Could the Maliseet tribal court hear Maliseet child welfare cases under the 2002 Intergovernmental Agreement between the Houlton Band and the State of Maine?
Subject
Whether the 2002 Intergovernmental Agreement between the Houlton Band of Maliseet Indians and the State of Maine authorized the Maliseet tribal court to exercise jurisdiction over Maliseet child welfare cases, given 30 M.R.S.A. § 6206-A.
Currency note
This opinion was issued in 2008. 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.
Plain-English summary
In 2008, Chief Brenda Commander of the Houlton Band of Maliseet Indians asked the Maine AG whether the 2002 Intergovernmental Agreement (IGA) between the Band and the State could be read to authorize the Maliseet tribal court to hear child welfare cases involving Maliseet children. AG G. Steven Rowe concluded that the IGA did not authorize that jurisdiction.
The IGA itself, on the AG's reading, only allowed transfer of Maliseet child welfare cases to the Penobscot or Passamaquoddy tribal courts. While the agreement contemplated that the Band might in the future establish its own tribal court, the IGA did not vest such a court with child welfare jurisdiction.
The deeper barrier was statutory. Section 6204 of the Maine Implementing Act subjected Maine tribes to state civil and criminal court jurisdiction "to the same extent as any other person," except as the Implementing Act otherwise provided. Section 6206-A separately said the Houlton Band "shall not exercise" municipal-style powers or civil or criminal jurisdiction within their lands "prior to the enactment of additional legislation specifically authorizing the exercise of those governmental powers." So even if the IGA had purported to convey jurisdiction, the AG concluded it would conflict with §§ 6204 and 6206-A and would require a Legislature-passed amendment to the Implementing Act.
Common questions
Q: Why couldn't the Maliseet tribal court hear these cases when Penobscot and Passamaquoddy tribal courts could?
The Penobscot Nation and Passamaquoddy Tribe had specific jurisdiction-granting provisions in the Maine Implementing Act (30 M.R.S.A. §§ 6209-A and 6209-B). The Houlton Band did not. Section 6206-A required additional legislation before the Band could exercise governmental jurisdiction.
Q: What did the IGA actually do, then?
It authorized the State to transfer Maliseet child welfare cases to the Penobscot or Passamaquoddy tribal courts and required the State to give the Band notice and a chance to intervene in such cases. It contemplated, but did not create, a future Maliseet tribal court.
Q: Has the Implementing Act been amended since 2008?
This opinion does not answer that question. The Maine Indian Claims Settlement Act has been amended multiple times since 2008. A current question about Maliseet tribal jurisdiction should be checked against the present text of 30 M.R.S.A. ch. 601 and any later AG opinions, federal action, or court decisions.
Background and statutory framework
The 1980 Maine Indian Claims Settlement Act, codified at 30 M.R.S.A. §§ 6201-6214, sets out the jurisdictional relationship between the State of Maine and the Penobscot Nation, Passamaquoddy Tribe, and Houlton Band of Maliseet Indians. The Act treats the three tribes differently: the Penobscot Nation and Passamaquoddy Tribe have express grants of internal-tribal-matter authority and tribal-court jurisdiction; the Houlton Band's parallel authorities were left to be enacted later, by §§ 6206-A.
Intergovernmental agreements between tribes and the State can sit on top of the Implementing Act, but they cannot rewrite the underlying statutory grant of jurisdiction. The 2008 opinion turned on that principle: an IGA cannot vest a tribal court with jurisdiction the Implementing Act has not granted.
Citations
- 30 M.R.S.A. § 6201-6214 (Maine Implementing Act)
- 30 M.R.S.A. § 6204 (state jurisdiction over Indians)
- 30 M.R.S.A. § 6206-A (Houlton Band powers limitation)
Source
- Landing page: https://www.maine.gov/legis/lawlib/lldl/agops/agops.htm
- Original PDF: https://lldc.mainelegislature.org/Open/AG/Opinions/2008/ag_20080925.pdf
Original opinion text
Best-effort transcription from a scanned PDF. Minor errors may remain — the linked PDF is authoritative.
MAINE STATE LEGISLATURE
The following document is provided by the
LAW AND LEGISLATIVE DIGITAL LIBRARY
at the Maine State Law and Legislative Reference Library
http://legislature.maine.gov/lawlib
Reproduced from scanned originals with text recognition applied
(searchable text may contain some errors and/or omissions)
2008-04
84 HARLOW ST., 2ND FLOOR
BANGOR, MAINE 04401
TEL: (207) 941-3070
FA.X: (207) 941-3075
G. STEVEN ROWE
ATTORNEY GENERAL 44 OAK STREET, 4TH FLOOR
PORTLAND, lviAINE 04101-3014
TEL: (207) 822-0260
FA.X: (207) 822-0259
TDD: (877) 428-8800
STATE OF J\IIAINE
TEL (207) 626-8800 OFFICE OF THE ATTORNEY GENERAL 128 SWEDEN ST., STE. 2
TTY 1-888-577-6690 CARIBOU, lvLAINE 04736
6 STATE HOUSE STATION TEL: (207) 496-3792
AUGUSTA, MAINE 04333,0006 FAX: (207) 496-3291
September 25, 2008
Chief Brenda Commander
Houlton Band ofMaliseet Indians
88 Bell Road
Littleton, ME 04730
Re: 2002 Intergovernmental Agreement
Dear Chief Commander:
By letter dated August 27, 2008, you requested an opinion as to whether, given 30
M.R.S.A § 6206-A, the 2002 Intergovernmental Agreement between the Houlton Band of
Maliseet Indians (the "Band") and the State of Maine would authorize the Maliseet tribal court to
exercise jurisdiction over Maliseet child welfare cases. It is my opinion that the
Intergovernmental Agreement does not authorize the Maliseet tribal court to exercise jurisdiction
over Maliseet child welfare cases. Rather, the Maliseet tribal court could exercise jurisdiction
over such cases only pursuant to an amendment to the Act to Implement the Maine Indian
Claims Settlem·ent (the "Implementing Act"), 30 M.R.S.A. §§ 6201-6214.
The 2002 Intergovernmental Agreement essentially authorizes the transfer of child
welfare cases involving a Maliseet child to either the Penobscot tribal court or the
Passamaquoddy tribal court. 1 While the Agreement contemplates that the Band may, iii the
future, establish its own tribal court, it does not vest in such court jurisdiction to hear child
welfare cases.
Moreover, in my view, any contrary interpretation of the Intergovernmental Agreement
would conflict with Sections 6204 and 6206-A of the Implementing Act. Those sections state:
Except as otherwise provided in this Act, all Indians, Indian nations, and tribes
and bands of Indians in the State and any lands or other natural resources owned
by them, held in trust for them by the United States or by any other person or
entity shall be subject to the laws of the State and to the civil and criminal
jurisdiction of the courts of the State to the same extent as any other person or
lands or other natural resources therein.
1
The Intergovernmental Agreement also requires the State to provide certain information and notices to the Band
regarding child welfare cases and to offer the Band the opportunity to intervene in such cases. That portion of the
Agreement, however, is not directly relevant to your inquiry.
PRINTED ON RECYCLED PAPER
30 M.R.S.A. § 6204.
The Houlton Band of Maliseet Indians shall not exercise nor enjoy the powers,
privileges and immunities of a municipality nor exercise civil or criminal
jurisdiction within their lands prior to the enactment of additional legislation
specifically authorizing the exercise of those governmental powers.
30 M.R.S.A. § 6206-A.
Therefore, the exercise of jurisdiction over child welfare cases by the Maliseet tribal
court would require an amendment to the Implementing Act.
I hope you find this opinion responsive to your question. Please know that this office
looks forward to continuing to work cooperatively with the Band on child welfare matters.
Sincerely,
~
STEVEN ROWE
Attorney General
SR/s