Interview With Penobscot Nation Chief Kirk Francis: Changes to the Maine Indian Land Claims Settlement Implementing Act

Miss Chief’s Wet Dream  Kent Monkman  2018  Acrylic on canvas  144” x 288"

Collection of the Art Gallery of Nova Scotia, image courtesy of the artist

Today I'm happy to share this interview on the important issue of Tribal Sovereignty, the transcript shared on social media by Sunlight Media Collective. (You can hear the audio interview  archived here on WERU.) Also excited to share the image, which I added, with the permission of artist Kent Monkman, a Canadian artist of Cree ancestry; a picture worth at least a thousand words on what kind of sovereignty will best see humans through the storms ahead.

Interview with Penobscot Nation Chief Kirk Francis about the First Meeting of the Task Force on Changes to the Maine Indian Land Claims Settlement Implementing Act

By Sunlight Media Collective, in partnership with Community Radio WERU 89.9 FM

WERU/Sunlight Media Collective (SMC): So thanks for joining us again, Chief Francis, here to talk with us about the first meeting of the Task Force on Changes to the Maine Indian Land Claims Settlement Implementing Act. We want to quickly get into your reaction to the first meeting and where things stand right now, but if you can first orient us with the background of the creation of this task force and its stated goals.

Chief Francis: Sure. And thank you for having me again. It was probably back in the spring. We received an invitation from the Speaker's office and the President of the Senate and legislative leadership that wanted to meet with Tribal leaders and discuss some things. And at that time, we really didn't know what the issue was about. There was a ton of Indian-related bills going on in the legislature and I thought it was around those topics. So when we went to the meeting, it just quickly turned into, "Well what about amendments to the Implementing Act?" Which we were all a little taken aback by, I guess because it's kind of been a nonstarter in conversations in previous years. So it was refreshing that people were kind of thinking along those terms and...

SMC: As a root of many of the problems facing the Tribal-State relationship.

Chief Francis: Right, exactly. So Senator Carpenter was there and others and said, "Everything's on the table. Let's try to figure out a way to get through this." And then through subsequent meetings, the idea came up about forming this Task Force to work on it over the summer and into the fall and with some clear deadlines and some clear outcomes to be reported out in December. So that's kind of how it all got started. Then of course they passed legislation solidifying the process. Then on Monday, we had our first meeting.

SMC: Can you give us your initial reactions to that first meeting? The Task Force includes all the Tribal Chiefs, except Vice Chief Maggie Dana was representing Passamaquoddy Tribe at Sipayik, for that particular meeting. There are three representatives, two senators and ex officio members from the Governor's office, the Attorney General's office and the Maine Indian Tribal State Commission. Can you give your impressions from this first meeting?

Chief Francis: Sure. I thought it was more of a feeling out type meeting. I think the Tribes did most of the talking as you probably saw. I think there's the impression, the take away I got from the first meeting is that there's still a long way to go in terms of education and what exactly we're shooting for, for outcomes. I think from our side, we're pretty clear on the issues that need to be addressed. We addressed those issues in a May 16th joint letter from all the Tribes and really explained what we would expect through this process and the issues that have been kind of at the center of contention and the things that should be changed and getting tribes back to what Bottomley said in 

the Bottomley case in 1979 that said that Maine tribes are federally recognized tribes, that their territories are Indian country, and that they enjoy all the same rights, privileges as any tribe in the United States.

That's kind of where we want to be. It became very clear that there's still a lot of, "Well, what if that happens? What will it mean to this or that or the other thing?" And you heard a lot of that type of questioning going on. I think we really just need to get away from the tribes having to be in this justification and approval type process and really focusing on what is the standard for how federally recognized tribes that are be treated, which is rooted in a lot of law. How do we get Maine to a place where at the very least comparable to that? I would hope we would want to be better than most in this area, but again, I still have some concerns about the process. I think when you hear things like, "Let's do the easy things," and that sort of stuff. And I'm not even sure what that means. I don't know what the easy things are in the Implementing Act but I know that it's going to be a challenging process, it's going to be a tough process.

I'm hopeful that we can get some results out of it, but I do have some concerns over what appeared to be a lot of unpreparedness at the meeting and just having a basic understanding of where the tribes were before the settlement act, how has the Settlement Act hindered us. I thought some examples went out. There were some missed opportunities on our part too. I thought the example of well, isn’t your child welfare system doing better? Well, it is doing better. And it's doing better because the tribes have built their institutions to a place where we are heavily involved, heavily knowledgeable, and we are really self-governing those issues.

I think that's where those successes... Of course with the willingness of partnerships with State agencies is also critical to that. But I think that that's a prime example of the growth of the Tribes and how that leads to success when allowed to really have solid decision making in these processes.

So I would say my overall takeaway is I remain cautiously optimistic that we can accomplish some things, but I also remain concerned that we have a ways to go to get to a mindset of what's right and wrong here.

SMC: And you referred earlier to the proposal of “let's work on little pieces of this” and that Senator Carpenter had given the suggestion that certain areas of controversy be addressed. For instance, sustenance fishing. There were a couple of others. But as you said, you and other Tribal leaders drew it back to, well, the reason that we're having all these particular areas of friction all come back to the issue of recognizing Tribal inherent sovereign authority and whether the state is able to do that. And as you asked if they can't, what makes them uncomfortable in recognizing that?

Chief Francis: Yeah. I think the tribes have articulated for a couple of decades through the At Loggerheads Report (Final Report of the Task Force on Tribal-State Relations, January 15, 1997) through the Maine State Work Group Report, (January 2008) through a whole host of the Suffolk Report, (February 2017) through a whole host of really comprehensive reports and processes what we want. And it's pretty basic. We want exactly what you said, to be recognized as who we are, and to be able to exercise our inherent sovereign rights in a self-governing way.

So we really need now to know from the State what is your concerns and what are the reasons you want to keep things in the act. So, for example, if you would ask them all laws, the laws that are spelled out that apply to Indian Tribes at Maine. Why do you want to keep it that way? Well, it has to be more than, well because we'd like control of that. That's not expressing any negative impact on the State of Maine.

So I think we could “what if” this issue to death. I think we really need to get away from that. What if we opened a paper mill on a reservation? That came up. We heard that in the work group process 12 years ago. Could you open a nuclear power plant? If you had the answers to those are yes, we could. But I think the misunderstanding, of course we probably never would. But I think the misunderstanding here is the absence of state authority does not create this lawless situation within Indian country. It's highly regulated, highly governed through our trust relationship. You know, any...

SMC: With the federal government.

Chief Francis: Yes. And that all businesses that come on to Indian reservation, especially because they can't own property, they would have to do leases. All those leases have to be approved by the Department of Interior. You have NEPA reviews. You have all kinds of things. I mean, so there's absence and gaps of State authority and oversight in our systems now. That doesn't mean that there's just this kind of wild west approach to governing. So getting everybody to understand that.

And the other concern I have is again, just the overall lack of two-way communication here. It was really a one-sided conversation I felt, and it was... I didn't see a lot of input from the other task force members. Hopefully it's just a feeling out process and a learning process initially for some and people will get more engaged.

SMC: And just to back up again for a minute, we're talking about what perhaps the State is uncomfortable with. But what the Tribes have been up against continuously is the State's interpretation of the Settlement Act, particularly in regards to its application to federal laws that apply to all other federally recognized Tribes across the country, including, as we've talked with you many times before, about the Violence Against Women Act (VAWA), disaster relief, the Clean Water Act... We've seen that just recently over sustenance fishing. As you've also pointed out, there has been no mechanism to really mediate an actual interpretation. It's been the State's interpretation. And as the Tribal leaders were saying on Monday, that's had a negative, a very negative impact.

Chief Francis: Yeah. That's the thing. It's like, we say it all the time. It's the inability of the Maine Tribes to access the same rights and privileges as every other Tribe in the country. There's consequences to that. And the consequences for us unfortunately, are remaining in a condition that we have to creatively work around. We have to utilize Federal agencies to help us. We have to do a lot of different things to try to overcome the condition that that leaves behind. And we can never really get at it at a level like other tribes because we just don't have the tools available to us to do it.

So the thing that is really discouraging about all of that is when you have a State that's assuming in authority that really shouldn't be, but then has no mechanisms in place to deal with those decisions... It can't be just "We control that issue. The answer's no. Have a nice day." I mean it has to be, "The answer is no, but here's the programs, mechanisms and resources that we can help you with to address those things." And that never happens. I'm not saying I want things that way anyway, but I'm just saying there's just been this use of authority and with no responsibility. So, again, it's left a whole group of people in the State lagging far behind everybody else in a multitude of areas.

SMC: You and other Tribal chiefs brought up section 6206 and 7205 in the Federal Maine Indian Land Claims Settlement Implementing Act. Can you clarify what those sections, a reform of those sections could do?

Chief Francis: Well I think one of them deals with the applicability of State Law Audit to Tribes. Again this gets at the Tribes' self-governance rights around a whole host of issues. The other one deals with the same rights and privileges stuff and trying to make sure that the Tribes can access the tools that are available to Indian Tribes all across the country to address things like opioid addiction, violence against women, all of those disaster relief, enhanced jurisdiction for courts to get at drug dealing related charges, and those things also come with funding mechanisms when implemented.

So it's really just trying to get at, as I said earlier, the foundational principle of what this relationship should be based on is exactly what the court said. So you heard some stuff in the hearing too that on both sides, like have been conditioned for so long to think like this is the way it is. Like 

we were never wards of the state, in my mind. What the court case said in 1979 was “you were treated like that. It was an illegal exercise of authority over you.”

So we were never wards of the state. We were just being treated that way. I think getting out of that mindset, we're now 40 years into this and you can see that the state institution is still conditioned to treat and work with Indian Tribes in a certain way. No matter how good the individual is within that system, it's going to be tough to get by that.

SMC: And Tribal leaders were also bringing up the hindrance of economic development by... If you want to clarify a little more of that.

Chief Francis: Yeah. I mean, we know that there's been multiple senate hearings on this. There's been testimony from major corporations in front of the Senate Committee on Indian Affairs for years, talking about why it's a challenge to do business with Indian Tribes. The number one hindrance is uncertainty over jurisdiction and layered bureaucracy. So what this creates is it creates a situation where investors don't want to get in the middle of that because the Tribes are not going to give up their jurisdictional stance on things. The State's not going to give up theirs. So you're going to end up with double permitting processes, in some cases, dual taxation. It creates a mess, and it scares people away. And the US Treasury has backed that up with, and I forget the number now, but it's into the billions of dollars that do not flow into Indian Country because of a lot of these reasons.

So there's very substantiated reasons for how economic development gets hindered. It's trying to create an environment that's conducive to good economic activity, for example. We are able to create gas stations here, and do all that stuff. Well, the geographical challenges we have within our territory has to provide for a competitive advantage. And that's what Congress does. They recognize those things. And it doesn't come without great debate and State's opposition and county's opposition and all of that. But you're seeing Tribes do tax-free fuel sales and a whole host of things that will drive opportunity. The Tribes have opportunities through preferential contracting. For example, a good partnership with Maine DCD and getting over the issues of who controls what. I mean, those would be great manufacturing opportunities for Maine.

So working more in partnership and also recognizing the Tribe's sovereignty does much better in the States that do, than the ones that don't. Again, this stuff is not stuff we're all making up. I mean it's been there since self-determination in the early 1970s the tribes that could get right off the starting line and do whatever they had to do. We're... are doing much, much better today than those that weren't. So just all these kinds of misperceptions of, for example, it was mentioned in there like, well, it's too bad that the Indian Gaming Regulatory Act was passed eight years after the Settlement Act. Well, what people should know is like these acts, like it wasn't just some gift from Congress to create the Indian Gaming Regulatory Act. It was actually a Supreme Court case that said that Tribes have the right inherently to create gaming opportunities on their land.

And what Congress did too in the interest of States was to create the Indian Gaming Regulatory Act that forced compacting in States to give the State some interest in that economic opportunity on Indian land. So that was a restrictive act. That wasn't an act, grant, or right. That right was inherent and got restricted by Congress. So there's just a lot of misunderstanding of the basic rights that Tribes have and the history of all of this stuff. I just hope people are doing their homework and trying to figure out and getting to a place where the sky's not going to fall if this all happens. There's still going to be a lot of conversation. There's still a lot of things to be worked out. The Tribes are in a much different place than they were 40 years ago, but we're not going to be able to do everything overnight. Those are things we're going to talk through.

But I think the core issue of recognizing that you have inherent sovereigns in a State, which is what the land claims sought to mitigate, because the land claim part of the act, nobody's disputing that.

Nobody's disputing that there was an agreement to protect title to land in Maine and allow Tribes to regain some of their territory as well. Nobody's saying that didn't happen.

But the jurisdictional piece of it was a purposeful approach to a governor at the time that said, "No Nation within a Nation is going to exist in the State of Maine." And that was entirely what that jurisdictional piece was about. And we need to understand that that was wrong and it's illegal. It's not something that has ever been done anywhere else, by the way. There are some settlement acts out there, and yes, some of them are restrictive on specific things like gaming or whatever, but nothing touches things as broadly as this act does here.

SMC: Well, we thank you for taking so much time with us today. We know you have to go to a meeting shortly, but I just wanted to quickly touch on the next meeting and the goals for the next meeting, August 9th. And it sounded like at the end, that meeting that the Tribes would be coming up with some proposals in legislative form that then will be worked over by the committees. Is that your understanding as well?

Chief Francis: Yes, and we've already gone to work on it. We've got a meeting again tomorrow with all the Tribes, all our representatives. We're currently starting to mark up things, getting language that we like, do all of that. We're going to be as prepared as we can for the next meeting. We will get that to them in advance. It's that really getting into the nuts and bolts of it. We can't have a process that is really about everybody rehashing the last 40 years or trying to figure out what this means if we do this and that. I mean, we have to talk about those things. But I think if we get a section accomplished at each of these meetings, I mean that's my goal anyway. I just want us to continue to move forward and get some place where... I mean they're going to have to understand at some point if this is going to be productive, they're going to have a lot of heartburn at the end of it.

The Tribes are probably not going to be all the way where we want to be. That's what common ground processes should be about. There are some things that I'm sure are deal breakers for us, and I'm sure there's going to be some things that are deal breakers for them. But we have to all be in the mindset, especially on the State side, that they're not going to be very comfortable if this works out the way that I would like to see it work out, and I'm probably not going to be all the way comfortable with how it works out. But I want to, in December, have a product that makes the tribes of Maine better off than they are today, and that has taken huge steps towards, at the very least, recognizing us for what we are, our territory, resources and people and go from there.

SMC: You said at the end of the meeting that you could actually sum up in one sentence what the proposal would be. What would that sentence be?

Chief Francis: Well that, I mean, really for me, it's just the Tribes of Maine are federally-recognized Tribes with inherent authority over their territory and people and enjoy all the same rights and privileges as every federally-recognized Tribe in the country. I mean, I think, I don't know if that's more than one sentence, for me, that's it.

SMC: Well, thank you, Chief Francis very much for joining us today. And we will be continuing to cover this process as it unfolds.

Chief Francis: I appreciate it and I appreciate your attention to it.

WERU Community Radio Audio Link:
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