Expanded Tribal Authority in Maine Over Prosecuting Crimes Takes Effect

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By EMMA DAVIS, Maine Morning Star

August 13, 2024

The Wabanaki Nations have expanded authority to prosecute more serious offenses committed on tribal territory by tribal members under a law that took effect Friday. However, the state will still retain those responsibilities for the Houlton Band of Maliseet Indians and the Mi’kmaq Nation until the tribes have established full court systems. 

This article was originally published in the Maine Morning Star.

The two larger tribes that make up the four tribes of the Wabanaki Nations, the Passamaquoddy Tribe and the Penobscot Nation, already have tribal court systems, so these jurisdictional changes will immediately apply. 

“The judge and the court staff were very involved every step of the way with this bill,” Penobscot Nation Tribal Ambassador Maulian Bryant said on Thursday. “If something were to happen tomorrow with this expanded jurisdiction, we could be prepared.” 

The Houlton Band of Maliseet Indians opened a wellness court earlier this year and hopes to have a full court system functional by the end of the year, said Chief Clarissa Sabattis. The Mi’kmaq Nation has also started planning for its own court system, including through the recent purchase of a building for the courthouse, said Vice Chief Richard Silliboy. 

According to state statute, until the Houlton Band of Maliseet Indians and Mi’kmaq Nation notify the Attorney General that they have “decided to exercise exclusive jurisdiction set forth in any or all” of the parts of the law that pertain to them, “the State has exclusive jurisdiction over those matters.” As of Friday morning, special assistant to the Attorney General Danna Hayes confirmed neither had notified the AG that they’d be doing so. 

While expanded jurisdiction will not apply to the entirety of the Wabanaki Nations quite yet, the law marks the most substantive change to the Maine Indian Claims Settlement Act since it was signed in 1980. At the same time, it also represents the failure of the third attempt at sweeping reform. Democratic Gov. Janet Mills has opposed overhauling the Settlement Act and instead helped usher through legislation targeting specific aspects of the Tribal-State relationship. 

Unlike the other 570 federally-recognized tribes in the U.S., the Wabanaki Nations are treated more like municipalities than sovereign nations under the Settlement Act, which has also made it so federal laws do not automatically apply to them.  

Federal law generally limits tribes to sentencing for a maximum of three years for any one offense, which under Maine law falls roughly into Class C crimes and below. This is essentially mirrored in the new Maine law. 

Existing law had largely already granted tribes jurisdiction over crimes with maximum sentences of less than one year, Class and D and E crimes, so the new law extends this jurisdiction to Class C crimes.

Tribal courts also have jurisdiction over domestic matters, such as marriage and divorce, and child custody proceedings — to the extent authorized by applicable state and federal law.

There are some exceptions. When a crime is committed against a person who is not a tribal member, tribes have concurrent jurisdiction with state courts. The state also maintains criminal jurisdiction over all crimes against the state entities.

Building on other recent expansions

The timing of this expanded jurisdiction has been seen as a natural transition by tribal leaders. 

Last year, Congress amended one of the federal protections the Wabanaki Nations had been excluded from under the Settlement Act, the Violence Against Women Act, providing the Wabanaki Nations expanded jurisdiction. Bryant said that provides a solid foundation for the Wabanaki Nations to again take on more responsibilities and expand court capacity under the new state law.

For the Houlton Band of Maliseet Indians, the Healing to Wellness Court that opened earlier this year has also helped provide a starting point for further expansion, Sabattis said. 

The wellness court is focused on offering alternatives to jail for those who have substance use issues. The court has the same chief judge, Eric Mehnert, as the Penobscot Nation’s similar court. Mehnert has also helped establish wellness courts in other parts of the country. 

“This court has a lot of our own culture built into the structure,” Sabattis said. “I just think the dynamics are so different from what you see going into a state court.”

This is true in the way the court looks. “You don’t have tables where everybody sits in front of the judge,” Sabattis explained. “It’s a talking circle. [The judge] hears each case individually and everyone who’s in the room has an opportunity to provide some positive feedback.”

This is also true in who is involved. People can self-refer without having criminal charges and the wellness court has a working group whose membership collectively help manage cases, including program directors and peer advocates. 

“It helped us get our judge in place. It helped us get the structure in place, so now it’s not so much of a lift to move forward with these things,” Sabbattis said. “The timing was perfect.”

The Mi’kmaq Nation is also in the process of starting up its own court. 

The Mi’kmaq Nation was not referred to in the 1980 Settlement Act and only received federal recognition later in 1991. Last year, the Legislature passed a law known as The Mi’kmaq Nation Restoration Act that put the Mi’kmaq Nation on par with the rest of the Wabanaki Nations. 

Since then, the tribe has been laying the groundwork to establish a police force, its own hunting and fishing regulations and a tribal court. Vice Chief Richard Silliboy said the tribe has purchased a building for the court, located next to the tribal building, but that planning is  still in the initial stages. 

While the new law, LD 2007, largely involves expanding criminal jurisdiction to the Wabanaki Nations, part of the law also extended the period for the Penobscot Nation to certify another law passed last year that allowed the tribe a greater role in the management of its drinking water. Bryant said the tribe unanimously voted to certify the law in June.  

Overall, Bryant described the certification process for LD 2007 as smooth.

“We’ve had gaps in that process before,” Bryant said, as evidenced by the delayed certification of the drinking water law and another law from this past session that also takes effect today, now requiring the state to notify the tribes when laws pertaining to them need to be certified.

“It’s been a great building of that relationship this time around,” Bryant said, in particular referring to their work with the Secretary of State’s Office. 

Bryant, Sabattis and Silliboy each said that while the past legislative session did not provide the sweeping overhaul of the Settlement Act they’d hoped, they see the strengthened relationships with state entities and court changes as crucial steps toward the legal recognition of Wabanaki sovereignty. 

The Legislature recognized a need to alter the Settlement Act in 2019 when it tasked a bipartisan group of state legislators and tribal chiefs to recommend changes. It remains to be seen which recommendations will be taken up in legislative proposals next, though amending laws related to land acquisition and adopting federal beneficial laws had been identified as priorities in earlier iterations of LD 2007. 

“I think it sets us up for great changes to come,” Bryant said of LD 2007. “We’ve shown that we can pull out some of these task force recommendations from that 129th Legislature and put them into motion and see them all the way through into reality.”