A participant in a Wabanaki Alliance rally on Indigenous Peoples’ Day at the Maine State House in Augusta. Oct. 9, 2023. (Jim Neuger/ Maine Morning Star)
As the Wabanaki Nations continue to push for the sovereignty afforded to other federally recognized tribes, some of their leaders are concerned that a separate, longstanding effort to establish a state recognition process could undermine that work.
But those who support creating this new path to recognition, including Republican legislators and some individual tribal members, argue the Wabanaki Nation’s ongoing fight for self-determination shouldn’t factor into their efforts.
The Wabanaki Nations — the Houlton Band of Maliseet Indians, Mi’kmaq Nation, Passamaquoddy Tribe and Penobscot Nation — have federal recognition, which, in theory, gives them the right to self-govern and makes them entitled to certain benefits and federal protections.
However, the 1980 Maine Indian Claims Settlement Act has left the Wabanaki Nations with footing more akin to municipalities than independent nations. Overhauling that act is the fight for sovereignty Wabanki leaders and a growing number of bipartisan lawmakers have been pushing for years, though so far have only seen success with piecemeal change.
The Wabanaki Nations do not have state recognition, though that’s not as abnormal. Some states have adopted state recognition processes, affording non-federally recognized tribes a path to official acknowledgement but in a way that doesn’t afford the same sovereignty or access to resources.
That’s the type of process state Rep. Jennifer Poirier (R-Skowhegan), along with several Republican co-sponsors, are trying to adopt in Maine.
LD 813 would establish a commission appointed by the governor to review applications for state recognition. Tribes who are granted recognition would remain subject to state laws but it wouldn’t afford them the right to claim land or conduct gambling activities otherwise prohibited by law.
Though, Poirier said she hopes LD 813 becomes unnecessary because of her other bill, LD 812, which seeks to provide state recognition for a group called the Kineo St. John Tribe. That measure would afford such recognition without the processes detailed by the former bill.
This group, formerly under the name the Kineo Band of Malecite, another spelling for Maliseet, has pushed for this recognition for more than a decade but legislative attempts have so far failed.
“This feels like a step backwards,” Wabanaki Alliance Executive Director Maulian Bryant told Maine Morning Star about the state recognition attempt. “We feel strongly about the validity of the federal process, and going through that. We don’t want to complicate an already complicated situation that’s been going on for over 40 years now while we’re trying to make progress.”
When faced with these objections during the bills’ public hearing in the Judiciary Committee on Wednesday, Poirier asked, “When will the timing ever be right? Two years, 10 years, 50 years? This isn’t a valid reason to deny recognition.”
Poirier and the co-sponsors of these bills — Reps. Joshua Morris of Turner, Shelley Rudnicki of Fairfield, David Boyer of Poland, and Chad Perkins of Dover-Foxcroft (who is only co-sponsoring LD 813) — have for the most part voted against proposals to amend the Settlement Act, though Boyer has supported certain changes.
They all opposed the most substantive change made so far last session through a law that now permits the Wabanaki Nations to prosecute more serious offenses committed on tribal territory by tribal members. These lawmakers varied in their support of another bill last session that would have allowed the Wabanaki Nations to benefit from more federal laws. Poirier, Morris and Perkins voted against the measure, while Boyer voted for it and Rudnicki was absent.
Poirier, Morris and Rudnicki voted against the last omnibus sovereignty bill considered on the floor in the 130th Legislature, LD 1626, while Perkins was absent. Boyer was not yet a representative.
Federal v. state recognition
The U.S. government historically granted federal recognition through treaties, acts of Congress or executive branch decisions. The regulatory process developed in 1978 created another path for recognition. .
“Federally recognized tribes are not recognized on our race as Indigenous people,” Bryant said. “It’s because of our political classifications.”
The regulatory process requires petitioning tribes to submit evidence that essentially shows that they have continuously existed as a tribe since historic times. The process often takes decades and requires considerable resources, both financial and through rigorous documentation.
The Passamaquoddy Tribe and Penobscot Nation gained federal recognition as a result of a 1975 court case, Passamaquoddy Tribe v. Morton, which established a trust relationship between the tribes and the federal government. It was the first step of the land settlement agreement of 1980, which then provided federal recognition to the Houlton Band of Maliseet Indians. The Mi’kmaq Nation didn’t receive federal recognition until 1991 after a long process of petitioning the U.S. government.
Federal recognition remains the primary way tribes are recognized but some states have adopted their own processes largely as a way to acknowledge a tribe’s historic and cultural contributions.
However, some of these state processes have been criticized by federally recognized tribes for their comparative lack of rigor.
They have fallen under particular scrutiny after a Canadian tribe asserted groups afforded state recognition by Vermont are not Indigenous and are instead appropriating their identity and culture. Vermont is now considering a task force to reconsider past tribal recognition decisions by the state.
Bryant shared apprehension about such an outcome during the public hearing.
“The concerns within the Wabanaki Alliance are appropriating tribal identity and validity, maybe not the group in question right now [the Kineo tribe], but it could lead to groups down the road basically meeting a much lower threshold set by state government,” Bryant said.
Former Tribal Representative for the Houlton Band of Maliseet Indians David Slagger has been a vocal proponent of the state recognition effort since the first iteration of these bills in 2012 and has said he is a descendant of the Kineo Malecites.
On Wednesday, Slagger called the current process “convoluted with politics and greed.” Instead, he said he wants to see a process that airs on the side of inclusion.
The proposed process
In her interview with Maine Morning Star, Bryant emphasized, “We don’t want to make this about the people involved. We really want to focus on the process.”
The state recognition process LD 813 seeks to establish would require tribes to submit documentation to a governor-appointed commission to prove several ways that the group is connected to the land that is now Maine and that its members are connected to one another, a model similar to that used in Vermont.
For example, this would include proving a majority of the applicant’s members currently live in a specific geographic location in Maine and that a “substantial number” of the applicant’s members are related by kinship, specifically by tracing ancestry to a kinship group through genealogy or other methods.
The composition of the commission that would review documentation of these requirements was a key point of disagreement during the public hearing.
It would be made up of five members appointed by the governor based on the recommendations of the Chancellor of the University of Maine System. The bill states that these members must be residents of Maine for at least five years and, as a whole, should have different areas of expertise and live in different geographic regions.
Poirier told the committee this proposed composition is somewhat based on the process of other states as well as because the university has some experts on tribal history.
Bryant raised concern about the commission not including or collaborating with the Wabanaki Nations in making its determinations, which she argued could set a dangerous precedent of the state being the decider of who is Indigenous.
While Poirier said she isn’t opposed to members of the Wabanki Nations being on the commission, she purposefully did not write the bill to require such representation, “because that’s what we’ve been running into for the past more than a decade now, that it’s tribe against tribe,” referring to historic pushback from the Wabanaki Nations of state recognition of a separate Kineo tribe.
That tension is what Lisa Montgomery, a citizen of the Penobscot Nation who grew up on Indian Island, focused on in her testimony neither for nor against the bills.
“There have been intertribal tensions prior to European contact, and because of the European contact, which continues today,” Montgomery said. “… I ask that you consider these comments and give at least the opportunity for healthy dialogue around the recognition of all tribal people who can establish their presence in what is now called Maine.”
While testimony often focused on the idea of acknowledgement for legitimacy, funding would also be in play.
“The Kineo Tribe is not requesting state funding, land claims or jurisdictional authority or the right to conduct gaming,” Poirier said. “They seek only state recognition, which would allow them to access grants for cultural preservation and economic development.”
The bill states that in addition to reviewing applications, the commission can accept funds from the state and federal government to be used for improving tribal social services, education, employment opportunities, health care, housing and cultural events.
Vermont’s law has allowed its state-recognized tribes to receive federal grants, school scholarships, sell arts and crafts labeled as “Indian produced,” and access free state hunting and fishing licenses and certain property tax exemptions.
“If the state wants to create tribes, will the state be on the hook for financial support for those tribes, or some sort of fiduciary relationship?” Bryant said. “We know being involved in legislative politics that there’s always this tension over the budget and always this push and pull over resources. So is the state willing to step up and fund these groups should they ask for that down the road?”
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