February 27, 1978
Page 4802
THE INDIAN LAND CLAIM IN MAINE
Mr. HATHAWAY. Mr. President, the claim of the Passamaquoddy and Penobscot Indian Tribes to 12.5 million acres in northern and eastern Maine is under intense debate in my State following the release of a memorandum of understanding between the tribes and a three-member White House task force on the problem. These claims are based on alleged violation of the 1790 Non-Intercourse Act which requires congressional approval of land transfers from Indian tribes.
The task force proposal has two parts. The first part is a basic agreement between the tribes and the administration to extinguish the tribal claims against the vast majority of landowners in the claims area — homeowners, small businessmen, communities, and industries. Of the area left in dispute, the proposal would exempt the first 50,000 acres of everyone's land from the threat of suit. In return for extinguishment, the Federal Government would pay $25 million to be held in trust by Interior for the tribes.
Under this basic agreement approximately 9.2 million acres would be cleared from the threat of suit. The administration is preparing legislation to implement this part of the proposal.
The second part of the task force proposal transmits the terms of two offers from the tribes to settle the remainder of the claims against the State and against those landowners in the modified claims area who hold more than 50,000 acres. These are offers to settle which the State and private landowners may accept, reject, or discuss further. They do not represent an attempt to impose an unwanted settlement on the parties.
Under the basic agreement and the settlement offers, the land and money would be put in trust to be used for the benefit of the two tribes by the Department of Interior. The outlines of this trusteeship could be included in any implementing legislation. This trustee relationship, however, would insure that the resources provided the tribes would be used in such a way as to benefit both the tribes. The land and money could not be wasted or divided up between individual members of the tribes. It would be used to build tribal self-sufficiency and economic development. Such development is bound to have incremental effect for others in the State as well. This aspect of the proposal is one which has not received much attention. There should be no misconception that these amounts of dollars and land would simply be divided between a few thousand people, to be disposed of at will. That is not what the basic agreement for the Federal payment or the settlement offers provide.
The task force has presented a proposal which can reconcile the need to protect the people of Maine from the potential adverse economic consequences of the suit, while permitting the option of litigation of the issues should the State and the 14 private landowners decide that is in their best interest. Congressional committees last fall grappled with the adverse economic consequences of a similar but far smaller suit in Mashpee, Mass. The potential for such future economic stagnation still is present in the State of Maine. The task force proposal represents major progress in removing this threat.
These offers for a full settlement in addition to the basic agreement deserve serious and full consideration.
When the proposals were first made, however, there was widespread misunderstanding of the task force proposal, mistrust of the Federal Government. and the erroneous impression that the second part of the proposal — the offers to settle — were actually settlements which were to be imposed upon the State and its landowners. Such is not the case.
Our colleague, ED MUSKIE. spoke to the Maine Legislature last Thursday in an attempt to quiet the misunderstanding being voiced in Maine. He provided an excellent short analysis of a very complex and difficult problem.
The debate will soon move to this Chamber. In anticipation of that debate, I would like to share Senator MUSKIE's comments with my colleagues.
Mr. President, I ask unanimous consent that the remarks of Senator MUSKIE be printed in the RECORD.
There being no objection, the remarks were ordered to be printed in the RECORD as follows:
REMARKS OF SENATOR EDMUND S. MUSKIE
The SPEAKER. The Chair is pleased to recognize in the back of the hall of the House the Senior Senator from the State of Maine, Senator Muskie. Could he please be escorted by the Sergeant-at-Arms to the rostrum?
Thereupon, Senator Edmund S. Muskie was escorted to the rostrum amid prolonged applause, the members rising.
The SPEAKER. The Chair has asked the Senator if he would, even though we know he is on vacation, provide us with a few words, perhaps, as our representative in Washington, and he has very willingly and graciously agreed to do so. So it is my pleasure to present to you Senator Muskie.
Senator MUSKIE. Mr. Speaker and Members of the House: It is always a pleasure to come back to this chamber and a special pleasure to come back home after months of absence from Maine.
My absence wasn't voluntary, it was involuntary, and I come back in better health than I have known for years. So if any of you face a weight problem or a back problem or an age problem, I suggest that one way of improving on all three is to have your back operated on. It is painful for a few weeks, but then the improvement makes it all seem well worthwhile.
I couldn't help but think of the first time I came into this chamber. Of course, it was much different in ways that now you take for granted. There used to be an aisle roughly half way up the right side and another on the left side. I had Seat No. 150 or 151 which was then on the aisle. The Indian Representative sat beside me, which is rather a coincidence. Of course, they did not have the vote and they never attended sessions in those days, much as we would have welcomed them.
I asked Ed Kelleher if there were any members of the House who were members when I was. The only ones that we could identify were Louis Jalbert, Albert Cote, Jim Dudley and Bill Jacques, which only proves, I guess, that you have been more successful than I, more consistent; you have stayed in one place and I have been wandering.
I brought this notebook so you might know what a Senator does when he comes home. John referred to this as a vacation. This is some of the homework that I bring with me in anticipation of questions I might be asked on problems that we are dealing with for constituents or legislation in which we are involved. There are three of pressing importance that I would enjoy discussing with you this morning, but I am not going to discuss all three. Any one of them could take more time that I should take with you — the Indian problem, the Panama Canal Treaty problem,
Dickey-Lincoln School. But I would like to talk to you this morning, if I may and if you are willing to give me the time — not too much time, I hope — about the Indian land claim controversy.
I would like to do it in person, because try as one may, these points don't always come through clearly in the press. I am not now making an accusation directed against the press. By and large, I think they do as well as they can and most of the time that is pretty good. But you can't control the head-line writers — that I gave up on long ago. And when I find this morning that my discussion of the Indian problem yesterday is interpreted by Maine headline writers as "Muskie Supports Indian Plan" it simply isn't an accurate description of what I said yesterday. So I would like to explain it myself and then to the Maine House of Representatives on Thursday, February 16, at least you people in this room will understand what it is that I have on my mind.
First of all, I think it is important that the people of Maine understand clearly what is at stake and what the options are. For too long, it seems to me, the rank and file citizen has tended to think of this Indian claim as such an unthinkable thing of such magnitude, that it is beyond comprehension to them, it couldn't possibly be true and It would somehow go away if we pay no attention to it. The only people who have been discussing it seriously are the Governor, the Attorney General, their assistants, people they consult, the congressional delegation because we had been asked by the Governor and the Attorney General to be helpful, other state officials who are directly involved in the talks that have been going on. All these discussions and all that has gone on before have come to a head and some decisions have to be made. I think the people of this state, the legislature of this state, have a right to influence those decisions when they are made.
I am not here to sell a particular point of view this morning. Obviously, since I have been thinking about these things for a number of years, I have developed some points of view, but I am not here to sell my point of view on any particular proposal. I am here to try to explain as best I can, and I may not be the most effective spokesman to do it, exactly what is at stake and what the choices are.
I think beginning with a little history is a useful point of departure. The immediate history involved is the Indian Non-intercourse Act of 1790. Now, what was that? That was the response of the first Congress of the United States to a situation involving Indian rights to land which had been exploited cruelly and unmercifully almost from the time that the first white man came to this continent.
Ownership of land to the Indians was an entirely different thing than ownership of land to those of us who were descended from Europe. The Indians viewed land as a place or an area in which to roam, to get their living, to live their lifestyle. There was no such thing as private land ownership, and their occupation of the land of eastern Maine was typical of the way Indians occupied land all across this country, and it was a virtually empty continent when the white man first came. They covered one area in the summer-time when they had recourse to the streams or to the sea for their food and for some agriculture on the side. When the cold weather came, they moved to another area for game, for hunting and for winter quarters. So they were constantly on the move over the land areas which they occupied in that sense. They didn't own land by metes and bounds in the sense that we do, they simply occupied it for the purpose of using it.
The whites, of course, who moved in thought of ownership as we do. They were interested in acquiring the title to land, a notion that was unfamiliar to Indians. They found ways to influence Indian decisions about where they would move in ways that often dispossessed the Indians of these tribal lands for little or no compensation. Because the first Congress of the United States understood this, the Non-intercourse Act was passed to try to protect the Indians from this kind of exploitation. Its provision was very simple — very simple. The transfers of title to Indian land were not valid unless approved by the Congress of the United States. One of the movers of the Non-intercourse Act was a very famous citizen of Maine, Henry Knox, who was in George Washington's first Cabinet, so it was a very significant piece of legislation at the time.
For some reason, everyone involved acted as though the Non-intercourse Act did not apply to the original 13 Colonies or the original 13 States, as they became, the assumption being that because these 13 States were already established and already had a relationship of their own with the Indian tribes within their borders, the Non-intercourse Act didn't apply, that it applied only to the western lands which, at this point, were unorganized, which were territories.
So subsequent to 1790, Massachusetts, which then, of course, owned Maine — we were part of Massachusetts at the time — negotiated treaties with the Passamaquoddy and the Penobscots involving the transfer of huge blocks of Indian land in this State, and those treaties were never submitted for approval to the Congress.
It apparently didn't occur to anybody, Indians or whites at that time, to do so. There were subsequent transfers following that. This is a very concise and brief description of that history, and I don't want to spend too much time on it, but that is where the whole problem originated. Then Maine became a state, assumed all of the obligations of the treaties that Massachusetts had entered into with the Indian tribes, and it was assumed that those obligations were the obligations of payment to the Indians of one kind or another, or services to the Indians of one kind or another that were provided in the treaties.
We came down to the present time. In 1972, the tribes brought suit and as a result of that suit, in 1975, the District Court of the United States in Portland, in an opinion written by Judge Gignoux, who is known to all of you by reputation as an outstanding judge and lawyer, made three important decisions in that case — one, that the Non-intercourse Act did apply to the 13 original states; two, that the federal government — which for 200 years had refused to recognize the so-called state Indian tribes as federal obligations for the purposes of services and programs that are provided for the western Indians, for example — that the federal government had a similar obligation with respect to these tribes in Maine and the other original Colonies; thirdly, that the federal government had a responsibility as trustee of the Indians to represent the Indians in their claim under the Non-intercourse Act. That was regarded all across the the country as a model decision in the field of Indian rights, and I repeat that it was made by Judge Gignoux in January of 1975.
The implications of that decision were so enormous that very few people focused on them or understood them, let alone accepted them. The case was appealed and went to the First Circuit Court of Appeals in Boston. The Circuit Court affirmed Judge Gignoux's finding.
Those cases did not take the next step, which is to determine to what extent, if any, the Non-intercourse Act was violated by the treaties that were negotiated by Massachusetts and subsequently. That issue was left to be decided and the Justice Department of the United States was under orders from the Court to proceed to represent the Indians adequately in pressing whatever those claims were, and that is where we are today. So since the decision in 1975, the Court has been pressing the Justice Department to announce its intentions with respect to the Indian claims.
As a member of the Maine delegation in Congress, our first official involvement in this whole matter began in the fall of 1976. At that time, the pendency of these claims and the orders of the Court to the Justice Department began to influence a lot of decision makers in the private sector, people who owned property in the claims area involving twelve and a half million acres of land, people who held mortgages on property in the claims area, people who loaned money on property in the claims area, lawyers who were asked to certify titles in the claims area, all of these people and others began to alert to the fact a claim of this magnitude and significance was hanging over that area and involving them directly. In other words, the question of titles and the validity of titles in that area is impacted by the pendency of this litigation. So, the Governor foresaw, as he should have, he was wise to do so, the possibility of economic stagnation in that area wholly attributable to the fact that this litigation is pending. And whatever its outcome ultimately — and a case of this magnitude could take years to decide in the judicial process — the mere fact that it is hanging, even if it ultimately rejects the Indian claims, has an impact. This is what troubled the Governor. The state's own credit was put in jeopardy. He came to us the last day or two of that Congress and asked us if there was some way that we could get emergency legislation enacted in order to avoid that result. Well, of course, there wasn't in the last day or two of Congress, any way to deal with a question of this magnitude, let alone finding the solution to it.
The delegation did introduce legislation simply to indicate our concern with the possibility of economic instability and the filing of the legislation, I think, had some calming effect.
In the meantime, a new administration was elected in Washington — hadn't yet taken office, wouldn't take office until January 20, and the Justice Department was under orders to report its intentions to the District Court prior to the end of January. So we could see the whole thing erupting again. I undertook to get in touch with the new administration. I talked to the President's General Counsel Designate, and he contacted the Attorney General Designate.
They shared our concern and offered to help or to try to help. The best they could do at that point, the President not yet having taken office, was to indicate to the Judge that the President would take the problem under advisement, and the Justice Department as well, and try to develop a policy by the first of March, I think it was. The President did. The action he took was to appoint a special representative, Judge Gunter, who had recently retired from the Supreme Court of Georgia, to develop recommendations to the President. The Court accepted that as a basis for continuing the case several months, I think until midyear, so Judge Gunter would have adequate time to dig into the problem, and he did. The fact that the President took this action had a further calming effect on the economy of the area. People assumed that if the President of the United States was willing to take on the problem, that somehow, in some way, eventually a solution would be produced. So people could be less uneasy about the impact of this decision on their own economic prospects. So the President's action did serve a useful purpose.
Judge Gunter presented his recommendations to the President in June and neither the tribes nor the state were willing to support his recommendations — his recommendations were rejected. I am not going to go into detail with respect to them unless I am asked to, and I would be perfectly willing to do it then. But those recommendations are behind us, they have no standing or validity at this point because, without support by the parties to the litigation, there is no way for them to fly. Congress wouldn't pay any attention to them if the parties don't support them, and the President wasn't satisfied to try to support them if the parties didn't support them. and at that point, neither side seemed to want negotiations. The state clearly did not. The Indians were talking privately about their willingness to negotiate, but given the state's view on it, the Indian tribes were not particularly articulate about going to negotiations themselves.
The tribes wanted a way to present their view of a settlement.
Remember, at that time they were talking about twelve and a half million acres of land which would involve, including trespass damages, $25 billion. The Indians wanted to present their view of what a reasonable settlement would be in an official way, and they asked the President if he wouldn't appoint a task force or a group to which they could submit their proposal.
That is what has happened. Those are the proposals that have been worked out. They are not binding on anybody except the Administration and the Indian tribes. They will not be implemented except with respect to the first one — and I will get to that in a moment — they will not be implemented in any way unless the state and the large landowners are willing partners to the implementation.
What does the proposal present? First of all, and this I had something to do with, you will note that it is called a "Memorandum of Understanding" not a Memorandum of Agreement. There is only one definite commitment in it.
The President is prepared to recommend to the Congress that the Congress appropriate $25 million to be given to the Department of the Interior in trust for the Indians. In return for that, the Indians have agreed, and they are bound by this, they can't escalate their claim, they are bound by this, they have agreed to the $25 million. If the Congress is willing to provide it, they will clear the title to 9.2 million acres of land. That includes all the land owned by small homeowners, small businessmen, municipalities, counties and private holdings up to a maximum of 50,000 acres for any given property owner. That means that the large land-owners, the paper companies and so on, would be exempted for a total of 700,000 acres. All of that would be cleared for $25 million paid by the federal government. The state wouldn't contribute a nickel to that settlement, the large landowners wouldn't contribute a nickel or a square inch of land to that settlement, and if that is all that is done, the rest of the Indian claims — and these would be claims against the state's public lands, the large landowners, the holdings above 50,000 acres — would be settled in the courts. That is where the state has said it would prefer to have the matter settled, that is where I think the major newspapers of this state have editorialized the matter ought to be settled, and that seems to be the prevailing mood among average citizens.
The White House felt that the President, having taken on the responsibility at the request of the state, ought to try at least to trigger or set in motion a settlement process that would clear the whole business.
The White House work group was under some limitation in trying to do this because it was dealing with only one side, the Indian tribes, the state not being interested in negotiating. So what the White House did was try to get the Indians to the most reasonable settlement that they could persuade them to take unilaterally.
What does that amount to with respect to the state? Remember that the Gunter proposals would have put the burden on the state to put together — and those are the exact words that were used — put together 100,000 acres of land as the state's contribution to a settlement. Everyone jumped to the conclusion that that meant 100,000 acres of public land and, of course, there was wide indignation about that because Maine doesn't really have all that much land and most of that which we bold has a special value for us — Baxter State Park, the Allagash Waterway, Bigelow Mountain, and you can add others, the public lots. But actually, what Judge Gunter had in mind was that that 100,000 acres probably ought to be made up of contributions not only by the state but by private landowners, but he left that to the state.
Now, what this proposal to the state is, is this — it would drop any claim against the state for land of any kind. It would instead request that the state continue its present level of payments to the tribes — which are now made in order to provide services — which would be made under this agreement, if it were reached, as the state's contribution to the settlement. At the present time, that payment amounts, I understand, to $1.7 million, and the Indian proposal is that that level of $1.7 be continued for 15 years, at which time it would end. It would be made to the Department of the Interior to go into the Indians' trust fund and the state would have no further responsibility nor would it face any further request for Indian services or for any further payment to the settlement.
The federal government, on the other hand, under the court case and under this agreement, would pick up the Indian services and would continue them indefinitely into the future. It is interesting to make the point that if that case which created so many problems for us in the state had never been filed and never settled, the state would face the burden of Indian services into indefinite future. And given inflation as we can project it, in 15 years, that could amount to $3 million.
This is the new proposal to the state. It involves no land, it involves no lump sum. It involves the continuance of Indian payments at the present level for that amount of time. It would amount to $25 million over that amount of time. That is the new proposal to the state. I emphasize that it is a proposal for the state to evaluate. I am not going to make a judgment at this point as to whether I think it is more reasonable than the first proposal. Whether it is as reasonable as it ought to be is something for all of us to consider together. I am not selling that, I am trying to explain what this new proposal for the state is.
Now, with respect to the large landowners. There are 14 of them, and they hold a total of 3,655,000 acres of land — 14 owners. Under the agreement, 700,000 of that would be exempt altogether without any payment by the large landowners. Of the three million that would be left, the Indians propose that 10 percent or 300,000 acres be contributed to its settlement upon payment which the landowners, of course, would describe as token, of a million and a half dollars, or five dollars an acre.
In addition, the tribes asked that they have options on another 200,000 acres which they would pay for at the fair market value when the options were exercised — no contribution here, just a fair market value price.
In addition to these numbers, there is also a commitment on the part of the White House Task Group to try to get some easements and some rights to perform religious ceremonies that are described in the agreement, which I won't undertake to describe here.
The proposal to the land holders is a proposal. The White House, according to a statement by Mr. Cutler, who is a part of the White House Task Group, transmits without an endorsement by the Administration the terms on which the tribes have promised that they will drop their claim. So these proposals are being transmitted to the state and landowners respectively for consideration and each, of course, has the option of accepting, rejecting or making a counter proposal.
Finally, may I say with respect to the large land holders, I don't think the history of their activities in this state suggests that they are not skilled in the art of hard bargaining. The fact that 14 of them own 3.6 million acres of land in this state speaks for itself. But in any case, what the White House is trying to do by transmitting these proposals is to trigger a process of negotiation if that is the desire of the state, the desire of the large landowners, after they have evaluated their own interest.
I had a meeting with the representatives of one of the largest landowners and they were very upset about this whole business. They wanted to know what my view was and I said, "Gentlemen, I don't know what your company's view of what its interests require may be. I haven't had access to your corporate books or to your balance sheets or to the extent to which your operations depend upon 10 percent of your land holdings for the viability of your company.
"You see, I am willing to be educated. It seems to me It is your option to go back to your company and to evaluate its interest, whether or not it would benefit from a settlement rather than long drawn out litigation and tell us, the people of Maine, whether or not this is a reasonable offer that the Indians have made or an unreasonable one, and I certainly will study whatever you have to say as carefully as I have tried to study this proposal." The same is true of the Indian tribes.
I met with the Governor and the Attorney General yesterday afternoon and I said the same thing to them as I have said to them for the last year and a half. I think only the Governor is in the position to speak for the state, with, I am sure, the advice of the legislature and other appropriate state officials. It is not for me. But if my advice is sought as we move toward a decision, I will try to contribute that advice as frankly and as candidly as I can.
I primarily want to emphasize that we still face the two problems that triggered the Governor's first visit to Washington: First, whether there is a chance of losing this case in the court. We lost two cases we didn't expect to lose. I used to be a lawyer. I never had a case that I thought was 100 percent proof against losing. I was lucky if I had a 3 to 1 chance of winning. I thought that was pretty good. So I never had a case that I wasn't willing to settle at some point. Whether or not this is the kind of case which we ought to settle, I don't know. The Attorney General says he thinks the Indian case has no merit, and he has raised, among others, two principal arguments: that the Indian tribes had already given away this land or lost it by conquest before 1790; and if that wasn't the case, that when Maine was admitted into the Union, the federal government, in effect, by adding us in 1820, ratified those treaties that were negotiated prior to that time. The Attorney General has presented those arguments to the Department of Justice and has said that he would like to present them to an appropriate court, and that is a perfectly responsible kind of judgment to make. Whether it is the final decision we ought to make as a state is still an open question.
Whatever the defense is, I submit, given the decisions that have already been made, there is some risk that we will have to evaluate, each for ourselves, that we might lose the suit. The large landowners, instead of giving up 10 percent of their land, may have to give up a larger proportion of it. The small property owners, homeowners and so on, may see themselves saddled with a burden of some magnitude on their property. So there is the risk of losing any court case, it would seem to me; but, again, evaluate that after you have heard the Attorney General and consider the matter.
The other problem is still the economic one. Up until now, the economic waters have been quieted by the President's action thus far. If those actions produce nothing, the matter is thrown back into the courts. I wouldn't want to be responsible for a guarantee that there wouldn't be some economic disruption in the area. There may be those who think that everything is calm now and it will stay that way. Maybe it will, but it didn't before, and that is a risk that we have to evaluate.
No matter what you think about the merits of the case, there still may be some advantage to settling on some terms, and it is those decisions that I am glad to see are now wholly out into the open where the people of Maine can share them, influence them; where the legislature can discuss them and influence them; and out of it, I hope, produce a settlement or at least a solution.
I will support whatever solution you wish to pursue. If you want to go to court and all you ask of us in the delegation is to get the support of the Congress for the $25 million, we will do our best to get it. $25 million is a lot here; it isn't all that much in Washington, as you all know, but we will do our best to be helpful, whatever our views about the settlement.
I regard myself, on matters of this kind, the instrument of the people of this state, and I am not going to try to force my views on them. I think they ought to share our views, and we have, under the agreement, 60 days from the time that this memorandum was presented to make our decisions. If no decision for settlement is made on the state lands or the big landowners' lands, then the President will submit just the first proposal to the Congress and assume that the matter will go to the courts. This agreement would not be binding on the Indians after 60 days. So, we have a 60 day period of decision-making facing us.
I have talked quite a long time — longer than I would prefer, unless I am in the Senate itself where our time is there to be killed — but I hope it has been useful. I hope that you at least understand exactly what I am trying to do. There are other subjects I would like to discuss while I am up here, but I think this is so critical, so important. It may well be the biggest single event in Maine public life impacting on the welfare of our people since I entered politics in 1946 and I would like to see it turn out right. It is for that reason I came.
Thank you for welcoming me and making me feel at home.