Michael-Corey F. Hinton and Erick J. Giles have published “Eli-Tpitahatomek Tpaskuwakonol Waponahkik (How We, Native People, Reflect on the Law in the Dawnland)” in the Maine Law Review.
Multiple nations within the Wabanaki Confederacy, including the Maliseet Nation, Mi’kmaq Nation, Passamaquoddy Tribe, and Penobscot Nation, were signatories to the July 19, 1776 Treaty of Watertown, which was the first ever treaty entered into by the United States of America following the Declaration of Independence. Following the Treaty of Watertown, Wabanaki warriors served directly under General George Washington and made critical contributions in support of the Americans’ Revolutionary War. Such contributions were made based on the Americans’ promise that the Wabanaki Nations’ lands, natural resources, and traditional ways of life would be forever protected by the fledgling United States. Unfortunately for the Wabanaki Nations, their Revolutionary War-era promises were largely disregarded as the Commonwealth of Massachusetts and then the State of Maine systematically oppressed their indigenous inhabitants by ignoring an emerging body of federal law, based on the Doctrine of Discovery, which was intended to protect those very indigenous people. This Article delves into this complex history by exploring the Doctrine of Discovery, historical dealings between the Wabanaki and the Americans, and the events and court cases leading up to the enactment of the Maine Indian Claims Settlement Act (MICSA), which resolved Wabanaki land claims against the State of Maine for the illegal taking of tribal lands. This Article then analyzes the legislative history and text of the MICSA and juxtaposes this record with federal common law interpreting the rights of federally recognized Tribal nations. Finally, this Article argues that federal common law interpreting the rights of Tribal nations should be relied upon when interpreting the scope of specific Wabanaki rights that were never ceded or relinquished in treaties or in the MICSA.