Understanding Tribal Sovereignty

Tribal sovereignty is the right of tribes to govern themselves. Under the U.S. Constitution, federally recognized tribes generally have the same powers, with a few exceptions, as federal and state governments with respect to the regulation of affairs on tribal land. This includes the inherent right to sustain their traditional cultural values and practices, establish their own form of government, determine citizenship requirements, enact legislation, and establish law enforcement and court systems. Federally recognized tribes are still subject to federal statutes and court decisions that are generally applicable to tribes and their citizens.

The Bureau of Indian Affairs in the U.S. Department of the Interior defines a federally recognized tribe as “an American Indian or Alaska Native tribal entity that is recognized as having a government-to-government relationship with the United States, with the responsibilities, powers, limitations, and obligations attached to that designation.” Federally recognized tribes possess the inherent right to self-govern and as such are entitled to certain benefits, services, and protections established under federal law.

There are currently 574 federally recognized tribes, including the four Wabanaki Nations in Maine: the Houlton Band of Maliseet Indians, Mi’kmaq Nation, Passamaquoddy Tribe (at Motahkomikuk and Sipayik), and Penobscot Nation.

In 1980, the State of Maine and U.S. Congress passed legislation to resolve a dispute between the federal government and the state of Maine over the illegal sale and seizure of federally protected tribal land. Collectively known as the Settlements Acts, the federal Maine Indian Claims Settlement Act and the state law that accompanied it, the Maine Implementing Act, required the Wabanaki Nations to give up their claim to their dispossessed lands in exchange for a federally funded pathway to buy back just 2.5% of the 12 million acres unlawfully lost. For more than 40 years, the state of Maine has used this legislation to deny the Wabanaki Nations the same rights, powers, privileges, and immunities as other federally recognized tribes in the United States. 

Four decades after their passage, the Settlement Acts are widely regarded as a failure. The laws have been applied unequally among the Wabanaki Nations, no tribe has been able to buy back the full amount of land, and legal disputes persist. The state’s interpretation of the Settlement Acts has also resulted in a downgrading of the Wabanaki Nations’ sovereign status, rights of self-governance, and ability to benefit automatically from federal laws created for Indian Country, effectively reducing them to municipalities. They are the only federally recognized tribes to be treated in this way. 

As a direct result of the Settlement Acts, the Wabanaki Nations and the State of Maine have been unable to benefit from more than 150 federal laws passed since 1980, missing out on important opportunities in economic development, health care, housing, environmental protections, disaster response, and development of tribal government services. 

Research shows that the tribes’ lack of self-governance has resulted in lagging economic growth for Wabanaki nations as well as their surrounding communities. While a 30-year boom is happening elsewhere in Indian Country, with tribal nations powering personal income growth of 61% on average, the Wabanaki nations are stark underperformers with just 9% growth. Beyond income, the lag also represents thousands of lost jobs, millions of dollars in lost tax revenue, and loss of opportunity for both tribal and non-tribal citizens.

Restoring Wabanaki sovereignty has strong bipartisan support. In 2020, a bipartisan task force recommended 22 changes to the Settlement Acts to restore self governance over a range of issues, including criminal justice, the use of natural resources, gaming, taxation, and land acquisition. Efforts to modernize the Settlement Acts by implementing many of these task force recommendations have received broad bipartisan support in the Maine Legislature. 

Support also continues to grow across Maine. Recognizing the Wabanaki Nations’ inherent rights to self-govern helps move the Wabanaki nations and the state of Maine forward together, with improved economic opportunity, careful stewardship of the land, and renewed partnership among neighbors.