The historical development of Maine’s tribal representatives

The historical development of Maine’s tribal representative can help explain why tribal representatives behave differently than nonreserved seat legislators. Predating Maine’s statehood in 1820, the tribal representative’s origins are found in intertribal compacts, including the Great Council Fire, where representatives from the Wabanaki Confederacy gathered to make peace (Speck Reference Speck1940, 198–99), and in the earliest contact between native peoples and the Massachusetts colony (Kolodny Reference Kolodny2007). Maine became a state in 1820; upon statehood, its treaty obligations with the Penobscot were transferred from Massachusetts.

The earliest record of a Penobscot tribal representative is 1823, and in 1842 for the Passamaquoddy (Maine State Law Library 2017). These representatives could address the legislature but were unable to vote (Kolodny Reference Kolodny2007, 17). Little is known about how they were chosen. 1835 is the earliest record of an election for tribal representative; before then, the representative was selected based on custom (Dorr Reference Dorr1998, 41). By 1892, tribal representatives were chosen by Australian ballot system, a reform judged successful by the state agent (Rolfe Reference Rolfe1892, 7).

Formally incorporated into Maine law in 1866, tribal representatives often took an active role in legislative affairs (Maine State Legislature 1866a, 1866b). For example, Passamaquoddy Representative Lewis Mitchell delivered a famous 1887 floor speech reiterating tribal support for the Revolutionary War and expressing outrage at the state’s violation of treaty obligations (Mitchell Reference Mitchell and Senier2014, 170–2). Yet the tribal representatives were structurally disadvantaged compared to their peers. Unable to vote, they were often stymied by state Indian agents, who were appointed by the legislature to administer tribal welfare and coordinate tribal elections. These agents often exhibited marked hostility to Native peoples, deriding the tribes’ “backwardness,” and noting “the people to which this tribe belong do not possess the high order of intellect that distinguish the European race” (Purinton and Nutt Reference Purinton and Nutt1861, 10). State agents – present in Maine from 1820 to 1980 – worked to foster discord within Native communities and weaken tribal political clout (Dorr Reference Dorr1998).

By the turn of the 20th century, local newspapers covered elections for tribal representatives, such as one report that “the Penobscot Indians are not behind their white brothers on biennial elections” (Biennial Election – Penobscot Tribe 1910). Tribal representatives attended funerals for state dignitaries and provided constituency services (Old Town Locals 1937), but state oppression continued. In 1941, amid a rise in anti-Indian sentiment, the state legislature debated whether to reduce the tribal representatives’ salary. The legislature ultimately revoked the tribal representatives’ right to sit as members of the body, changing the statutory language that seated them from “to the Legislature” to “at the Legislature” (State of Maine 1941). This change had a dramatic effect: tribal delegates were now “forced to stand behind the glass partition at the back of the chamber, along with lobbyists, reporters, and other onlookers,” like a mere visitor, according to one first-hand account (Kolodny Reference Kolodny2007, 23–4). They continued to receive a salary, however, leading critics to label them as state-paid lobbyists (Clark Reference Clark2000, 9).

In 1967, Maine Indians were given the right to vote in state legislative elections in addition to tribal elections – among the last groups in the US to gain voting rights (Clark Reference Clark2000, 4 n.13; Hansen Reference Hansen1967; Loring Reference Loring2004, 28; Rollings Reference Rollings2004, 139 n.27; Shay Reference Shay1942, 12–3). Suffrage expansion in Maine coincided with the 1968 enactment of the Indian Civil Rights Act, the Red Power Movement, and the Alcatraz occupation. Buoyed by a growing public sentiment about the injustice accorded Native Mainers, the state legislature in 1975 debated reinstating tribal representatives as speaking members. Skeptical legislators asked why Native Americans alone should have a reserved seat, whether they were adequately represented by nontribal legislators, and whether a representative could be effective without speaking privilege (Maine State Legislature 1975, A65–9). After a long debate, the House voted 107–40 to approve the rules change. The tribal representatives were seated amid applause (Two Indian Tribles [sic] in Maine Voted Seats in the House 1975).

Later changes further enhanced tribal representatives’ institutional powers. In 1995, they gained the right to sponsor legislation related to “Indians and Indian land claims.” The rule change passed unanimously in both houses with little debate.Footnote ² Another rule change in 1999 extended the right to cosponsor legislation on any topic. Today, tribal representatives serve on joint standing committees, where they can raise their hand to signify a position, but that position is not counted as a vote. The legislature created a reserved seat in 2010 for the Houlton Band of Maliseet Indians, bringing the number of tribal representatives to three, and the first Malisset representative joined the state legislature in 2012.

Tribes in Maine are separate sovereigns, removed from their land by white settlers and denied voting rights for two centuries. Gaining federal recognition late in US history, the tribes have experienced hardship at the hands of state violence, neglect, and the suppression of civil and voting rights. The legacy of this history culminates in the tribes’ modern struggle to influence public policy at the state level. The 1980 Maine Indian Claims Settlement Act settled tribal land claims but limited Maine’s recognition of tribal sovereignty. Shortly after federal recognition was extended to the Penobscot and Passamaquoddy in the late 1970s, the Settlement Act set Maine apart from other states by designating tribal reservations as “municipalities” for funding purposes, limiting tribal sovereignty over a range of policy areas in turn. The result is that Maine tribes are forced to seek redress in the state legislature to an extent unusual among federally recognized tribes. For better or worse, reserved seat legislators play a central role in that process.

Tribal-state relations have soured in recent years. In protest of then-Governor LePage’s flouting of tribal sovereignty, the Penobscot and Passamaquoddy vacated their seats in 2015, reflecting an ambivalent relationship about formal participation in Maine’s state government (Bruyneel Reference Bruyneel2004). Tribal leaders derided an executive order issued by LePage asserting state control over all tribal territory and government. Remarked Penobscot Chief Kirk Francis, “We have gotten on our knees for the last time… From here on out, we are a self-governing organization, focused on a self-determining path” (du Houx 2015). As of 2020, there is no Penobscot representative serving in the legislature for the first time since statehood, although the Passamaquoddy returned their representative to the chamber in 2016. The Houlton Band of Maliseet Indians joined the Penobscot and withdrew their representative in 2018 over a gaming law dispute. Debates over tribal sovereignty remain a core controversy in Maine state politics, and the future of the institution of tribal representative remains unclear. Noted former tribal representative Donna Loring in an interview, “as long as we have tribal representation sitting in that House, we are agreeing that the state has control over us.”Footnote ³

Reserved seats and descriptive representation for Native Americans

The institution of tribal representative in Maine begs a broader question: how does representation affect policymaking? In the half century since Hanna Pitkin published The Concept of Representation (1967), a growing body of political science research has examined the relationship between reserved seats – such as Maine’s tribal representatives – and policymaking outcomes. The bulk of this work studies gender quotas in proportional representation systems and reserved seats for ethnic and religious minorities and Indigenous people (Htun and Ossa Reference Htun and Ossa2013; King and Marian Reference King and Marian2012). There is mixed evidence that reserved seats improve substantive representation in the policymaking process (Crisp et al. Reference Crisp, Demirkaya, Schwindt-Bayer and Millian2018). Other scholars have noted the roles that political parties (Zuber Reference Zuber2015) and institutional strength (Muraoka Reference Muraoka2019) play in determining the behavior of reserved seat legislators and support for minority group interests. Reserved seat legislators are more effective when they have access to institutional power, either by being part of the government or through identity-based parties that elevate the group’s interests (Templeman Reference Templeman2018).

A second body of research explores how descriptive representation is associated with substantive representation for groups such as African-Americans (Gay Reference Gay2002; Swain Reference Swain1993; Tate Reference Tate2004), Latinos (Bratton Reference Bratton2006; Wallace Reference Wallace2014), women (Clark and Caro Reference Clark and Caro2013; Swers Reference Swers2005; Wängnerud Reference Wängnerud2009), and LGB people (Hansen and Treul Reference Hansen and Treul2015). Native Americans are featured less prominently in this literature (Williams and Schertzer Reference Williams and Schertzer2019). Extant research examines the links between Indigenous constituents, party identification, and pro-Indigenous voting in Congress, finding that a higher percentage of constituents who are Native Americans, as well as the presence of a recognized tribe, are each associated with more pro-Indigenous voting behavior. Additionally, Democratic and liberal members of Congress are more likely to support Native American legislative priorities than Republicans and conservative members, even when controlling for constituency effects (Conner Reference Conner2014; Turner Reference Turner2005).

This article connects these two research streams while acknowledging the unique status of Native American tribes. Their status as sovereign nations distinguish federally recognized tribes from Indigenous groups in other countries, which may have different political rights vis-a-vis the national government, as well as other traditionally underrepresented groups, including women and racial, ethnic, or religious minorities. Indigenous political actors have often expressed an ambivalent ‘American-ness,’ situated both within and outside the bounds of US citizenship (Bruyneel Reference Bruyneel2004, 43). Nonetheless, previous research on Indigenous reserved seats suggests these institutions are analytically comparable to reserved seats for other marginalized groups (Kroeber Reference Kroeber2018; Krook and O’Brien Reference Krook and O’Brien2010; Reynolds Reference Reynolds2005; Templeman Reference Templeman2018).

Population and geography present two obstacles for tribes seeking descriptive representation without reserved seats. Today, the total population of Mainers who identify as Native American or American Indian, including enrolled members of the four federally recognized tribes, is approximately 8,500 in a state of 1.3 million people (about 0.6%).Footnote ⁴ If the state selected its tribal legislators in a proportional representation system, Indigenous Mainers would hold just one House seat. Under the current electoral system, however, the tribes cannot mobilize their votes to elect an enrolled tribal member to one of Maine’s 151 lower house seats.Footnote ⁵ Thus, the three tribal representatives elected at-large by citizens of each tribe represent a unique opportunity for Indigenous participation. Reserved seats, in general, can help groups achieve descriptive representation when they lack the population to compete in single-member districts, and the critical mass needed for minority representation (Sarah and Mona Reference Sarah and Mona2008).

We argue that the uneven distribution of Native American constituents across districts creates incentives for some non-Native legislators to be more sensitive to Native interests than others. When an unevenly distributed minority group gains an at-large reserved seat, the nonminority legislators with constituents from that group face conflicting pressures to adjust how they represent the group’s interests. Whereas tribal legislators are elected solely by minority group members, the nontribal legislators must balance the interests of the various groups in their district. We expect the incentive to represent a group’s interest increases as the proportion of constituents in that group increases, especially in single-member plurality districts where minority group voters can be influential in a close election.

When tribal legislators can advocate for their group’s interests, nontribal legislators face a different set of incentives to legislate on the group’s behalf. Reserved seats decrease the risks and reward nontribal legislators associate with representing minority group interests, and a nontribal legislator with minority constituents might sponsor fewer bills that champion the group’s interests if she thinks those voters are less likely to punish her. A similar logic applies in multimember districts, where legislators from the same district may coordinate to represent different constituent groups (Crisp and Desposato Reference Crisp and Desposato2004). A competing explanation suggests nontribal legislators will maintain (or increase) their representation because their incentive to represent minority group interests remains unchanged (or increases) due to reserved seats. Reserved seats raise the visibility of minority group priorities in the legislature, reinforcing the nontribal legislator’s belief that they must continue advancing the group’s interests or else risk punishment for shirking. A nontribal legislator may increase her contribution because the perceived reward for acting (or the cost of failing to act) has increased. We develop our hypotheses below.

Hypotheses

To begin, a note on measuring substantive representation. Many studies rely on roll call data, although more recent research examines constituency service and legislative oversight (Lowande, Ritchie, and Lauterbach Reference Lowande, Ritchie and Lauterbach2019; Minta Reference Minta2009). In this article, we examine bill sponsorship for two reasons. First, tribal representatives cannot vote on bills; we cannot observe their revealed preferences on specific policy proposals. Bill sponsorship and cosponsorship, however, are a good alternative measure of the types of policies a legislator supports (Clark and Caro Reference Clark and Caro2013; Crisp et al. Reference Crisp, Demirkaya, Schwindt-Bayer and Millian2018; Lewallen and Sparrow Reference Lewallen and Sparrow2018; Muraoka Reference Muraoka2019; Swers Reference Swers2005; Wilson Reference Wilson2010). Additionally, tribal representatives did not always have the ability to initiate legislation but relied on nontribal legislators to sponsor bills on their behalf. By examining sponsorship patterns, we can observe the effect that empowering tribal representatives had on the volume of tribal legislation after 1995, and also test hypotheses about how nontribal legislators changed their behavior once tribal colleagues could act on their own.Footnote ⁶

In this article, we are interested in two related phenomena: the institutional-level contributions of different classes of legislators to minority representation and the behavioral-level factors that motivate legislators to represent minority interests. First, what impact do reserved seats have on the representation of minority group interests in the legislature as a whole? Here we calculate the contributions of three types of legislators: tribal legislators, nontribal legislators with tribal constituents, and nontribal legislators without tribal constituents. We expect the overall number of pro-tribal bills will be higher when tribal legislators are allowed to participate, expressed as H1:

Second, we are interested in the factors that motivate nontribal legislators to write pro-minority bills. We argue nontribal legislators face different incentives to produce pro-tribal bills conditional on their party identity and their districts’ makeup. On average, we expect that the presence of Native American constituents in a district, as well as the representative’s partisan identity, will influence the number of pro-tribal bills a legislator will introduce or cosponsor in a legislative session. We follow the literature on the link between minority constituencies and pro-minority voting (Grose Reference Grose2005; Preuhs Reference Preuhs2006), and in particular, research on the link between Indigenous constituents and pro-Indigenous voting in the US Congress. Evidence suggests that a higher percentage of Native American constituents, as well as the presence of a recognized tribe, is associated with more pro-Indigenous voting by members of Congress (Conner Reference Conner2014; Turner Reference Turner2005). Our hypothesis about the effect of constituency on voting is H2, below.

Research suggests reserved seat legislators are successful when they cooperate together and work within political parties in government (Templeman Reference Templeman2018). Indeed, Maine tribal representative Donna Loring’s memoir, In The Shadow of the Eagle: A Tribal Representative in Maine (2008) is chock full with examples of Loring’s efforts to interface with nontribal politicians. The relationship between party, ideology, and support for Indigenous constituents might vary across contexts. There is evidence Democrats and liberal members are more likely to support the legislative priorities of Native Americans than Republicans and conservative members, even when controlling for constituency effects (Conner Reference Conner2014; Turner Reference Turner2005), and studies of party identification suggest Native American voters lean Democratic (Herrick and Mendez Reference Herrick and Mendez2018, 283). Based on these national data, we might assume Democrats are the more pro-tribal party in Maine. The state is noteworthy, however, for its tradition of independents, moderate Republicans, and a Democratic Party torn between urban and rural interests (Palmer et al. Reference Palmer, Taylor, Librizzi and Lavigne2009). The tribal representatives, for their part, are nonpartisan and do not caucus with either party.Footnote ⁷ Despite these concerns, we expect legislators who are more ideologically left-liberal will be more supportive of Native American policy interests than conservative members (H3). Insofar as Maine’s Democrats are more likely to be left-liberal, we expect Democratic nontribal legislators will be more likely to exhibit pro-tribal behavior than Republicans, conditional on the presence of Native American constituents in their district.

We argue that when reserved seat legislators are present and able to sponsor bills, nonreserved seat legislators face weaker incentives to represent the interests of the minority group. When a tribal legislator can initiate her own legislation, the nontribal legislator who counts minority group members (i.e., tribal members) among her constituents might reduce her contribution to the group’s representation if there is the perception that minority voters are less likely to punish her for doing so. For example, if the amount of legislation devoted to group interests is fixed over time, the nontribal legislator will introduce fewer bills as the tribal legislators introduce more bills. The nontribal legislator operating with a fixed budget will prioritize other legislative work because someone else, the tribal legislator, is doing the work to represent that subset of her constituency. A similar logic applies in multimember districts. Legislators from the same district may cooperate to divide the work of representing different constituency groups (Crisp and Desposato Reference Crisp and Desposato2004).

A competing explanation suggests nontribal legislators will maintain (or increase) their contribution to representation because their incentive to represent minority group interests remains unchanged, or increases, due to the presence of reserved seats (expressed as H4). For example, tribal legislators may raise the visibility of the group’s interests in the legislature, reinforcing the nontribal legislator’s belief that they must continue representing the group’s interests or else be punished for shirking. A nontribal legislator who does not contribute much in the form of representation may increase their contribution because the perceived reward for acting (or the cost of failing to act) has increased.

We can think of the 1995 change to the sponsorship rules as an intervention or treatment. At the center of our theory is the impact dual representation has on how nontribal legislators, who share a constituent group with tribal legislators, respond to the treatment. Our treated group comprises the nontribal legislators from districts that include constituents from the Penobscot Nation and Passamaquoddy Tribe. The nontribal legislators who represent Maliseet and Micmac constituents are considered nontreated because they did not share a constituency with any tribal legislators in 1995. By distinguishing between tribes with and without reserved seats, we can estimate the impact of dual representation on the representation of tribal interests.Footnote ⁸

Our final hypothesis addresses another measure of legislative support for Indigenous interests: cosponsorship of pro-tribal bills. Muraoka (Reference Muraoka2019) performs a similar analysis of tribal and nontribal legislators in Pakistan. We expect tribal legislators will be frequent cosponsors of pro-tribal bills to promote bills that advance Indigenous interests. Although we do not test it here, it is plausible that tribal legislators cosponsor bills to signal to voters, interest groups, or other legislators. We also expect nontribal legislators with tribes in their district will more likely cosponsor pro-tribal bills than nontribal legislators without tribes in their district (H5).

Our expectations about the treatment’s impact on cosponsorship differ from our prediction about sponsorship. We conceptualize substantive representation as the legislative work of advancing a group’s interests (Pitkin Reference Pitkin1967). The act of writing a bill is a greater contribution to representation than cosponsoring another’s bill. While we expect that the rule change impacted the treated nontribal legislators’ incentives to initiate bills, it would not necessarily reduce to zero the incentives for them to support the tribes’ legislative agenda. If cosponsorship is a less costly act than sponsorship, then we expect the 1995 rule will not impact the treated nontribal legislators’ cosponsorship behavior.

Findings

Methods

As a simple test of our first hypothesis that the addition of tribal legislators had a positive impact on the overall representation of Native American interests (H1), we examine the total number of pro-tribal bills sponsored per session in the periods before and after the 1995 rule change. In the Supplementary Material, we discuss our method for coding “pro-tribal” bills. In short, there were no bills in our dataset that we coded as directing harm toward the tribes or Native Americans by, for example, restricting tribal sovereignty, denying access to state services, or imposing taxes and fees.

As Figure 1 shows, the number of pro-tribal bills per session rose dramatically after 1995. We cannot tell from the figure, however, the relative contributions of tribal legislators and nontribal legislators to Indigenous representation before and after the rule change. We perform additional tests of our hypotheses for the cross-sectional determinants of pro-tribal sponsorship, and a time series analysis of the impact of the 1995 rule change on the sponsorship behavior of nontribal legislators in different types of districts.

Figure 1. Pro-tribal bills in the Maine House by legislator type, 1984-2019.

Cross-sectional analysis

Our tests take two forms: a cross-sectional analysis of sponsorship patterns by three different types of legislators (i.e., the determinants of pro-tribal support, on average), and a difference-in-differences analysis of the change in sponsorship behavior by nontribal legislators in two types of districts. Following the literature on descriptive representation and bill sponsorship (Clark and Caro Reference Clark and Caro2013; Crisp et al. Reference Crisp, Demirkaya, Schwindt-Bayer and Millian2018; Muraoka Reference Muraoka2019; Swers Reference Swers2005; Wilson Reference Wilson2010), we use ordinary least squares regression for all tests. For each test, we also use negative binomial regression to model the sponsorship count data and we note the results alongside OLS. Tables and other details about the negative binomial analysis are found in the Supplementary Material. We provide a supplementary analysis of voting behavior on tribal bills at the end of the Results section.

First, we use OLS regression to assess our hypotheses about the determinants of pro-tribal bill sponsorship, the presence of Native American constituents in a district (H2) and party identification (H3). The unit of analysis is the legislator from a lower house district in a given two-year legislative session. The dependent variable is the number of pro-tribal bills initiated by the legislator, and the values range from 0 to 23 bills per session. We include two independent variables to measure the three types of legislators in our study. A binary variable measures whether the legislator occupies a reserved seat (i.e., whether they are a tribal representative or nontribal representative), and another variable measures whether the legislator represents a district that includes a tribal constituency (1 if the legislator’s district contains a reservation, a tribal housing community, or tribal land held in trust; 0 otherwise).

We include a measure for the party identification of the legislator in each district (1 for a Democrat and 0 for a Republican or Independent). More than half of the treated districts (85%) were represented by Democrats from 1984 to 2020 greater than the party ratio of the nontreated districts (57% Democrats). We also include a measure of the legislators’ ideology from the DIME dataset, based on campaign finance records, although these data only cover 1996 to 2018 (more in the Supplementary Material). To account for district-level differences in the number of Native American voters who do not live in reservation communities, tribal housing communities, or on tribal land held in trust, but who might otherwise seek representation from their nontribal legislator, we include a measure of the share of the population in each district that identifies as Native American, American Indian, First Nations, or a specific tribal affiliation to the US Census (see the Supplementary Material for details). Finally, we include session fixed effects to account for any session-specific variation that may affect the number of tribal bills, such as changes in the total number of bills introduced in the legislature, and other time-variant factors that might influence the overall level of Native American political engagement.

Our analysis takes the following form, where y is the number of tribal bills sponsored by a member in district i in session t, Tribal is a binary variable for whether a member is a tribal representative, Dem measures the legislator’s party, and TribeDistrict measures whether a legislator’s district contains a reservation or tribal land. Ideology measures the legislator’s CF score from approximately −1 to 1 and Constituency is a continuous variable that reflects the size of the Native American population in each legislator’s district. Session denotes the legislative session fixed effect; the error term is omitted.

$$ {y}_{i t}\hskip0.35em =\hskip0.35em {Tribal}_i+{Dem}_{i t}+{TribeDistrict}_{i t}+{Session}_t $$

Time series analysis: Difference-in-differences

Second, we are interested in how legislators from different types of districts responded to the 1995 rule change that allowed tribal representatives to initiate bills (H4). For our identification strategy, we use difference-in-differences to compare bill sponsorship patterns of nontribal legislators in districts with tribes with comparable nontribal legislators in districts without tribes. The treatment is the 1995 rule change which gave dual representation to the tribal constituents in some districts. The treated units are legislators in districts that contain tribal constituencies (23 unique members, or 2.3%), and the nontreated units are legislators in districts that lack reservations, tribal land, and tribal housing. The number of units in the treatment group varies per session, from 3 to 6, as the House district maps are redrawn, and some tribal constituencies are consolidated into fewer districts over time. The nontreated units number around 145 to 148 per session (with fewer in earlier sessions, owing to missing administrative data on House membership). The vast majority of districts in the House do not encompass tribal land, and most legislators do not have a sizeable Native American constituency in their district.

To estimate the impact that tribal legislators gaining sponsorship rights had on the behavior of legislators in different districts, we include a variable indicating the period after the rule change and interact the indicator with the variable for the presence of a tribal constituency. We are therefore estimating the average effect of the 1995 treatment on the nontribal legislators in districts with tribal constituents. The analysis takes the following form, with an interaction term for the measure of tribe-in-district and the post-reform period. We include fixed effects for legislative session, and in the Supplementary Material, we include member fixed effects to estimate the average treatment effect on the legislators who served in the House in the periods before and after the treatment. In addition to our base model, we also include binary measures for legislators who served in leadership positions within the Maine House, such as Speaker of the House or party leader, and the Joint Standing Committee on the Judiciary, which handles bills related to tribal-state relations.

$$ {y}_{i t}\hskip0.35em =\hskip0.35em {Tribal}_i+{Dem}_{i t}+{TribeDistrict}_i\ast {PostReform}_t+{Session}_t $$