TESTIMONY OF KAIGHN SMITH JR., ESQ., COUNSEL FOR THE PENOBSCOT NATION ON AN ACT TO IMPLEMENT THE RECOMMENDATIONS OF THE TASK FORCE ON CHANGES TO THE MAINE INDIAN CLAIMS SETTLEMENT IMPLEMENTING ACT (L.D. 2094) FISH AND GAME AND LAND USE AND NATURAL RESOURCES (TASK FORCE CONSENSUS RECOMMENDATIONS 7-10) Public Hearing, February 14, 2020 Good afternoon, my name is Kaighn Smith Jr. I am a shareholder at Drummond Woodsum & MacMahon, and I have served as litigation counsel for the Penobscot Nation for over 25 years. I teach Federal Indian Law at the University of Maine School of Law, and I serve as an Associate Reporter for drafting the American Law Institute’s Restatement of the Law of American Indians. I have been asked by Penobscot Nation Chief, Kirk Francis, to speak to you today in support the implementation of Task Force Recommendations 7-10 through L.D. 2094. I provide this testimony solely on behalf of the Penobscot Nation. The Penobscot Nation believes that in order to place this opportunity to improve tribal-state relations in context, it is very important to look at some painful history. The Nation appreciates the Committee’s consideration of this context and looks forward to better relations with the State of Maine through L.D. 2094.1 1 Consensus Recommendations 7-10 are to amend the Maine Implementing Act to: [R]ecognize federal law regarding the exclusive jurisdiction of Tribes to regulate fishing and hunting by Tribal citizens of all federally recognized Tribes on Tribal lands. [R]estore and affirm the exclusive jurisdiction of Tribes to regulate fishing and hunting by non-Tribal citizens on Tribal lands, but . not cede any of the Maine Indian Tribal- State Commission’s authority to regulate hunting and fishing under current law to the State. [R]elinquish the State of Maine's jurisdiction with respect to the regulation of fishing and hunting by both Tribal and non-Tribal citizens on Tribal lands, except that, solely for conservation purposes, the State of Maine . under general principles of federal Indian law and in a manner consistent with reserved Tribal treaty rights. [R]estore and affirm the Tribes' rights to exercise regulation of natural resources and land use on Tribal land to the fullest extent under federal Indian law. The Restoration Of Inherent Sovereignty And What That Means In Historical Context At the time of the Maine Indian Land Claims Settlement, Congress explained that “[t]he aboriginal territory of the Penobscot Nation is centered on the Penobscot River.” H. R. REP. No. 96-1353 at 11, reprinted in 1980 U.S.C.C.A.N. 3786, 3787 (“H.R. REP.”); S. REP. NO. 96-957 (“S. REP”) at 14 REP. at 11. Congress further explained: When the Revolutionary War broke out, General George Washington requested assistance of [the Penobscot Nation, the Passamaquoddy Tribe, and the Houlton Band of Maliseet Indians] and, on June 23, 1777, Colonel John Allan, of the Massachusetts militia . negotiated a treaty with these Indians, pursuant to which the Indians were to assist the Revolutionary War in return for protection of their lands by the United States . Allan’s journals indicate that the Indians played a crucial role in the Revolutionary War. Despite requests from the Maine Indians, the federal government did not protect the tribes following the Revolutionary War. In 1794, the Passamaquoddy Tribe . relinquished all but 23,000 acres of its aboriginal territory. Subsequent sales and leases by the State of Maine reduced this territory to approximately 17,000 acres. The Penobscot Nation lost the bulk of its aboriginal territory in treaties consummated in 1796 and 1818. A sale to the State of Maine in 1833 resulted in the loss of four townships by the Penobscot Nation. H.R.REP. at 11-12; S.REP. at 12. These lands cessions failed to comply with one of the first acts of Congress, the Indian Nonintercourse Act. H.R.REP. at 12; S.REP. at 12. Enacted in 1790, and presently codified at 25 U.S.C. § 177, this Act renders void any land transaction with an Indian tribe that lacks federal approval. See 25 U.S.C. § 177. In the landmark decision of 1975, Joint Tribal Council of Passamaquoddy Tribe v. Morton, 388 F. Supp. 649 (D. Me.), Judge Edward T. Gignoux, held that the United States had a trust responsibility to the Passamaquoddy Tribe (and concomitantly to the Penobscot Nation) to investigate claims against Maine for violations of the Nonintercourse Act. The First Circuit affirmed his decision, see Joint Tribal Council of the Passamaquoddy Tribe v. Morton, 528 F.2d 370 (1st Cir. 1975), and the United States commenced federal court actions against Maine on 2 behalf of the Penobscot Nation and the Passamaquoddy Tribe to recover the ceded lands. See 25 U.S.C. § 1731 (referring to Civil Action Nos. 1966-ND and 1969- ND, hereinafter “U.S. v. Maine” or the “land claims”). Together, these claims covered “12.5 million acres, or 60 percent of the State.” H.R.REP. at 14; S.REP. at 13.2 In 1979, the United States, through the U.S. Department of the Interior (“DOI” or “Interior Department”), Bureau of Indian Affairs formally recognized the Penobscot Nation and the Passamaquoddy Tribe as Tribal Nations with government-to-government relationships with the United States. 44 Fed.Reg. 7,235-7,236 (Jan. 31, 1979). The U.S. Court of Appeals for the First Circuit has explained what this means: Federal recognition is just that: recognition of a previously existing status. The purpose of the procedure is to “acknowledg[e] that certain American Indian tribes exist.” 25 C.F.R. § 83.2 (1993). The Tribe[s’] retained sovereignty predates federal recognition—indeed, it predates the birth of the Republic, see Santa Clara Pueblo v. Martinez, 436 U.S. 49, 56, 98 S.Ct. 1670, 1675, 56 L.Ed.2d 106 (1978)—and it may be altered only by an act of Congress, see Morton, 417 U.S. at 551–52, 94 S.Ct. at 2483.7 2 Contrary to certain testimony presented at the Public Hearings on L.D. 2094, the Tribes never sued Maine; the United States sued Maine as the Tribes’ trustee. Also contrary to certain testimony presented at the Public Hearings, the United States carefully assessed the merits of the claims and was fully prepared to proceed with these actions; these were very serious claims. For example, the United States reported to Judge Gignoux in 1977: We have concluded that a valid cause of action on behalf of the Penobscot Tribe encompasses all those lands lying in the Penobscot River watershed above the ancient head of the tide, a point north of Eddington, Maine, to the head of the river. Based on the outcome of further study this cause of action may also include those portions, if any, of the eastern shore of Moosehead Lake and the St. John River watershed west of Houlton, Presque Isle and Caribou which the tribe actually used and occupied in 1790, excluding, however, those lands in the St. John River watershed under treaty deeds confirmed pursuant to- Article 4 of the Webster-Ashburton Act of 1842. Memorandum in Support of [United States’] Motion for Further Time to Report to the Court, United States v. Maine (Civil Nos. 1966-ND and 1969-ND) (D. Me.) at 4, copy attached hereto as Exhibit A. 3 State of R.I. v. Narragansett Indian Tribe, 19 F.3d 685, 694 (1st Cir. 1994) (emphasis added).3 That same year, the United States Court of Appeals for First Circuit held “in Bottomly v. Passamaquoddy Tribe, 599 F.2d 1061 (1st Cir. 1979) (Coffin, J.) that the Maine Tribes still possess[ed] inherent sovereign authority to the same extent as other tribes in the United States [and] [t]he Maine Supreme Judicial Court . adopted the same view in State v. Dana, 404 A.2d 551 (Me. 1979).” H.R.REP. at 14; S.REP. at 14. See Bottomly, 599 F.2d at 1066; Dana, 404 A.2d at 560-563. The final Senate Committee Report on MISCA refers to Bottomly as “holding that Maine Tribes are entitled to protection under federal Indian common law doctrines.” S.REP. at 13 (emphasis added). See Bottomly, 599 F.2d at 1066; Dana, 404 A.2d at 560-563.4 3 Contrary to testimony presented at the Public Hearings, the Penobscot Nation and the Passamaquoddy Tribe did not attain federal recognition in 1980; they attained formal recognition in 1979. Further, they were never “granted” governmental authority by the federal government or by Maine. The sovereign authorities that Tribal Nations possess are inherent, not “granted” by the United States or any state government, and they are “retained” absent express abrogation by Congress. See United States v. Wheeler, 435 U.S. 313, 322-23 (1978); Bottomly v. Passamaquoddy Tribe, 599 F.2d 1061, 1066 (1st Cir. 1979). Because tribal sovereignty is subject to the exclusive authority of Congress, a state’s assertion of authority over a tribe’s affairs or its territory cannot operate to divest the tribe of its inherent sovereign powers. See State of R.I., 19 F3d. at 694 n.7; Bottomly, 599 F.2d at 1066. 4 All parties to the land claims settlement in 1980 understood this. The following are just a few examples: On April 2, 1980, in his opening remarks to introduce what became Maine Act to Implement the Indian Land Claims Settlement, 30 M.R.S.A. §§ 6206-6212 (“MIA”) to the Maine Legislature, Maine Senator Samuel W. Collins, Jr., Chairman of Maine’s Joint Select Committee on Indian Land Claims, stated that “the premise of this bill and the entire settlement agreement is that the Indians are Federal Indians.” He continued: This means that the Indians and their lands are within the exclusive jurisdiction of the Federal Government, and its Indian Laws.