Harvard study finds sovereignty constraints on Maine tribes caused them enormous economic damage

Dec. 9—A new study by researchers at the Harvard Kennedy School has concluded that Maine's tribes have been economically hobbled by the restrictions placed on their sovereignty and ability to access federal Indian policy under the terms of the controversial 1980 land claims settlement agreement.

The study by the Kennedy School's Harvard Project on American Indian Economic Development compared the economic performance of Maine's four federally recognized tribes with tribes in the other 47 contiguous states between 1989 and 2020. Adjusted for inflation, the other tribes in the country had an average per capita gross domestic product growth of 61 percent in the period — far greater than the U.S. average for all citizens of 11 percent.

The figure for Maine's tribes was just 9 percent, less than one-sixth the performance of other tribes. And the reason, the report's authors say, is the restrictive regime set up under the Maine Indian Claims Settlement Act, or MICSA.

"The Maine tribes are all at the bottom of the barrel and there's nothing distinctive about them that explains it — or why all four would be in this situation — except for MICSA," said the report's primary author, Joseph Kalt, the Ford Foundation Professor of International Political Economy at the Harvard Kennedy School.

Maine's four tribal nations — the Passamaquoddy Tribe, Penobscot Nation, Houlton Band of Maliseets and the Presque Isle-based Mi'kmaq Nation — have long sought clarifications to the Settlement Acts, a pair of federal and state laws passed in 1980 to settle a tribal land claim to two-thirds of the territory of the state of Maine. In exchange for an $81.5 million cash settlement, the Passamaquoddy and Penobscots agreed to drop their land claims and adhere to a unique jurisdictional arrangement.

Under pressure — the incoming Ronald Reagan administration was expected to derail the settlement — the two tribes agreed to be subject to the laws and jurisdiction of Maine, except for "internal tribal matters," hunting and certain fishing rights on tribal territory. The settlement also stipulated that federal Indian laws — past and future — would not apply to the Maine tribes if they affected Maine's sovereignty in any way, unless Congress specifically said otherwise. The latter measure foiled tribal efforts to open casinos, to adjudicate certain crimes taking place on tribal territory, to secure new public water supplies, and to access a wide range of federal funding, including direct requests for federal disaster relief.

Kirk Francis, chief of the Penobscot Nation, found much to agree with in the Harvard report but focused in particular on how the limits on the tribes' self-governance have stifled economic development.

"I think the key point that the Harvard research makes isn't about accessing federal funds, but is about how restricting the self-governance powers and authorities of the Wabanaki Nations chills all forms of economic development," Francis said in an email Thursday night. "The state failing to allow our tribal governments to mature to full capacity is contrary to longstanding federal policy and is harming the Wabanaki Nations and regional economies."

This year a bipartisan bill to repeal the special encumbrances in the Maine settlement act passed both houses of the state Legislature but was withdrawn when it became clear Gov. Janet Mills would veto it over concerns about the creation of new legal jurisdictions, the loss of state control, and possible legal battles.

Mills, whose office did not respond to an interview request Thursday afternoon, also opposed a federal bill introduced by Second District U.S. Rep. Jared Golden that would have made all future federal Indian laws automatically apply to Maine's tribes. That measure passed the U.S. House but is stalled in the Senate, where independent Sen. Angus King opposes it and Republican Sen. Susan Collins has said the matter needs more study than can be accomplished in the ongoing lame duck session of Congress.

The political dispute over the settlement acts does not fall on clear partisan lines. Mills, Golden, Attorney General Aaron Frey and the state legislative leadership are all Democrats yet stand on opposite sides of the issue. As governor, Republican Paul LePage took a similar position as Mills whereas, by contrast, no Republican senator opposed the tribal reform package when it reached the upper legislative chamber in Augusta.

Francis said the report makes it clear that reform and modernization will help the tribes, as well as local and regional economies.

"Those who stand in the way of modernizing the settlement acts are harming both the tribes and rural Maine," he said.

Kalt said that while Maine tribes have been missing out on federal resources as a result of the constraints in the Settlement Acts, it was a mistake to fixate on this as the main cause of their economic underperformance. "The real issue is their lack of self-government," he said, noting that tribal economic performance in other parts of the country didn't take off until after a set of federal reforms in the late 1980s that allowed them far greater control over how and where resources were spent.

The study also found Maine tribes lagging Maine as a whole over a vast range of socioeconomic indicators. The child poverty rate on the Passamaquoddy and Penobscot reservations is about three times that of Maine as a whole, more than six times higher among the Maliseet, and more than seven times higher in the Mi'kmaq Nation. Every tribe had higher unemployment and household overcrowding and lower per capita income and proportions of college graduates than Maine as a whole.

"Subjecting the Wabanaki Nations' capacities to the restrictions of MICSA stifles substantial development opportunities — to the detriment of both the Wabanaki and non-Wabanaki citizens of Maine," the report concluded, saying the state was losing hundreds of millions of dollars of GDP annually. "For the tribal citizens of Maine, loosening or removing MICSA's restrictions offers few downside risks and many upside payoffs."

Staff Writer Dennis Hoey contributed to this report.