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An Act To Establish an Enhanced Process for Tribal-State Collaboration and Consultation and To Develop a Process for Alternative Dispute Resolution
Be it enacted by the People of the State of Maine as follows:
Sec. 1.  30 MRSA §6215  is enacted to read:
§ 6215. Consultation with tribes prior to state action
 
1.  Consultation required.     Each state agency shall consult with the Passamaquoddy Tribe, the Penobscot Nation and the Houlton Band of Maliseet Indians, referred to collectively in this section as "the tribes" and individually as "tribe," in the development of a proposed action. For the purposes of this section, "proposed action" means a proposal by a state agency to develop rules, agency testimony presented at public hearings before joint standing committees of the Legislature or proposed legislation and other policy statements or actions, including but not limited to guidance documents and directives, regarding issues that may directly affect one or more of the tribes, including tribal rights in land or other natural resources; the relationship between the State and the tribes; and the jurisdiction and responsibilities of the State and the tribes with respect to one another.
 
2.  Request for consultation.     A state agency shall request government-to-government consultation with each tribe that may be affected by a proposed action to ensure a complete mutual understanding of the proposed action and to identify and address tribal concerns.
 
A.  A request for consultation must be sent by certified mail and e-mail to the chief of each tribe and to the person designated by each tribe to receive consultation requests. The request must provide no less than 30 days from the date of actual receipt or 35 days after the date of mailing, whichever is earlier, for the tribe to either elect to engage in or decline consultation. The request must provide clear information about the proposed action, clearly state the deadline and preferred method for response and provide contact information for the tribal liaison under subsection 5.
 
B.  If a statute of limitations, court rule or other law or rule requires a proposed action to be resolved in less than 30 days, the request for consultation must clearly state the deadline and identify the source of the deadline. The state agency shall make every reasonable effort to consult with the tribe within the time available.
 
C.  If a tribe does not respond by the deadline established in the request for consultation, the state agency may conclude that the tribe has declined consultation on the relevant proposed action.
 
3.  Consultation procedures.     If a tribe elects to engage in consultation with a state agency in accordance with subsection 2, paragraph A, the state agency may not make a formal public proposal or decision, including engaging in rulemaking, submitting agency testimony presented at public hearings before joint standing committees of the Legislature, proposing legislation or issuing policy statements or actions, on a proposed action until after the consultation has occurred. Consultation must include, at a minimum, the following:
 
A.  The state agency shall provide the tribe with a preliminary draft or explanation of the proposed action as soon as possible following receipt of the tribe's acceptance to engage in consultation;
 
B.  Unless otherwise agreed to by the tribe and the state agency, a consultation must be held in person, either on the tribe's tribal lands or at a mutually agreeable location;
 
C.  Consultation is not satisfied by and must be separate from public comment and public hearing processes;
 
D.  Consultation must be meaningful, be timely and involve employees of the state agency who have a direct role in the proposed action and decision-making process; and
 
E.  Consultation must be conducted in a manner that ensures the ability of the tribe to provide detailed feedback on the proposed action.
 
After consultation, the state agency shall carefully consider the input of the tribe and, upon reaching a decision regarding the proposed action, shall notify the tribe in writing of its decision and the rationale in support of its decision.
 
4.  Consultation rules.     By October 15, 2020, every state agency shall adopt and thereafter amend, as necessary, rules or policies that promote effective communication, collaboration and consultation between the state agency and the tribes; promote robust government-to-government relationships between the State and the tribes; promote culturally competent practices; establish methods for notifying state agency employees of their responsibilities under this section; and require that all relevant agency employees be provided with a copy of any rule or policy that the state agency adopts pursuant to this subsection. State agencies shall consult with the chiefs of each tribe or the chiefs' designees throughout the process of developing the tribal consultation rules or policies. Rules adopted pursuant to this subsection are routine technical rules as defined in Title 5, chapter 375, subchapter 2-A.
 
5.  Agency liaisons.     By November 1, 2020, every state agency shall designate a tribal liaison, who reports directly to the head of the state agency, to assist the head of the state agency with developing and ensuring the implementation of the consultation required by subsection 1 and to serve as a contact person. The tribal liaison shall maintain ongoing communication between the state agency and the tribes and shall ensure that the training required under subsection 6 is provided to the relevant agency employees.
 
6.  Training required.     A state agency shall ensure that all employees responsible for tribal consultation or communication receive training regarding employee responsibilities under this section. The training must, at a minimum, include instruction in effective communication, the development of positive tribal-state government-to-government relations and cultural competency.
 
7.  Tribal contact information.     The Office of the Governor and the commission shall maintain and update a list of names and contact information, including telephone numbers, mailing addresses and e-mail addresses, of the chiefs of each tribe and the chiefs' designees, as well as of the tribal liaisons under subsection 5.
 
8.  Report required.     Each state agency shall provide annually by February 1st a report on tribal consultation under this section to the Governor, the chiefs of each tribe and the commission. The report must include the following information:
 
A.  The number of times the agency requested consultation from each tribe, including information regarding the subject of each requested consultation;
 
B.  The number of times each tribe accepted or declined consultation, including information regarding the subject of each accepted or declined request; and
 
C.  A description of the outcome of each accepted request for consultation, including a description of the agency decision regarding tribal input on a proposed action.
Sec. 2.  30 MRSA §6216  is enacted to read:
§ 6216. Tribal consent required for certain actions
In addition to consulting with the Passamaquoddy Tribe, the Penobscot Nation and the Houlton Band of Maliseet Indians as required under section 6215, a state agency shall obtain the free, prior and informed consent of each affected tribe before taking an action that could cause substantial or irreparable harm to tribal communities, tribal rights or both, including but not limited to an action affecting reserved treaty rights and other tribal rights in land or other natural resources.
Sec. 3.  30 MRSA §6217  is enacted to read:
§ 6217. Tribal-state cooperative agreements
The State and its officers, departments, agencies and political subdivisions are authorized to enter into cooperative agreements with federally recognized Indian tribes within the State to facilitate cross-jurisdictional cooperation and the delivery of government services and to avoid disputes on issues of mutual interest, including but not limited to criminal jurisdiction and law enforcement, taxation, environmental regulation and natural resources. A tribal liaison designated under section 6215, subsection 5 may negotiate and enter into cooperative agreements with federally recognized Indian tribes within the State.
Sec. 4.  30 MRSA §6218  is enacted to read:
§ 6218. Assemblies
By December 15, 2020, and annually thereafter, the Governor shall convene an assembly of the Governor and chiefs of the Passamaquoddy Tribe, the Penobscot Nation and the Houlton Band of Maliseet Indians to discuss issues relating to the relationship between the State and the Passamaquoddy Tribe, the Penobscot Nation and the Houlton Band of Maliseet Indians.
On a biennial basis, during each first regular session of the Legislature, the commission shall organize a legislative assembly to discuss the relationship between the State and the Passamaquoddy Tribe, the Penobscot Nation and the Houlton Band of Maliseet Indians. In consultation with the chiefs of each tribe, the commission shall invite Legislators and tribal council members from each tribal government in the State to participate in the assembly.
Sec. 5. Dispute resolution. The Maine Indian Tribal-State Commission shall study alternative dispute resolution options appropriate to tribal-state disputes, including identifying best practices, developing mutual respect, working on a government-to-government basis, respecting the sovereignty of the Passamaquoddy Tribe, the Penobscot Nation and the Houlton Band of Maliseet Indians and the State and any existing culturally appropriate models. No later than November 15, 2020, the commission shall submit a report to the chiefs of the Passamaquoddy Tribe, the Penobscot Nation and the Houlton Band of Maliseet Indians, the Governor, the Attorney General and the Joint Standing Committee on Judiciary that includes its findings and recommendations, including suggested legislation. The joint standing committee of the Legislature having jurisdiction over judiciary matters may report out legislation to the First Regular Session of the 130th Legislature based on the recommendations of the commission.
Sec. 6. Bicentennial Accord. The Governor shall collaborate with the chiefs of the Passamaquoddy Tribe, the Penobscot Nation and the Houlton Band of Maliseet Indians in establishing an agreement, to be known as "the Bicentennial Accord," in order to institutionalize general principles governing tribal-state relations, including:
1. Respect for the sovereignty of the Passamaquoddy Tribe, the Penobscot Nation and the Houlton Band of Maliseet Indians and the State;
2. A framework for the government-to-government relationship between the State, through the Governor and the State's departments and agencies, and the Passamaquoddy Tribe, the Penobscot Nation and the Houlton Band of Maliseet Indians;
3. Delineation of the commitment by the Passamaquoddy Tribe, the Penobscot Nation and the Houlton Band of Maliseet Indians and the Governor to implement government-to-government relationships to enhance and improve communication and consultation and facilitate the resolution of issues;
4. An outline of a process for implementation of the Bicentennial Accord;
5. A commitment to specific tasks that will translate the current government-to-government relationship into a more efficient, improved and mutually beneficial relationship;
6. A commitment to strengthen the Wabanaki studies provisions of the Maine Revised Statutes, Title 20-A, section 4706;
7. Development of a comprehensive public education initiative to inform the citizens of the State about tribal history, tribal culture, treaty rights, contemporary tribal and state government institutions and relations and the contribution of the Wabanaki Confederacy to the State;
8. A commitment to work in collaboration to engender mutual understanding and respect and to recognize and address discrimination and racial prejudice;
9. A framework for coordination and cooperation to enhance economic and infrastructure opportunities, protect natural resources and provide educational opportunities and community social services that meet the needs of all citizens; and
10. Updating the Bicentennial Accord at an annual assembly of the Governor and chiefs of each tribe under the Maine Revised Statutes, Title 30, section 6218.
The Maine Indian Tribal-State Commission shall provide logistical support and technical assistance in developing the Bicentennial Accord and shall report on its implementation and effectiveness at the annual assembly of the Governor and chiefs and at the biennial legislative assembly, pursuant to the Maine Revised Statutes, Title 30, section 6218, regarding the relationship between the tribes and the State.
Sec. 7. Contingent effective date. Those sections of this Act that enact the Maine Revised Statutes, Title 30, sections 6215 to 6218 do not take effect unless, within 90 days of the adjournment of the Second Regular Session of the 129th Legislature, the Secretary of State receives written certification by the Tribal Chief and Tribal Council of the Penobscot Nation, the Tribal Chiefs and Tribal Councils of the Passamaquoddy Tribe and the Tribal Chief and Tribal Council of the Houlton Band of Maliseet Indians that the tribes have agreed to the provisions of this Act, pursuant to 25 United States Code, Section 1725(e), copies of which must be submitted by the Secretary of State to the Secretary of the Senate, the Clerk of the House of Representatives and the Revisor of Statutes; except that in no event may those sections of this Act that enact the Maine Revised Statutes, Title 30, sections 6215 to 6218 become effective until 100 days after the adjournment of the Second Regular Session of the 129th Legislature.
 
SUMMARY
This bill reflects the recommendations of the Passamaquoddy Tribe, the Penobscot Nation and the Houlton Band of Maliseet Indians to establish a formal government-to-government consultation process between the tribes and the State.
The bill establishes a requirement that state agencies consult with the tribes prior to engaging in any proposed action that may directly affect the tribes. It requires state agencies to request tribal consultation in writing and to provide the tribes with at least 30 days to respond and to agree to or decline consultation. If a state agency is required by outside legal factors to act earlier, the State must provide as much time for consultation as possible. If a tribe agrees to consultation, the State must provide preliminary drafts or proposals to the tribe and engage in meaningful and timely in-person consultation. The State must explain in writing to the tribe how it has or has not addressed tribal concerns.
The bill requires tribal consent prior to proposed actions that could cause substantial or irreparable harm to tribal communities or tribal rights, including but not limited to reserved treaty rights and other tribal rights in land, water and other natural resources.
The bill authorizes the State to enter into cooperative agreements with federally recognized Indian tribes within the State to facilitate cross-jurisdictional cooperation and the delivery of government services and to avoid disputes.
The bill establishes the annual assembly of the Governor and chiefs of each tribe and the biennial legislative assembly to discuss issues relating to the relationship between the State and the tribes.
The bill directs the Maine Indian Tribal-State Commission to report, by November 15, 2020, on its study of alternative dispute resolution options and best practices for facilitating resolution of tribal-state disputes. It authorizes the joint standing committee of the Legislature having jurisdiction over judiciary matters to report out legislation based on the recommendations of the commission.
Finally, the bill directs the Governor to work with the chiefs of each tribe to establish the Bicentennial Accord in order to institutionalize general principles governing tribal-state relations. It directs the Maine Indian Tribal-State Commission to provide logistical support and technical assistance in developing the Bicentennial Accord.