| This week, the legislature was quickly working to wrap up committee work with only 3 weeks remaining in the session. Committees are reviewing their list of bills they want to carry over into next year’s session. The Appropriations Committee is working on the Part II budget and negotiating final details. This week in the legislature we’ve been tracking many bills to be voted out of committee. On Wednesday we testified on LD 2004 “An Act to Restore Access to the Federal Laws Beneficial to the Wabanaki Nation.” In our testimony, we repeated our ongoing concern about the need to maintain uniform regulatory jurisdiction throughout Maine lands. Attorney General Aaron Frye specifically cited these concerns in his testimony: “It is likely that at least some federal laws that would become applicable by virtue of LD 2004 would have significant impacts and cause regulatory confusion. For example, in the environmental context, the Clean Water Act (CWA) has provisions authorizing the Environmental Protection Agency to treat Indian tribes as states (TAS) for purposes of adopting water quality standards. Currently, because of MICSA, the TAS provisions do not apply here; LD 2004 would likely change that, and Tribes in Maine would presumably become eligible for TAS status. This could have significant impacts beyond tribal territories. Once Tribes set water quality standards within their own territories, those standards would become enforceable under the CWA within those areas and potentially beyond tribal territory. For example, dischargers upstream from new tribal water quality standards approved by EPA under the CWA would need to ensure compliance with those standards given the ability of aquatic life to move upstream, it’s also conceivable that downstream dischargers could be affected by new and approved tribal water quality standards upstream. Such entities operating outside of tribal territories, which could include municipal as well as industrial dischargers, may occur significant costs to achieve compliance with these standards or may not be capable of achieving them at all. It is also important to note that, unlike Tribes in many other parts of’ the country, tribal territory in Maine is widely fragmented, with tribal territory parcels dispersed throughout the State. Water quality standards promulgated for such scattered parcels could thus have a wider and more magnified extra-territorial impact than is the case for tribes elsewhere with more concentrated territories.” Several constitutional concerns complicate matters further. The work session on the bill will be this coming Tuesday and we will continue to engage in the issue. In the Labor and Housing Committee on Thursday, LD 1794 “An Act to Enhance the Predictability of Mandatory Overtime For Pulp and Paper Manufacturing Facility Operations” was carried over into the next legislative session. A work session on LD 1964 “An Act to Implement the Recommendations of the Commission to Develop a Paid Family and Medical Leave Benefits Program” involved considerable debate among committee members. Several changes were made that include, as reported in the Portland Press Herald: eligibility requires new employees to wait 120 days, the benefit amount would be equal to 90% of a workers wages earned up to half of Maine’s weekly average rate ($1,036). Employers that offer comparable plans could opt out of the program, and businesses with 15 or fewer workers would be exempt from paying into the plan. The Republicans brought up alternative approaches such as the New Hampshire model, but ultimately the vote was along party lines in favor of the bill. Committee members were aware of the looming referendum initiative that would bring the issue of PFL to the public if the legislators did not take action on this issue. In the Energy and Utilities Committee, LD 1408 “An Act to Reduce Maine’s Dependence on Fossil Fuels and Carbon Footprint for Energy Production Using Waste Wood Fuel” was discussed in work session. Committee members provided a variety of perspectives and ultimately agreed to a majority report. Issues that should improve CHP opportunities for Combined Heat and Power (CHP) projects to receive approval from the PUC include increasing the program size from 20 to 30 MW; individual facilities size was raised from 10 to 15MW; the PUC will buy only the energy (not RECs or Capacity). We are hopeful that a second round of bids in the CHP procurement will result in approved wood consuming projects. The Week Ahead At this point in the Schedule we are aware of tribal bills in the legislature to be discussed on Tuesday in the Judiciary Committee: LD 2004 “An Act to Restore Access to Federal Laws Beneficial to the Wabanaki Nations” will be in a work session to determine if the numerous issues can be resolved. This was a bill that was introduced for a hearing with only 24 hours of advanced notice. As member Ben Carlisle testified: “It’s dangerous that this bill is being put forward with only one sunrise worth of time to consider it. I think this is the birthplace of unintended consequences.” LD 2007 “An Act to Advance Self-determination for Wabanaki Nations” is a concept draft to replicate the Tribal Sovereignty act of last session. There will be no hearing, but the bill will be carried over into the next session. We will be working in the “lobby” as bills are ushered between the House and Senate and then delivered to the Governor for her approval. Stay tuned as we cover the debates and seek your action. If you would like to sign up to testify, or submit testimony, the link to do so is here. The full schedule is provided below. If you have any questions, or need help submitting testimony, please don’t hesitate to reach out to me for assistance. Best, Pat |
Bills Scheduled for a Work Session
| Work Sessions are livestreamed and archived here on the Legislature’s Website. LD 2004 – “An Act To Restore Access To Federal Laws Beneficial To The Wabanaki Nations” Work Session in JUD on Tuesday June 6, 2023 @ 1:30 PM in State House, Room 438 MFPC Position: Oppose Sponsored by Speaker Rachel Talbot Ross, this bill provides that the State, the Passamaquoddy Tribe, the Penobscot Nation and the Houlton Band of Maliseet Indians agree and intend pursuant to United States Public Law 96-420 and the State and the Mi’kmaq Nation agree and intend pursuant to United States Public Law 102-171 that any law of this State, including, without limitation, laws of this State relating to land use or environmental matters, that is contrary to or that would be affected or preempted by the operation of or the application of any statute or regulation of the United States that accords a special status or right to or relates to a special status or right of any Indian, Indian nation, tribe or band of Indians, Indian lands, Indian reservations, Indian country, Indian territory or land held in trust for Indians does not apply, except for laws of this State applicable to certain crimes and juvenile crimes. Except for statutes and regulations of the United States that conflict with or affect or preempt the jurisdiction of this State over certain enumerated crimes and juvenile crimes and except for federal laws identified in Section 6(c) of United States Public Law 96-420, the State, the Passamaquoddy Tribe, the Penobscot Nation, the Houlton Band of Maliseet Indians and the Mi’kmaq Nation further agree and intend pursuant to United States Public Law 96-420 and to United States Public Law 102-171, as applicable, that any statute or regulation of the United States enacted before, on or after October 10, 1980 that accords a special status or right to or relates to a special status or right of any Indian, Indian nation, tribe or band of Indians, Indian lands, Indian reservations, Indian country, Indian territory or land held in trust for Indians is applicable within this State, without regard to any effect on the jurisdiction of or the application of the laws of this State. The Passamaquoddy Tribe, the Penobscot Nation, the Houlton Band of Maliseet Indians and the Mi’kmaq Nation may conduct gaming activities only in accordance with the laws of this State and may not conduct gaming activities under the authority of the federal Indian Gaming Regulatory Act or under any regulations promulgated under the federal Indian Gaming Regulatory Act by the chair of the National Indian Gaming Commission or its successor organization. The State, the Passamaquoddy Tribe, the Penobscot Nation and the Houlton Band of Maliseet Indians agree and intend pursuant to United States Public Law 96-420, and the State and the Mi’kmaq Nation agree and intend pursuant to United States Public Law 102171, that each tribe, nation or band has the power to enact laws and ordinances relating to the operation, application and implementation of any statute or regulation of the United States enacted before, on or after October 10, 1980 that accords a special status or right to or relates to a special status or right of any Indian, Indian nation, tribe or band of Indians, Indian lands, Indian reservations, Indian country, Indian territory or land held in trust for Indians. LD 2007 – “An Act To Advance Self-determination For Wabanaki Nations” Work Session in JUD on Tuesday June 6, 2023 @ 1:30 PM in State House, Room 438 MFPC Position: Oppose Sponsored by Speaker Rachel Talbot Ross, this bill is a concept draft pursuant to Joint Rule 208. This bill proposes to make substantial changes to the Maine Indian Claims Settlement Implementing Act to address some of the consensus recommendations of the Task Force on Changes to the Maine Indian Claims Settlement Implementing Act, referred to in this summary as “the task force,” and make other changes regarding the Maine Indian Claims Settlement Implementing Act. The task force’s report was released on January 14, 2020 and is available online at http://legislature.maine.gov/maine-indian-claims-tf. In this summary, the Maine Revised Statutes, Title 30, chapter 601, which is titled AN ACT to Implement the Maine Indian Claims Settlement, enacted by Public Law 1979, chapter 732, is referred to as “the Maine Implementing Act” and the federal Maine Indian Claims Settlement Act of 1980, Public Law 96-420, formerly codified at 25 United States Code, Sections 1721 to 1735, is referred to as “the federal Settlement Act.” The federal Settlement Act ratified the Maine Implementing Act, and both have an effective date of October 10, 1980. The purpose of the reconsideration and rewriting of the Maine Implementing Act would be to establish that the Passamaquoddy Tribe, the Penobscot Nation, the Houlton Band of Maliseet Indians and the Mi’kmaq Nation have the same rights to self-determination as other federally recognized Indian tribes within the United States. This bill would make changes to the Maine Implementing Act to restore back to the tribes many of the rights, privileges, powers, duties and immunities enjoyed by other federally recognized Indian tribes within the United States, which were restricted by the Maine Implementing Act. This would be a significant change from the current law, which provides the State with significant authority over Indian affairs. To carry out this significant change, many provisions of Title 30, chapter 601 would be repealed or amended to recognize that federal Indian law governs the rights, privileges, powers, duties and immunities of the tribe, nations and band. Under the bill, except as otherwise specified in the Maine Implementing Act, federal Indian law would apply with regard to the rights, privileges, powers, duties and immunities of the Passamaquoddy Tribe, the Penobscot Nation, the Houlton Band of Maliseet Indians and the Mi’kmaq Nation. “Federal Indian law” is defined for this summary to mean the United States Constitution and all generally applicable federal statutes, regulations and common law and case law interpreting, implementing, applying or enforcing those federal laws and regulations, and subsequent amendments thereto, relating to the rights, status, privileges, powers, duties and immunities of federally recognized Indian tribes and their members and land or other natural resources within the United States. This definition explicitly recognizes that federal Indian law is not static, but evolves as federal common law develops, federal laws are passed and amended and as federal courts interpret the relevant statutes and regulations and their application to federally recognized Indian tribes, nations, bands and other groups. This bill would incorporate within the Maine Implementing Act the definition of “Houlton Band Trust Land” from the federal Houlton Band of Maliseet Indians Supplementary Claims Settlement Act of 1986. This bill would define “Mi’kmaq Nation Trust Land” to include land or other natural resources acquired by the United States Secretary of the Interior in trust for the Mi’kmaq Nation pursuant to federal Aroostook Band of Micmacs Settlement Act. This bill would define “Indian territory or trust land” to include, with respect to the Passamaquoddy Tribe and the Penobscot Nation, the tribe’s or nation’s Indian territory, with respect to the Houlton Band of Maliseet Indians, Houlton Band Trust Land, and with respect to the Mi’kmaq Nation, Mi’kmaq Nation Trust Land. This phrase is used throughout the bill to describe the lands over which the Passamaquoddy Tribe, the Penobscot Nation, the Houlton Band of Maliseet Indians and the Mi’kmaq Nation may exercise rights, privileges, powers, duties and immunities similar to those of other federally recognized Indian tribes within the United States. This bill would restructure the procedures for addition of new land to tribal territories. The procedures required would depend upon the location of the land and the time of acquisition. This bill would eliminate the language in the Maine Implementing Act regarding takings of tribal land for public use under state law. This bill would provide that the Passamaquoddy Tribe, the Penobscot Nation, the Houlton Band of Maliseet Indians and the Mi’kmaq Nation, as well as their officers and employees, are immune from suit to the same extent as other federally recognized Indian tribes and their officers and employees under federal Indian law. The Maine Implementing Act currently limits the criminal jurisdiction of the Passamaquoddy Tribal Court and the Penobscot Nation Tribal Court as well as the potential criminal jurisdiction of the Houlton Band of Maliseet Indians Tribal Court and the Mi’kmaq Nation Tribal Court. Federal Indian law provides broader jurisdiction for tribal courts. This bill would repeal most of the state limitations and recognize and adopt most of federal Indian law, including the Indian Civil Rights Act of 1968, the Tribal Law and Order Act of 2010, the tribal provisions of the Violence Against Women Act and other federal laws addressing tribal court jurisdiction and the obligations of the tribal courts. This bill would restore to the Passamaquoddy Tribal Court, the Penobscot Nation Tribal Court, the Houlton Band of Maliseet Indians Tribal Court and the Mi’kmaq Nation Tribal Court criminal jurisdiction over Indians and recognize the courts’ authority to impose the maximum penalties other tribal courts are authorized to impose under the federal Tribal Law and Order Act of 2010, as long as the due process protections required by that Act are observed. This bill would amend state law to recognize tribal court jurisdiction, concurrent with the state courts, over offenses committed on tribal lands by Indian defendants against non-Indian victims, subject to the maximum penalty provisions and due process requirements of the federal Tribal Law and Order Act of 2010. This bill would retain current law providing that the exclusive authority of the Passamaquoddy Tribe, the Penobscot Nation, the Houlton Band of Maliseet Indians and the Mi’kmaq Nation to exercise criminal jurisdiction over Indians on tribal lands remains at the discretion of the tribe, nations and band. To the extent that the tribe, nations or band does not exercise, or terminates its exercise of, exclusive criminal jurisdiction, the State would have exclusive jurisdiction over those matters. This bill would provide that, when the tribal courts of the Passamaquoddy Tribe, the Penobscot Nation, the Houlton Band of Maliseet Indians and the Mi’kmaq Nation exercise exclusive or concurrent criminal jurisdiction, the definitions of the criminal offenses and the punishments applicable to those criminal offenses are governed by state law, except that the punishments imposed by a tribal court may not exceed the maximum punishments that a tribal court may impose under 25 United States Code, Section 1302(a)(7). This bill would recognize federal Indian law regarding the exclusive jurisdiction of tribes to regulate fishing and hunting by tribal citizens of all federally recognized Indian tribes on tribal lands. This bill would amend the Maine Implementing Act to restore and affirm the exclusive jurisdiction of tribes to regulate fishing and hunting by nontribal citizens on tribal lands but would not cede to the State any authority of the Maine Indian Tribal-State Commission to regulate fishing on boundary waters under current law. This bill would relinquish the State’s jurisdiction with respect to the regulation of fishing and hunting by both tribal and nontribal citizens on tribal lands. The State, solely for conservation purposes, would be allowed to regulate tribal members engaged in such activities off tribal lands to the extent permitted under general principles of federal Indian law and in a manner consistent with reserved tribal treaty rights. This bill would amend state law to restore to the Passamaquoddy Tribe, the Penobscot Nation, the Houlton Band of Maliseet Indians and the Mi’kmaq Nation the exclusive authority to exercise civil legislative jurisdiction over Indians on tribal lands and the concurrent authority to exercise civil legislative jurisdiction over non-Indians on tribal lands, including in the area of taxation, as provided by federal Indian law. This bill would amend state law to restore to the Passamaquoddy Tribe, the Penobscot Nation, the Houlton Band of Maliseet Indians and the Mi’kmaq Nation the exclusive authority to exercise civil adjudicatory jurisdiction over Indians on tribal lands and the concurrent authority to exercise civil adjudicatory jurisdiction over non-Indians on tribal lands, as provided by federal Indian law. This bill would provide that, notwithstanding any provision of the Maine Implementing Act to the contrary, the Passamaquoddy Tribe, the Penobscot Nation, the Houlton Band of Maliseet Indians and the Mi’kmaq Nation may conduct gaming activities only in accordance with state law and may not conduct gaming activities under the authority of the federal Indian Gaming Regulatory Act or under any regulations thereunder promulgated by the chair of the National Indian Gaming Commission or its successor organization. This bill would take effect 120 days after adjournment of the session during which it was enacted only if, within 90 days after adjournment of that session, the Secretary of State receives written certification from the Joint Tribal Council of the Passamaquoddy Tribe that the tribe has agreed to its provisions; the Governor and the Council of the Penobscot Nation that the nation has agreed to its provisions; the Houlton Band Council of the Houlton Band of Maliseet Indians that the band has agreed to its provisions; and the Mi’kmaq Nation Tribal Council that the nation has agreed to its provisions. This bill would repeal or repeal and replace each provision of the Maine Implementing Act that was enacted by Public Law 1981, chapter 675 and provide that, if the Houlton Band Council of the Houlton Band of Maliseet Indians certifies its agreement to the provisions of this legislation, upon such certification each provision of this legislation constitutes a jurisdictional agreement between the State and the Houlton Band of Maliseet Indians for purposes of Section 6(e)(2) of the federal Settlement Act but would not constitute an agreement by the Houlton Band of Maliseet Indians that the contingencies of Public Law 1981, chapter 675 were met or that the provisions of Public Law 1981, chapter 675 ever took effect. This bill would repeal or repeal and replace each provision of Title 30, chapter 603 that was enacted by Public Law 1989, chapter 148 and provide that, if the Tribal Council of the Mi’kmaq Nation certifies its agreement to the provisions of this legislation, upon such certification each provision of this legislation constitutes a jurisdictional agreement between the State and the Mi’kmaq Nation for purposes of Section 6(d) of the federal Aroostook Band of Micmacs Settlement Act but would not constitute an agreement by the Mi’kmaq Nation that the contingencies of Public Law 1989, chapter 148 were met or that the provisions of Public Law 1989, chapter 148 ever took effect. |