There was never any doubt that the Passamaquoddy needed a constitution.
Such a document would establish the fundamental law of their land, and identify both the powers of elected officials and the mechanism to ensure they adhered to tribal law. Though it was abundantly clear from the outset that one was needed, getting it enacted would prove a complicated and formidable challenge, one that remains unfinished to this day.
With tribal council approval, attorney Tom Tureen had developed a draft constitution in 1983 supported by a $100,000 grant from the federal Bureau of Indian Affairs. It was never enacted.
Each time the document was put up for approval in the 1980s, it was passed by voters at Pleasant Point but defeated by those at Indian Township.
The Maine Times reported from the reservations in January 1987 that the defeat was due to opposition to two provisions in the document. One was a clause allowing tribal members convicted of “illegally selling drugs and alcohol” on the reservations to be banished for between six months (for a first offense) to life (for a third one.) The other was a provision banning convicted felons from holding elective tribal office.
“The element who opposed it is in office on the reservation today,” charged John Stevens, who had been narrowly defeated in the 1986 election for Indian Township governor by 43-year-old Bobby Newell, the former tribal constable-turned-politician. “They’ll never pass it the way it is with those two articles.”
Others blamed Tureen. “He came down here and he won the land claims, but Tom has been carried away with his big-league obligations, and he has left the government naked on each reservation,” council member Ralph Dana, Pleasant Point’s most successful businessman, told the Maine Times in late 1986. “He has forgotten about the little people here. In the absence of a constitution, the tribal government and Tom Tureen have freewheeled. The community is left without rules. There’s no accountability.”
Tureen had a solid counter to this argument, however. “I spent hundreds of hours working on the constitution with them,” Tureen told the Times. “It went out to vote several times and was defeated. How is that my fault?”
Many tribal members persisted in trying to get a constitution enacted, rightly seeing that without one it would be impossible to enforce tribal law on tribal officials. “Now the tribe members are at the mercy of the Joint Tribal Council,” Roger Ritter of Indian Township told the Bangor Daily News in 1990. “They can but they don’t have to honor petitions or hold public hearings on ordinances. We don’t have any guidelines to balance the power between the people and the government.”
Alberta Cleaves of Indian Township added: “We needed (a constitution) right after we went through the land claims, as a way of keeping our elected officials accountable to their people.”
In January 1989, constitutional proponents circulated petitions on both reservations calling on the tribal governors to address the issue. Hundreds of tribal members signed them. That July, the governing council appointed a six-member committee to develop a draft. They held public hearings at both reservations in the early months of 1990, gathered concerns, incorporated them in drafts over 23 of their own workshop meetings and presented the results to the Joint Tribal Council.
The Joint Tribal Council – consisting of the governing councils, governors, and lieutenant governors of both reservations – was and is theoretically the supreme executive body of the tribe. After a three-month delay – its meetings were repeatedly canceled because Indian Township officials kept failing to show up for them – the body approved the draft and scheduled a tribe-wide public referendum for July 10, 1990, to approve or reject the constitution.
Voters came to the polls July 10. At Pleasant Point, the draft passed once again. At Indian Township, however, tribal members found the polls closed and locked.
Gov. Bobby Newell had canceled the vote at the last minute, suddenly claiming that “there are things in it that we don’t understand” and that needed to be examined in further workshops. His authority to cancel a referendum called by the Joint Tribal Council was unclear; but, because the tribe had no constitution, there was no way to challenge it.
Ed Bassett, one of Pleasant Point’s representatives on the constitutional committee, was flabbergasted by Newell’s action. “He knew the process all along (and) … was very supportive of the whole thing,” he told the Bangor Daily News. “Now, all of a sudden, he does not have enough information? I really think it is a smokescreen.”
Newell’s primary political rival, former tribal Gov. John Stevens, agreed. “I think this is a sad day for the constitution,” he told a reporter, “and an even sadder day for the Passamaquoddy tribe.”
Amid the outrage, Gov. Newell informed his counterpart at Pleasant Point that his reservation would vote Aug. 20 on the constitution “as currently drafted, and agree to be bound by the two reservations.”
But Newell canceled the Aug. 20 vote as well and declared he was overseeing revisions to the draft before residents of his reservation would be allowed to judge it. A public workshop was held Sept. 2, with a lively discussion of issues surrounding the rights of non-native widows and widowers when their native spouses died.
On Sept. 4 – the same day as the gubernatorial election between Newell and Stevens – Indian Township and Pleasant Point voters approved entirely different versions of the constitution, therefore neither had constitutional standing. Each reservation adopted its own version as municipal bylaws – though they are often ignored – and the Joint Tribal Council continued to operate in a vacuum.
Newell told the Bangor Daily News that the Indian Township draft “restricted the Joint Council from having so much power and we gave that power back to the people.”
In reality, the last-minute changes gave Newell greater power and his people less. He gave his office the novel ability to veto any action of the Joint Council, a move that could be overturned only by a unanimous vote of the latter body. Citizens’ referendums and votes to recall a governor would require two-thirds votes for passage, instead of simple majorities as the original draft read. A recalled official could also run for the same office in the very next election instead of having to sit it out.
“I don’t recall exactly what happened, but I know that a lot of times in the Joint Council we would have a lot of debates and controversy as to what each reservation wanted with the constitution,” Newell says today. “We made the decision based on circumstances that were happening at the time.”
Bassett describes the events of that late summer as a constitutional crisis on several levels. “It was crazy what went down. We never contemplated that somebody would defy the Joint Council to that point,” he says. “Nobody knew what to do.”
“I guess that was tribal politics at its lowest point, as far as people abusing their power,” he adds.
But on Sept. 4 Bobby Newell had also won re-election. The lowest ebb was yet to come.
Colin Woodard can be contacted at 791-6317 or at:
cwoodard@pressherald.com
Coming tomorrow:
Whither the rule of law
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