Expanded Tribal Authority Over Prosecuting Crimes Takes Effect

Expanded Tribal Authority Over Prosecuting Crimes Takes Effect

By Emma Davis, Maine Morning Star

Originally published August 10, 2024 in the Maine Morning Star - republished with permission.

 

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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.

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. 

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.
 

“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.”

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.”
 

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. 

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

Originally published August 10, 2024 in the Maine Morning Star - republished with permission.

The Wabanaki Legal News is published by Pine Tree Legal Assistance, Inc. and is funded in part through a grant from the Legal Services Corporation. The views expressed by the authors in this newsletter are not necessarily shared by Pine Tree Legal Assistance or its staff.

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