Unpacking the tribal sovereignty bills and debate

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Though the 130th Maine Legislature will return to Augusta for a veto day on May 9, there are a number of bills with which it has not finally dispensed.

Among these are a number of high-profile bills, though few bills have garnered as much attention this session as those that seek to extend sovereignty to Maine’s federally recognized tribes.

LD 1626 is one such bill affecting tribal sovereignty that the legislature considered this session. It would amend the Maine Indian Land Claims Settlement Act of 1980 and would give the Passamaquoddy Tribe, the Penobscot Nation, and the Houlton Band of Maliseet Indians immunity from suit to the same extent as other federally recognized Indian tribes. It would also authorize the secretary of the federal Department of the Interior to acquire land within Washington County for the benefit of the Passamaquoddy Tribe to the same extent currently authorized within Aroostook, Franklin, Hancock, Penobscot, Piscataquis and Somerset counties.

The bill also clarifies that when tribal criminal courts of the Passamaquoddy Tribe, the Penobscot Nation, and the Houlton Band of Maliseet Indians exercise either exclusive or concurrent criminal jurisdiction, definitions of criminal offenses and punishments are governed by state law. It further clarifies that the Maine Revenue Service can enter into revenue-sharing agreements with the tribes for sales tax on lands wholly owned by them.

The bill is more comprehensive than LD 585, which provides more limited recognition of sovereignty for tribes while also authorizing sports betting in the state. It was signed into law by Gov. Janet Mills on May 2.

LD 585 enacts the Tribal-State Collaboration Act, requiring various government agencies within the state to designate a tribal liaison and develop and implement policies promoting positive relationships between them and federally recognized Indian tribes. The act requires the governor to hold and attend an annual Tribal-State Summit to address issues of mutual concern. 

Several portions of the bill also amend the state’s tax laws and create sales tax funds for the Passamaquoddy Tribe, the Houlton Band of Maliseet Indians, and the Penobscot Nation. The funds receive monthly transfers equal to the amount of sales tax collected on transactions occurring on tribal land. 

Other parts of the bill exempt the three tribes to which the law would apply from the commercial forestry excise tax, the wild blueberry tax, the potato tax, and the state’s corporate income tax.

The bill also creates a regulatory framework to allow Maine’s federally recognized Indian tribes to conduct mobile sports wagering. It allows licenses for off-track betting facilities and commercial tracks, including the Bangor Raceway and the Oxford Casino, which can apply for a facility licenses, to be awarded to up to 10 sports wagering facilities. Each of the four federally recognized tribes in the state can apply for a single mobile sports wagering license, to conduct digital sports betting.

The bill sets out the terms for licenses. Sports wagering licenses are non-transferable, except for federally recognized tribes, which can transfer their licenses to a business entity owned by the tribe. A facility sports wagering license has an initial four-year term and fee of $4,000. A mobile sports wagering license also has an initial four-year term and fee of $2,000.

Under the bill, sports wagering license holders can contract with management services, but fees paid by an operator to a management service cannot exceed more than 30 percent of gross wagering receipts. The licensee must also be licensed by the Gambling Control Unit.

Sports betting operators must remit 10 percent of their adjusted gross wagering receipts to the state. One percent of this amount is to be deposited in the General Fund to cover the Gambling Control Unit’s administrative expenses. Another one percent must go to the Gambling Addiction Prevention and Treatment Fund. The bill also requires 0.55 percent to be deposited in the Sire Stakes Fund and 0.4 percent to be deposited in the Agricultural Fair Promotion Fund. The remainder of the 10 percent must be deposited in the General Fund.

A fiscal note accompanying the bill estimates it will bring in roughly $388,000 in General Fund revenue in fiscal year 2022-2023.

Gov. Janet Mills signed LD 585 but has voiced opposition to LD 1626. On April 21, she wrote a letter to legislative leaders and tribal chiefs listing reasons for her opposition to the bill as well as other measures she says her administration has taken to advance tribal sovereignty.

In the letter, Mills shared testimony against LD 1626 given by the Office of the Attorney General, which expressed concern the bill would lead to more litigation and called for gradual change in the jurisdictional relationship between the state and the tribes. Mills said she agreed with the attorney general’s assessment.

As part of the letter, Mills touted not only LD 585 but LD 906, which Mills signed into law on April 21. The bill is intended to improve the Passamaquoddy Tribe’s access to safe-drinking water. It exempts the Passamaquoddy Water District from municipal taxation.

The bill authorizes two parcels of tribally owned fee land to be added to the tribe’s existing territory without approval from local towns. The transfer, according to the bill, is intended to provide the Passamaquoddy Tribe with access to alternate groundwater supply. 

The bill also stipulates that the federal Environmental Protection Agency, rather than the state government, has the authority to regulate water standards within the tribe’s territory.

When the legislature adjourned on April 25, LD 1626 remained in the Senate’s unfinished business. It was removed from the special appropriations table on the same day by Sen. Paul Davis (R-Piscataquis), who opposes the bill, and subsequently tabled by a vote of 16 to 13.

The bill was passed to be enacted by the House on April 18 and only needs a final vote from the Senate to be sent to Mills’ desk. When the legislature returns on May 9, the Senate could take the bill from unfinished business and vote on final passage, though that seems unlikely given the governor’s stated opposition to the bill. 

Mills and some Democrats in her party are at odds over the measure, which was sponsored by Rep. Rachel Talbot Ross (D-Portland), and has Senate President Troy Jackson (D-Aroostook) and Speaker of the House Ryan Fecteau (D-Biddeford) as cosponsors.

Another wrinkle to passage of the bill involves its fiscal note, which states the Department of Administrative and Financial Affairs will need a one-time General Fund appropriation of $66,000 in fiscal year 2023-2024 to help pay for the costs associated with the tax changes in the bill. 

The bill is also expected to add ongoing costs to the Maine Indian Tribal-State Commission’s operations, which will require additional funding in the 2024-2025 biennium. The tax exemptions the bill makes are expected to reduce General Fund revenue and Local Fund Revenue, as well as reduce municipal revenues as a result of exemptions it makes to Indian lands and territory from property taxes. According to the fiscal note, an estimate for this loss cannot be made.

The bill currently does not have funding.

Photo: Tony Webster from Minneapolis, Minnesota, CC BY-SA 2.0 https://creativecommons.org/licenses/by-sa/2.0, via Wikimedia Commons

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