A matter of not hiding history: Wabanaki leaders and allies rally behind Question 6

Wabanaki leaders believe the original text of the Maine Constitution validates their ongoing fight for self determination.

“We claim we’ve never ceded our sovereignty,” Penobscot Nation Ambassador Maulian Bryant told Maine Morning Star, “so proof that at one time Massachusetts, and later Maine, had obligations under treaties to us, and considered us a sovereign government to make treaties, that’s significant for us.”

Redacted in 1876 but still in effect, the Articles of Separation in the Constitution outlined Maine’s obligations to the tribes. Support for putting those articles back into print is what compelled more than 200 people to rally outside the State House on Indigenous Peoples’ Day on Monday.

Question 6 on November’s ballot asks, “Do you favor amending the Constitution of Maine to require that all of the provisions of the Constitution be included in the official printed copies of the Constitution prepared by the Secretary of State?”

While not apparent in its wording, the question would require the state to include the redacted obligations to the tribes. 

Question 6 is the product of two bills last session, one proposed by Sen. Rick Bennett (R-Oxford) and the other House Speaker Rachel Talbot Ross (D-Portland). While the Wabanaki Nations have long known about the redaction, many others in the state had not until it was taken up by the legislature a few years ago, including Senate President Troy Jackson (D-Aroostook), who admitted this fact in a speech during the rally on Monday. 

“Many of us have different struggles,” Jackson said, speaking to his work in the legislature fighting for working class Mainers. “But I always think about how much more of a struggle it’s been for the tribes here in Maine.”

The rally brought together people from across the state and across walks of life, including Rev. Brad Hirst of Second Christian Church who drove 100 miles from Kittery and high school senior Lily West, who came 40 miles from Freeport.

West, who will be able to vote for the first time in November, sought out more information about the Wabanaki Nations after learning little about the history of the tribes in school and attended the rally to show that her generation cares, she said. Vice Chief of the Aroostook Band of Mi’kmaq Richard Silliboy, who delivered a blessing to the crowd on Monday, has noticed this effort among the younger generation, he said. 

“We have hope it will change,” Silliboy said, “although there is so much work that needs to be done.”

Tribal leaders and private citizens alike said on Monday that adding the sections back into print is a matter of not hiding history. 

“In a day to day, practical sense, these treaties aren’t governing anyone’s life whether they’re printed or not,” Bryant said. “But I think that having this out in the open and increasing everyone’s access to it and awareness of it, it really helps the tribes and everyone because it’s our history, and we need to know it.” 

A look back to move forward

When humans first arrived in the land that is now Maine roughly 13,000 years ago at the end of the ice age, it was a mix of grassland and tundra with patches of ice cap in the north, according to available archeological findings. The livelihoods and traditions of Maine’s first inhabitants, the Wabanaki Nation, are deeply tied to the state’s land and waterways.

The ancestral lands of the Passamaquoddy in eastern Maine, the Maliseets near the eastern border with Canada, the Mi’kmaq from Newfoundland to Maine, and the Penobscot Nation in the Penobscot River basin are today occupied by many non-Native Mainers, because the Maine Indian Claims Settlement Act of 1980 settled claims to millions of acres of the tribes’ aboriginal territory.

Since then, a main focus of the work of the Wabanaki Nations, and the Wabanaki Alliance since its formation in 2020, has been the preservation and restoration of tribal land, Bryant said.

“When you think about these treaties and this section of the Constitution that also revolves around land,” Bryant explained, “our rights as tribes are directly related to the formation of Maine and how that land was dealt with, or not dealt with, and how tribes were compensated or not.”

When Maine separated from Massachusetts in 1820, Massachusetts required Maine’s Constitution to include a section outlining the conditions for its independence, the Articles of Separation. The articles include Maine’s obligation to uphold and defend treaties made between Massachusetts and the Passamaquoddy and Penobscot Nations, among other requirements which can’t be altered without Massachusetts’ consent. 

In 1876, officials in Maine seemingly sidestepped this requirement by adding an amendment to the Constitution preventing several original sections, including the Articles of Separation, from being printed though they were said to “remain in full force.”

Article X, Section 5 reads: “The new State shall, as soon as the necessary arrangements can be made for that purpose, assume and perform all the duties and obligations of this Commonwealth towards the Indians within said district of Maine, whether the same arise from treaties, or otherwise; and for this purpose shall obtain the assent of said Indians, and their release to this Commonwealth of claims and stipulations arising under the treaty at present existing between the said Commonwealth and said Indians.”

An earlier referendum in 2015, proposed by Maliseet Rep. Henry Bear, sought to put the redacted section back into print, but ultimately failed because of a legislative staff concern that it would raise the cost of the election that year, reported the Portland Press Herald at the time.

The legislature, including Bear, and then-Gov. Paul LePage agreed to alter the proposal to direct the secretary of state, Maine State Library and Legislative Reference Library to make the redacted sections “more prominently available to educators and to the inquiring public.”

Why redact in the first place?

For some present Monday, including Ella Tabasky of Brunswick, a volunteer for the Wabanaki Alliance who took the day off work to attend the rally, “this is not a particularly contentious issue,” she said. Jeremy Bloom from Topsham, who researched the history of the redaction before the event, still had questions about the state’s reasoning, but said of the redacted sections, “this is an unseen truth that needs to be back.”

The reason officials had for redacting sections of the Constitution are still being debated due to sparse historical evidence. 

In a paper published in Maine History in 2021, historian Catherine Burns argued that the state tried to evade treaty obligations to the tribes through the redaction, a theory Gov. Janet Mills and her office have argued does not have a factual basis. Chief legal counsel Gerald D. Reid said Question 6 “appears to be a misguided attempt to right a historic wrong that never occurred.”

Burns’s research, also the basis of the Maine Historical Society exhibit REDACT: Obscuring the Maine Constitution, linked the redaction to the Maine Supreme Judicial Court case Joseph Granger v. Peter Avery, where the court ruled against Passamaquoddy claims to 15 islands in the St. Croix River. Under the Articles of Separation, Maine was required to compensate the Passamaquoddy for the value of the lost land but it never did. 

‘Restoring the recognition’: Wabanaki, state leaders discuss push for tribal sovereignty

The report brings attention to the timing of these decisions and the relationships of its key players. The efforts to redact the Articles of Separation began after the court heard the case but before it issued its opinion. The governor at the time had appointed a close associate of the case’s plaintiff, Granger, to serve on the constitutional commission tasked with devising amendments to the Maine constitution. This associate, Frederick Pike, presented a report proposing the redaction to the Constitutional Commission in February 1875.

What reprinting means today

Mills’ office argues that people may not understand that the reprinting does not actually change the Constitution. In a statement opposing the legislation behind Question 6, Reid wrote, “Any legislation that could be interpreted as invoking ancient treaties as the legal basis for modern obligations would be confusing and potentially destabilizing.”

Bryant disagrees. Should Question 6 pass, Bryant said, “it doesn’t mean that the tribes are going to go take land and it won’t be this windfall of ‘we’re going to take back our fishing rights from the 1700s.’ The legal parameters are settled law right now. It doesn’t change that. It just shows a better, more full look at our history because this will all be accessible.”

Mills did not respond to Maine Morning Stars’ request for comment on the rally but her office released a statement about Indigenous Peoples’ Day. 

“While there is still much work ahead, I am proud of the historic progress that my Administration and Maine’s Tribal Nations have achieved together – more than any Maine Governor in the last four decades – and the good that it will do for the Wabanaki people,” Mills wrote, citing legislation she has signed into law, including changing the holiday’s name from Columbus Day to Indigenous Peoples’ Day, and revising tax laws regarding the tribes, among others. 

“While we may have disagreements on some areas of policy,” Mills wrote, “I remain fully committed to collaborating with the Wabanaki Nations to find common ground to move forward, just as we have in the past.”

It may never be known why Maine officials decided to redact the state’s obligations to the tribes in the Constitution decades ago. Bryant is not stuck on that issue. 

“We can get lost in the semantics of it or we can just go ahead and print the full constitution,” Bryant said. “Let Mainers see that Wabanaki people mattered in the formation of the state and that should mean that we still matter today.”