October 19, 2015

Conference Call

Approved at the 12/9/15 meeting

Commissioners in attendance:  Jamie Bissonette Lewey (Chair), John Banks (Penobscot), Joan Nass (State), Steve Holmes (Passamaquoddy Tribe - Sipayik), Bert Polchies (Penobscot), Roy Partridge (State), Dick Gould (State)Regrets: Matt Dana, Brian Reynolds, Linda Raymond

Others in attendance: Robert Checkoway, Jim Matlack, Diane Oltarzewski, Marilyn Roper

Minutes recorded by John Dieffenbacher-Krall.

The meeting took place with a quorum as provided under MITSC Bylaw I.F.

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Agenda review

Agenda item #8, the Dispute between Maine, EPA over Maine Water Quality Standards, was removed from the agenda.  John Banks requested an addition to announce a new video.

Consideration of minutes for the 9/23/15 meeting

Joan Nass moved, Steve Holmes seconded to approve the minutes for 9/23/15 as presented.  The motion passed unanimously with John Banks and Dick Gould abstaining from the vote.  

Financial report FY 2016 ytd

John Dieffenbacher-Krall referred Commissioners to the income/expense statement prepared for the meeting.  As of 10/8/15, the Commission had received $114,127 and spent $17,285 leaving a balance of $96,842.  The Commission is also carrying forward a balance from the previous fiscal year of $13,619 leaving approximately $110,461 cash on hand.John Dieffenbacher-Krall also gave a report on fundraising.  The Commission received notification on 10/7/15 that the Broad Reach Fund has awarded the MITSC $10,000 in general support funding.  John also reported that the Maine Initiatives Lightning Grant Committee declined to fund the Commission’s grant request.  He also reported that two donor advised funds housed under Maine Initiatives declined to fund the Commission at this time though one donor does have an interest in the MITSC’s work.  A grant application with The Betterment Fund is pending.

MITSC Report Comparison of MIA and MICSA, examination of Congressional Record

Jamie Bissonette Lewey publicly acknowledged the contributions of Gail Dana-Sacco, Maria Girouard, Corey Hinton, Roy Partridge, and Darren Ranco on developing the RFP for the research project.  Roy Partridge gave an overview of the RFP.  (See final RFP at the end of the meeting minutes.)  Jamie commented after Roy’s overview that the Commission has deliberately stayed away from calling upon any researcher(s) to interpret the documents due to the tight timeline (completing the report by June 2016), the limited funding available, and a question of appropriateness for MITSC and/or people contracted to work for it to do such interpretation.  Jamie stated the primary responsibilities of the researcher will be to locate the significant documents, digitize them, and summarize them. John Banks moved to approve the RFP.  Dick Gould seconded the motion.  It passed unanimously.

The Penobscot: Ancestral River, Contested Territory

John Banks informed the Commission that Sunlight Media Collective has produced a film titled The Penobscot: Ancestral River, Contested Territory.  John Dieffenbacher-Krall was asked to send a link for the film to the Commissioners.

Executive Director contract

Jamie Bissonette Lewey told Commissioners that Executive Director John Dieffenbacher-Krall’s contract to perform professional consulting services for the Commission will expire at the end of October.  Jamie informed the Commission that she proposes forming a committee with representation from each member government that comprises the Commission to discuss a new contract with John Dieffenbacher-Krall to cover the period 11/1/15 to 6/30/16.  She asked Commissioners to be prepared to receive a call from her asking her/him to serve on the committee.

MITSC letter to the Bureau of Indian Affairs – update

Jamie Bissonette Lewey reported that the Commission has received no communication from the BIA Nashville office concerning the 8/20/15 letter to Mr. Bruce Maytubby, the new Eastern Regional Office Director.  She will be calling Mr. Maytubby’s administrative assistant to follow up on the letter.

Agreement with potential fiscal sponsor

John Dieffenbacher-Krall reported that two nonprofit organizations have expressed a willingness to serve as a fiscal sponsor for the Commission.  Dick Gould moved that the Commission authorizes Executive Director John Dieffenbacher-Krall to pursue a fiscal sponsor relationship that will be most beneficial to the MITSC.  Joan Nass seconded the motion.  It passed unanimously.

Scheduling

Jamie Bissonette Lewey asked Commissioners to look for a scheduling poll from John Dieffenbacher-Krall proposing a MITSC conference call meeting during the week of November 2.  The principal agenda item for the proposed meeting would consider a new contract for the Executive Director.  Jamie asked Commissioners to inform John Dieffenbacher-Krall of any dates or times during that week that would not allow them to attend the Commission meeting.  For planning purposes, Jamie announced her intent to hold at least two face-to-face meetings during the next six months.  One would take place the same day as an anticipated meeting with BIA Regional Director Bruce Maytubby.  The second would consist of a March 2016 retreat to review the first draft of the report on the MICSA and the records associated with it. Roy Partridge moved, Dick Gould seconded a motion to adjourn.  It passed unanimously.

Maine Indian Tribal-State Commission Request for Proposal

BackgroundIn 1980, state and federal laws were enacted to establish specific legal parameters for the settlement of claims by the Passamaquoddy Tribe and the Penobscot Indian Nation for the return of 12.5 million acres of land and damages of $25 billion.  A settlement negotiated among the parties became law with the passage of two distinct pieces of legislation. The Act to Implement the Maine Indian Claims Settlement, commonly known as the Maine Implementing Act (MIA) was passed by the Maine State legislature on April 3, 1980 and signed into law by Governor Brennan the same day. On September 19, 1980, the federal Maine Indian Claims Settlement Act (MICSA) which incorporated the MIA and gave Congressional permission for its enactment passed the House followed by the Senate on September 22nd. The MICSA was signed into law by President Carter on October 10, 1980.The MIA (M.R.S.A Title 30, Chapter 601) created the Maine Indian Tribal State Commission (MITSC, 30 M.R.S.A. § 6212(3)), an intergovernmental organization charged in part to:Continually review the effectiveness of the Act and the social, economic, and legal relationship between the Houlton Band of Maliseet Indians, Passamaquoddy Tribe, the Penobscot Indian Nation, and the State (30 M.R.S.A. § 6212(3)).The MITSC is responsible for authoring reports on aspects of this charge and shaping recommendations to address issues related to the implementation of the of the settlement acts.SCOPE:The MICSA and MIA pertain to the same matter but have different and sometimes conflicting legislative history, language, and approaches to problem solving. The MITSC must consider both the state and the federal law to carry out its mandate. Over the course of 35 years, specific areas of conflict have played out in court proceedings and legislation.MICSA provides that “[i]n the event a conflict of interpretation between the provisions of the Maine Implementing Act and this Act [the federal MICSA] should emerge, the provisions of this Act shall govern.” 25 U.S.C. § 1735(a).  The provisions of the federal MICSA thus override the MIA provisions when there is a conflict between the two laws. In its review of the effectiveness of the settlement legislation, MITSC has determined that conflicting interpretations of certain sections of the federal law have proved to be barriers to productive tribal-state relations and the development of mutually beneficial solutions to continuing conflicts. Therefore, the MITSC will engage the services of a researcher to specifically examine the development of the MISCA provisions following the passage of the MIA in April of 1980 through the passage of the MISCA in September of 1980. The research aims to illuminate the context within which the MISCA was developed and to understand the process utilized to create and pass the legislation. The MITSC has identified specific areas of concern specified below.Objectives:The researcher will conduct a review of existing archives, which may include the Congressional Record, Congressional Committee notes, and other records of the parties who participated in the development and passage of MISCA, with specific attention to the following areas:1) 25 U.S.C. §1723 and the MICSA’s ratification of prior conveyances and treaties that gave rise to the need for a settlement.  An examination under this issue should focus on:a) The extent to which the treaties with Massachusetts still have the force and effect of law after the MICSA.b) What was conveyed and what was reserved under the treaties that gave rise to the MICSA.c) A review of the treaties in order to define the scope of retained rights.2) The definition of sustenance and protected sustenance practices. 3) The definition of internal tribal matters.4) 25 U.S.C.  § 1735b which reads that:The provisions of any Federal law enacted after October 10, 1980,
for the benefit of Indians, Indian nations, or tribes or bands of
Indians, which would affect or preempt the application of the laws of
the State of Maine, including application of the laws of the State to
lands owned by or held in trust for Indians, or Indian nations, tribes,
or bands of Indians, as provided in this subchapter and the Maine Implementing Act, shall not apply within the State of Maine, unless such provision of such subsequently enacted Federal law is specifically made applicable within the State of Maine.AND 25 U.S.C. § 1725h which reads that:General laws and regulations affecting Indians applicable, but special laws and regulations inapplicable, in State of Maine. Except as other wise [otherwise] provided in this act, the laws and regulations of the United States which are generally applicable to Indians, Indian nations, or tribes or bands of Indians or to lands owned by or held in trust for Indians, Indian nations, or tribes or bands of Indians shall be applicable in the State of Maine, except that no law or regulation of the United States (1) which accords or relates to a special status or right of or to any Indian, Indian nation, Indian lands, Indian reservations, Indian country, Indian territory or land held in trust for Indians, and also (2) which affects or preempts the civil, criminal, or regulatory jurisdiction of the State of Maine, including, without limitation, laws of the State relating to land use or environmental matter, shall apply within the State.Deliverables:1) An annotated bibliography of significant documents that: i) summarizes the substance of each document ii) lists the participants in its productioniii) provides details of the location of the document2) A list of participants and their roles in negotiating and passing the MISCA 3) A timeline of key events, meetings and participants in each.4) A digital archive of the significant documents.5) A summary of initial observations.6) The identification of barriers to future research.Budget:$86,000 Timeline:Meeting of Working Group: Week of Sept. 21, 2015 (conference call)Report to MITSC Sept. 23, 2015Meeting of the Working Group to finalize the Scope of the project and the RFP: Week of Sept. 28, 2015 (face to face)RFP Approved by MTISC by end of week of October 19, 2015RFP Issued on October 26, 2015Deadline for Responses November 16, 2015Project Awarded November 30, 2015Document Review completed by Feb. 29, 2016MITSC Retreat to review the results of the Document Review and discuss the shape of the final report week of March 14, 2016First Draft of Report: May 2, 2016MITSC Review and Feedback: Week of May 16.Final Draft of Report: June 10, 2016MITSC Approval of Final Draft: week of June 13, 2016Release of Report: June 29, 2016

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