May 23, 1978
Page 15014
By Mr. MUSKIE (for himself and Mr. HATHAWAY):
S. 3130. A bill to settle Indian land claims within the State of Maine and for other purposes; to the Select Committee on Indian Affairs.
MAINE INDIAN CLAIMS SETTLEMENT ACT
Mr. MUSKIE. Mr. President, on behalf of Maine's Governor and Attorney General, Senator HATHAWAY and I are introducing legislation relating to the Maine Indian Lands Claim Case.
I ask unanimous consent that a letter from the Attorney General relating to the legislation and the text of the bill be printed in the RECORD.
There being no objection, the bill and letter were ordered to be printed in the RECORD, as follows:
S. 3130
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 Maine Indian Claims Settlement Act."
CONGRESSIONAL FINDING AND DECLARATION OF POLICY
SEC. 1. Congress finds and declares that
(1) the Passamaquoddy and Penobscot Indian Tribes have raised certain claims seeking the return of vast areas of land in Maine to which they claim aboriginal title, as well as damages from, among others, the present owners of these lands, on the grounds that the original transfers of these lands by the Tribes to the State of Massachusetts and Maine were made in violation of the Trade and Intercourse Act of 1790, or subsequent version thereof;
(2) other claims to land in Maine may be raised in the future by other Indian tribes or nations;
(3) there are many unique and complicated questions of law and fact that would be raised in the litigation of each of the claims, which would take many years to resolve;
(4) the mere pendency of these claims, irrespective of the ultimate outcome of any litigation testing their validity, may result in irreparable damage and substantial adverse consequences to the State of Maine and its citizens, who have acted in good faith in acquiring their present titles to the lands involved;
(5) the United States has at all times since the founding of the Nation until 1975 disclaimed any and all trust or fiduciary responsibility for the Indian tribes in Maine and has permitted and encouraged responsibility to reside in the Commonwealth of Massachusetts which, upon the separation of Maine from Massachusetts in 1820, transferred such responsibility to the State of Maine;
(6) since 1820 the State of Maine, has assumed and fulfilled numerous responsibilities, including trust responsibilities, to the Indian tribes in the State of Maine with the full knowledge and approval of the Federal Government;
(7) at all times prior to 1975 the United States acted in a manner consistent with the understanding that the Trade and Intercourse Act was not applicable to Indian tribes in Maine and Massachusetts, or alternatively, consistent with the premise that, if the Trade and Intercourse Act were applicable, the transfers of land by Indian tribes in the land area now comprising the State of Maine had received the express or implicit approval of Congress;
(8) based on the actions and inactions of the United States, the States of Maine and Massachusetts, and their citizens have justifiably relied on the belief that the Trade and Intercourse Act was inapplicable to Indian tribes in said States, or if the Act were applicable, the transfers of land by Indian tribes in the land area now comprising the State of Maine had received the approval of Congress;
(9) as a result of federal court decisions in 1975, the issue has now been raised whether the Trade and Intercourse Act does apply to land transfers made by Indian tribes in the land area now comprising the State of Maine, and the United States has stated that, desepite its failure to recognize any trust or fiduciary responsibilities to these tribes for 188 years, it is prepared to bring suit against the State of Maine and innocent present landowners in the State seeking the return of vast land areas to the Indian tribes and recovery of substantial money damages on their behalf;
(10) the current problems caused by the pendency of the claims are the direct result of the United States' failure to recognize that for the past 188 years it may have had a trust or fiduciary responsibility to the Indian tribes in the State of Maine and Massachusetts under the Trade and Intercourse Act.
(11) Judge William B. Gunter, the Special Representative of President Carter, who was assigned by the President in 1977 to study the case and recommend Federal action to resolve the problem, has properly concluded that the United States is primarily liable for the creation of these problems; and
(12) in light of the foregoing, it would be unfair and inequitable for innocent parties in the State of Maine to be subject to the risks and hardships that would be caused by litigation of the claims, and justice and sound public policy require that the United States accept responsibility and liability to any Indian tribe in the State of Maine that may have transferred its land in violation of the Trade and Intercourse Act.
RATIFICATION OF ALL PRIOR LAND AND WATER CONVEYANCE AND EXTINGUISHMENT OF ABORIGINAL TITLE
SEC. 2. (a) All claims, including but not limited to, claims for possession, occupancy or trespass against any State or subdivision thereof, or any other person or entity by any Indian involving any transfer of lands or waters located within the State of Maine from, by or on behalf of any Indian, including but not limited to, transfers pursuant to State statutes, is hereby extinguished and the exclusive remedy for any claimant shall be a claim against the United States under Section 3 of this Act. This section shall not be deemed to constitute a finding by Congress that any provision of the Constitution or any laws of the United States were applicable to any such transfer.
(b) To the extent that any transfer of lands or waters described in subsection (a) may involve lands or waters to which any Indian had aboriginal title, subsection (a) shall be regarded as an extinguishment of such aboriginal title as of the date of said transfer.
(c) As used in this Act, the phrase "lands or waters" shall include any interest in or right involving lands or waters; the term "transfer" shall include, but not be limited to, any sale, grant, lease, allotment, partition, conveyance, release, quitclaim, cession, adverse possession or any event or events that resulted in a change in possession or control of lands or waters or a relinquishment of rights in lands or waters, including, without limitation, hunting and fishing rights, and the terms "Indian" or "Indians" shall include any Indian, Indian tribe, nation, band or other identifiable group of Indians.
RECOVERY AGAINST THE UNITED STATES
SEC. 3 (a) Any Indian, whose claim to occupancy, possession or trespass was extinguished by Section 2 of this Act shall have the right to maintain an action against the United States for damages on the grounds that the transfers, when made, were in violation of the laws of the United States. The Court of Claims shall have exclusive jurisdiction to hear any such claim under the provisions of 28 U.S.C. § 1505.
(b) The amount of any judgment awarded under this section shall equal the value of the claimant's interest in the land or water at the date of transfer, less any payments made in consideration of the transfer plus reasonable annual simple interest from the date of the transfer to the date of judgment. Any judgment in favor of a claimant shall include reasonable expenses, including attorney and expert witness fees.
(c) Every claim for which jurisdiction is hereby established in the Court of Claims shall be barred unless a claim is filed within six years from the effective date of this Act.
JURISDICTION OF THE STATE
SEC. 4. Any lands currently held or hereafter acquired by any Indian in the State of Maine, or any persons residing or found thereon, shall be subject to all laws of the State of Maine.
Russell Building,
Washington, D.C.
DEAR ED: Enclosed is a bill designed to implement the proposal outlined in Governor Longley's letter to you of May 9, 1978, and which the Governor and I discussed with you that date.
As I stated in that meeting, I think the concept embodied in this bill is fair for several reasons.
First, it transfers the obligation to resolve this claim to the Federal government where it rightly belongs. Second, it provides a mechanism to determine the amount of compensation, if any, that should be provided to the Indians. Third, it converts the claim to an action for money damages and eliminates the possible economic cloud that might be cast upon eastern Maine were the case to be heard in the normal course in the United States District Court.
I am convinced that the bill will withstand constitutional challenge. Unrecognized aboriginal title, which is the title asserted by the Maine Indians, is not protected by the Fifth Amendment to the Constitution of the United States and these claims may, therefore, be retroactively extinguished on any terms the Congress deems fair. See e.g.: Tee-Hit-Ton Indians v. United States, 348 U.S. 272 (1955) and United States v. Atlantic Richfield, 435 F. Supp. 1009 (D. Alaska, 1977) and Edwardsen v. Morton, 369 F. Supp. 1359 (D. D.C., 1973). For a complete analysis of the constitutional basis for this approach, I recommend you review the recent paper of the American Land Title Association entitled "Indian Land Claims under the Non-Intercourse Act: The Constitutional Basis and Need for a Legislative Solution."
The proposed legislation would not create a potentially unlimited liability for the Federal government. Under section 3(b) the bill establishes the method of computing the award, if any, that the claimants could potentially recover. It should be noted that this formula is consistent with case law. See e.g. United States v. Klamath and Moadoc Tribes, 304 U.S. 119 (1938); United States v. Creek Nation, 295 U.S. 102 (1934); and United States v. Cherokee Nation, 202 U.S. 101 (1906). In general, the Supreme Court has affirmed the reasonableness of using 5% simple interest in computing awards regarding Indian lands. The formula in the bill is also more generous than the formula used by the Indian Claims Commission, which generally awards no interest to successful claimants. See 25 U.S.C. § 70a and annotations. In addition to providing a procedure to resolve currently pending claims, the mechanism in this bill is equally applicable to latent claims by other Indian groups in Maine (e.g. the Micmacs or Maliseets).
I understand that there has been some concern expressed that this legislative approach might not be the best solution to the problem and might encounter legislative opposition. Nevertheless, I believe this approach is fundamentally fair and will result in a resolution that the parties and history will accept. For that reason, the Governor and I have requested your support for this concept and we have asked you to introduce this particular bill. To the extent any member of the delegation believes that an alternate approach is appropriate or desirable, he is perfectly free to negotiate such an approach directly with Indian representatives.
It may be that there are certain aspects of the bill which, upon reflection, may need modification. I am sure, however, that the legislative process will result in refinements.
I trust you will advise me when the bill is introduced and will keep me apprised of its status.
Sincerely,
JOSEPH E. BRENNAN,