Could the Aroostook Band of Micmacs settlement act take effect if the Band never filed the required certificate?

Plain-English summary

This is a staff letter from Assistant Attorney General William R. Stokes to John Nale about a certificate that the Aroostook Band of Micmacs apparently needed to file with the Maine Secretary of State under P.L. 1989, c. 148, the state implementing legislation for the Band's settlement.

Stokes checked his original files and found no certificate. The Secretary of State's Office could not locate one. Nan Heald of Pine Tree Legal Assistance, who had represented the Band during the settlement process, found none in her files, and Washington counsel had no knowledge of one. Stokes asked Nale whether the Band itself had any filing record.

The original L.D. 272 and Committee Amendment "A" made effectiveness depend on federal ratification and consent to amendments with the Band's agreement. House Amendment "A" to Committee Amendment "A" added a condition: within 60 days after legislative adjournment, the Secretary of State had to receive a written certification from the Band's Council that the Band agreed to the implementing act. Stokes suspected the Band and its counsel had overlooked this late addition.

Stokes wrote that he was concerned the Maine implementing act "never became effective" despite federal ratification. He was unsure what the result would be and suspected the earlier state implementing act would still apply. He suggested bringing the issue to the next legislative session and filing the appropriate certification. The letter does not establish whether the Band ever filed one.

Currency note

This opinion was issued in 2000. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.

Common questions

Did anyone find the Band's certificate?

No. Stokes found nothing in his files, and the Secretary of State's Office and the Band's former counsel could not locate a certificate. He asked whether the Band itself had records showing it filed one.

What certificate did the 1989 act require?

The Secretary of State had to receive written certification from the Band's Council, within 60 days after the Legislature adjourned, that the Band agreed to the state implementing act. The letter says receipt of that certification was a condition of the act's effectiveness.

What is the legal effect of the missing certificate?

Stokes feared the Maine implementing act had never become effective, but said he was unsure of the result. He suspected the earlier state implementing act might still apply and proposed bringing the matter to the Legislature and filing the certification.

Did Stokes say the certificate could still be filed?

He proposed a legislative correction followed by filing the appropriate certificate. He asked Nale what the Band wanted to do and what authority Nale had to represent its officials.

Background and statutory framework

The state implementing legislation was approved May 18, 1989, after originating as L.D. 272 in the 114th Legislature. Its original effective-date provision depended on federal ratification without modification and federal consent to amendments with the Band's agreement. The later House amendment added the written certification as another condition. The official PDF contains only Stokes's two-page letter; the copies of the original bill, amendments, and enacted law that he says he enclosed are absent.

Citations

• P.L. 1989, c. 148, § 4 (Aroostook Band of Micmacs Settlement Act, Maine implementing legislation; approved May 18, 1989)
• L.D. 272, 114th Maine Legislature (1st Reg. Sess. 1989) (original bill)

Source

• Landing page: https://www.maine.gov/legis/lawlib/lldl/agops/agops.htm
• Original PDF: https://lldc.mainelegislature.org/Open/AG/Opinions/2000/ag_20000616.pdf

Original opinion text

STATE OF MAINE
DEPARTMENT OF THE ATTORNEY GENERAL
6 State House Station
Augusta, Maine 04333-0006

June 16, 2000

John Nale, Esq.
Nale Law Offices
44 Main Street
P.O. Box 2611
Waterville, Maine 04901

Re: Aroostook Band of Micmacs

Dear John:

I have now had a chance to retrieve my original file concerning the settlement with the Aroostook Band of Micmacs. I have not found anything in my files that indicates that the Band filed a certificate with the Secretary of State as apparently required by the original state legislation implementing the Aroostook Band of Micmacs Settlement Act. See Chapter 148 of the Public Laws of 1989, § 4 (approved May 18, 1989). The Secretary of State's Office has informed me that they cannot locate such a certificate and Nan Heald of Pine Tree Legal Assistance in Portland, who was counsel to the Band of Micmacs throughout the settlement process, has checked her files and cannot find any certificate. She also indicated to me that she contacted Washington counsel who had no knowledge of such a certificate.

What I suspect happened is the following: the State Implementing Act originated as L.D. 272 in the 114th Maine Legislature (1st Regular Session, 1989). The original bill contained a section 8 dealing with its effective date. That provision only provided that it would be effective if the United States enacted appropriate legislation ratifying the Implementing Act without modification and providing the consent of the United States for amendments to the Implementing Act provided the Aroostook Band of Micmacs agreed. There was nothing in the original L.D. which called for the filing of a certificate by the Band.

There appears to have been two amendments to the L.D. The first was Committee Amendment "A" and appears to have redrafted the bill in its entirety. Once again, however, with respect to the effective date provision on the Committee Amendment, it only provided that effectiveness would depend upon the legislation by the United States ratifying and approving the Implementing Act without modification and providing for the consent of the United States for amendments to the Implementing Act provided the Aroostook Band of Micmacs agreed. House Amendment "A" to Committee Amendment "A" added the provision dealing with the effective date of the Implementing Act and required that within 60 days of the adjournment of the Legislature, the Secretary of State was to receive a written certification by the Council of the Aroostook Band of Micmacs that the Band had agreed to the Implementing Act. Receipt of such certification was a condition of effectiveness of the Implementing Act.

As so amended, L.D. 272 was enacted into law and approved by the Governor on May 18, 1989.

My suspicion is that because the effective date language came in as a committee amendment shortly before enactment, members of the Band and perhaps Nan and others simply overlooked the certification requirement.

Have you had any luck checking with the Band itself to determine whether it has any records that would indicate it filed the appropriate certification?

What does the Band want to do about this, if anything?

Having now been advised of this situation, I am concerned that the Maine Implementing Act never became effective notwithstanding the enactment by the United States of legislation ratifying and approving it. I am not sure what the result is, but I suspect that the original State Implementing Act which dealt with the Penobscot Nation, the Passamaquoddy Tribe, and the Houlton Band of Maliseets, and all other Indian tribes, bands, and Indians, would still have application.

It seems to me that the situation can be easily remedied by bringing this to the attention of the Legislature next session and correcting this error by having the appropriate certification filed by the Band.

Please let me know what it is you want to do, what authority you have to represent any official of the Band, and what the next step is.

For your convenience, I have enclosed copies of the original L.D., the amendments to it, and the enacted law.

Sincerely,

WILLIAM R. STOKES
Assistant Attorney General

WRS:mhs
Enclosure
cc: Nan Heald, Esq.

[The official PDF ends after the letter; the copies of the original L.D., amendments, and enacted law identified as enclosures are absent.]