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INDIAN ISLAND — One hundred and thirty-nine years ago, 2,100 words of Maine’s Constitution vanished from circulation, although they remained in effect.
The sections, which included the treaty obligations with Indian tribes that Maine agreed to assume as a condition of its separation from Massachusetts in 1820, are still forbidden to be published with the rest of the state’s fundamental laws, the result of a constitutional amendment ratified by Maine’s people in 1875 and which went into effect the following year.
Judges and legal experts remained cognizant of the redacted passages, which are found in pre-1876 copies of the constitution. But for a century, few ordinary citizens or tribal members knew what the passages said.
Now the Maine Legislature is expected to vote soon on a bill that would undo the prohibition on publishing the passages. The bill, sponsored by the Maliseet tribe’s representative to the Legislature, Henry Bear, would add a constitutional amendment referendum question to the ballot this November, asking Maine voters if they wish to repeal the printing ban on the redacted constitutional language in Article X, Section 5.
“Right now you can’t access that section, even though it remains in force – you won’t see it,” said Bear, who became the only active tribal representative Tuesday when his Passamaquoddy and Penobscot counterparts renounced their seats in protest over Maine’s refusal to compromise on a range of jurisdictional disputes. “I think it’s essential that all parts of our constitution are legally publishable,” he said.
The section, the state constitution has read since 1876, “shall hereafter be omitted in any printed copies” but “shall remain in full force, as part of the Constitution … with the same effects as if contained in said printed copies.”
On Wednesday, a legislative panel recommended in an 11-1 vote that the bill be passed. At a May 19 public hearing, nobody testified in opposition. The bill, L.D. 893, is likely to go to a full floor vote this week.
Legislators on the Judiciary Committee were surprised to learn that part of the state constitution was unprintable, said Sen. Chris Johnson, D-Somerville. “There was a very strong opinion around the table that what is in our constitution should be printed in our constitution,” he said.
Bear said he learned of the situation from reading “Unsettled,” a 2014 Press Herald/Sunday Telegram series.
The measure is of symbolic importance to Maine’s four federally recognized Indian tribes, some of whom were adversely affected for a century by the suppression of the contents of the article enumerating Maine’s obligations to them.
It is not known why publication of Section 5 was suppressed. Several other sections of Article X also were stricken, but they were no longer relevant, having prescribed how Maine should convene its first legislature and other one-time procedures. By contrast, the treaty obligations in Section 5 were still in force in 1876, although the state was violating many of them, sometimes flagrantly.
Forgotten text, forgotten duties
The redacted section is the text of the 1816 Act of Separation, the Massachusetts law that allowed the District of Maine to become an independent state. The text includes a section obligating Maine to “assume and perform all the duties of (Massachusetts) towards the Indians within said District of Maine, whether the same arise from treaties or otherwise.” It directs Maine to set aside land valued at $30,000 for tribal use, at a time when undeveloped land in Maine sold for between 3 and 4 cents an acre.
In 1967, Maine’s first Indian affairs commissioner, anthropologist Edward Hinckley, discovered Maine had received $30,000 from Massachusetts in compensation, but the state never actually set aside new land for the tribes. In a letter to the NAACP, Hinckley argued for a public education campaign to promote “the ideas that Indians are people; that Massachusetts considered them so; that Massachusetts’ obligations to Indians were important enough to be a condition of Maine’s becoming a state and to therefore be included in the constitution.”
Hinckley, who went on to a career in child mental health and died in 2012, also called for a constitutional amendment similar to that envisioned by L.D. 893 “for neatness’s sake and educational value, if nothing else.” The suggestion went nowhere.
By implication, the redacted constitutional passages also required that Maine honor the terms of a 1794 treaty between Massachusetts and the Passamaquoddy tribe, including the management of a trust fund that the Bay State turned over to Maine to manage for the tribe’s benefit. In 1968, the Passamaquoddy’s attorney, Don Gellers, sued Maine for looting this trust fund, which had been worth $37,471 in 1822, or about $150 million with interest by the mid-1960s.
The day after filing the suit, Gellers was arrested on marijuana possession charges as part of an elaborate conspiracy orchestrated by the state Attorney General’s Office; he eventually fled the country, and the tribe’s suit collapsed.
If the constitutional commissioners who proposed the 1875 suppression of Section 5 intended to ensure the state’s obligations were forgotten, they were successful. Rather than protecting the Indians’ trust lands, Maine authorized some tracts to be flooded by dams, others to be annexed for the laying out of highways, and thousands more acres transferred to white owners. In no case was compensation given to the Indians, in violation of treaty obligations. In 1893, Maine courts even ruled that the Passamaquoddy tribe didn’t exist because it lacked sovereign powers.
“Maine’s attitude towards not recognizing treaties and tribal rights is legendary and it just doesn’t shock me that they’ve been buried somewhere,” said the chief of the Penobscot Nation, Kirk Francis. “Those were huge conditions to becoming a state. And so they should be prominently displayed. I think Rep. Bear is right in wanting to get attention to that.”
Today: symbolic significance
In testimony before legislators, Penobscot historian Maria Girouard and the executive director of the Maine Indian Tribal-State Commission, John Dieffenbacher-Krall, both asserted that the treaties referenced in the text were still in force. They said that the 1980 settlement acts – the result of a compromise agreement by which the tribes agreed to drop a land claims suit for more than half the state in exchange for a cash settlement – did not contain language eliminating the treaties.
Attorney General Janet Mills’ office disagreed, citing Section 1731 of the federal settlement act, which states that Maine will enjoy “a general discharge and release of all obligations … arising from any treaty or agreement with, or on behalf of any Indian nation, or tribe or band of Indians or the United States as trustee” to the tribes.
Either way, allowing publication of Article X, Section 5 will have no legal consequence, as the section has always remained in force, even if its contents were hidden from view.
Zach Heiden, legal director of the American Civil Liberties Union of Maine, said he supports the printing of the section. “Maine cannot hope to live up to its historical responsibilities if it does not know its history,” he said.
Colin Woodard can be contacted at 791-6317 or at: