An Act To Establish an Enhanced Process for Tribal-State Collaboration and Consultation and To Develop a Process for Alternative Dispute Resolution
Maine Legislature, Session 129, LD 2118
Committee: Judiciary
Amends: 30 MRSA §6215, 30 MRSA §6216, 30 MRSA §6217, 30 MRSA §6218

Legislative Document
No. 2118
H.P. 1512
House of Representatives, February 25, 2020
An Act To Establish an Enhanced Process for Tribal-State 
Collaboration and Consultation and To Develop a Process for 
Alternative Dispute Resolution
Reported by Representative BAILEY of Saco for the Joint Standing Committee on 
Judiciary pursuant to Joint Order 2019, H.P. 1307.
Reference to the Committee on Judiciary suggested and ordered printed pursuant to Joint 
Rule 218.
ROBERT B. HUNT
Clerk
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 
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.