[House Report 117-599]
[From the U.S. Government Publishing Office]
117th Congress } { Report
HOUSE OF REPRESENTATIVES
2d Session } { 117-599
======================================================================
ADVANCING EQUALITY FOR WABANAKI NATIONS ACT
_______
December 7, 2022.--Committed to the Committee of the Whole House on the
State of the Union and ordered to be printed
_______
Mr. Grijalva, from the Committee on Natural Resources, submitted the
following
R E P O R T
together with
DISSENTING VIEWS
[To accompany H.R. 6707]
[Including cost estimate of the Congressional Budget Office]
The Committee on Natural Resources, to whom was referred
the bill (H.R. 6707) to amend the Maine Indian Claims
Settlement Act of 1980 to advance equality for Wabanaki
nations, and for other purposes, having considered the same,
reports favorably thereon with an amendment and recommends that
the bill as amended do pass.
The amendment is as follows:
Strike all after the enacting clause and insert the
following:
SECTION 1. SHORT TITLE.
This Act may be cited as the ``Advancing Equality for Wabanaki
Nations Act''.
SEC. 2. APPLICATION OF CERTAIN LAWS.
(a) Application of State Laws.--The Maine Indian Claims Settlement
Act of 1980 (Public Law 96-420) is amended--
(1) in section 3--
(A) in subsection (m), by striking ``and'' at the
end;
(B) in subsection (n), by striking the period and
inserting ``; and''; and
(C) by adding at the end the following:
``(o) `Mi'kmaq Nation' means the sole successor to the Micmac
Nation as constituted in aboriginal times in what is now the
State of Maine, and all its predecessors and successors in
interest, and which is represented, as of the date of enactment
of this subsection, as to lands within the United States, by
the Mi'kmaq Council.''; and
(2) in section 6--
(A) in subsection (a), by striking ``provided in
section 8(e) and section 5(d)(4)'' and inserting
``otherwise provided in this Act''; and
(B) in subsection (h)--
(i) by striking ``Except as other wise
provided in this Act, the'' and inserting
``The'';
(ii) by inserting ``or enacted for the
benefit of'' before ``Indians, Indian nations''
the second place it appears;
(iii) by inserting ``that is in effect as of
the date of the enactment of the Advancing
Equality for Wabanaki Nations Act, (2)'' after
``United States (1)'';
(iv) by striking ``also (2)'' and inserting
``also (3)''; and
(v) by inserting ``, unless Federal law or
the State laws of Maine provide for the
application of such Federal law or regulation''
before the period at the end.
(b) Implementation of the Indian Child Welfare Act.--Section 8 of the
Maine Indian Claims Settlement Act of 1980 (Public Law 96-420) is
amended--
(1) in subsection (a)--
(A) by striking ``or'' after ``Passamaquoddy Tribe''
and inserting a comma;
(B) by inserting ``, the Houlton Band of Maliseet
Indians, or the Mi'kmaq Nation'' after ``Penobscot
Nation''; and
(C) in the second sentence, by striking ``respective
tribe or nation'' each place it appears and inserting
``respective tribe, nation, or band'';
(2) in subsection (b)--
(A) by striking ``or'' after ``Passamaquoddy Tribe''
and inserting a comma; and
(B) by inserting ``, the Houlton Band of Maliseet
Indians, or the Mi'kmaq Nation'' after ``Penobscot
Nation'';
(3) by striking subsection (e);
(4) by redesignating subsection (f) as subsection (e); and
(5) in subsection (e), as so redesignated--
(A) by striking ``or'' after ``Passamaquoddy Tribe''
and inserting a comma;
(B) by inserting ``, the Houlton Band of Maliseet
Indians, or the Mi'kmaq Nation'' after ``Penobscot
Nation''; and
(C) by striking ``or nation'' and inserting ``,
nation, or band''.
(c) Construction.--Section 16 of the Maine Indian Claims Settlement
Act of 1980 (Public Law 96-420) is amended--
(1) by striking ``(a)'' at the beginning; and
(2) by striking subsection (b).
(d) Amendment to the Aroostook Band of Micmacs Settlement Act.--The
Aroostook Band of Micmacs Settlement Act (Public Law 102-171) is
amended by striking section 8.
Purpose of the Bill
The purpose of H.R. 6707 is to amend the Maine Indian
Claims Settlement Act of 1980 to advance equality for Wabanaki
nations.
Background and Need for Legislation
Enacted in 1980, the Maine Indian Claims Settlement Act
(MICSA) extinguished the legal claims of the Passamaquoddy
Tribe, the Penobscot Nation, and the Houlton Band of Maliseet
Indians to their historic lands in Maine in exchange for funds
to allow the tribes to purchase lands, provide general revenue,
and establish old-age pensions for their members. In addition,
MICSA ratified the state-level Maine Implementing Act, which
extended state civil and criminal jurisdiction over each of the
tribes.
Notably, Section 6(h) of MICSA blocked any federal law
previously enacted for the benefit of tribes from applying to
Maine if the law would affect state jurisdiction, with limited
exceptions. Section 16(b) of MICSA similarly restrained the
application of future federal Indian laws in Maine, unless the
law specified that it would apply to Maine. This exclusion is
unique to the Wabanaki--no other federally-recognized tribes
are subject to such a sweeping exclusion from federal Indian
laws. In addition to other critical laws, MICSA has prevented
the application of the Violence Against Women Act, the Indian
Health Care Improvement Act, and the Stafford Act to the
Wabanaki tribes. Removing this unique exclusion would have
significant economic and social benefits for the Wabanaki
nations. As concluded by a recent report by the Harvard Project
on American Indian Economic Development, the current
restriction has the ``consequence of handcuffing Wabanaki self-
government[, which] is today visible in the stark economic
underperformance of all four of the tribes'' compared to other
tribes.\1\
---------------------------------------------------------------------------
\1\Harv. Project on Am. Indian Econ. Dev., Joseph P. Kalt, Amy
Besaw Medford & Jonathan B. Taylor, Economic and Social Impacts of
Restrictions on the Applicability of Federal Indian Policies to the
Wabanaki Nations in Maine 54 (2022), https://ash.harvard.edu/sites/
hwpi.harvard.edu/files/ash/files/wabanaki_report_vfin_for_dist_2022-12-
02.pdf.
---------------------------------------------------------------------------
H.R. 6707 will begin to address this inequity by allowing
the Passamaquoddy Tribe, the Penobscot Nation, the Houlton Band
of Maliseet Indians, and the Mi`kmaq Nation--known collectively
as the Wabanaki tribes--to benefit from future enacted federal
Indian laws.
Committee Action
H.R. 6707 was introduced on February 11, 2022, by
Representative Jared F. Golden (D-ME). The bill was referred
solely to the Committee on Natural Resources, and within the
Committee to the Subcommittee for Indigenous Peoples of the
United States. On March 31, 2022, the Subcommittee held a
hearing on the bill. On June 15, 2022, the Natural Resources
Committee met to consider the bill. The Subcommittee was
discharged by unanimous consent. Chair Raul M. Grijalva (D-AZ)
offered an amendment in the nature of a substitute. Rep. Jay
Obernolte (R-CA) offered an amendment designated Obernolte #1
to the amendment in the nature of a substitute. The amendment
was not agreed to by voice vote. Rep. Obernolte offered an
amendment designated Obernolte #2 to the amendment in the
nature of a substitute. The amendment was not agreed to by a
roll call vote of 18 yeas and 24 nays, as follows:
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
The amendment in the nature of a substitute was agreed to
by voice vote. The bill, as amended, was adopted and ordered
favorably reported to the House of Representatives by a roll
call vote of 24 yeas and 17 nays, as follows:
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
Hearings
For the purposes of clause 3(c)(6) of House rule XIII, the
following hearing was used to develop or consider this measure:
hearing by the Subcommittee for Indigenous Peoples of the
United States held on March 31, 2022.
Committee Oversight Findings and Recommendations
Regarding clause 2(b)(1) of rule X and clause 3(c)(1) of
rule XIII of the Rules of the House of Representatives, the
Committee on Natural Resources` oversight findings and
recommendations are reflected in the body of this report.
Compliance With House Rule XIII and Congressional Budget Act
1. Cost of Legislation and the Congressional Budget Act.
With respect to the requirements of clause 3(c)(2) of rule XIII
of the Rules of the House of Representatives and section 308(a)
of the Congressional Budget Act of 1974 and with respect to
requirements of clause (3)(c)(3) and clause 3(d) of rule XIII
of the Rules of the House of Representatives and section 402 of
the Congressional Budget Act of 1974, the Committee has
requested but not received a cost estimate for this bill from
the Director of Congressional Budget Office. The Committee
adopts as its own cost estimate the forthcoming cost estimate
of the Director of the Congressional Budget Office, should such
cost estimate be made available before House passage of the
bill.
The Committee has requested but not received from the
Director of the Congressional Budget Office a statement as to
whether this bill contains any new budget authority, spending
authority, credit authority, or an increase or decrease in
revenues or tax expenditures.
2. General Performance Goals and Objectives. As required by
clause 3(c)(4) of rule XIII, the general performance goals and
objectives of this bill are to amend the Maine Indian Claims
Settlement Act of 1980 to advance equality for Wabanaki
nations.
Earmark Statement
This bill does not contain any Congressional earmarks,
limited tax benefits, or limited tariff benefits as defined
under clause 9(e), 9(f), and 9(g) of rule XXI of the Rules of
the House of Representatives.
Unfunded Mandates Reform Act Statement
An estimate of federal mandates prepared by the Director of
the Congressional Budget Office pursuant to section 423 of the
Unfunded Mandates Reform Act was not made available to the
Committee in time for the filing of this report. The Chair of
the Committee shall cause such estimate to be printed in the
Congressional Record upon its receipt by the Committee, if such
estimate is not publicly available on the Congressional Budget
Office website.
Existing Programs
This bill does not establish or reauthorize a program of
the federal government known to be duplicative of another
program.
Applicability to Legislative Branch
The Committee finds that the legislation does not relate to
the terms and conditions of employment or access to public
services or accommodations within the meaning of section
102(b)(3) of the Congressional Accountability Act.
Preemption of State, Local, or Tribal Law
Any preemptive effect of this bill over state, local, or
tribal law is intended to be consistent with the bill`s
purposes and text and the Supremacy Clause of Article VI of the
U.S. Constitution.
Changes in Existing Law Made by the Bill, as Reported
In compliance with clause 3(e) of rule XIII of the Rules of
the House of Representatives, changes in existing law made by
the bill, as reported, are shown as follows (existing law
proposed to be omitted is enclosed in black brackets, new
matter is printed in italics, and existing law in which no
change is proposed is shown in roman):
MAINE INDIAN CLAIMS SETTLEMENT ACT OF 1980
* * * * * * *
definitions
Sec. 3. For purposes of this Act, the term--
(a) ``Houlton Band of Maliseet Indians'' means the
sole successor to the Maliseet Tribe of Indians as
constituted in aboriginal times in what is now the
State of Maine, and all its predecessors and successors
in interest. The Houlton Band of Maliseet Indians is
represented, as of the date of the enactment of this
Act, as to lands within the United States, by the
Houlton Band Council of the Houlton Band of Maliseet
Indians;
(b) ``land or natural resources'' means any real
property or natural resources, or any interest in or
right involving any real property or natural resources,
including but without limitation minerals and mineral
rights, timber and timber rights, water and water
rights, and hunting and fishing rights;
(c) ``Land Acquisition Fund'' means the Maine Indian
Claims Land Acquisition Fund established under section
5(c) of this Act;
(d) ``laws of the State'' means the constitution, and
all statutes, regulations, and common laws of the State
of Maine and its political subdivisions and all
subsequent amendments thereto or judicial
interpretations thereof;
(e) ``Maine Implementing Act'' means section 1,
section 30, and section 31, of the ``Act to Implement
the Maine Indian Claims Settlement'' enacted by the
State of Maine in chapter 732 of the public laws of
1979;
(f) ``Passamaquoddy Indian Reservation'' means those
lands as defined in the Maine Implementing Act;
(g) ``Passamaquoddy Indian Territory'' means those
lands as defined in the Maine Implementing Act;
(h) ``Passamaquoddy Tribe'' means the Passamaquoddy
Indian Tribe, as constituted in aboriginal times and
all its predecessors and successors in interest. The
Passamaquoddy Tribe is represented, as of the date of
the enactment of this Act, by the Joint Tribal Council
of the Passamaquoddy Tribe, with separate councils at
the Indian Township and Pleasant Point Reservations;
(i) ``Penobscot Indian Reservation'' means those
lands as defined in the Maine Implementing Act;
(j) ``Penobscot Indian Territory'' means those lands
as defined in the Maine Implementing Act;
(k) ``Penobscot Nation'' means the Penobscot Indian
Nation as constituted in aboriginal times, and all its
predecessors and successors in interest. The Penobscot
Nation is represented, as of the date of enactment of
this Act, by the Penobscot Nation Governor and Council;
(l) ``Secretary'' means the Secretary of the
Interior;
(m) ``Settlement Fund'' means the Maine Indian Claims
Settlement Fund established under section 5(a) of this
Act; [and]
(n) ``transfer'' includes but is not limited to any
voluntary or involuntary sale, grant, lease, allotment,
partition, or other conveyance; any transaction the
purpose of which was to effect a sale, grant, lease,
allotment, partition, or conveyance; and any act,
event, or circumstance that resulted in a change in
title to, possession of, dominion over, or control of
land or natural resources[.]; and
(o) ``Mi'kmaq Nation'' means the sole successor to
the Micmac Nation as constituted in aboriginal times in
what is now the State of Maine, and all its
predecessors and successors in interest, and which is
represented, as of the date of enactment of this
subsection, as to lands within the United States, by
the Mi'kmaq Council.
* * * * * * *
application of state laws
Sec. 6. (a) Except as [provided in section 8(e) and section
5(d)(4)] otherwise provided in this Act, all Indians, Indian
nations, or tribes or bands of Indians in the State of Maine,
other than the Passamaquoddy Tribe, the Penobscot Nation, and
their members, and any lands or natural resources owned by any
such Indian, Indian nation, tribe or band of Indians and any
lands or natural resources held in trust by the United States,
or by any other person or entity, for any such Indian, Indian
nation, tribe, or band of Indians shall be subject to the civil
and criminal jurisdiction of the State, the laws of the State,
and the civil and criminal jurisdiction of the courts of the
State, to the same extent as any other person or land therein.
(b)(1) The Passamaquoddy Tribe, the Penobscot Nation, and
their members, and the land and natural resources owned by, or
held in trust for the benefit of the tribe, nation, or their
members, shall be subject to the jurisdiction of the State of
Maine to the extent and in the manner provided in the Maine
Implementing Act and that Act is hereby approved, ratified, and
confirmed.
(2) Funds appropriated for the benefit of Indian people or
for the administration of Indian affairs may be utilized,
consistent with the purposes for which they are appropriated,
by the Passamaquoddy Tribe and the Penobscot Nation to provide
part or all of the local share as provided by the Maine
Implementing Act.
(3) Nothing in this section shall be construed to supersede
any Federal laws or regulations governing the provision or
funding of services or benefits to any person or entity in the
State of Maine unless expressly provided by this Act.
(4) Not later than October 30, 1982, the Secretary is
directed to submit to the appropriate committees of the House
of Representatives and the Senate having jurisdiction over
Indian affairs a report on the Federal and State funding
provided the Passamaquoddy Tribe and Penobscot Nation compared
with the respective Federal and State funding in other States.
(c) The United States shall not have any criminal
jurisdiction in the State of Maine under the provisions of
sections 1152, 1153, 1154, 1155, 1156, 1160, 1161, and 1165 of
title 18 of the United States Code. This provision shall not be
effective until sixty days after the publication of notice in
the Federal Register as required by subsection 4(d) of this
Act.
(d)(1) The Passamaquoddy Tribe, the Penobscot Nation, and the
Houlton Band of Maliseet Indians, and all members thereof, and
all other Indians, Indian nations, or tribes or bands of
Indians in the State of Maine may sue and be sued in the courts
of the State of Maine and the United States to the same extent
as any other entity or person residing in the State of Maine
may sue and be sued in those courts; and section 1362 of title
28, United States Code, shall be applicable to civil actions
brought by the Passamaquoddy Tribe, the Penobscot Nation, and
the Houlton Band of Maliseet Indians: Provided, however, That
the Passamaquoddy Tribe, the Penobscot Nation, and their
officers and employees shall be immune from suit to the extent
provided in the Maine Implementing Act.
(2) Notwithstanding the provisions of section 3477 of the
Revised Statutes, as amended, the Secretary shall honor valid
final orders of a Federal, State, or territorial court which
enters money judgments for causes of action which arise after
the date of the enactment of this Act against either the
Passamaquoddy Tribe or the Penobscot Nation by making an
assignment to the judgment creditor of the right to receive
income out of the next quarterly payment from the settlement
fund established pursuant to section 5(a) of this Act and out
of such future quarterly payments as may be necessary until the
judgment is satisfied.
(e)(1) The consent of the United States is hereby given to
the State of Maine to amend the Maine Implementing Act with
respect to either the Passamaquoddy Tribe or the Penobscot
Nation: Provided, That such amendment is made with the
agreement of the affected tribe or nation, and that such
amendment relates to (A) the enforcement or application of
civil, criminal, or regulatory laws of the Passamaquoddy Tribe,
the Penobscot Nation, and the State within their respective
jurisdictions; (B) the allocation or determination of
governmental responsibility of the State and the tribe or
nation over specified subject matters or specified geographical
areas, or both, including provision for concurrent jurisdiction
between the State and the tribe or nation; or (C) the
allocation of jurisdiction between tribal courts and State
courts.
(2) Notwithstanding the provisions of subsection (a) of this
section, the State of Maine and the Houlton Band of Maliseet
Indians are authorized to execute agreements regarding the
jurisdiction of the State of Maine over lands owned by or held
in trust for the benefit of the band or its members.
(f) The Passamaquoddy Tribe and the Penobscot Nation are
hereby authorized to exercise jurisdiction, separate and
distinct from the civil and criminal jurisdiction of the State
of Maine, to the extent authorized by the Maine Implementing
Act, and any subsequent amendments thereto.
(g) The Passamaquoddy Tribe, the Penobscot Nation, and the
State of Maine shall give full faith and credit to the judicial
proceedings of each other.
(h) [Except as other wise provided in this Act, the] The laws
and regulations of the United States which are generally
applicable to Indians, Indian nations, or tribes or bands of
Indians or to lands owned by or held in trust for or enacted
for the benefit of Indians, Indian nations, or tribes or bands
of Indians shall be applicable in the State of Maine, except
that no law or regulation of the United States (1) that is in
effect as of the date of the enactment of the Advancing
Equality for Wabanaki Nations Act, (2) which accords or relates
to a special status or right of or to any Indian, Indian
nation, tribe or band of Indians, Indian lands, Indian
reservations, Indian country, Indian territory or land held in
trust for Indians, and [also (2)] also (3) which affects or
preempts the civil, criminal, or regulatory jurisdiction of the
State of Maine, including, without limitation, laws of the
State relating to land use or environmental matters, shall
apply within the State, unless Federal law or the State laws of
Maine provide for the application of such Federal law or
regulation.
(i) As federally recognized Indian tribes, the Passamaquoddy
Tribe, the Penobscot Nation, and the Houlton Band of Maliseet
Indians shall be eligible to receive all of the financial
benefits which the United States provides to Indians, Indian
nations, or tribes or bands of Indians to the same extent and
subject to the same eligibility criteria generally applicable
to other Indians, Indian nations or tribes or bands of Indians.
The Passamaquoddy Tribe, the Penobscot Nation, and the Houlton
Band of Maliseet Indians shall be treated in the same manner as
other federally recognized tribes for the purposes of Federal
taxation and any lands which are held by the respective tribe,
nation, or band subject to a restriction against alienation or
which are held in trust for the benefit of the respective
tribe, nation, or band shall be considered Federal Indian
reservations for purposes of Federal taxation. Notwithstanding
any other provision of law authorizing the provision of special
programs and services by the United States to Indians because
of their status as Indians, any member of the Houlton Band of
Maliseet Indians in or near the town of Houlton, Maine, shall
be eligible for such programs and services without regard to
the existence of a reservation or of the residence of such
member on or near a reservation.
* * * * * * *
implementation of the indian child welfare act
Sec. 8. (a) The Passamaquoddy Tribe [or], the Penobscot
Nation, the Houlton Band of Maliseet Indians, or the Mi'kmaq
Nation may assume exclusive jurisdiction over Indian child
custody proceedings pursuant to the Indian Child Welfare Act of
1978 (92 Stat. 3069). Before the [respective tribe or nation]
respective tribe, nation, or band may assume such jurisdiction
over Indian child custody proceedings, the [respective tribe or
nation] respective tribe, nation, or band shall present to the
Secretary for approval a petition to assume such jurisdiction
and the Secretary shall approve that petition in the manner
prescribed by sections 108(a)-(c) of said Act.
(b) Any petition to assume jurisdiction over Indian child
custody proceedings by the Passamaquoddy Tribe [or], the
Penobscot Nation, the Houlton Band of Maliseet Indians, or the
Mi'kmaq Nation shall be considered and determined by the
Secretary in accordance with sections 108 (b) and (c) of the
Act.
(c) Assumption of jurisdiction under this section shall not
affect any action or proceeding over which a court has already
assumed jurisdiction.
(d) For the purposes of this section, the Passamaquoddy
Indian Reservation and the Penobscot Indian Reservation are
``reservations'' within section 4(10) of the Act.
[(e) For the purposes of this section, the Houlton Band of
Maliseet Indians is an ``Indian tribe'' within section 4(8) of
the Act, provided, that nothing in this subsection shall alter
or effect the jurisdiction of the State of Maine over child
welfare matters as provided in subsection 6(e)(2) of this Act.]
[(f)] (e) Until the Passamaquoddy Tribe [or], the Penobscot
Nation, the Houlton Band of Maliseet Indians, or the Mi'kmaq
Nation has assumed exclusive jurisdiction over the Indian child
custody proceedings pursuant to this section, the State of
Maine shall have exclusive jurisdiction over Indian child
custody proceedings of that tribe [or nation], nation, or band.
* * * * * * *
construction
Sec. 16. [(a)] In the event a conflict of interpretation
between the provisions of the Maine Implementing Act and this
Act should emerge, the provisions of this Act shall govern.
[(b) The provisions of any Federal law enacted after the date
of enactment of this Act for the benefit of Indians, Indian
nations, or tribes or bands of Indians, which would affect or
preempt the application of the laws of the State of Maine,
including application of the laws of the State to lands owned
by or held in trust for Indians, or Indian nations, tribes, or
bands of Indians, as provided in this Act and the Maine
Implementing Act, shall not apply within the State of Maine,
unless such provision of such subsequently enacted Federal law
is specifically made applicable within the State of Maine.]
----------
SECTION 8 OF THE AROOSTOOK BAND OF MICMACS SETTLEMENT ACT
[SEC. 8. IMPLEMENTATION OF THE INDIAN CHILD WELFARE ACT.
[For the purposes of this section, the Band is an ``Indian
tribe'' within the meaning of section 4(8) of the Indian Child
Welfare Act of 1978 (25 U.S.C. 1903(8)), except that nothing in
this section shall alter or affect the jurisdiction of the
State of Maine over child welfare matters as provided by the
Maine Indian Claims Settlement Act of 1980.]
DISSENTING VIEWS
I strongly oppose H.R. 6707, the Advancing Equality for
Wabanaki Nations Act, as reported by the Committee on Natural
Resources.
H.R. 6707 would extend the applicability of future federal
Indian laws to the Wabanaki tribes and extend the applicability
of the Indian Child Welfare Act to the Houlton Band of Maliseet
Indians. Under current law, the four federally recognized
tribes in the State of Maine, collectively known as the
Wabanaki, are excluded from federal Indian law application,
unless explicitly included.
The intent of H.R. 6707 is to apply Indian laws to Tribes
in Maine, but it is vague regarding how federal law will be
implemented when involving federal laws that the state has been
delegated authority to carry out, such as the Clean Air Act and
Clean Water Act. If not done correctly, this bill could result
in great uncertainty for Mainers, creating a patchwork of
state, federal and tribal regulatory structures with no
requirement to coordinate.
The four federally recognized Indian tribes in Maine are
the Houlton Band of Maliseet Indians, the Mi'kmaq Nation
(formerly known as the Aroostook Band of Micmacs), the
Passamaquoddy Tribe, and the Penobscot Nation, known
collectively as the Wabanaki people, or ``People of the
Dawnland.''\1\ From 1794 to the 1800s, millions of acres of
Wabanaki lands were transferred from the tribes to
Massachusetts and then Maine, as well as to private
individuals, through a mix of treaties and other dealings.\2\
In 1972, the Passamaquoddy tribe filed a lawsuit challenging
whether these land transfers were legal under the
Nonintercourse Act, passed by Congress in 1790 (P.L. 10 24).\3\
This law prohibited any transfer of land from Indian tribes to
another state or person unless the sale or transfer was
ratified through a treaty with the United States. In 1975, the
First Circuit ruled that the Nonintercourse Act applied to the
Passamaquoddy Tribe and Penobscot Nation, even though they were
not federally recognized at the time.\4\ This revived the land
claims of the Wabanaki tribes.
---------------------------------------------------------------------------
\1\Abbe Museum, About the Wabanaki Nations, https://
www.abbemuseum.org/about-the-wabanaki-nations.
\2\H. Report 96-1353 accompanying H.R. 7919, the Maine Indian
Claims Settlement Act 1980 at 12.
\3\25 USC 177.
\4\https://law.justia.com/cases/federal/appellate-courts/F2/528/
370/178873/.
---------------------------------------------------------------------------
In 1980, the Maine Indian Claims Settlement Act (MICSA) was
enacted to extinguish the legal claims of the Passamaquoddy
Tribe, Penobscot Nation, and Houlton Band of Maliseet Indians
to their historic lands in Maine in exchange for trust funds to
allow the tribes to purchase lands and provide general revenue
and old-age pensions to their members.\5\ In addition, MICSA
ratified the state-level Maine Implementing Act, which extended
state civil and criminal jurisdiction over the Passamaquoddy
Tribe, Penobscot Nation, and Houlton Band of Maliseet
Indians.\6\
---------------------------------------------------------------------------
\5\P.L. 96-420.
\6\30 M.R.S.A. 6201 et. seq.
---------------------------------------------------------------------------
Notably, Section 6(h) of MICSA prohibited any federal law
previously enacted for the benefit of Indian tribes from
applying to tribes in the State of Maine if the law would
affect state jurisdiction, with limited exceptions. Section
16(b) of MICSA similarly restrained the application of future
beneficial federal Indian laws in Maine, unless the law
specified that it would apply in Maine. This exclusion is
unique to the Wabanaki tribes.
While the intent of H.R. 6707 is to extend future federal
Indian law applicability to the Wabanaki tribes, it is
critically important that the Committee work with the State of
Maine on any amendments to the MICSA. The MICSA was a
ratification of a settlement entered into between the tribes
and the state. Congress should give deference to the State of
Maine to determine which changes, if any, should be made to the
MICSA if those changes will directly impact the state. For the
last forty years, the State of Maine has exercised certain
jurisdiction over civil and criminal matters over all persons
in the state, as well as an assumption of certain federal
delegations of authorities. Unless carefully executed in close
coordination with the state, new authorizations and changes to
existing Indian law, may cause confusion over what the state or
tribe's responsibilities are under the statutes. Implementation
of this bill would also raise costs on the residents of Maine
during a time of unprecedented inflation.
This Committee should ensure that there is close
coordination with states when we pass laws that change their
sovereignty and existing authority. All governments involved in
this sort of legislation--tribal, state, and federal--should
coordinate such a change.
For these reasons, I oppose this legislation.
Bruce Westerman,
Ranking Member.
[all]