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Nicole Friederichs is director of the Human Rights and Indigenous Peoples Clinic at Suffolk University Law School and co-author of a report that studies the drafting and enactment of the Maine Indian Claims Settlement Act.
When Congress held its hearings on the proposed federal legislation to settle the land claims made by the Penobscot Nation and Passamaquoddy Tribe in July 1980, the version of the bill they discussed did not contain what would become section 1735(b) — sometimes referred to section 16(b) — prohibiting the application of future federal laws benefiting native peoples and nations in Maine. In fact, there was nothing in that version of the bill, a bill heralded as the “product of the negotiating process between the [Tribes] and the State of Maine,” that came even close to such a prohibition.
In 2016, the Maine Indian Tribal State Commission contracted Suffolk University Law School’s Human Rights and Indigenous Peoples Clinic to conduct archival research into the evolution of 1735(b) and other related topics. We read over a thousand pages of documents at the National Archives in Washington, D.C., the archives at the National Museum of the American Indian, and the archives of then U.S. senators for the State of Maine.
What we found was striking. First, there was not one document that addressed section 1735(b). Second, section 1735(b) appeared for the first time in an official dated draft of the bill on Sept. 17, 1980, more than two months after the July hearing and just five days before the full House and the Senate voted on the bill. In other words, we did not find any evidence of a meeting, memorandum or any written communications from federal, tribal or state officials on the topic.
In response to a 2019 request from the State of Maine’s Task Force on Changes to the Maine Indian Claims Settlement Implementing Act, the clinic again studied the impact of 1735(b) on the Wabanaki Nations. The clinic identified approximately 151 federal laws covering a wide range of topics that may not apply to the Wabanaki Nations because of prohibition established in section 1735(b). Major federal Indian legislation was enacted or amended during the 40-year period since the settlement act was signed, laws such as the Indian Self-Determination Act, Native American Graves Protection and Repatriation Act, Esther Martinez Native American Languages Preservation Act, and the Tribal Law and Order Act.
Reading through the multiple archives in 2016, it felt like section 1735(b) came out of thin air; at a minimum, it is clear that the section was not afforded any real attention, nor was there any meaningful consultation with tribes. Indeed, the section was added months after the tribal communities voted on the proposed agreement.
This is extremely concerning given the section’s far-reaching scope and subsequent impact on the Wabanaki Nations. The archives of the Maine Indian Claims Settlement Act include numerous materials on the other important aspects of the agreement and legislation, but not one on section 1735(b). Section 1735(b) is unjust because of its harmful impact on native peoples in Maine and is unfair because of the lack of transparent debate. It is a unique piece of legislation, not found anywhere else in federal law, and Congress should remove it.
