When the phone rings in the office of Michael Lachance,town manager of Millinocket, Maine, he likely has a problem. Possibly a small matter: a check that needs countersigning, an accumulation of leaves in a storm gutter somewhere in town. The problem may also be a large one. This particular Friday it was a stunner.
In the summer of 1976, Lachance and Millinocket’s councilmen resolved to finance continued work on its badly needed waste water treatment plant with a $1 million bond issue. Enter Ropes & Gray, a Boston law firm with a national reputation as counsel to potential buyers of state and municipal bonds.
On Friday, September 24, 1976, Lachance got his fateful phone call, from a lawyer at Ropes & Gray calling on behalf of Warren Carley, senior partner and supervisor of bond market activity for the firm. Something, to put it mildly, had come up. Lachance now had a larger problem than he or a great many other town managers in or near Maine’s northern forests could possibly have imagined.
According to Carley, his firm had recently learned that after years of preliminary litigation the Passamaquoddy and Penobscot Indian tribes of Maine, backed by the U.S. Interior and Justice departments, would soon go into Maine federal court to reclaim title to their “aboriginal homelands.” The 12.5 million acres in dispute, 58 percent of the state of Maine, embrace a third of the state’s population and 100 of its cities and towns, including Millinocket. Because of the pending claim, Carley believed, title to all land throughout the claims region was uncertain. Ropes & Gray would not give an “unqualified” opinion on Millinocket’s bond issue. In bond market language, that meant the bond was unsalable.
This was the first indication of the extraordinary implications of the largest Indian claim to land or damages ever brought to court in the history of the nation, implications which have begun to be sensed by thousands of rural Maine homeowners as well as the White House, the U.S. Justice and Interior departments, and members of Congress.
A few days after the call from Ropes & Gray, State Treasurer (and former Maine commissioner of Indian affairs) Rodney Scribner startled the Maine press with the news from Millinocket and announced that he was delaying a $27 million issue by the Maine Municipal Bond Bank, scheduled for sale the next day (Wednesday, September 29) on behalf of towns, schools, and hospital districts both in and out of the claims area.
One day later, Maine Governor James Longley announced the appointment of a blue-ribbon committee to measure the full potential impact of the tribal claims upon the economy of the state. Governor Longley also called U.S. Treasury Secretary William Simon (a recent summer guest of the governor’s), Interior Secretary Thomas Kleppe, and the Maine congressional delegation, then flew to the nation’s capital. The governor and his men spent two days in Washington moving from one meeting to the next, struggling to understand why a seemingly quixotic suit filed by two obscure Indian tribes could so disrupt the commerce of a sovereign state, why the Justice and Interior departments on behalf of the federal government were representing the tribes, and what, if anything, could be done to restore clear title to the disputed Maine territory. Among other things, Maine officials wanted federal bond and loan guarantees, direct short-term loans, and a change in the rules of the game by Congress, in the form of a law that would prevent the tribes from getting any land as a result of the claims litigation, whatever the merit of their case. Unfortunately for the peace of mind of Maine’s official delegation, neither the federal government nor Congress could oblige. The governor’s men, for the first time after several years of litigation, began to understand the strength of the tribes’ legal position.
On Friday, October 1, as Congress adjourned, Scribner canceled the Bond Bank sale altogether.
William Bullock, president of Merrill Trust Company in Bangor, is chairman of Governor Longley’s committee on managing the impact of the tribal claims. It is his job to figure out where—in the absence of salable bond issues—municipalities in the claims region can find the roughly $100 million they need during the first four months of 1977 for capital projects and operating expenses. “The purpose of this committee,”says Bullock, “is to think the worst and to come up with solutions at each point in the litigation so we can have business as usual in this state.”
Where will the money come from? State Treasurer Scribner, a good bit less sanguine, says, “Nobody knows. But it won’t be ‘business as usual.”’
Even worse news lies ahead. Once the specific claims for 12.5 million acres and a staggering $25 billion in back rents and damages have been formally filed before a federal district court, legal notice of the pending suit will be required in every real-estate transaction in the claims region. This will prevent title attorneys from clearing titles and so, in effect, prevent the transactions from taking place. Says Scribner, “The public financing picture can’t get any worse. The second wave of alarm will rise from individual landholders. You’ll see a large-scale unemployment among real-estate salesmen and brokers—800 work in the Bangor area alone, and many of them are thinly financed. Attorneys who do a large volume of title work will be hurt. The impact would then build and flow through to the construction market: contractors, laborers, and skilled tradesmen. I see that happening over the next few months. If the crisis continues, it will hit the financial institutions that depend upon mortgages for re-investment of incoming funds. They’ll have to find other places to invest at 9 percent or more and that will increase the flow of capital out of Maine into other states. Then these banks will lose the capacity to resume or re-create the mortgage market quickly or easily. This is the way things will snowball.”
In late October, after a conference of the federal, state, and tribal lawyers involved in the litigation, Judge Edward Gignoux set January 15 as the deadline for filing the claims. Gignoux later told reporters that litigation would take anywhere from two to ten years to resolve the claims.
Surprisingly, only Maine Attorney General Joseph Brennan is pressing for litigation. The tribes have said for twenty years that they’d prefer to negotiate a settlement, but Brennan adamantly asserts, as have his predecessors, that the claims have no merit and he wants to prove that in court.
If Maine’s governor disagrees with Brennan’s position—he hedges by calling it “the advice I have thus far"—he isn’t saying so.
The Maine Indian case began with some longforgotten papers found at the bottom of a cardboard box beneath the bed of an old Passamaquoddy woman who lived in the far northeastern forest section of the state. “She didn’t read or write,”Indian spokesman John Stevens remembers, “and she spoke very little English, only Passamaquoddy. One day she said to me, ‘I have some old documents you should see.’ And I went over and I looked at the documents, and one was that treaty of 1794. The paper was so fragile I hesitated to turn it. It dated from the Revolution. I even found letters received from George Washington. I’d been looking for that treaty for almost four years.” The year was 1957, the place. Indian Township in eastern Maine, one of the two reservations of the Passamaquoddy, near the juncture of New Brunswick and the Atlantic Ocean.
As a marine in the early fifties, John Stevens had seen in devastated Korean villages an image of the poverty and dependence of his own people. “Korea looked so much like the reservation I took a vow—to myself: that I would come back, that I would try to change some of this.” In 1953, at the age of twenty-one, Stevens ran for governor of Indian Township, his native reservation, and won by a single vote. To the extent that such things can be located, this election marks the starting point for the assertion of Maine’s tribal claims.
When he became governor at Indian Township. Stevens was most gravely concerned about the legal integrity of the tribe’s treaty lands, the basis of their tribal life. The tribe knew that when roads, including U.S. Route 1, had been built through the reservation no one had asked them for the land. No one had paid them for it either. The same was true for large acreages along Route I now owned and occupied by non-Indians. No one knew how these lands had been lost, if more land might be seized, or if that could somehow be prevented. No one knew if the lost land could be returned. This last question is what so possessed John Stevens. And when the treaty was at last rediscovered, after a disappearance of 163 years. Stevens saw that his direction was clear.
The Passamaquoddy Treaty of 1794 is between the tribe and Massachusetts, but under the articles of Maine’s separation in 1820, the new state supposedly became obligated to the fulfillment of its terms. Stevens learned that in exchange for nothing the treaty purported to take from the tribe all of their aboriginal lands, with the exception of permanent state protection of their title to ten acres at Pleasant Point, fishing rights, and fifteen islands in the St. Croix River, two islands in Big Lake, and the 23,000 acres that constitute Indian Township itself. Here at last were the words Stevens had sought for so long. He knew that since 1794 the islands and at least 6000 acres of the township had passed into the control of non-Indians.
Stevens packed a council of tribal elders into his old Chevrolet and drove 200 miles to the statehouse in Augusta. The state’s attorney general, whom they had expected to see, was “too busy.” An assistant smiled at them and wished them luck if they should ever take the matter to court. “Court,” Stevens says now, shaking his head. “I had the dream of not ever going to court.”
For the next nine years Stevens brooded upon the baffling wilderness of litigation and judicial process which stretched before him. Time and again he tried and failed to find a Washington County lawyer willing to take on the burden of research– and local hostility—the case presented, at a price acceptable to the tribe. In 1966, his problem was solved in a most unlikely way.
A non-Indian owner of commercial cottages, who occupies part of the alienated 6000 acres at Princeton (the village bordering Indian Township on the southeast), decided to build new cottages and force three tribal families off land which a warranty deed described as his property. The tribe responded with a sit-in led by Stevens. Construction was halted briefly and several tribal members were arrested on trespass charges. Their defense was the treaty of 1794.
The charges were dismissed on technicalities by a state district court judge who ignored the treaty issue. But Stevens had managed to attract the interest of Donald Gellers, a young attorney from Eastport, who defended the tribal members and agreed to pursue the claims to the extent that both he and the tribe could afford. Supported by the proceeds from tribal bake sales and beano games, Gellers, a newcomer to Maine, pursued his solitary research. During the summer of 1967 he was joined by a law student named Tom Tureen. By the time Gellers’ life-style led to his arrest and conviction on drug charges—then a felony—Tureen’s interest in the tribe had brought him back to Washington County as a lawyer. He had become the one-man Indian unit of the state’s new legal services program, funded by the Office of Economic Opportunity, with a mandate to investigate the legal situation of the Passamaquoddy and all other eastern Indian tribes. When the tribe was forced to fire Gellers in 1970, they hired Tureen. It was a fateful decision.
Tureen’s first encounter with Indian matters came at the end of his sophomore year at Princeton. Through a friend of his father’s. Tureen got himself a job on the high plains at Pierre, South Dakota, where, in the summer of 1964, he taught Indian children in the boarding school at the Pierre Indian Agency. “It was a federal enclave,” Tureen recalls. “And we had all these Indian kids there who had been taken away from their parents for the summer. The government had the power to do that because of some special governmental relationship I didn’t understand. On the reservation I saw the extent of control the government had over all aspects of tribal life. The thing that drew me into law in the first place and the thing that fascinated me about the Indians was this legal relationship. The balance of power intrigued me. I began to wonder how that balance could be shifted.”
Tureen took up the pursuit of the Passamaquoddy claims in 1970, uncertain of his exact route. His first move was to affiliate himself with the Native American Rights Fund (NARF) in Boulder, Colorado, organized that same year by the Ford Foundation and three legal service lawyers based in California as a “national Indian law firm.” and also with Hogan & Hartson, a major Washington, D.C., law firm that agreed to donate consultation time. Then, in search of a favorable course, he began by exploring the law and the comparative legal experience of western and eastern tribes.
The surviving western tribes have remained highly visible ever since their earliest contacts with non-Indians, which occurred after the colonies had become the United States and long after many eastern tribes had been obliterated. Tribes indigenous to the West as well as those forcibly removed there in the first half of the nineteenth century have a legal relationship with the federal government known as the “trust relationship.”
The statutory basis for this relationship has been fashioned by Congress from the language of the Commerce Clause of the Constitution, which gives the federal government, as opposed to the states, what the Supreme Court has held to be exclusive power and responsibility in Indian affairs. One of the first pieces of business of the First Congress was the Indian Non-Intercourse Act of 1790, permanently codified in the 1830s. The intent of Congress in creating the Act, according to the Supreme Court, was to obligate the federal government to assert its constitutional powder in order to protect a “simple, uninformed people, ill-prepared to cope with the intelligence and greed of other races.” and to act “to forestall fraud” to “prevent the unfair, improvident or improper disposition by Indians of their lands.” The Non-Intercourse Act states unequivocally that any land transactions between an Indian tribe and anv non-Indian party must be supervised and specifically ratified by Congress on behalf of the sovereign United States. Any unratified transaction, it says, is “null and void.”
But the trust relationship itself wasn’t formulated until Chief Justice John Marshall, using the Commerce Clause and the Non-Intercourse Act as bases, wrote a series of major Supreme Court opinions at a time when the lack of a precise judicial doctrine clarifying the legal relationship between the United States and its native peoples began to generate lawsuits. In 1831, observing that “the condition of the Indians in relation to the United States is perhaps unlike that of any other two people in existence,” Marshall described the tribes as “distinct political communities, having territorial boundaries, within which their authority is exclusive and having a right to all the lands within those boundaries, which is not only acknowledged, but guaranteed by the United States.” But, he declared, the tribes no longer held the status of foreign nations. “They may, more correctly, perhaps, be denominated domestic dependent nations, ” Marshall wrote. “They occupy a territory to which we assert a title independent of their will, which must take effect in point of possession when their right of possession ceases. Meanwhile they are in a state of pupilage. Their relation to the United States resembles that of a ward to his guardian. ” (emphasis added)
Since the Marshall Court, a long line of federal court opinions have elaborated the trust relationship, holding that the nature of the federal government’s guardianship role under the law is specifically that of a trustee, whose duty and obligation to the tribes is “fiduciary”—that is, to act exclusively for the benefit of the tribes in matters affecting their interests.
As he went to work for the Passamaquoddy, Tureen was aware that the trust relationship is an old, well-established doctrine in federal law whose potency has steadily increased with time. It amounts to the only “constitution” the tribes have to define and protect the terms of their separate and special Indian citizenship.
By joining the Passamaquoddy, Tureen faced an enforcement problem of alarming proportions, because the Passamaquoddy were among those outcast American tribes known as the eastern Indians. The Passamaquoddy and Penobscot tribes had not ceased being tribes, but their treaty was with the State of Maine, not the federal government; their reservations were state reservations, not federal enclaves. They were even called “State Indians.” Their affairs were supervised not by the federal BIA, but by the Maine Department of Indian Affairs. No federal trust relationship was recognized here; no Indian constitution was believed to apply. This was because the original thirteen states have behaved since 1789 as if they retain the sovereignty in Indian affairs delegated by the Crown under their colonial charters, as if neither the Non-Intercourse Act nor the exclusive federal jurisdiction of the trust relationship has applied to them or to the tribes within their borders. And the federal executive branch has done little to assert its authority in those states or to meet its responsibility to the tribes. This collective behavior is known as “the thirteen original states doctrine,” and long before 1970 it had become widely accepted as not only legitimate but unquestionable. So, as Tureen began shaping a strategy for the Passamaquoddy treaty claims, this doctrine captured his imagination.
By autumn of 1971, his basic research had been completed and a portion of it published as an article in the Maine Law Review in order, said Tureen in 1973, “to prepare the Maine bar for what was about to happen.” In December he put his findings before an awestruck tribe. Neither in the plain meaning of the words of the Non-Intercourse Act, Tureen declared, nor in the words of any judicial opinion could support be found for the thirteen original states doctrine. Therefore, he said, the 1790 NonIntercourse Act applied to the Passamaquoddy. Moreover, he revealed, the 1794 treaty had never been ratified by Congress and according to the terms of the Act was therefore “null and void.” This meant, Tureen concluded, that the tribe had never relinquished—nor had the sovereign United States ever extinguished—its aboriginal title.
With a mandate from the tribe, Tureen moved quickly. In February of 1972, ignoring the thirteen states doctrine and assuming the applicability of the trust relationship, he petitioned the secretary of the interior as trustee to initiate claims for land and financial damages against the State of Maine and other parties, for violations of the Non-Intercourse Act. But Secretary Rogers Morton refused, declaring that no federal trust relationship existed with the tribe. This meant they were faced not only with a long battle to compel action by the secretary, but with the prospect of irreparable harm to the part of their claim involving financial damages, since a statute of limitations on tribal money claims barred such claims being brought after July 18 of that year.
Tureen’s response was to strike at the heart of the thirteen states doctrine. On June 22, 1972, he filed suit in Federal District Court for the District of Maine on behalf of the joint tribal council of the Passamaquoddy tribe against Secretary Morton, alleging: first, that the Non-Intercourse Act of 1790 applies to the tribe; second, that it creates a trust relationship with the federal government; and third, that a refusal to pursue the claims on grounds that such a relationship doesn’t exist violates the law. In addition, Tureen asked the court to order the government to file nominal money claims against the state to protect that part of the claim from the statute of limitations while the issues of Passamaquoddy v. Morton were litigated. And on June 23, when the federal government refused its request to act voluntarily, the court so ordered, resulting in federal protective suits against the state on behalf of the tribes for $150 million each. For the first time in our history the federal government had been ordered to fulfill its trust obligation to file such suits.
After two centuries, the aboriginal lands of the Maine tribes are remarkably unchanged. They constitute over half of the state and for the most part remain so sparsely populated that organized local governments are rare.
With few exceptions, Maine’s acres, settled on a shield of granite, are stony, uneven, and sour. The growing season is short and winter dominates the year. Trees have remained the state’s only major natural resource. Since 1890, the new technology of making paper cheaply from wood has turned Maine into what has been called a paper plantation. Half the state’s land is owned by paper and forest products companies (75 percent of that by only nine corporations); another fifth of the state is owned by large family trusts—many of these functionally under paper company control. What remains is owned by state and local governments and the general population of one million. About 300,000 people make up Maine’s work force; the forests support the jobs of a third of them.
The Passamaquoddy suit challenged title to the land upon which this economy is based. But as the tribe and the federal government squared off, neither the captains of that economy nor the state government understood this.
The state attorney general’s office failed to acknowledge the significance of the case for two years and formally intervened only in 1974. “They knew about it,” says John Patterson, recently appointed Maine assistant attorney general for civil litigation, who now is responsible for managing the state’s defense against the claims, “but they simply didn’t take it seriously.” The major commercial and industrial landowners, with tremendous resources available to them, never intervened at all. Their
common explanation for this remarkable default is best expressed by Robert Eaton of Eaton, Peabody & Bradford in Bangor, which represents several landowners who are certain to be named as defendants in the claims. “It was,” he says, “because nobody saw anything that involved him.”
On January 20, 1975, Judge Gignoux concluded a thirty-four-page opinion with these simple words: “Judgment will be entered for the plaintiff declaring that the Indian Non-Intercourse Act, 25 U.S.C. 177, is applicable to the Passamaquoddy Indian Tribe; and that the Act establishes a trust relationship between the United States and the Tribe.” Incredibly, the silence remained unbroken. On Christmas Eve, 1975. Judge Gignoux’s judgment was unanimously upheld in the United States Court of Appeals for the First Circuit in Boston. By March 22, 1976, when the deadline for appeal to the Supreme Court passed with neither the state nor the federal government raising its voice, the circuit court’s declaration became the law of the land. Tom Tureen had succeeded in shifting the balance of power between the eastern Indians and the federal government.
“By summer,” said Tureen at the time, “the whole state will be looking down the barrels of our guns.” And so it was. In the offices of the solicitor of the Bureau of Indian Affairs and the solicitor of the Department of the Interior and the Justice Department, legal strategies were being mapped out, though in great secrecy. But given the well-established requirements of Indian law and common law and the decision in Passamaquoddy, the basic shape of the offensive is beyond doubt. The defendants in the new federal claims must include all occupants of the aboriginal territories, from the state and municipal governments to corporate and commercial landowners and individual homeowners (who will most likely be treated as a class); and the claims must apply to every one of the 12.5 million acres of the Passamaquoddy and Penobscot tribes’ original holdings, and include collective damages amounting to $25 billion. To omit any of these would be to assume the extinguishment of aboriginal title on some portion of the territory when no extinguishment has ever been made by Congress.
As summer came, the vast majority of Maine’s population still didn’t even know the tribal suit existed, because the handful of people who were aware of it either didn’t take it seriously or were reluctant to discuss it openly. Then, as now, three routes to settlement were available: litigation, congressional intercession (in the form of a law extinguishing the aboriginal title never before extinguished), and finally, a negotiated settlement with congressional ratification, the tribes’ preferred alternative.
Though never publicly discussed, the costs of litigation were already being summarized with alarm by State Attorney General Joseph Brennan’s office. Aides spoke privately of the widening concern of the prospective defendants and their economic allies, generating “an enormous number of inquiries from municipal bond counsel, both inside and outside the claims area, attorneys for title insurance companies, real-estate brokers, security brokerage firms, and large and small landowners.” And on June 11, 1976, at Brennan’s direction, John Patterson sent to the Maine congressional delegation a four-page letter in which, after repeating these alarms, he explained the state’s effort to persuade the Interior Department not to pursue the claims. On behalf of the prospective defendants he pleaded. “Their concern and ours is not only about the possibility of a substantial judgment against them or the State, but also about the impact of a mere decision to pursue these cases.”
But the attorney general’s office sent no comparable warning to the state at large, nor did any member of the congressional delegation who received Patterson’s briefing.
George D. Carlyle, president of Prentiss & Carlyle, is a forester, trained, like his father, at the University of Maine. George T. Carlyle and Henry Prentiss founded the company of Prentiss & Carlyle in 1924 to manage large family landholdings, including those which Prentiss’ grandfather, Henry, “a real entrepreneur.” had accumulated in the last century. Carlyle is a warm, grayhaired man, crisp of feature and gesture, who presides over the company’s 700,000 client acres from the paneled parlor of company headquarters in a nineteenth-century mansion (now on the National Register of Historical Places) among wide lawns on Court Street in Bangor. “These lands have a great sentimental value for the families who own them,” said Carlyle last summer, recalling the family sacrifices which held tracts together during times of economic difficulty over the past 150 years. “From the standpoint of investment the rate of return isn’t that good.” But when he was asked if he took the tribal claims seriously, Carlyle shook his head slowly from side to side with a dubious expression. “We’re not losing any sleep over it,” he replied. “It’s inconceivable to me that after all this time such a thing could have any validity. It’s inconceivable.”
Carlyle’s faith in the power of time seems to represent the mood of the large family landowners of Maine, a handful of people– far fewer than the 3000 members of the Maine tribes– who together own four million acres, a fifth of the state. Bradford Wellman is chairman of the Seven Islands Company, managers of 2.5 million acres, and is himself one of the so-called “Pingree heirs” who own a million of those acres. He joked about giving Bangor back to the Indians and declared that, like Carlyle, he had neither asked for nor received advice from counsel– Robert Eat–on on the merits of the claim.
Such interests apparently feel well represented by Attorney General Brennan, who prepares his state’s defense from his office in Maine’s domed Bulfinch statehouse (built in 1832 with proceeds from the sale of 230,000 acres of aboriginal lands). “I’ve given no consideration to negotiation,” Brennan declares. “I have these two centuries of time hovering over this whole picture. I think two centuries of time passing is terribly relevant.” Doesn’t that translate into the defense doctrines called “laches” and “adverse possession” by “operation of state law and public policy”? he was asked. And were those the bases of his evaluation of the facts and law of the claim? “Yes,” he replied. “Laches, for example, is a wellestablished principle in the law. I definitely think they are applicable here.”
Laches is a doctrine of defense in the law which asserts that long-neglected rights cannot be enforced. Adverse possession, its corollary, is the open and hostile control of one party’s property or rights by another for such a long time that the original owner is held to have lost them– in this case, Brennan is assuming, by the operation of state law and policy since 1794.
Reliance upon such defenses has led to specific expectations by Brennan’s constituents about how the federal courts will respond to the claims. “I don’t think any of the private landowners are too worried,” said one of them, the president of a large, diversified Maine industrial company, who declined to be identified and who like the others, had never sought legal opinion on the matter. “The practical fact is that the entire economy of the state depends upon the private ownership of that land. The dimensions of the thing are so big that it isn’t going to be solved on a literal interpretation of the law. I don’t think we take it seriously because we think that any reasonable court would say it happened a long time ago and it’s not relevant to the present.”
He spoke at just after one P.M. in Bangor on Wednesday. June 23, 1976. A little over two hours later in Providence, Rhode Island, a clerk to Raymond Pettine, chief judge of the Federal District Court for the District of Rhode Island, brought a freshly signed opinion by the judge to the office of the clerk of the court where it was stamped and filed. The opinion is in the matter of two claims based on the decision in Passamaquoddy brought by Tureen’s team on behalf of the Narraganset tribe of Indians against the private non-Indian occupants of 3200 acres of aboriginal lands in Charlestown, Rhode Island, which the tribe claims were taken in violation of the Non-Intercourse Act. The tribe is one of thirteen eastern tribes now represented by Tureen’s unit of the Native American Rights Fund. Pettine’s opinion was delivered in response to a motion by lawyer Barry Margolin on behalf of the tribe to dismiss the defendant’s defenses of laches and adverse possession based on the operation of state law and policy, which, he argued, are impotent against the legal position of Indian tribes. “The court agrees,” Pettine’s opinion responded. “A legion of prior judicial decisions supports [the tribe’s] position. The broad principle . . . that state statutes cannot supersede federally created rights has been applied with especial vigor to the question of Indian title as a result of the federal government’s ‘unique obligation toward Indians.’ ” Calling the landowners’ classic defenses of time and power “completely futile,” Pettine dismissed them.
Neither Pettine’s opinion nor the “legion” of precedents which made it inevitable seem to have been discovered by Maine’s attorney general or his non-Indian constituents. But they serve to illustrate what Tureen meant ten days after Passamaquoddy became law when he said, “No legal issues are left to be decided. All we have to do now is prove the extent of the aboriginal holdings. Precedent covers everything else. The hardest part of the case is over.”
Outside of Maine, among the great absentee owners of the state’s land, the law was apparently better understood and was generating a reliance upon the Congress rather than the courts to defend two centuries of non-Indian title. Having defaulted on Passamaquoddy, the big paper companies had deployed lawyers to evaluate the damage and organize a strategic defense of their lands and treasuries.
But relief from Congress has not so far seemed likely. On Tuesday, June 29, Senator William Hathaway, chairman of Maine’s congressional delegation, listened intently as the impending impact of the claims was reviewed along with specifics of the attorney general’s letter of alarm.
Would he favor congressional extinguishment and forced settlement of the Maine claim? “No,” he said simply. “We can step in if a legislative remedy is available, but only at the request of both parties. If the government has a trust relationship with the tribes then the government has to look out for the Indians. That is the job of a trustee. The law is the law. If the Indians can prove their claim then they should get it. If they can’t, they shouldn’t.” Both of Maine’s congressional Republicans, William Cohen and freshman David Emery, concurred with Hathaway’s position. Senator Muskie, though inexplicably declining to discuss the current state of affairs, had in the past supported the tribes consistently.
As the summer ended, no one knew how high the level of disruption would have to reach before the prospective defendants would agree to sit down across a table from the tribal governors and their lawyers. The desire of the tribes to settle their claims by discussion has a consistency unbroken since John Stevens and his tribal council first appeared in Augusta in 1957. With equal consistency this desire has been either ignored or dismissed—ironically—as a sign of weakness. Last year, after Gignoux’s opinion in Passamaquoddy, Tureen tried to gather a group of representatives from the major land interests, and other Maine business and political leaders, to find a way to settle the claims with a minimum of economic suffering by non-Indians. No one responded to his invitation. Last summer, one company president, who is relying on laches and adverse possession to defend his lands, explained his disinterest in the tribe’s invitation: “That’s not the way it works.”
The way it does work was discovered three months later when Carley of Ropes & Gray sent a message to Lachance of Millinocket. Within a week of that call (after Governor Longley’s retinue had stormed Washington and pressured the Maine congressional delegation), Hathaway’s statesmanlike position began to shift. And Muskie, facing a surprisingly strong challenge for re-election, attempted to distance himself even further from the Maine Indian case. Despite his statements to the contrary over the years, and despite thorough briefings from Tureen along the way, Muskie claimed never to have understood that the case involved land.
The delegation cosponsored legislation in both houses of Congress expressing the sense of the Congress that “no cause of action for the return of aboriginal lands in the State of Maine shall lie” and limiting the tribes to “monetary damages” only. “The resolution can be modified,” Hathaway stated recently, “to say that the claims could include some portion of the state’s public lands [about 750,000 acres in all]—something that isn’t going to keep the city of Millinocket from issuing public bonds– and it could include some portion of the large holdings of the paper companies.” These words will shock the people of Maine, the environmental and recreational interests, and the large landowners, but the heretofore unthinkable– returning disputed land to the Indians must now be considered a plausible, perhaps inevitable outcome. Even so, the Maine delegation’s congressional resolution, filed on the last day of the session, remains on file, as yet unmodified, and awaits action by the Ninety-fifth Congress.
If, when Congress reconvenes, the painstaking accumulation of judicial opinion is ignored, and the tribes are stripped of aboriginal title and thus their direct route to recovering land, their only alternative will be to press their monetary damage claims of $25 billion with no mercy (Congress has no power to extinguish these), focusing on the smaller landowners who are unable to pay the amounts involved, and foreclosing on their property.
Now the tribes must deal with a new administration. Faced with uncertainties from both the legislative and the executive branches of the federal government, the tribes have poised themselves to exploit their options in the judicial branch. The weekend before the November 1976 elections, the tribes authorized Tureen to file their claims without Justice Department participation if necessary.
So the tribes wait for understanding to overtake the state. As they wait, understanding is already spreading outward from the 6000 acres of alienated tribal land over which the claims originated. Francis Brown, Washington County lawyer and trustee of the University of Maine, has made the decision that his firm will no longer clear non-Indian title there. “We can’t state, in the face of the current litigation,” says
SOME OTHER INDIAN SUITS
A growing number of suits demanding the return of land taken in violation of the Indian Non-Intercourse Act of 1790 have been pursued by Tom Tureen and his team of lawyers. The claims will eventuallv amount to more than a dozen. Many of them have provoked, or will provoke, the same dilemmas confronted by municipalities, property owners, bankers, and real-estate agents in Maine. Other than the Maine case, these six are now before courts in the Northeast:
The Wampanoag tribe of Mashpee on Cape Cod claims the entire town of Mashpee (pop. 1288), an area of 17,000 acres.
The Wampanoags of Gay Head (pop. 118), on Martha’s Vineyard, claim 5000 acres in the town, which has already voted to return a 230-acre parcel.
The Narraganset tribe claims 3200 acres in the town of Charlestown (pop. 2863).
The Schaghticoke tribe claims 1300 acres in the town of Kent (pop. 1990).
The Western Pequot tribe claims 1000 acres in Ledyard (pop. 14,558) near Groton.
The Oneida tribe claims 300.000 acres in and around the town of Oneida (pop.
11.658). between Syracuse and Utica.
Brown, “that those titles are satisfactory under the Maine standards of title and so we cannot say that they are marketable titles.” And Brown is also formally petitioning the Maine Bar Association to begin preparing all lawyers in the claims region for meeting their legal and ethical responsibilities if the settlement is rejected and the claims are filed. In December 1975 the owner of several hundred acres of the alienated Indian Township land, finding his title encumbered by the claims, decided simply to give the land back to the tribe. So on New Year’s Eve, just a week after Passamaquoddy was upheld, title to the first of the disputed Maine acreage slipped back to its aboriginal home. □