A Reason to Revisit Maine’s Indian Claims Settlement Acts: The United Nations Declaration on the Rights of Indigenous Peoples

Abstract

In 2007, each of Maine’s four federally recognized Indian tribes lost lawsuits limiting their ability to self-govern. The following year, Maine’s state legislature passed a joint resolution declaring its support for the then newly adopted United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP). Focusing on two provisions of the UNDRIP, the right to self-determination and the duty to consult, this article examines the current status of Maine tribes under the Declaration. Although this article argues for the customary international law status of the right to self-determination and the duty to consult (thereby placing legally binding obligations on States), the intent is not to conduct a thorough analysis of whether the UNDRIP, as a whole or through its individual provisions, amounts to customary international law. Instead, the primary purpose of this article is to juxtapose Maine’s and the United States’ support of the UNDRIP with Maine’s treatment of its tribes. Given the incongruity of this treatment, coupled with the failure of the settlement acts to ensure the recognition and protection of rights afforded to the tribes under international human rights law and federal Indian law, the UNDRIP provides an opportunity to revisit the settlements with Maine’s Indian tribes to ensure that the tribes’ rights are respected. As the United States announced in its recent statement reversing its position on the UNDRIP, the UNDRIP “expresses [the] aspirations of the United States . . . to improve our laws and policies.” The laws settling the Maine Indian land claims are examples of where improvements are needed to meet international legal obligations.

Keywords: Native American, American Indian, Maine, Penobscot, Passamaquoddy, Maliseets, Micmacs, New England, Human Rights