May 22, 1978
Page 14817
THE MAINE INDIAN LANDS CLAIM CASE
Mr. MUSKIE. Mr. President, two recent columns regarding the Maine Indian lands claim case capture quite well the complex and sensitive nature of this matter. I ask that columns by John Day, Washington correspondent for the Bangor Daily News, and by Peter Slocum, Augusta reporter for the Associated Press, be printed in the RECORD along with a copy of a letter on this subject I recently sent our Governor.
The material follows:
STATE'S LAND CLAIMS DEAL MEANS HEADS WE WIN, TAILS YOU LOSE
(By Peter Slocum)
AUGUSTA.—The state's latest plan for dealing with the Indian land claims is full of obvious practical advantages for the state government.
But it is full of problems and risks for the federal government, and federal opposition to the plan should not come as a surprise.
If the plan were implemented, and the Indian claim to two-thirds of Maine were transferred to the federal court of claims, then the state government would be free and clear of any liability.
Essentially that means that if the Indians won in court — which state experts say is impossible and federal and independent experts say is more than possible — the federal treasury would pay the price of that victory.
It would be federal money, and no land at all.
That's great if you're the state government.
But it's not so great if you happen to be the federal government.
Already the Passamaquoddies and Penobscots have been persuaded to accept an out-of-court deal limited to $25 million in federal money, about $1.7 million in state money over 15 years and some 300,000 acres of land. The land is worth much, much more than that, although it is hard to say how much until specific parcels and acres are identified. It is safe to say the proposed settlement is worth something less than $100 million.
If the case went to the federal court of claims, as proposed last week by Gov. James B. Longley and state Attorney General Joseph Brennan, the federal government could wind up losing many times the price of that negotiated settlement. The land claim is for about 12 million acres and millions of dollars in trespass damages.
Suppose the Indians won just $10 per acre and nothing in damages. That's already $120 million, and all out of the federal pocket.
Taking the risk of losing that much, if you are the federal government and think the Indians have a good legal case, is not such a good bet, particularly if you can buy off the opposition for a fraction of the cost.
This practical accounting sidesteps the question of moral concerns on both sides, of course. And it avoids the question of whether an out-of-court settlement can be peacefully and happily
accepted by the people of Maine. Longley is not the only one expressing such concerns.
But U.S. Sen. Edmund Muskie's response to the Longley-Brennan plan last Friday indicates that Muskie will not push in Congress for a bill to transfer the case to the court of claims. And without Muskie's backing, such a plan can reasonably said to be dead in the Congress, which is the only body with the authority to shift the claims case.
So that puts the case back where it was before the latest Longley-Brennan plan, and really where it has been for several years now. Longley and Brennan must decide whether to fight or negotiate.
That decision involves any number of factors. But two must be uppermost in their minds.
First, how good is the state's case? Brennan is becoming increasingly isolated in his belief that the state would prevail in court.
Second, could the court suit have a serious and damaging economic impact on land transactions in the claims area, regardless of the final result? If there is a real chance that home mortgages, school bonds and the like will be frozen by the very fact of an active court case, then that is a pressure operating in favor of negotiations.
One result of Muskie's decision to reject, for now, any congressional action to transfer or partly settle the claims is to keep that pressure on the state.
FACING Up To It
(By John S. Day)
The Maine Indian land case has entered an extremely sensitive and critical period. State officials who have protested for more than two years that the tribes are not entitled in one dollar or one inch of land suddenly have taken up face-to-face negotiations with the Indians.
The two men who took the strongest position against a negotiated settlement — Gov. James B. Longley and Atty. Gen. Joseph E. Brennan — are the officials who initiated the talks.
There are some things which should and should not be said about this situation. For openers, it's about time for the politicians of the state to exercise caution.
More rhetoric about getting shafted by the Carter administration or about what a snake in the grass the state is, dealing with an Indian attorney Thomas Tureen is counter-productive at this point.
So are any more so-called magical new discoveries by amateur historians claiming to blow the Indian case out of the water.
The plain fact is that over the past decade a long line of State officials have botched this case and done a poor job of protecting the interests of the people of Maine.
The suit probably could have been settled for a few hundred acres outside of the Passamaquoddy Reservation at Pleasant Point during the 1960s. Instead of negotiating in good faith, Maine's official response was to bust the attorney who raised the claim issue on a drug charge and run him out of the State.
As the case developed and became more serious, the state legislature consistently refused to face up to the problem and appropriate the money necessary to develop an adequate defense. It was not until the fall of 1976 that state attorneys even began in-depth historical research into the issue of tribal claims.
When the possibility of a "doomsday" scenario began to emerge during the summer of 1976, the state appealed to the Carter administration for a bailout.
The president then appointed a fair man to evaluate the case, former Georgia Supreme Court Justice William Gunter. He recommended a reasonable settlement.
It was a proposal which was tough on both sides, as most good compromises are. But from a legal strategy point of view, it was much tougher on the Indians than it was on the state.
The administration, realizing that the compromise was far less than what the Indians were seeking, threatened to introduce legislation in Congress to extinguish the Maine claims if the tribes did not accept the compromise.
White House officials were stunned when the state, as well as the Indians, turned their backs on the settlement.
Maine would have had to give up 100,000 acres under the Gunter proposal. Such land, if purchased on the open marked, would cost about $12 million. The state could have amortized that total price in seven years, using the $1.7 million it currently appropriates to the tribes for social services. Once the Indians became wards of the federal government, the state would save that money although it was recommended that the funds be continued for a while during the transition period.
Tureen thought the Gunter plan was a horrible deal and screamed bloody murder. The threat of a presidential extinguishment, he argued, was an unfair club to force the tribes into a one-sided agreement.
Instead of buying the Gunter plan, Maine's political leaders raised a hue and cry about how the White House was trying to give Baxter State Park to the tribes.
They played right into Tureen's hands.
When the White House decided to tackle the problem again last fall, the state stayed away from the negotiations. Edward Bennett Williams, one of the top lawyers in the country and more than a match for Tureen, volunteered his assistance to the state. He could have joined those talks, but he didn't. Tureen did. What emerged was a White House recommendation which essentially was authorized by the tribes.
This time, the White House club is directed at the state and not at the tribes. Carter has made it clear that he will veto any legislation proposed by the state to extinguish the tribal suit.
The clock is running out.
Longley, Brennan and Tureen have about 90 days to wrap this thing up.
Quite frankly, the White House is skeptical there will be an acceptable resolution of the suit before the case goes to trial beginning on July 1.
Longley and Brennan, they say, have basically retreated to their original position of "not one inch or one dollar." The governor, in addition, has raised the issue of tribal intentions to establish a nation within a nation.
On or about July 1, Indian attorneys will, as a routine procedure, file motions of lis pendens on the disputed lands. Lis pendens is "litigation pending" in Latin. It's a lien, or attachment upon the deeds of every piece of land in the claim area.
Shortly thereafter an obscure attorney in a New York or Boston bond underwriting firm will write a legal opinion assessing the impact of the Maine suit on municipal and state bonds.
This is the so-called "doomsday"scenario over which everybody has expressed concern. It's not an exercise in theory.
This has happened in Mashpee, Mass.
The residents of that Massachusetts town have been unable to sell property or float bonds for more than two years.
"The real tragedy right now is that nobody is going to believe any of this until it actually happens," said one White House official Friday.
Direct negotiations can be an incredibly difficult and complicated procedure. The Vietnam peace talks took more than a year to determine seating arrangements around the negotiating table. It's been seven months since Anwar Sadat made his dramatic visit to Israel. Peace in the Middle East is no closer today than it was before that gesture.
The current political sentiment in Maine is "not one inch or one dollar."
Sentiment can change overnight, however. The relevant question is how a resolution of the case will stand up to the test of history.
Longley is a popular governor now. Brennan is a leading candidate to replace him.
John Lindsay was a popular mayor of New York until the city discovered that he negotiated union contracts which would bring the city to the brink of bankruptcy a decade later.
Lyndon Johnson won one of the greatest political landslides in history in 1964, only to be driven from office four years later because his hardline policies on Vietnam divided the country.
Longley's place in history and Brennan's political future will depend upon how they resolve the Maine Indian case.
The people of Maine expect them to be tough negotiators. They don't want a Lindsay type of giveaway. On the other hand, an inflexible posture similar to that put forth by LBJ in the 1960s could result in disaster.
Creative leadership will be at a premium during the next 90 days.
Neither Congress nor the White House will take any action to bail out the state until Maine political leaders and the tribes reach some sort of consensus.
This is what is going on right now.
It would be nice to think that the U.S. Marines and Texas Rangers are going to show up at the last minute with that fabled "total responsibility" solution that candidates for governor keep talking about in Maine.
Don't bank on it. The White House won't buy that kind of package. It's doubtful that Congress would either.
As Jimmy Carter recently noted, life is not fair for everybody.
At some point, you must face up to the realities of life which is what state officials are going to have to be doing during the next 90 days.
U.S. SENATE,
Washington, D.C.,
May 11, 1978.
Hon. JAMES LONGLEY,
Governor,
Augusta, Maine.
DEAR JIM: I want you to know that I appreciate the efforts you are making to resolve the Indian Land Claims problem.
I particularly appreciate your willingness to engage in talks with representatives of the Indian tribes. Progress is understandably slow, but I am reassured by your description of the talks as being useful and constructive. If that climate continues, and all parties persist in seeking an accommodation, I believe it can be achieved.
As I advised you on Tuesday, I had a meeting with Tom Tureen and other representatives of the tribes following the delegation meeting with you. I repeated to them what I said in our meeting — that if each of the parties is prepared to move its own position in the direction of an accommodation, the job can be done. I found them responsive to that point.
This isn't to say that movement will be easy or that each of the parties will not strive to get the best deal possible. Nevertheless, I believe this approach could well produce the cleanest, quickest, and fairest result.
In the meantime, you have solicited the delegation for our advice on proceeding now with legislation which would transfer jurisdiction to the U.S. Court of Claims, extinguish the claims for land and convert them to money claims, and transfer total liability from the State and the landowners to the U.S. Government. The Court of Claims would determine the validity of the claims and the amount of liability, if any, to be assessed against the United States. If the tribes are successful, that could amount to sums substantially above any that are being suggested in current settlement proposals.
At the same time, we are asked to consider legislation which has been prepared by the White House which would extinguish the claims against land holdings of up to 50,000 acres in exchange for a Federal payment of $25,000,000.
My reaction to both of these legislative initiatives is that they would be premature at this time. Each could be provocative and disruptive of the talks now under way.
Those talks, if successful, would presumably require legislation to implement the result. Such legislation, if agreed to by all parties, would have a maximum potential for expeditious approval by the Congress.
If the talks are unsuccessful, the legislative challenge would be more difficult, prolonged and unpredictable for reasons which I outlined in our last meeting. The two proposals I have referred to above will certainly be considered by Congress. There may be others which we should be exploring.
What we must seek in that event is legislation which has a good chance for quick approval and which can lift the threat of economic disruption while the issues are being decided in one forum or another. I assure you that I will apply myself to that search.
Finally, if the talks are unsuccessful, we can only speculate as to what the District Court will decide with respect to further continuances of the case now pending. If the Court decides, in the absence of talks or agreement by the parties, to proceed with the litigation, it will presumably instruct the Department of Justice accordingly; and we may find ourselves pursuing a judicial and a legislative remedy at the same time — both of them time-consuming and unpredictable.
In any case, I share with you a continuing concern in this matter. I will continue to apply myself to the problem to the best of my ability. My objective? — to get the job done as cleanly and quickly as possible.
Sincerely,
EDMUND S. MUSKIE.