10/09/15 Native Americans in Maine, Kaign Smith

Posted by Dick Hall

Kris Rosado introduced our speaker today, as a good friend and fellow hockey player. Kaighn Smith leads Drummond Woodsum’s nationwide Indian Law Practice Group. He has represented Indian nations and their enterprises for over 25 years. His cases focus on jurisdiction and sovereignty disputes, labor and employment relations, complex transactional disputes, environmental matters, and fishing and water rights. He represents clients in the federal, tribal, and state courts and before federal administrative agencies across the country.

Kaighn started by telling us he enjoyed the group singing, as he was recruited to choir in boarding school as a Soprano. He also admitted that he was nervous about speaking to the group. Kaighn told us that being a non-native American in his field is a tall order. He explained the history of this practice of law. Felix Cohen launched the field in 1940. Prior to that, there was no Federal Indian Law. Since then, there has been an explosion of issues, Native Americans demonstrating clout due to the amount of money from gaming. Now Native Americans have money to protect themselves and their rights.

Tribes are stereotyped as only having casinos, which is a world myth. For a history of American Indians, Kaighn said that Nan Heald, a Portland Rotarian, is an expert. There are 562 tribes in the US, 4 in Maine. Indian Nations are sovereign nations, with authority over their members and their territory. Chief Justice Marshal defined their authority. Tribes predate the republic of USA, having treaties with foreign governments before the USA was formed. Tribal governments are not constrained by the US Constitution. Tribes are very protective of their sovereignty. Their ability to be self-governing is a recurring theme. States have no authority over tribes, except Maine. Tribes have the power to make laws and govern. Tribal courts have control over non tribal members, when they are on tribal land.

Federal policy has been schizophrenic. Our country has not been sure of what to do. First, it was assumed that tribes would just disappear. 1817-1886 was an era where removal to reservation was the policy; this failed and created poverty. In 1887 the Dawes Act ended reservations and tribal governments. This was also a disaster and resulted in the destruction of Indian culture. In 1934, Tribal self-determination was embraced by the Federal government. It became committed to the notion that Native Americans would do well under self-government. Tribes could provide health, welfare, and education to its members. This was the best situations that had ever happened for the tribes.

In 1915 tribes had no rights in Maine. Citizenship started in 1924 after World War 1. In other parts of the country, tribal members were allowed to vote in federal elections stating in 1948. In 1954, Maine granted the right to vote in federal elections. In 1967, tribal members were finally allowed to vote in state elections. 1915, Penobscot Indians were wards of the state. There was no bridge to mainland, from Indian Island, until 1950. The first contact with Native Americans happened in Maine first. In 1605, Captain Weymouth, kidnapped five Penobscot Indians and took them to England. In England, Sir Popham and Sir Gorgeous had control of them. The Spanish tried to get them to come to Spain.

Native Americans have experienced significant strife. In most parts of the country there has been a lot of watering down of the communities with marriages outside of tribal groups. In Maine, Penobscot people look like Native Americans. The same is true for Passamaquoddys. In 1842, the Maine Supreme Court stated that Indians imbecility requires subjection to our control. This attitude remained for 100 years. Maine tribes challenged that treaties with MA were illegal, because they were not approved by Congress. The Indian non-intercourse act required that all treaties must be ratified by Congress. The tribes sued the Dept of the Interior to force them to sue ME, in the case known as MA- Passamaquoddy vs Dept of Interior. In the US vs ME, tribes would recover 2/3 of state of ME. The case settled, during the presidency of Carter, and is referred to as the Maine Indian Claim Settlement Act of 1980. Now US v ME, where the scope of Penobscot jurisdiction in the river.