March 1, 1977
Page 5692
By Mr. HATHAWAY (for himself and Mr. MUSKIE) :
S. 842. A bill relating to certain Indian land claims in the State of Maine, and for other purposes; to the Select Committee on Indian Affairs.
STATE OF MAINE ABORIGINAL CLAIMS ACT OF 1977
Mr. HATHAWAY. Mr. President, on behalf of myself and Senator MUSKIE, I am introducing legislation today in order to begin congressional consideration of the complex issue of aboriginal land claims being pursued by the Federal Government against the State of Maine and its citizens. These land claims, brought by the Justice Department on behalf of the Passamaquoddy and Penobscot Indian Tribes in Maine, are premised upon alleged violations of the 1790 Indian Non-Intercourse Act resulting from the failure of the Federal Government to ratify treaties between the tribes and Massachusetts, prior to the separation of Maine and Massachusetts in 1820.
The legislation would limit the remedy available for any such claims to monetary damages and would extinguish aboriginal title, or the right to use and occupancy, to the land. The purpose of the legislation is primary to provide a vehicle for congressional consideration of the issues presented by this litigation, issues which are arising in similar claims throughout the Eastern States.
This approach of limiting the remedies to monetary damages is one recommended by the Attorney General and the Governor of the State of Maine. It does, I think, represent a fair approach and one which highlights the underlying problems and equities involved in this case.
These land claims are nearly two centuries old in origin. Property and business transactions have proceeded in good faith in the intervening 180 years with no question arising as to the validity of these Indian treaties. The Federal Government, in fact, has historically maintained that the Maine Indian tribes were not "recognized" Indian tribes for purposes of eligibility for services through agencies such as the Bureau of Indian Affairs.
The preliminary determination which was made in this case found the Federal Government continuing to press this position in court; and the present suit by the Justice Department results from a 1975 decision adverse to the Federal Government by the First Circuit Court of Appeals. In that decision, the court found the Passamaquoddy Tribe was a tribe within the meaning of the Non-Intercourse Act, and that there was a trust relationship between that tribe and the Federal Government. The court did not, however, attempt to define the scope of that relationship.
In an attempt to comply with that court decision, which was not appealed, the Federal Government has reversed its position, and is now suing the State of Maine and its citizens for the alleged Federal failure to act over 180 years ago.
This points out some of the underlying equities in this case. The Justice Department, in a memorandum to the U.S. District Court of Maine on January 14, 1977, recognized that:
Because of the unusual context and historical circumstances of this case, if the United States were successful in asserting claims on behalf of the tribes to possession of large tracts of property in the State of Maine, as well as trespass damages up to the time of recovery of possession, we would be in a unique situation. In solving an injustice imposed upon the Indian tribes in the State of Maine, we would be placing substantial hardship on innocent parties, including in part the State of Maine itself which was not even in existence during the period that many transactions were made in violation of the Non-Intercourse Act.
Further, the memorandum stated:
Since congress must eventually become involved in settlement of the ultimate issues, it would be in the interest of justice that it become involved immediately. A congressional solution should be reached before other litigative process now underway has reached its ultimate conclusion, especially in light of the fact that this is potentially the most complex litigation ever brought in the federal courts with social and economic impacts without precedent and incredible potential litigation costs to all parties.
Implicit in this memorandum is the fact that the Federal Government itself should recognize its responsibility to the citizens of Maine who now find the title to their land, and title to the land of the companies where they work, thrown in question by the Federal Government's alleged failure to assume its responsibilities to the Indian tribes nearly 180 years ago.
The legislation which Senator MUSKIE and I are proposing, and which will be introduced on the House side today as well, can initiate the congressional review recommended by the Justice Department. It is not intended to be the only approach, but the effect of limiting the available remedy to monetary damages would remove the possibility of any cloud on title to land which might arise during the course of any litigation regarding aboriginal title rights. In light of the historical context of this case, this would make available an adequate and fair remedy.
In recent developments, the Justice Department has filed a second memorandum with the district court which indicates a reduction in the scope of the claims for the return of land from approximately 60 percent of the State to up to 40 percent. In addition, Justice indicated the return of land of individual homeowners and in heavily populated coastal areas would not be sought if a satisfactory monetary remedy were devised. Finally, a special representative is to be appointed to assist in initiating a legislative solution.
I welcome this narrowing of the claims, and am pleased by the administration's recognition of the need for a speedy resolution of this case. Congressional action is still needed, however, and this legislation can be a vehicle for full congressional study and consideration of the issues involved in this case. It is not intended to be a judgment on the legal merits one way or the other; it is, however, a recognition that there are other considerations which demand to be taken into account. The most significant of these is the potential economic disruption and confusion in the State of Maine which might result from the mere pendency of the litigation, regardless of the merits of the claim. These potential collateral consequences justify congressional action on this matter and I recommend that this issue quickly receive the attention of my colleagues.
At this time, I ask unanimous consent that the bill be printed in the RECORD as well as several documents which I feel will more fully explain the nature and status of this issue.
There being no objection, the bill and material were ordered to be printed in the RECORD, as follows:
S. 842
Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled, that this Act may be cited as the "State of Maine Aboriginal Claims Act of 1977.
DECLARATION OF FINDINGS
Sec. 2. Congress finds and declares that—
(1) there are currently pending aboriginal land claims by the Passamaquoddy and Penobscot Indian Tribes of the State of Maine which may involve over 40 percent of the land area of the State of Maine and which may result in a cloud on the title of the potentially affected land areas;
(2) these aboriginal land claims were presumed extinguished by conquest, abandonment or by treaties entered into in the late eighteenth and early nineteenth centuries;
(3) the mere pendency of these claims for the return of aboriginal lands may result in irreparable damage and substantial adverse consequences for the State of Maine and its citizens which consequences are disproportionate to the ultimate resolution of the litigation;
(4) while the legal basis for the claims rests in large part on the alleged failure of the Federal Government to carry out its trust responsibility to the Passamaquoddy and Penobscot Indian Tribes, the burden of the claims falls upon the State of Maine and present day good faith titleholders in the State of Maine;
(5) a monetary remedy, if any, shall be the exclusive remedy available for any claims arising out of or based upon any claims of violation of aboriginal title rights which may be brought by the Passamaquoddy or Penobscot Indian Tribes; and
(6) no provision of this Act shall be construed as replacing or diminishing any right, privilege, or obligation of members of the Passamaquoddy or Penobscot Indian Tribes as citizens of the United States or of the State of Maine, or relieving, replacing, or diminishing any obligation of the United States or of the State of Maine to protect and promote the rights or welfare of the members of these Tribes as citizens of the United States or of the State of Maine.
DECLARATION OF TITLE EXTINGUISHMENT
SEC. 3. (a) To the extent, if any, that the Passamaquoddy or Penobscot Indian Tribes held aboriginal title to or interests in lands or waters, or both, in the area now comprising the State of Maine, the Congress hereby recognizes all prior conveyances of such title and interests from such Indian Tribes to the State of Maine and its predecessor in interest, the Commonwealth of Massachusetts, and deems all such title and interests to have been extinguished as of the date of such conveyances.
(b) Any relief which may hereafter be granted as a result of any claims arising out of or based upon the alleged wrongful loss of aboriginal title rights in the State of Maine by the Passamaquoddy and Penobscot Indian Tribes shall be limited to monetary damages which shall be the exclusive remedy available for any such claim.
SEC. 4. Notwithstanding any other provision of law, any action brought in any district court other than the United States District Court for the District of Maine shall be transferred to that Court immediately upon a determination that the action involved the construction, application or constitutionality of this Act. The United States District Court for the District of Maine shall have the duty to expedite to the greatest extent possible the disposition of the issue of such construction, application, or constitutionality and a decision of the District Court of that issue shall be deemed to be a final order for purposes of review.
SEC. 5. If any section of this Act, or any portion thereof, or any particular application thereof is held invalid, the remainder of the Act, and any application of this Act not held invalid, shall not be affected thereby.
STATE OF MAINE, DEPARTMENT OF THE ATTORNEY GENERAL,
Augusta, Maine,
February 18, 1977.
To the Members of the Maine Legislature:
The purpose of this letter is to advise you and the people of the State on the status of the land claims being asserted by the Penobscot and Passamaquoddy Tribes. In order to keep you abreast of developments in the case, this letter will also set forth briefly our analysis of the claims and the reasons for our continuing assertion that the State and its citizens will prevail in any lawsuit.
I. THE BACKGROUND OF THE CASE
The claims arise under the so-called Indian Non-Intercourse Act. That Act, originally passed by Congress in 1790, provides that no one may obtain title to Indian land without the approval of Congress. In 1972, the Passamaquoddy Tribe asked the United States Department of Interior to bring suit against the State of Maine under the Non-Intercourse Act. The Department of Interior refused on the grounds that it owed no trust obligation to the Tribe, and the Tribe sued the Federal Government challenging that refusal. Shortly after suing the United States Government the Tribe obtained a court order requiring the United States to sue Maine, so that the statute of limitations might not run out on the Tribes' claims. These suits, one on behalf of the Passamaquoddies and one on behalf of the Penobscots, seek only monetary damages in the total amount of $300 million. They do not seek return of land.
In 1974 the United States District Court issued a decision in the Tribe's suit against the United States holding that the Non-Intercourse Act created a trust responsibility upon the United States to protect the Tribe's interest.
In late 1975 the Court of Appeals affirmed the decision of the District Court but specifically qualified its opinion to make clear that,
(1) It was not ruling on the applicability of the Act to the Indian transactions in Maine, and
(2) It was leaving open the question of whether, even if the Act did apply, Congress or the Tribes might be deemed to have acted in a fashion to make the land transactions legal.
The Court noted: "Whether, even if there is a trust relationship with the Passamaquoddies, the United States has an affirmative duty to sue Maine on the Tribe's behalf is a separate issue not raised or decided below and which we consequently do not decide."
"In reviewing the district court's decision that the Tribe is a tribe within the meaning of the Nonintercourse Act, we are not to be deemed as settling, by implication or otherwise, whether the act affords relief from, or even extends to, the Tribe's land transactions in Maine. When and if specific transactions are litigated, new facts and legal and equitable considerations may well appear, and Maine should be free in any such future litigation to defend broadly, even to the extent of arguing positions and theories which overlap considerably those treated here."
"In so ruling on the existence of a trust relationship, we do not foreclose later consideration of whether Congress or the Tribe should be deemed in some manner to have acquiesced in, or Congress to have ratified, the Tribe's land transactions in Maine."
For the last year the United States Government has been evaluating the history of the land transactions in Maine in order to determine whether it should bring suit on behalf of the Tribe.
The Department of Interior, under the former Administration, has recently made a tentative recommendation to the Department of Justice that suit be brought on behalf of both the Passamaquoddy and Penobscot Tribes. The Interior Department's recommendation included the suggestion that the suit include a claim which if maintained could cause 350,600 residents in the claim area to be ejected from their homes and properties. The Justice Department is considering this tentative request. The Justice Department is now subject to a court order that requires it to advise the Court and the State by March 1 whether it will proceed with the suit and if so, against whom and for what. There is now a possibility that this deadline may be extended to June 1.
II THE NATURE OF THE CLAIM
The two Tribes claim that Maine, and its predecessor state, Massachusetts, acquired about 12,500,000 acres from the Tribes after 1790 without Congressional approval. The principal transactions on which the Tribes base their claim are agreements with the Passamaquoddies in 1794, treaties with the Penobscots in 1798 and 1818, a purchase of Penobscot land in 1833 and other numerous small purchases, easements, road constructions and the like in and through tribal land. The Tribes claim the Non-Intercourse Act entitles them to return of all the land and to $25 billion in money damages for trespass for the intervening years.
The boundaries of the claim area are still imprecise. Neither the Tribe nor the Federal Government has ever clearly delineated its outline. It may even be that the claim, if ever made, will be for much less than 12 million acres. Nevertheless, the magnitude of the potential claim is enormous. As we presently understand it, it encompasses roughly all land in and to the east of the Penobscot River watershed. The northerly boundary is very vague but may run roughly as far as an eastwest line midway through Aroostook County. Until the Tribes define the claim area more precisely, these dimensions are mere approximation.
III. OUR EVALUATION OF THE CASE
We firmly believe that the Indians will not be successful in their claim. We assert that view after careful historical and legal analysis, and without equivocation. There are several reasons for our opinion.
A. History
An examination of the historical record clearly indicates that in 1790, the operative date of the Non-Intercourse Act, neither the Penobscots nor Passamaquoddy had any legal claim to land in Maine.
In 1755 the French-Indian Wars were underway, The Province of Massachusetts declared war on the Penobscot and Passamaquoddy Tribes that year. By 1759 the war in Maine had come to an end. That year Governor Thomas Pownal travelled up the Penobscot and issued a proclamation declaring that the land of the Penobscot and their allies the Passamaquoddy, had been lost through conquest by Massachusetts. This act of Conquest was subsequently acknowledged by both tribes in various documents in 1760 and later. Although the Tribes continued to occupy some lands in Maine, then eastern Massachusetts, they did so at the sufferance of Massachusetts, the Tribes having lost any right of aboriginal possession.
In 1775 as a result of the so-called Watertown Agreement, Massachusetts agreed to set aside some land for hunting and fishing for the Penobscots in return for their help in the Revolutionary War. The land set aside for theTribe consisted of a strip 6 miles wide and 6 miles long in the area either side of the Penobscot River at the head of tide (roughly Bangor). These hunting and fishing rights were given to the Tribes probably in return for the Tribe's assistance in the Revolution. Massachusetts continued to take the position that the Tribe had no legal right to occupy lands, having lost the same through conquest by Pownal in 1759.
The position of the State of Massachusetts found support from the early federal government. In 1783 John Jay, John Adams and Benjamin Franklin relied on Pownal's declaration of conquest in negotiating the terms of the treaty to end the Revolutionary war with Britain. While discussing the terms of the treaty with Great Britain in Paris, a dispute arose as to the easterly boundary of the United States and Canada. The British argued for the Penobscot River as the boundary; the Americans for the St. Croix River. Adams produced Pownal's 1759 document as evidence of Massachusetts' victory in the French-Indian War, thereby establishing Massachusetts' possession of all the lands in Maine. The American view of the boundary prevailed. The United States negotiators thus relied on the truth of Pownal's declaration of conquest in important international dealings.
In the early 1780's the Penobscots asserted to Massachusetts a claim to their former lands. In 1784 the Massachusetts Legislature appointed commissioners to investigate the Penobscots claim. The commissioners, including General Henry Knox, reported that the Tribe had lost their lands in 1759 and that the Watertown Agreement at best gave to the Penobscots the right to hunt and fish on some lands but did not give to the Tribes any title to land. However, Massachusetts decided as a matter of equity to set aside some lands for the exclusive use of the Penobscots.
Acting on this recommendation negotiations were begun in 1786 and an agreement in principle was made permanently granting to the Indians essentially the lands covered by the Watertown Agreement.
After agreeing in principle to this resolution of their claim, the Penobscots refused to sign it for 10 years despite repeated statements by representatives of Massachusetts that unless the Tribe agreed to the proposal, they would have no lands at all. In 1796 the agreement of 1786 was finally signed by both the State of Massachusetts and the Penobscots. Although the 1796 agreement contained language in which the Tribe appeared to relinquish their lands to Massachusetts, in reality the 1796 agreement constituted a land grant by Massachusetts to the Penobscots. The language in the agreement relinquishing their claims was included to make it clear that the agreement was designed to finally resolve a long standing dispute between Massachusetts and the Penobscots.
The relationship between Massachusetts and the Passamaquoddy was similar. Like the Penobscots, the Passamaquoddy had no lands in 1790 because of the outcome of the French-Indian War. They acknowledged their landless status in the 1760's and as late as 1792 when they wrote to the Massachusetts Legislature asking for a land preserve. Acting at the request of the Passamaquoddy and presumably out of a sense of debt to that Tribe for their aid in the Revolution, Massachusetts in 1794 made a grant to the Tribe in the form of a treaty setting aside 23,000 acres for the Passamaquoddy and other Tribes. Like the agreement with the Penobscots, the agreement with the Passamaquoddy was a land grant by the State and not a vehicle to obtain lands from the Tribe.
Of course, the details of these transactions and the events leading up to them are considerably more complex than this summary. In brief, however, the historical facts clearly indicate that the transactions after 1790 were grants of lands to the Tribes, not acquisitions from them. While the lands granted in 1794 and 1796 were subsequently sold or otherwise transferred by the Tribe to others, the nature of the title acquired by the Tribe from Massachusetts was not covered by the Non-Intercourse Act.
B. Applicability of the Non-Intercourse Act
As we noted above, the opinion of the Court of Appeals makes it clear that the question of the application of the Act to Maine is unresolved. Research done as of this date by our historians, indicates quite clearly that Congress never intended the Act to apply to New England. We believe our interpretation is supported by, among other things, the following facts.
The Non-Intercourse Act and its predecessor, the Indian Ordinance of 1786, were largely the product of the efforts of Henry Knox of Massachusetts. Knox was Secretary of War from 1784 through 1794 with primary federal responsibility for Indian Affairs. Knox's various communications about the Acts indicate that he never intended the act to apply to Indians within any of the States. Moreover, the administrative framework under both acts indicates that Congress never intended to apply the Act to the States. Under both Acts, Congress established administrative structures to supervise Indian Affairs but never created a division within the government to supervise Eastern Indians. Indeed, the last federal Eastern Indian agency was closed in 1783 at the request of Massachusetts.
Interestingly enough Henry Knox himself purchased 3,000,000 acres of land from Massachusetts in 1791 and 1793 in the area now claimed by both Tribes. Unless one is to assert that Knox was acting illegally, an assertion wholly unsupported by Knox's distinguished record of public service, one can only conclude that Knox correctly believed that the land he purchased did not belong to any Tribe and that the Non-Intercourse Act did not apply in any event.
Reports of the War Department in the early 1800's demonstrate that the Department knew of the New England Indians, including the Passamaquoddy and Penobscot, knew of their relationship to the States, so advised Congress. Debates in Congress in the early 1830's over Indian legislation again confirm that Congress knew that the Act was never applied to New England. When a modified version of the Act was considered in 1834, the Congressional Committee Report states that its intent was "to continue" the policy of the earlier Acts to apply the Act to Indians "not within any state." Reports to the Congress of various Secretaries of War and President Andrew Jackson also make it clear that the Executive branch never interpreted the Act as applying to New England. We have found no evidence that Congress ever expressed any disapproval of such interpretation.
These facts and other items of legislative history have led us to the conclusion that the Non-Intercourse Act was never intended to apply to tribes within the original 13 colonies. We think it clear that the interpretation, when brought to the attention of the Court, will prevail.
C. The Admission of Maine to the Union
In 1820 Maine separated from Massachusetts and was admitted to the Union as a separate State. Both the Maine Act of Separation and the Maine Constitution refer to Indians and require Maine to assume all obligations of Massachusetts to the Indians from the earlier treaties. In considering the admission of Maine, the Acts of Separation enacted by Massachusetts and the proposed Maine Constitution were read in the United States Senate. The preamble of the Act admitting Maine to the Union specifically refers to the Act of Separation and the Maine Constitution. Clearly Congress was on notice that (1) there were Indians in Maine and (2) Massachusetts had treaties with these Indians.
We have examined United States Supreme Court decisions dealing with the legal significance of the admission of a State to the Union, including, for example, the admission of West Virginia and Kentucky. In those cases, the Supreme Court made it clear that in admitting a new state to the Union, Congress was deemed to consent to the terms of the compacts between the new State and the old State. We think the principle of those cases is equally true here. Even if we go so far as to assume that the Indians in Maine lost their land in Maine after 1790 without immediate federal approval and even if we assume that the Non-Intercourse Act applied to New England Indians, it seems clear that in admitting Maine to the Union in 1820 Congress approved all the treaties up to then.
The suggestion that Congress might have overlooked the Indian issue in admitting Maine is a specious one. In 1819 Congress, when debating the admission of Alabama discussed at great length the jurisdiction of Alabama over Indians. Ultimately Congress admitted Alabama but with special conditions regarding Indians. In considering Maine's admission a year later, and despite being on notice regarding the Indians in Massachusetts and Maine, there was not even any debate on the subject of Indians.
D. Implied Federal approval by the executive branch of the United States Government
In addition to all the above, there is case law to support the proposition that the actions of Congress and the Executive branch can constitute ratification of all the transactions between the Tribes, the State, and private citizens. A brief recitation of the types of federal transactions in Maine involving land in the claim area include federal acquisition of park lands, military bases, harbor facilities, post offices and federal loans and grants for highways, urban renewal, Farmers Home Administration loans, Small Business Administration loans, pollution control facilities and the like. In all those instances land was involved. In none of those instances has the federal government ever paid any money to a Tribe in acquiring land for federal use nor has it required the recipient of a federal loan, grant or mortgage guarantee to obtain a release from the Tribe. In short, for 157 years the United States has acted consistently as if the Non-Indian occupants of the land had good and valid title and possession. We believe that as a matter of law this indicates federal agreement with our entire posture in this case.
E. Other legal issues
In addition to all the foregoing there are of course many other defenses too numerous and detailed to set forth here. Not only are there other defenses but there are what we believe to be valid claims that we can, and of course will, assert against the Tribe, the United States and Massachusetts. Indeed Massachusetts' financial stake in this claim is as big as the State of Maine's, since if there was any illegal act it related back to Massachusetts prior to 1820.
Of course, the summary set forth above is only a summary of our continuing legal and historical research. The research and facts cannot be set forth in full herein, because it would be far too lengthy. The above explanation should, however, adequately explain our assessment of the case.
IV. NEGOTIATION OR LEGISLATION
In spite of the fact that the outcome of the case seems abundantly clear, the mere pendency of a threatened claim of this size has had enormous impact on Maine. No municipal bonds have been sold in the claim area since early 1976. Whether or not forthcoming State and local bonds will be sold will soon be tested. Residential real estate transactions have continued but some large developments have been delayed principally because title insurance is not available.
Because of the economic problems created by the pending claims, some people have suggested that we should negotiate with the Tribes. Some people have suggested that since the United States owes the American Indian a moral debt Maine ought to negotiate this claim. Finally, other people who have been concerned about the strength of our legal case have suggested negotiations. I understand these views but respectfully disagree.
The only purpose that I can see in negotiations would be to discuss the possible payment of State lands or monies to the Tribe. I believe it would be wrong to compromise this claim in that way. I believe it would be wrong to settle a case about which we feel so strongly simply because the Tribes, backed by the resources of the Federal Government, are in a position to bring great financial pressure to bear on the State.
Although I am not willing to negotiate away State land or money, I am willing to discuss with the Tribes or any other person any proposal that might permit the Tribes to pursue their claim in Court without causing the State financial distress. Governor Longley and I have for several months urged enactment of federal legislation to that end. The legislation we have proposed and which has now been endorsed by our Congressional delegation, would validate current titles and permit the Tribes to sue the Federal Government for money damages. Thus far the Tribes have rejected this proposal, but have offered no alternative.
I think it is important to recognize that the claim being asserted by the Tribes involves two significantly different issues. On the one hand, there is a legal claim being asserted by the Tribes against the State and its residents. On the other hand, there is the question of whether or not this nation owes a moral debt to its Native Americans regardless of any legal claim that they might have. The two questions ought not to become confused. I believe that it would be perfectly proper for the United States Congress and the nation as a whole to resolve once and for all the question of whether or not there is some longstanding unpaid national debt to the Native Americans, including the Tribes of Maine. That question, however, is a distinctly different one than the question posed by this lawsuit. While I think it would be perfectly proper for Congress to address the moral question, I do not believe that moral problem can be resolved in the context of this lawsuit.
The record of this country in its dealing with Indians is not a proud one. But I would suggest that, while not perfect, the State of Maine has made great strides in the last 10 years in trying to correct economic disparities and social injustices that may have existed in the State of Maine with respect to native Americans. Over the years, the State of Maine has given millions of dollars in benefits to the Maine Tribes. The State currently provides the Maine Indians social welfare benefits that are more than $2,000 per family of four in excess of similar benefits given to non-Indian poor. The State makes educational expenditures for Indian children that are twice the expenditures made for the average non-Indian child. The State of Maine was the first state in the country to create a Department of Indian Affairs. Tribal housing authorities are funded by and the bonds underwritten by the full faith and credit of the State of Maine. So far as we know, Maine is one of the few states in the country to provide benefits to Indians of this size and diversity.
Furthermore, the State has in the last 10 years repeatedly joined with the Maine Tribes in seeking federal recognition and federal benefits for the tribes. Despite the mammoth problems created by the pending claims, I have heard no state official suggest that these programs be discontinued or that there be any form of retaliation against the tribes. All of those considerations must be weighed in any determination of whether indeed there is any unpaid moral debt to the tribes.
In any event, as I stated above, the moral question is a wholly separate one from the legal issues posed by the pending litigation. I firmly believe that it would be wrong for the State of Maine to give in to the pressures of the litigation and to give state lands or monies to the Tribes to settle these suits. I believe the legal issues should be settled in a court of law.
Sincerely,
JOSEPH E. BRENNAN,
Attorney General.[District of Maine, Northern Division]
(United States of America, Plaintiff, v. The State of Maine, Defendant, Civil No. 1966ND; United States of America, Plaintiff, v. The State of Maine, Defendant, Civil No. 1969ND)
PLAINTIFF'S MOTION FOR ENLARGEMENT OF TIME
The plaintiff moves for an enlargement of time until March 1, 1977, within which to report to the Court whether it intends to continue prosecution of the pending protective actions filed in this Court by the United States on behalf of the Passamaquoddy Tribe and the Penobscot Nation against the State of Maine. The reasons for this motion are set forth in the accompanying memorandum.
Respectfully submitted,
PETER R. TAFT, Assistant Attorney General.
PETER MILLS, United States Attorney.
MEMORANDUM IN SUPPORT OF PLAINTIFF'S MOTION FOR FURTHER EXTENSION OF TIME TO REPORT TO THE COURT
Pursuant to the Order Amending Report of Combined Conference of Council and Order dated October 27, 1976, plaintiff provides the following report and seeks a further extension of time until March 1, 1977, within which to provide more specific information to the Court on plaintiff's proposed course of action in the above captioned actions.
On January 11, 1977, the Department of Justice received from the Department of the Interior final draft litigation reports and recommendations concerning claims to be asserted on behalf of the Passamaquoddy and Penobscot Tribes in the State of Maine. The litigation reports are supplemented by very substantial historical and documentary materials and summaries of expert opinions. Portions of the research necessary to particularize claims are still being conducted by the Department of the Interior and will be forwarded to the Department of Justice when complete in the near future.
The Department of Justice is obligated in its capacity as counsel for the United States to conduct an independent review of the law and facts submitted and to make an independent judgment as to the scope and content of any causes of action asserted in the above captioned cases. In view of the very short time Justice has had to review the litigation reports and supportive materials, it is not now in a position to make a final determination on the form, scope or content of causes of action to be asserted. However, the Department does assure the Court that the judgment will be made in accord with the intent and directives of the opinion of the First Circuit Court of Appeals in Joint Tribal Council of Passamaquoddy Tribe v. Morton, 522 F.2d $ 70 (1st cir. 1975) .
The Department of Justice is proceeding at utmost speed to complete its review. At the same time both the Department of Justice and the Department of the Interior are proceeding without delay to establish the mechanics required to effectuate the filing of any such potential actions against relevant defendants by July 18, 1977, the date on which the statute of limitations expires for seeking damage claims pursuant to 28 U.S.C. 2415.
The purpose in seeking an extension to March 1, 1977, to make a more particularized report to the Court is twofold: First, the foregoing is an accurate summary of the current status of the activities of the Department of Justice and Department of the Interior in arriving at their ultimate litigation decisions.
Second, this issue has come to fruition at the time of a change in Administration which has several impacts on the decision making process. The litigation reports delivered to the Department of Justice are designated as "Final Draft Report." As indicated by cover letter from the current Solicitor of the Department of the Interior, it was his best judgment that the new Administration at the Department of the Interior taking office on January 20, 1977, should have an opportunity for a final review before its recommendations are made final since the new Administration will have to oversee both the policy and content of continuing activities in these cases.
However, equally important is the need for concurrent Congressional activity dealing with the merits of the claims presented in these cases. Resolution of the claims by Congress should not await the conduct of litigation in these cases.
The reasons are that litigation cannot lead to an equitable resolution of the claims involved with respect to all potential parties in these actions and further, even if conducted to its conclusion, successful litigation would still require Congressional resolution of the results obtained.
As is clear from the Court of Appeals' opinion in Passamaquoddy v. Morton, supra, the parties to this action proceeded in good faith for 176 years based on a misinterpretation of the status of Eastern Indian tribes and the applicability of the Nonintercourse Act of 1790. During that period, people of the State of Maine have acted largely in good faith in handling real estate transactions, investing their funds, and improving their property with the reasonable expectation that their titles were as secure as in any other state of the Union. Because of the unusual context and historical circumstances of this case, if the United States were successful in asserting claims on behalf of the tribes to possession of large tracts of property in the State of Maine, as well as trespass damages up to the time of recovery of possession, we would be in a unique situation. In solving an injustice imposed upon the Indian tribes in the State of Maine, we would be placing substantial hardship on innocent parties, including in part the State of Maine itself which was not even in existence during the period that many transactions were made in violation of the Nonintercourse Act. Only a Congressional resolution of the Indian tribe claims can correct the injustice to the tribes in question without committing new hardships on other citizens of the State of Maine.
However, an even more compelling reason for the need for Congressional involvement is that litigation cannot ultimately resolve the claims in question. As the Court of Appeals stated in Passamaquoddy v. Morton, supra, the purpose and intent of the Nonintercourse Act of 1790 as amended was to "acknowledge and guarantee the Indian tribes' right of occupancy" to their lands. However, a second purpose of the Nonintercourse Act is to preserve for Congressional action the resolution of Indian rights which have never before been made subject to settlement. Assuming the United States were successful in regaining possession on behalf of the Maine tribes to those lands over which the tribes exercised a right of use and occupancy in 1790, further Congressional action would still be necessary. A substantial portion of the claims involve only the right of use and occupancy, or aboriginal title. Such title is a unique interest in land. The peculiar nature of this title is defined by the Supreme Court in United States v. Santa Fe Pacific R. Co., 314 U.S. 339 (1941); see also Tee-Hit-Ton Indians v. United States, 348 U.S. 272 (1954), It is a right the sovereign protects against third parties, a policy reflected in the Nonintercourse Act, but as between itself and the tribe, the sovereign can treat such title as it sees fit. Thus, upon recovery of possession in the instant litigation, Congress would still have the power to settle the possessory interest. This is not to indicate that Congress would act arbitrarily. Nonetheless, this doctrine makes clear that litigation cannot solve finally all aspects of the dispute presented. As the Supreme Court stated in United States v. Santa Fe Pacific R. Co., 314 U.S. at 347, the ultimate resolution of aboriginal title as between Indian tribes and the United States raises "political, not justiciable, issues."
Since Congress must eventually become involved in settlement of the ultimate issues, it would be in the interest of justice that it become involved immediately. A Congressional solution should be reached before the litigative process now underway has reached its ultimate conclusion, especially in light of the fact that this is potentially the most complex litigation ever brought in the federal courts with social and economic impacts without precedent and incredible potential litigation costs to all parties. In the past, Congress has successfully proposed and arrived at solutions to Indian claims equitable to all involved. The Indian Claims Act of 1946, the Alaska Native Claims Settlement Act of 1971, the Pueblo Lands Board Act of 1924, each indicates the ability of Congress to fashion solutions meeting the unique factors involved in each set of meritorious claims. The Carter Administration in transition has communicated with the Department of Justice and stated that it wishes to review these issues to determine if it believes it appropriate to assist Congress in any way with its task. An extension to March 1, 1977, will permit time for Congress and the new Administration to determine if they wish to seek a Congressional solution which would proceed concurrently with the litigative process with the objective of ultimately mooting these cases. Such delay, however, will in no way slow down the Department of Justice review and decision on litigation.
For the foregoing reasons, plaintiff respectfully requests this Court for an extension of time to March 1, 1977, to report specific proposals for the future progress of the above captioned cases,
Respectfully submitted,
PETER H. TAFT,
Assistant Attorney General.
PETER MILLS, United States Attorney.
[District of Maine Northern Division]
(United States of America, Plaintiff T. The State of Maine, Defendant, Civil No. 1966–ND; United States of America, Plaintiff v. The State of Maine, Defendant, Civil No. 1969–ND)
PLAINTIFF'S MOTION FOR ENLARGEMENT OF TIME
The plaintiff moves for an enlargement of time until June 1, 1977, within which to report to the Court on the status of its preparations with respect to the pending actions filed in this Court by the United States on behalf of the Passamaquoddy Tribe and Penobscot Nation against the State of Maine. The reasons for this motion are set forth in the accompanying memorandum.
Respectfully submitted,
PETER R. TAFT,
Assistant Attorney General.
PETER MILLS,
United States Attorney.
MEMORANDUM IN SUPPORT OF PLAINTIFF'S MOTION FOR FURTHER EXTENSION OF TIME TO REPORT TO THE COURT
I. Introduction
Pursuant to the court's order of January 17, 1977, plaintiff seeks a further extension of time until June 1,
1977, within which to report to the court regarding particular steps to be taken in the further
prosecution of the above entitled actions. There are two basic reasons for the extension. First, an
extension is necessary to enable plaintiff to adequately prepare proposed claims discussed
herein and to coordinate them with other claims against major landholders in the affected areas. While
substantial work has been completed, additional work is required.
Second, the President has announced that in response to the request of the Maine Congressional delegation he is appointing a special representative to help the parties reach an amicable settlement for submission to Congress. The extension of time is necessary to allow all parties to engage in meaningful settlement talks and to permit Congress sufficient time to adopt any agreement reached. As stated in our memorandum of January 14, 1977; only Congress can correct past injustice to the tribes without causing new hardship to other citizens of Maine. We therefore fully support and endorse the settlement process. On the other hand, if it proves unsuccessful, we have no choice but to proceed with the litigative course outlined herein.
II. Summary of new status
In final draft litigation reports forwarded to the Department of Justice on January 11, 1977, the Department of the Interior requested the initiation of litigation on behalf of the Penobscot and Passamaquoddy Tribes for possession and trespass damages for lands in certain defined watersheds in Maine. These lands included areas used and occupied by the tribes as of 1790; they also included other areas mostly along the coast where lands were settled by, or land granted to, non-Indians as of 1790. These coastal areas remain the most heavily populated at the current time.
In the interim since January 11, 1977, certain agreements have been arrived at with the Penobscot and Passamaquoddy Tribes. In accord with these agreements, the Department of the Interior has modified its request to the Department of Justice for the initiation of litigation in its final litigation reports. Subject to conditions hereinafter set forth, the Interior Department limits its request for litigation to a possession and trespass damage claim for those lands actually used and occupied by the Penobscot and Passamaquoddy Tribes.as of 1790. This omits the coastal areas settled and land granted as of 1790.
In the interim since January 11, 1977, the Department of Justice has conducted an independent review of the laws and facts submitted and made an independent judgment as to the scope and content of any causes of action. We have reviewed all materials previously submitted and have conducted independent research of documentary evidence in the Archives of the United States and elsewhere. Additionally, we met with anthropologists and ethnohistorians knowledgeable with the tribes and their traditional use and occupancy of land in the latter half of the Eighteenth Century.
Based on this review and the modified litigation request from the Department of the Interior, the Department of Justice has concluded that a valid cause of action exists for possession and trespass damages for those lands actually used and occupied by the Penobscot and Passamaquoddy Tribes asof 1790, and thereafter taken from them in violation of the Trade and Intercourse Act of 1790, as amended.
The modified request from Interior and the cause of action Justice has agreed to pursue modifies the claim areas. As to certain portions of that area, we have fully satisfied ourselves as to actual use and occupancy by the tribes in question as of 1790. As to other portions, we have concluded that additional evidence is necessary to assure ourselves of the tribes'claim and the necessary studies are commencing forthwith. The modified claim area is as follows.
Modified Claim Area
We have concluded that a valid cause of action on behalf of the Penobscot Tribe encompasses all those lands lying in the Penobscot River watershed above the ancient head of the tide, a point north of Eddington, Maine, to the head of the river. Based on the outcome of further study this cause of action may also include those portions, if any, of the eastern shore of Moosehead Lake and the St. John River watershed west of Houlton, Presque Isle and Caribou which the tribe actually used and occupied in 1790, excluding, however, those lands in the St. John River watershed under treaty deeds confirmed pursuant to Article 4 of the Webster-Ashburton Act of 1842.
We have concluded that a valid cause of action on behalf of the Passamaquoddy Tribe encompasses all those lands lying within the upper St. Croix River watershed beginning north of Baring Plantation. Based on the outcome of further study this cause of action may also include those portions, if any, of the upper watersheds of the Machias and Dennys Rivers which the tribe actually used and occupied as of 1790.
Tribes Offer to Exclude Homeowners and Small Property Owners Within the Modified Claim Area
The Penobscot and Passamaquoddy Tribes had indicated their intention not to pursue, and to request Justice not to pursue, any remedy for land or damages against any homeowner or other small property owner in the modified claim area if they can substitute a satisfactory monetary claim against an appropriate sovereign body for the full value of such claims. The Department of the Interior intends to assist them in developing a legislative package substituting such a monetary claim and to support them in obtaining passage of appropriate legislation. We will honor that offer.
Coastal Areas Excluded
The Department of the Interior, in its litigation report, has specifically requested that the Department of Justice omit all claims for possession of land or damages for the coastal areas which had been substantially settled by non-Indians and land which had been granted prior to 1790, the date of passage of the first Trade and Intercourse Act. As a result, coastal areas which are presently the most densely populated portions of the original claim area will not be involved in any litigation to be initiated by the United States. In lieu thereof, the tribes and the Department of the Interior have agreed to seek an alternative legislative solution with respect to these coastal areas.
Appointment of a Special Representative of the President
The White House has announced that the President will shortly name a special representative to assist the parties in reaching a settlement to these claims. When that person is designated, it is contemplated that efforts will be underway immediately to open discussions which hopefully will lead to an out-of-court solution. The Department of Justice fully supports these efforts. As a consequence, and if approved by the courts, we propose to take no further steps in this or related litigation before June 1, 1977, so as not to interfere with the settlement process. We suggest to the court that it would be appropriate to continue the stay against further activities in the above captioned actions through June 1, 1977, for this same purpose.
Basis of Claim
The claim on behalf of the Penobscot and Passamaquoddy Tribes discussed in the previous section is predicated on the tribes aboriginal use and occupancy of the lands in the claim area as of 1790.
Aboriginal title, the basis of the claims proposed by Interior, is a factual matter to be proved at trial. United States v. Santa Fe Pacific R. Co., 314 U.S. 339 (1941). Proof of aboriginal title is established by a showing of actual, exclusive, and continuous use and occupancy of lands for a long period of time. Sac and Fox Tribe v. United States, 315 F.2d896, 903 (Ct. Cl. 1963), cert. denied, 375 U.S. 921 (1963). Use and occupancy is determined by reference to the way of life, habits, customs, and usages of the Indians. Sac and Fox Tribe v. United States, 383 F.2d 992, (Ct. Cl. 1967). And it has been held that "the 'use and occupancy' essential to the recognition of Indian title does not demand actual possession of the land, but may derive through intermittent contacts [citations] which define some general boundaries of the occupied land ..." United States v. Seminole Indians, 180 Ct. Cl. 375, 385 (1967) (emphasis in original).
The Nature of Tribal Usage of Claimed Area
Penobscot Indians were riverine oriented so that the territorial boundaries used and occupied by them were generally defined by the watersheds (or parts thereof) of the rivers so used. This, also, dictated how they would live, hunt, fish, and gather berries for subsistence.
Briefly, their traditional mode of land use was that they had a series of core villages near and above the head of the tide. From these core villages they would conduct their hunting, fishing, trapping and berry picking expeditions. Dividing their time somewhat regularly, they spent the summer months in the lower coast or saltwater region, then ascended the river to hunting territories for the fall hunting and finally returned to their core villages for the dead of winter.
The early spring months were spent drifting down toward the ocean and hunting and fishing through the Penobscot River and neighboring streams. As non-Indians settled in the coastal regions, Indian reliance on the coast for subsistence was diminished. On the other hand, their use of the upper watershed intensified both for subsistence and development of the fur trade with non-Indians.
The Passamaquoddy Tribe's use and occupancy of land was essentially the game as the Penobscot's. They were also riverine oriented, and they used and occupied lands in the St. Croix, Dennys and Machias watersheds. The Passamaquoddies had their core villages along the coast. Their use pattern was to spend the spring and summer along the coast berrying and fishing. In the fall and winter they went inland to hunt and trap, returning to their core villages in the spring.
Settlement by non-Indians tended to interfere more with their core villages than with the Penobscots, but their use of the upper watersheds was the same.
This was essentially the state of affairs as of 1790, with Indian use and occupancy extant in the modified claim area. In 1790, the first Non-Intercourse Act was passed with respect to Indian land which provided in relevant part:
"No purchase, grant, lease or other conveyance of lands or of any title or claim thereto; from any Indian nation or tribe of Indians, shall be of any validity in law or equity, unless the same be made by treaty or convention entered into pursuant to the Constitution."
The First Circuit Court of Appeals held in Joint Tribal Council of the Passamaquoddy Tribe v. Morton, 528 F.2d 370 (CA. 1, 1975) that this statute created a trust responsibility on the part of the United States to protect Indian rights under this statute and specifically described the duty as follows:
"The purpose of the Act has been held to acknowledge and guarantee the Indian tribes' right of occupancy ... and clearly there can be no meaningful guarantee without a corresponding federal duty to investigate and take such action as may be warranted by the circumstances." 528 F.2d at 379.
The Department of Interior has interpreted this responsibility to require a suit for possession and trespass damages and we agree.
It has been asserted that the Trade and Intercourse Acts did not apply to land transactions entered in between tribes and states if those actions occurred east of a line defining the boundaries of Indian country or if the state involved was one of the original colonies. Such contentions are inconsistent with the plain language of the Non-Intercourse Acts and contrary to well-settled law.
Dealings in tribal lands must be placed in a constitutional context. As pointed out infra, the right to extinguish Indian occupancy rights resides only with the sovereign. The traditional mode for such transactions at that time was by treaty, recognizing the limited sovereign rights of the tribes.
In accord therewith, the Commerce Clause of the Constitution relegated the right to deal with Indian tribes to the United States, and Article I, § 10 abolished the right of States to enter into treaties. In this context, the statutory provisions dealing with land transactions must necessarily be viewed in a geographically unlimited context which the actual language of the relevant statutes and judicial opinions indeed reflect.
The provisions of the Trade and Intercourse Acts dealing with the transfer of Indian land have changed little since 1790. The words contained in each act with respect to land transfers were unambiguous. The provisions in each section prohibited all purchases or grants of land from Indian tribes without federal approval. Each act specifically set forth the geographical area in which the land transfer section was to be applied. In 1790 that area was defined as "in the United States." In the 1793, 1796, 1799 and 1802 acts that area was defined as "within the bounds of the United States." The constitutional demand for unlimited geographical applicability of these sections is reflected in the statutory requirement that valid transactions had to be entered into "by treaty or convention entered into pursuant to the Constitution" or under direct federal auspices. To this day, the provision remains unlimited. See 25 U.S.C. 177.
The fact that the land transfer provisions were intended to have broad and unlimited application is supported by reference to other sections of the statutes. For example, in contrast to the unlimited language of the land transfer provision of the 1802 act is the section of the act which relates to trading. The later section explicitly provided that it was to have application in "Indian country" only. That limitation, and similar limitations with respect to trading in the later acts, was never appended to the provisions in those acts prohibiting land transfers.
In the landmark case of Worcester v. Georgia, 6 Pet. 515 (1832), Justice Marshall was confronted with the question of whether the State of Georgia had complete governmental jurisdiction over the portion of the Cherokee Reservation within that state. Justice Marshall rejected the State's assertion of jurisdiction, finding it inconsistent with the constitution, treaties and laws of the United States. One basis for his conclusion was that the Trade and Intercourse Act of 1802 which contained language identical to that found in the 1790 Act granted exclusive jurisdiction to the federal government and prohibited state jurisdiction. This case is direct authority for the proposition that the Trade and Intercourse Act did apply to the original thirteen colonies and thus would apply to Massachusetts.
Later rulings have held that the land transfer provisions of those acts did apply in the eastern United States in the original thirteen colonies. Oneida Indian Nation v. County of Oneida, 414 U.S. 861 (1974) ; Joint Tribal Council of the Passamaquoddy Tribes v. Morton, 528 F.2d at 380 (1st Cit. 1975); Narragansett Tribe of Indians v. Murphy, C.A. No. 150005, U.S.D.C. Rhode Island (unpublished opinion of June 23, 1976). See also, United States v. Boylan, 265 F.2d 165 (CA. 2, 1920).
It has been asserted that the tribes' rights to the use and occupancy of the lands in the modified claim area have been extinguished by various transactions which occurred either before or after the passage of the Trade and Intercourse Act in 1790. There is no question that the sovereign may extinguish aboriginal title. Johnson v. McIntosh, 21 U.S. 543 (1823) . The sovereign may extinguish title by purchase, conquest followed by dispossession, or by the exercise of complete dominion over the property adverse to the continued use or occupancy of the tribe. United States v. Santa Fe Pacific R. Co., 314 U.S. 339 (1941), rehearing denied, 314 U.S. 716 (1942) . When the transactions discussed hereinafter are viewed in the light of this law, it is clear that the tribes' title was not extinguished.
It is asserted, first, that the tribes' title was extinguished by Pownall, the Royal Governor of Massachusetts, in 1759. At the outset of the French and Indian War in 1754 and 1755, Pownall declared war on all the tribes in eastern Maine, including the Penobscots. Pownall never engaged the Indians in battle or invaded and occupied the areas encompassed within the modified claim area. In 1759 Pownall Issued a Proclamation which provided:
"May 23, 1759, Province of Massachusetts Bay — Penobscot Dominions of Great Britain. Possession Confirm'd by Thos. Pownall, Govr"
Immediately after issuing the proclamation, Pownall buried a leaden plate at the head of the tide on the Penobscot River on which the Proclamation was inscribed. That was the limit of settlement in 1759 and still was in 1790. It also is the southern limit to the modified claim on behalf of the Penobscots. It is argued that by these actions Pownall extinguished the tribes' claims. We disagree.
It is a well settled principle of law that more is required to extinguish aboriginal title than a mere declaration of dominion over a tribe. Johnson v.McIntosh, 21 U.S. 514 (1823). Circumstances surrounding the issuance of the Proclamation show that the purpose of proclaiming dominion over the Penobscots' lands was an attempt to establish English jurisdiction over them and thereby discourage allegiance with the French. Pownall made no attempt to remove them from their lands. Thus all Pownall did was to establish the relationship necessary for the sovereign to treat the tribal occupancy rights. The action did not impair in fact the tribes' use and occupancy of the land. Johnson v. McIntosh, 21 U.S. at 572.
Pownall's actions followed the well settled principle of adjusting rights in the New World among competing European sovereigns rather than rights of actual occupancy. Local occupancy rights would only be affected if the conquest were established by actual expulsion of the natives. As the Supreme Court stated in Worcester v. Georgia, 6 Pet. 515, 543 (1832):
"This principle, suggested by the actual state of things, was that discovery gave title to the government by whose subjects, or by whose authority, it was made, against all other European governments, which title might be consummated by possession."
This dominion set up the right to deal with the occupants for actual possession:
"It regulated the right given by discovery among European discoverers; but could not affect the rights of those already in possession, either as aboriginal occupants, or as occupants by virtue of a discovery made before the memory of man. It gave the exclusive right of purchase, but did not found that right on a denial of the right of the possessor to sell."
Except for the fact that the French and the English were at war over their rights to Maine, the situation is no different than the original discovery of the New World, or the Louisiana Purchase or the Purchase of Alaska. In each case, the sovereign dominion obtained merely set the stage for dealing with the actual occupancy of the natives.
Here the tribes actively continued to use and occupy the lands contained in the modified claim area without interruption after the issuance of the Proclamation. That use and occupancy was only ended after the tribes had entered into treaties with the State of Massachusetts after 1790 which were invalid under the terms of the Trade and Intercourse Acts: The fact that the State of Massachusetts dealt with the tribes, is itself proof that the State considered these groups as tribes and recognized the extent of their land use rights. All these factors lead to the conclusion the tribes' use and occupancy had not been extinguished by conquest.
Finally, it has been asserted that the approval by Congress of the 1819 Articles of Separation of Maine from Massachusetts ratified the land transactions with the tribes. Nothing in the Articles of Separation mention Indian lands or the previous land transactions of Massachusetts with the tribes. The case law is specific that where Indian property rights are involved and congressional acts are passed affecting them, all such rights not expressly dealt with survive. Menominee v. United States, 391 U.S. 404 (1968).
Proposed Form of Action
As can be seen from the foregoing, the areas subject to the Department of the Interior recommendation, though reduced in size from the original litigation report, are substantial and will include numerous parties. A suit naming every potential party would be incredibly cumbersome, if not impossible to manage. Because of its size, the procedural aspects of the litigation could take over a year to resolve.
If litigation is found to be the only method for resolving these claims, it will be necessary to devise a lawsuit which can be effectively managed so that a final decision on all major issues can be obtained as rapidly as possible. In order to reach that objective, the United States at this time contemplates a lawsuit against a limited number of major landowners holding lands in the Penobscot and St. Croix watersheds and in those portions of the St. John, Dennys and Machias watersheds which are found to be included in the claim area. As proposed, the litigation would permit the adjudication of all the major issues, factual and legal, with only a few parties with the resources to properly defend the case. The limited number of defendants would enable the case to proceed expeditiously. If the court denied a claim to a particular watershed, there might be no need to proceed against any other landholders in the same watershed.
Such a litigation program will require an extension of the current statute of limitations which expires on July 18, 1977. See 28 U.S.C. 2415. For if a claim against major landowners in a given watershed is upheld, we would thereafter proceed against the remaining landholders within the claim area in that watershed. Moreover, even if we wished to move against all landholders in the original suit, it would be virtually impossible to determine the names of all potential defendants and initiate an action prior to July 18, 1977. Therefore, the United States proposes to seek legislation to extend the statute with respect to the claims on behalf of the Passamaquoddy and Penobscot Tribes.
Conclusion
Plaintiff submits that the foregoing description of the status of the cases makes it readily apparent that an extension of time until June 1, 1977, is necessary.
Since the last report to the court, there has been a complete review of the legal basis for this litigation. Although the validity of causes of action on behalf of the Penobscot and Passamaquoddy Tribes as to some areas is certain, additional research is yet necessary to establish the outer perimeters of the claims area. In addition, there is substantial work to be undertaken to identify possible defendants in the claim area. An extension of time until June 1, 1977, is necessary to permit this work.
It is impossible to overemphasize, however, the fact that litigation is not the best method to resolve the issues presented in these claims. Litigation, while resolving past injustices imposed on the tribes, would place substantial hardships on innocent parties, who acted largely in good faith in purchasing real estate, investing their funds and improving their property. Only a congressional resolution of the Indian claims can correct the past injustices to the tribes without creating new hardships for others.
As stated previously, steps are now being taken to provide a method for getting a legislative solution underway. A presidential representative is to be appointed. The extension requested is equally necessary to permit this representative the time necessary to work with the parties to effect a settlement and to permit Congress to adopt a just and equitable legislative solution to the claims of the Passamaquoddy and Penobscot Tribes.
Respectfully submitted,
PETER R. TAFT, Assistant Attorney General.
PETER MILLS, United States Attorney.
Mr. MUSKIE. Mr. President, I join with Senator HATHAWAY in introducing the State of Maine Aboriginal Claims Act of 1977. Our legislation, introduced at the request of the Governor and attorney general of Maine, is designed to alleviate the potentially disastrous social and economic impact of claims made by the Passamaquoddy and Penobscot Indian Tribes for return of aboriginal lands in northern Maine. While the land claim has yet to be filed, the mere pendency has raised substantial questions which threaten the economic stability of the State.
The bill we introduce today is a vehicle for review of the case by the Senate and for congressional action to settle the claims put forth by the Indians. I believe it is an appropriate response to a complex legal, social and economic problem.
The legislation is designed to protect the property and livelihood of hundreds of thousands of innocent citizens of Maine who now hold title to land in the disputed area, or whose jobs depend on the resources and factories on the land. Since there is simply no equitable way to disown these people, the claims of the Indians must not be allowed to include the return of land.
It is designed further, however, to preserve the rights of the Tribes to have the factual and legal questions of their claim resolved, and recognizes that if the claims are resolved in favor of the Indians, that some damages must be paid.
Since if there is any basis for the claims, it would stem from the failure of the Federal Government to exercise its trust responsibility toward Maine's Indians, it is entirely appropriate for Congress to begin its consideration now of the questions raised by the claims by assuring private citizens that their title will not be upset under any circumstance.
The legal basis of the Indian claim is the alleged violation of the Indian Nonintercourse Act of 1790 but the historic facts for the Indian claim remain unclear. The Justice Department and the State of Maine are working with archivists and ethno-historians to determine the nature and extent of Indian holdings in 1790 when the Nonintercourse Act was enacted. But it is clear that the treaties which the Indian tribes now claim were in violation of the act were freely and openly negotiated and entered and were assumed valid by all concerned, including the U.S. Government, for 180 years. In fact the legal theory on which the claims are based was developed during research in support of an effort by the tribes to enforce the very treaties the tribes now claim are invalid.
We do not purport in this legislation to in any way prejudge the litigation between the tribes and the State of Maine or to assume that the Nonintercourse Act did apply to the land transaction in dispute or assume that even if the Indian Nonintercourse Act did apply Congress has not already ratified the disputed transactions. But the complexity of these issues is such and the potential impact of a protracted dispute involving vast tracts of land is so great that Congress has a clear obligation to reassure the titleholders in the disputed area.
We do not intend by this action to prejudice in any way the Indians right to seek an appropriate monetary remedy, if any, or to anticipate or address further congressional action to equitably resolve the question of monetary damages for the tribes. Congressional ratification of the treaties in this legislation will cure the alleged defects and reassure affected titleholders while allowing the tribes to pursue monetary damages if their claim is upheld.