I read recently that the Maine Supreme Court Justices had written a letter to Kennebec County commissioners recommending  the removal of a statue of U.S. Supreme Court Chief Justice Melville Fuller, the judge who had presided over and supported the 1896 decision in Plessy v. Fugerson a case that set precedent for the segregation doctrine of “separate but equal”.  The article further stated that Acting Chief Justice Andrew Mead had written, “Given our commitment to racial justice, we should take every opportunity to examine and re-examine our positions, policies and practices.”

I think it is nothing short of miraculous that the Maine Supreme Judicial Court would write a letter requesting the removal of this statue. Bravo! I don’t believe I have ever heard of state supreme court justices requesting a statue to be removed because it is not consistent with their values. I’m so impressed that even our justices are taking a look at historic rulings of injustice and have taken action.

Could it be that legal systems may even change because of the George Floyd murder?

Black Lives Matter played no small role in these changes and unfortunately so many black lives were lost and will still be lost because of the racial prejudices in this country. It gives me hope that we still have the rule of law to depend on to keep this country free. It gives me hope that things can change. History need not be repeated. In my opinion there were far reaching and unjust decisions made by the Maine Supreme Court in the past. Decisions that used language that degraded and dehumanized Native people. The Maine Courts have made decisions that laid the foundation for civil and human rights abuses against the first Nations.

A little self-examination is in order. Starting from the first Maine landmark tribal case  Murch vs. Tomer (1842 ) written by Chief Justice Ezekiel Whitman. The opinion excludes tribal members who were not taxed from voting. It sets the tribes apart as “nations within a nation” even though he had just been among the delegates who accepted the final version of the Maine Constitution, which  recognized that treaty obligations would be passed on from Massachusetts to Maine. These treaty obligations were removed in 1841 from public view in the Maine Constitution.

Treaties are made between nations. Whitman’s prejudice is evident in his decision when he writes “… although endowed with attributes of our species and, in fact a portion of the human race … yet as a people they are treated and perhaps necessarily so to a certain extent at least, as having none of those attributes. Imbecility on their part and the dictates of humanity on ours, has necessarily prescribed to them their subjugation to our parental control; in disregard of some, at least, of abstract principles of the rights of man.”

I find it hard to believe that Justice Whitman had forgotten the existence of the treaty just approved the previous year. His decision included some of the most insulting and discriminatory language that exists in Maine law.

He wrote, “Is it insisted that the Penobscot tribe are a nation by themselves and independent? Our constitution recognizes no such thing, and our legislature absolutely forbids it.” With these words, Whitman set the stage for future court decisions such as State vs. Peter Newell (1891) that states that no tribes or treaties exist in Maine.

These court decisions in 1842 and 1892 respectively stating the Tribes no longer exist and therefore no treaties exist have caused much litigation and much abuse to the Tribal Nations in this state. These two decisions allowed Maine to take total control over the Tribes and their lands. These decisions have assisted the state in its efforts to ignore and marginalize the tribes.

We hear this reasoning and this language on every level of state government. These two court decisions laid the legal foundation that today keeps the tribes isolated from the rest of Indian Country. So perhaps now, with introspective Maine Supreme Court Justices expressing their values, the court will revisit the history and importance of its own decisions. The effect of Maine court decisions based on these two precedent-setting cases has devastated and isolated Maine Tribes.

They should hold a hearing on these prejudicial and precedent setting cases. There needs to be more than a statue of U.S. justice Fuller torn down.

 


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