, we survived off the dump area, when we would see trucks dumping out food. That’s how desperate we were back then.”

A vision for the future first emerged from an old shoebox stashed away in a closet. In the mid-1950s, John Stevens, the Passamaquoddy tribal governor of Indian Township, in eastern-most Washington County, had been promoting the idea that his people were legally entitled to more land. One day, his great-aunt pulled out that shoebox. Inside, carefully wrapped in tissue paper, was a copy of an otherwise forgotten treaty the Passamaquoddy had signed with Massachusetts in 1794, selling much of their ancestral land but also reserving for themselves about 23,000 acres. Somehow, though, the Passamaquoddy had wound up with just 17,000 of those acres and no access to the funds from the apparent sale. 

Don Gellers, an attorney from Brooklyn who decided to hang out his shingle in the small down east city of Eastport, represented the Passamaquoddy in suing Massachusetts for $150 million, a sum meant to take into account the lost lands as well as misuse of funds supposed to be set aside for the tribe. After Gellers filed the suit in Boston, police raided his home and claimed to find a small quantity of marijuana. Maine’s attorney general then used an antiquated statute to up the minor drug offense from a misdemeanor to a felony. Rather than face prison time, Gellers, who was Jewish, emigrated to Israel and never returned to Maine. (In 2020, Governor Mills issued him a posthumous pardon.)

Gellers’s assistant attorney, Tom Tureen, took up the case, and he pushed it in a new and unexpected direction. Rather than merely contending that the Passamaquoddy had been shorted several thousand acres, he argued that the 1794 treaty violated the Nonintercourse Act, passed by Congress in 1790 to prohibit the sale of Indian lands without approval of the federal government. Hence, Tureen contended, the Passamaquoddy could not have legally ceded any of their land. His argument, if validated by the courts, would possibly nullify countless other treaties and, by his own estimate, give the tribes a claim to roughly two-thirds of Maine.

In 1975, the Justice Department sided with Tureen and filed a $300 million suit against Maine on behalf of the Passamaquoddy and the Penobscot. (The Mi’kmaq and Maliseet didn’t participate in the suit.) Suddenly, Maine municipalities couldn’t issue bonds, their underlying right to occupy the land thrown into question. Panic over the case spread through the state. Governor James Longley warned white voters that they could lose everything, and one state senator announced that he planned to “invest heavily in Winchesters and Remingtons.”

Meanwhile, Congress passed the 1975 Indian Self-Determination and Education Assistance Act, spurred by a nationwide Indian-rights movement. The new law laid the groundwork for the modern concept of tribal sovereignty. Despite the federal government’s own history of oppression, it has become an effective ally for the tribes — just not for the Wabanaki, in part because of poor timing.

In 1979, to resolve Tureen’s case, the Carter administration brought the state to the negotiating table with the Penobscot and Passamaquoddy. Under different circumstances, that might have offered the tribes a chance to work toward sovereignty. But Joseph Brennan had just been elected governor, pledging during his campaign to give neither an inch nor a penny to the tribes. Plus, the clock was ticking: a presidential election was on the horizon, and Ronald Reagan was the frontrunner. Tribal leaders worried that they wouldn’t find much support from the next administration. So they struck a deal. 

The Passamaquoddy and the Penobscot accepted a payment of $81.5 million, and in exchange, agreed to remain under the state’s jurisdiction. When Congress passed the settlement act, the law included language giving the state the unprecedented power — over not just the Passamaquoddy and Penobscot but all four tribes — to “block the applicability of federal Indian policy in Maine.”

Despite the peculiarity of the settlement act, which turned Maine into a national outlier, state political leaders have tended to treat it as a closed case. Recently, Second District Democratic congressional representative Jared Golden bucked the trend and introduced a bill — cosponsored by First District Democratic representative Chellie Pingree — that would have granted Wabanaki tribes the same sovereignty as other tribes across the nation. The measure passed in the House but not the Senate, where it was opposed by both of Maine’s senators, Susan Collins, a Republican, and Angus King, an independent. The latter sent a letter to constituents outlining his opposition: “The Settlement Act was just that — a settlement — which entailed benefits and burdens to each of the parties.” 

The settlement, though, wasn’t meant to be set in stone, which is why it included the creation of the Maine Indian Tribal-State Commission, tasked with continually evaluating the terms of the agreement. In the past four decades, the commission has made many recommendations to the state that would give the Wabanaki more agency over their land and affairs, but to little effect. The reason those recommendations have gone largely unheeded, authors of the recent Wabanaki Alliance–funded Harvard Kennedy School study concluded, is staunch resistance from industrial interests. 

If the Wabanaki tribes were sovereign, they would need to be consulted on every land-use decision that might impact their territory. Potential harms to human health, water and air quality, or plants and animals would be grounds for blocking commercial activity. The influential Maine Forest Products Council lobbies for timberland owners, logging companies, and mills, including Maine’s largest landowner, the Canada-based J.D. Irving company, which controls 1.25 million acres in the state. It has also been one of the most forceful opponents of tribal sovereignty, arguing that any additional regulatory hurdles would stifle economic activity in the Maine woods. 

When one of the recent sovereignty bills was working its way through the legislature, a lawyer for the group testified that a “new and radically different regulatory system would bring uncertainty and additional expense to the forest products industry.” After the bill passed both houses anyway, the budget-setting committee quashed the measure by declining to allocate funds for it before the legislative session expired. In explaining the move, the committee’s Democratic co-chair cited Mills’s concern with the bill’s wording.

Asked to comment for this story, Mills responded through administration spokesman Scott Ogden. “The governor does not believe the Maine Indian Claims Settlement Act is sacrosanct and should not be changed,” Ogden wrote in an email. “In fact, she recognizes that it is a 40-year-old document and believes that, working together, the state and the tribes should consider amendments that address unanticipated circumstances or identified problems.”

Frequently, though, the state has lagged well behind the federal government in extending rights to the tribes. Ogden cited, for instance, Maine’s move to allow the tribes to run online sports-gambling businesses as an example of the governor’s openness to change. However, the governor had already vetoed a bill that would have provided Wabanaki tribes the full gaming rights enjoyed by other tribes around the country since 1988.

Ambassador Maulian Bryant, a representative of the Penobscot Nation and an advocate for tribal sovereignty
“When you look back in the history . . . you’ll see that Maine is really on the hook for a lot,” says Ambassador Maulian Bryant, a representative of the Penobscot Nation and an advocate for tribal sovereignty.

Ogden also pointed out that, in 2022, the state began allowing tribal courts to prosecute certain domestic-violence offenses that occur on reservations, in particular those committed by non-members of the tribe. However, a 2013 federal law had already established other tribes’ jurisdiction over such offenses. As attorney general at the time, Mills invoked the settlement act to block the federal law from applying in Maine. As a result, the Penobscot lost out on several million dollars in federal funding to strengthen their justice system. And in the intervening years, Penobscot ambassador Maulian Bryant says, abusers were, in effect, protected by the resulting confusion about overlapping jurisdictions. “People didn’t know if the FBI was going to take it or the tribal court or the state police,” she says, adding that “this real problem of violence against indigenous women” was exacerbated by the legal gray area in which the tribes in Maine remain stuck.

One day late last year, Bryant, who in addition to serving as tribal ambassador is the president of Wabanaki Alliance, was at her home on the Penobscot Nation’s Indian Island reservation. The drive to her house leads past a sprawling old textile mill in Old Town, across a short bridge over the Penobscot River, and past small, tidy homes, an elementary school, a health-care center, and an industrial building where the tribe hopes to develop a salmon farm. In her driveway, a husky mix barked and wriggled at the end of a long tether as Bryant kept an eye on two-year-old Iris, her youngest of three children. Iris seemed accustomed to reporters showing up to talk with her mom.

Bryant is the daughter of former Penobscot Nation Governor Barry Dana, who was involved in many tribal-rights fights during his time in leadership. He was one of two tribal leaders who sued three private paper companies over industrial contamination of the Penobscot River. The paper companies wanted to use Maine’s freedom-of-information act to compel the Penobscot Nation to turn over its communications with the Environmental Protection Agency. Attorneys for the tribe contended that the tribes weren’t subject to that state law, but a Superior Court judge disagreed. Bryant was in the Portland courthouse the day the judge ordered the tribe to turn over the requested documents. When Dana refused, the judge had the bailiff arrest him for contempt of court. The sight of her father being led from the courtroom is seared in Bryant’s memory.

She believes the tribes would be far better off with the same rights and privileges as most of the nation’s other tribes, pointing out that new complications from the 1980 agreement keep cropping up. Lately, she’s been frustrated as private companies have tried to partner with the Penobscot on clean-energy projects, only to later back off the idea. “When they see some of the barriers with the state and the settlement act,” she says, “it kind of scares them away.”

Still, Bryant understands why the tribes agreed to the settlement in 1980. “Our leaders were faced with a decision,” she said. “Do you get something in here or do you kind of hold out and wait until everything seems to line up perfectly? When you think about the condition of these communities and the compounding trauma throughout history, you don’t just bounce back from that. You don’t just heal from that overnight.”

Sitting at her kitchen table, she extended similar empathy to the state. “When those folks who you think you’ve taken care of start to say, ‘We’re not happy with this, we want to reassess this, we want our rights back,’ I think that’s very jarring,” she said. “When the state comes into these negotiations, they’re carrying fear and guilt and shame. Those are strong human emotions, even if you haven’t personally wronged this group of people.”

But empathy has its limits. “When you look way back in history,” she said, “at these waves of genocide at the hands of settlers, at the diseases that killed off so many Native people, at the warfare and bounties on our scalps and bodies put in place by the government, at the taking of our children who were put into boarding schools, plus all of this theft of land validated with this court case, you’ll see that Maine is really on the hook for a lot.”

The Wabanaki Alliance is continuing to put pressure on state officials to effect change, and as Bryant leaned down to pick up Iris, who was standing at the sliding glass door in the kitchen and clapping with delight at the husky’s attempts to get in, she said she believes change will come in her lifetime. “I love Maine,” she added. “I think there are so many awesome Mainers that want to work with us and do great things. What could we all be doing together in 20 years under new leadership that says, yes, let’s partner with tribes and let’s really do things on a government-to-government level? I think we could all really flourish.”

May 2024, Down East Magazine

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