April 25, 1978
Page 11475
MAINE INDIAN LAND CLAIMS
Mr. MUSKIE. Mr. President, land claims by the Passamaquoddy and Penobscot Indians which could affect title to two-thirds of the land in Maine present a tremendous challenge to the citizens and leaders of Maine. We have been working to resolve this issue for nearly 2 years now. The problem before us is not our own making. Two Federal courts have ruled that the United States has a trust responsibility to the Maine tribes under the Indian Non-intercourse Act of 1790. The Department of Justice and the Department of Interior, acting under orders from the courts have concluded that the Maine tribes have a substantial legal claim for lands in violation of the Non-intercourse Act. They are preparing a suit to pursue those claims. The prospects of such massive litigation and the implications of the mere existence of the claim moved our Governor and Attorney General in 1976 to ask the Maine congressional delegation to help find alternatives to litigation. We turned to President-elect Carter in January of 1977. Even before he was sworn into office the President moved to develop a strategy to avoid immediate devastating litigation and seek an alternative resolution agreeable to the parties involved.
The most recent effort to develop an alternative to massive litigation involved a three-man task force which submitted last February a proposal for partial solution together with two settlement offers from the Indian tribes.
Eliot Cutler, Associate Director for Natural Resources, Energy and Science in the Office of Management and Budget, and a native of Bangor, Maine, is a member of the task force. He addressed the Husson College business breakfast in Bangor, Maine, on April 14, describing the White House efforts to resolve the Indian claims. President Carter's efforts in this matter have been misunderstood. Eliot Cutler's speech outlines clearly the approach the President and the White House have taken toward resolution of this case and deserves attention of my colleagues.
I ask that the following remarks be printed in the RECORD:
REMARKS OF ELIOT T. CUTLER
Last week the White House Work Group announced that the Penobscot and Passamaquoddy Tribes had agreed to extend for one month the time available for the State of Maine and the large landholders to respond to the Tribes' settlement proposals.
On or shortly after May 10, the Administration will file legislation to clear title to 9.2 million acres of land in the 12.5 million-acre claims area in order to provide complete protection for most landholders and homeowners. The legislation would provide for a $25 million federal payment to the tribes. On or about June 15, litigation will commence against any other defendants — such as the State and the large landholders — who have not reached an out-of-court settlement with the Tribes. Should the Congress fail to pass the protective legislation, it eventually would be necessary to also bring an action against hundreds of thousands of Maine citizens to recover land held by them.
I know that I speak for my colleagues on the Work Group, for the President's Counsel, Bob Lipshutz, and for the President himself, when I say that we do not want this case to go to court.
Not because we fear that one side or the other may win.
Not because we think that the many historical and legal issues in the case should not be resolved.
But because we are deeply concerned about the chaos, the hardship and the suffering that many years of litigation would inflict upon all the people of Maine.
In short, we think it is unfair to ask the people of Maine to pay the price of litigation. The period between now and May 10 is a crucial time for all of us. Each day that passes without progress toward a negotiated settlement brings us closer to a costly confrontation in court. Yet I know that each day also brings more questions, more doubts, and more confusion as to what is the right thing to do.
I would like to take the opportunity this morning to discuss five basic questions about this case that I know trouble many Maine citizens and to address in connection with those questions several misunderstandings about the role the Administration has played in this case and the nature of our proposals.
First, why are the Justice Department and the Interior Department preparing to sue the State of Maine? Why are those two federal agencies taking the tribes' side of this case?
To answer that question, we first must go all the way back to 1971. By that time, the Penobscot and Passamaquoddy Tribes had discovered a copy of the 1793 treaty, had taken it to their lawyers, and had asked the Interior Department to assist them in pursuing the matter further. The tribes claimed that the federal government had an obligation to do that under the terms of the 1790 Non-Intercourse Act.
The government turned down the tribes' request, claiming it had no such duty, and the tribes sued Secretary of the Interior Rogers Morton in Federal Court in Portland in 1972. The State of Maine, recognizing that its interests were very much at stake, asked to intervene and became a second defendant in the case in 1973. In early 1975, Maine's District Judge Gignoux decided that the tribes were right: The tribes, he said, were entitled to the protection of the Non-Intercourse Act, and the federal government was a trustee for the tribes under that Act. The government appealed Judge Gignoux's decision to the U. S. Court of Appeals for the First Circuit and again lost in late 1975. No further appeal was taken, even though the state could have sought to vacate the judgment as late as 1977.
This is a nation which lives under the rule of law, and from that time forward the federal government was bound by Judge Gignoux's decision that it owed to the tribes the duties of a trustee.
On that particular subject, that is as far as Judge Gignoux went. He did not order the federal government to sue the state or anyone else. He said only that the tribes were protected by the Non-Intercourse Act and that the federal government had to act as trustee for the tribes. The federal government had to decide, as trustee, whether it had an obligation to bring the present land claims case to court.
But the government's discretion at this point was limited. It is a fundamental principle of trust law — indeed of our legal system in general — that a trustee's foremost duty is to act in behalf of and to protect the interests of those persons to whom the trust obligation is owed. The lawyers at the Interior Department and the Justice Department examined the legal and historical evidence that had been amassed in the land claims case and decided that there was a case to be made and that the federal government had an obligation to do what any reasonable person would do acting in his or her own best interests — it had to pursue the claim and, if necessary, sue the present landholders on behalf of the tribes. As a lawyer, I cannot imagine that any lawyer or anyone in a position of public responsibility would suggest that the government should have done otherwise.
A second question: We accept that. Though we don't like to be sued by the federal government, we accept the fact that the Justice Department has no choice. But why did the President get involved?
Let me assure you that was not an easy decision for the President to make. Certainly there is no political credit to be gained. The easiest course of action would have been to take the case to court and to let the State of Maine and the large and small landholders fend for themselves. Indeed, the previous Administration was prepared to do just that on January 15, 1977.
However, in 1976 the first indications of the potential upheaval and chaos that would result from litigation began to appear. A number of Maine towns in the claims area were having trouble with bond issues, and there was widespread concern that titles to real estate would be questioned in sales and mortgage transactions. The Governor and the Attorney General asked the Maine Congressional delegation for help, and the delegation turned to President Carter.
In early 1977, the President asked the best lawyer he knew, retired Georgia Supreme Court Justice William Gunter, to be his special representative, to listen to the arguments on both sides of the case, to examine the merits, and to recommend any actions which the federal government and the parties might take to resolve the dispute. In July, Judge Gunter told the President that the claims were serious and substantial, but his proposed terms were rejected as a basis for settlement by both the tribes and the State of Maine.
In August, the President appointed the White House Work Group, and he asked us to enter into further discussions with the tribes concerning federal-tribal relationships. We did that, and another proposal was made in February — one which was more advantageous to the state.
A third question: Why were the Work Group's discussions held only with the tribes? Was the state shut out of the negotiations?
On at least three separate occasions after Judge Gunter's recommendations to the President were made known to state officials, those officials indicated to us that in their view settlement of the case would be inappropriate and that the state preferred to litigate. The repeated refusals by the responsible state officials to consider any settlement to which the state would make a contribution left us no choice; we could not invite the state to participate in negotiations when the state insisted that it would not settle on any terms.
The tribes, on the other hand, expressed a willingness to enter into further discussions. In light of Judge Gignoux's decision, it was imperative that we begin discussing a number of important questions concerning the relationship between the federal government and the tribes. For example, what was to be the level of future federal services?
It became apparent early in those discussions that the issue of a partial settlement with the tribes would be an unavoidable topic. And given our concern for the hundreds of thousands of Maine homeowners and businesses facing the threat of litigation, it made sense to us to pursue that topic. It also became clear that we could at least explore the possibility of an overall settlement and obtain from the tribes terms on which at least they would be willing to settle.
Had it not been for those difficult and lengthy negotiating sessions, there would not be on the table at this time any settlement proposals to which even one party had agreed.
A fourth question: Why has the "Great White Father" put the State of Maine "up against the wall?" Why is the Administration trying to force a negotiated settlement?
No one is backed up against a wall. The federal government's efforts over the past year have been strictly voluntary — made at the request of Maine's Congressional delegation. We cannot force a negotiated settlement.
Like Judge Gunter, the Work Group reviewed the tribes' claim, the state's defenses, and the pertinent law and historical materials. We reached the same conclusions as Judge Gunter did: The tribes'claims are not frivolous. They are for real. They could be entirely successful in litigation. And the litigation will take many years to resolve, with economic chaos a likely result.
In view of those conclusions, the President authorized us to agree to a partial settlement with the tribes. In exchange for a voluntary payment of $25 million by the federal government, we can clear title and guarantee security for thousands of Maine citizens who own homes and businesses in the claims area, who would suffer the most from litigation, and who could least afford to risk either the costs of litigation or defeat in court. The Congress must approve this settlement, and anyone who thinks it wise to oppose it can do so. We cannot force its ultimate acceptance by the Congress.
The terms of settlement proposed by the tribes to the state and the large land holders, on the other hand, were set forth without endorsement by the Administration. We neither support those terms nor oppose them. The tribes have made an offer.
As the President said here in Bangor two months ago, "If the Governor of Maine or the fourteen landowners don't want to accept [the offer], they have three choices. They can either continue to negotiate, they can accept the agreement . . . and have an end to it, or they can stay in court and litigate. I have no preference about it. We have not imposed the will of the Executive Branch on the State of Maine at all. The Government of Maine is still completely free to do anything it chooses."
A final question: Isn't is unconstitutional, un-American and unfair to treat large landholders differently from small landholders, homeowners and businessmen?
In responding to this question, I should first point out that it is the opinion of the Justice Department, based on legal precedent, that the proposed 50,000-acre exemption is constitutional. We would not have proposed it if we had not received that assurance.
One of the reasons that it is constitutional is that it is inherently fair. All landholders are treated equally; every person or entity would have title cleared to 50,000 acres. Indeed, the greatest beneficiaries of this approach — those who would benefit the most from the voluntary $25 million federal contribution — would be those who own the most land.
Second, this proposal is as fair and constitutional as Maine's own growth tax or the federal income tax, where people who own the most timber or have the highest income are taxed at the highest rates.
Finally, this proposal is fair because if the claims are legitimate, those who have benefitted most from any illegal conveyances have the most at stake in this case and can be expected to contribute proportionately more to any resolution of it — in or out of court.
No one is requiring the large landholders to participate in out-of-court settlement. They have the same choices as the state: accept the tribes' offer, negotiate, or litigate. In fact, up until the Administration got involved in this case, there was no settlement offer to which the large landholders could respond.
Small landholders and homeowners do not really have those choices. They generally could not afford to settle on their own; they could not be expected to negotiate individually; and they could not afford the legal expenses or the economic consequences of litigation pending for years and years. And if they lost in court, they could lose their homes and their livelihood. The only fair thing for the federal government to do is to guarantee their security — to protect those who cannot protect themselves.
I know I have taken a good deal of your time this morning, and I appreciate your willingness to listen so patiently. I hope I have clarified some matters, but I am sure you have other questions as well. I will try to answer as many as I can.
But before I close, I would like to read for you one passage from the February Joint Memorandum which I think we all ought to keep in mind.
"If settlement can be accomplished, it will reflect a compromise from every perspective. The tribes regard their claims as worth many times more than any consideration to be received under this agreement. The State of Maine, on the other hand, has taken the position that the tribes' claims are without merit .
"With these considerations in mind, any settlement would reflect a shared understanding of the reality created by the litigation, rather than one party's view of the equity of the claims. The claims are unique, and resolution of them on any basis other than litigation similarly must be unique."