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•
ANALYSIS OF SECTION 6211 OF
MAINE I~1PLEMENT.Z~TION ACT IN RELATION TO
FEDERAL PROGR~M DELIVERY TO ~~INE INDifu~S
Sec. 6211.
Eligibility of Indian tribes and State funding.
This section is broken into four subsections.
Sub sec-
tions one and three provide that the Passamaquoddy Tribe and
the Penobscot Nation shall be eligible for participation in
State programs which provide financial assistance to State
municipalities, including discretionary grants or loans, to the
same extent and subject to the same conditions as any other
State municipality.
•
To the extent local matching funds are
required, the tribes may use funds from any source available,
including Federal funds.
Subsection four provides further that
individuals residing within the Indian territories are eligible
for and entitled to receive state grants, loans, or other
social service entitlements on the same basis as all other
citizens of the State.
Subsections two and four provide limitations on eligibility of the Passamaquoddy Tribe or Penobscot Nation or their
members for State funds based on receipt of Federal benefits.
Subsection two provides:
•
"Any moneys received by the respective tribe or
nation from the United States within substantially
the same period for which state funds are provided, for a program or purpose substantially
similar to that funded by the State, and in excess
of any local share ordinarily required by state
law as a condition of state funding, shall be
deducted in computing any payment to be made to
the respective tribe or nation by the State."
�2
•
Subsection four provides:
"In computing the extent to which any person is
entitled to receive any such funds, any moneys
received by such person from the United States
within substantially the s~~e period of time
for which state funds are provided and for a
program or purpose substantially similar to
that funded by the State, shall be deducted in
computing any payment to be made by the State."
If these provisions of State law were to be broadly construed
they could have an adverse impact on the ability of the United
States to provide assistance to the tribes or their members
under programs designed to aid Indian tribes or persons.
The
supplanting provisions could result in a dollar for dollar
reduction of State aid for every dollar of special assistance
offered the Indian tribes or members by the United States because
of their status as Indians.
At the Select Committee hearing July 1, 1980, Secretary
Andrus, pointing specifically to Indian Health Service programs,
testified that such a supplanting provision, if applied to
Indian programs throughout the United States, could result in
costs of hundreds of millions of dollars to the United States.
The State Attorney General's office has stated the supplanting
provisions are to be narrowly construed and need not result in
massive State reductions or increased costs to the United States
because of delivery of special Indian programs.
The application
of Section 6211 to Federal program delivery has been the subject
of correspondence between the State and the Interior
DeparL~ent.
�3
On July 21, 1980, James St. Clair 7 retained counsel
for the State of Maine, wrote as follows:
Interior expressed concern over the interplay
between the provisions of Section 8 of S. 2829 and
Sections 6211(2) and (4) of the Maine Implementing
Act.
In particular, Interior expressed concern that
Sections 6211(2) and (4) of the Maine Implementing
Act might be inconsistent with the policy underlying
many federal laws.
To that end, Interior initially
requested amendments of the Maine Implementing Act
or ·specific language in S. 2829. After much discussion, we believe the parties have eliminated much of
Interior's understandable concern.
Rather than
amending S. 2829 to state the parties' mutual understanding, hov. ever, i t would be preferable to embody
this understanding in the Committee Report.
Accordingly, the State proposes the following language for
inclusion in the Co~~ittee Report:
1
•
•
"The Committee was advised by the
Secretary of his concern that the set-off
provisions in§ 6211(2) and (4) of the
Maine Implementing Act may work to defeat
the intent of federal financial assistance
to Indian tribes, since it would appear on
its face to permit the State to use federal
monies to supplant State monies.
However,
after further inguiry, the Co~~ittee
believes the Implementing Act is not inconsistent with general federal policy. Specifically, the Committee understands the
Maine Implementing Act to work in the
following manner:
"To the extent the United States provides
funds for a program which are intended to
be supplemental to a State program, then
the set-off provisions of 6211(2) and (4)
do not apply.
The term 'substantially
similar purpose' as used in the Implementing Act was not intended to include
federal funds intended to enhance, enrich
or supplement programs provided for under
State law.
Thus, for example, where the
BIA funds a remedial reading program for
the Tribes, such programs would not be
'substantially similar' to a basic State
educational grant and would not supplant
State funding."
�4
This proposed language is stated in general
terms rather than by reference to either specific
State or federal programs, because a detailed
review of myriad State and federal statutes and
regulations would unduly delay the parties' goal
of prompt enactment of S. 2829.
The Department of the Interior responded by requesting
that Attorney General Cohen include the following language in
his letter of understanding to Interior and Congress:
•
"Fourth, in drafting § 6211 it was understood
among all the parties that to the extent the
United States provides funds for a program which
are intended to be supplemental to a State program, then the set-off provisions of 6211(2) and
(4) do not apply. The term "substantially
similar purpose" as used in the Implementing .~ct
was not intended to include federal funds intended to enhance, enrich or supplement programs
provided for under State law. Thus, for example,
where the BIA funds a remedial reading program
for the Tribes, such program Y. ould not be "substantially similar" to a basic State educational
grant and would not supplant State funding.
So
also, it was not the intention of the parties to
alter the effect of existing federal law. Thus,
the usual State participation in State/federal
cost sharing of social service programs such as
AFDC, Medicate and Food Stamps will be unaffected
by § 6 211 ( 2) and ( 4) . "
7
The Attorney General, by letter of August 22, 1980,
responded with the following proposed language:
•
"Fourth, in drafting ~ 6211 it was not the
intention of the parties to alter the effect of
Federal law.
It was understood among all the
parties that to the extent the United States pro- •
vides funds for a pr~grarn which are required by ·
Federal law to be supplemental to and not to
supplant State and local funds, then the set-off
provisions in § 6211(2) and (4) would not apply
to such Federal funds.
The term "substantially
similar purpose" as used in § 6211 of the Haine
Implementing Act [was not intended to] refer to
�such Federal £Q~ds that enhance, enrich or
supplement programs provided for under Maine
law.
Such Federal funds received by the
Tribes would be outside the scope of ~ 6211
entirely and would neither be deemed to be
eligible to initiate a State match under
§ 6211(1) not would they offset or supplant
any State march or State funds under § 6211
(2) or (4).
Consistent with the foregoing,
the usual State participation in the State/
Federal cost sharing of social services such
as AFDC, Medicare and Food Stamps would be
unaffected by§ 6211(2) or (4) ."
In
compari~g
the draft Interior proposal and the
response of Attorney General Cohen .it is clear that the point
of conflict revolves around the alternative phrases:
•
"Federal programs which are required by
Federal law to be supplemental to and not
to supplant State and local funds ... " (State)
and
"Federal programs intended to be supplemental to a State program ... " (Interior)
The exchanges of correspondence are in agreement that Federal
funds for programs that "enhance, enrich or supplement
11
State
programs would not trigger the supplanting provisions of Section
6211 of the Maine Implementing Act.
At the Committee mark-up on S. 2829 Interior proposed
the following language for inclusion in Sec. 6(b).
The State
objected to inclusion of the bracketed language as being inconsistent with Sect. 6211:
•
The Maine Implementation Act is hereby
approved, ratified, and confirmed [to the
extent that it is not inconsistent with the
provisions of this ·Act. J Nothing in this
section shall be construed to supercede any
�6
federal laws or regulations governing the
provision or fQnding of services or benefits
to any person or entity in the State of Maine
unless expressly provided by this Act.
[Nor shall anything in this Act be construed to allow the State of Maine to treat
the Passamaquoddy Tribe or the Penobscot
Nation different from any other municipality
in the State for provisions of funding of
municipal programs or services nor to allow
the State of Maine to treat the members of
the two tribes any different from any other
citizen in the State for purposes of their
eligibility or entitlement for state services
or programs.]
The State objects to the language "to the extent not
on the ground that this suggests
that S.
conflict with the Maine Implementing
•
inconsistent
2829 is in fact
-t-l~-{.-t
ActJA~his
in
suggestion or
implication generates unnecessary concern and hostility at
/11.-e. y ~~ u e.- +h o.-T
the State level./l~he Federal statute has supremacy over the
State statute in the event of any conflict.
the the language is needed because S.
Maine Implementing Act,
Interior argues
2829 is ratifying the
thus creating a need for some standard
~"'\c..
for resolution of conflicts within~Federal Act itself.
The State objects to the "equal treatment'' paragraph
co 11 {I :c.- T i
0
nj'\ ~
gr
0 Un
c.-L
7'
d S ~ t-h-a l
d I ~
S'l5llieVil."'13.!:-d"i-ffi"'1: a 1 l
l
0
U
nu--e
I S t
a-n-ft •
The
Maine State constitution requires that all municipalities be
treated equally and the State courts have been vigorous in e·nforcement
of that provision.
In addition,
the Maine Implementing Act is
premised on the concept that members of the two tribes are full
citizens of the State and are entitled to all the benefits of
any citizen.
To this extent,
then,
the uequal treatmentw paragraph
would appear consistent with State law and the only .objection would
be that inclusion of such language is in the nature of a gratuitous
�'1 i
that the
~.1aine
the indivi1ual
•
Implementing Act does lD
memb~rs
differently.
~revisions of
~he
supplanting
of
7.~-:e
=.:C-ine 1-.. ct~ that the "e:Jula.ity of
,
-
=~aine
.L.
•
.L.
• ,_
act, -crest..
1:~1~
7his objectiJr
to
of Sec. 6211 of the
.c>
1.
Sec. 6211
•
h
•
:trl ueS ana
s~e=~~
ta relate
~~th~r t~~~ ot~e~ se~tions
tre=.:t~:ent"
:;JI'ovision
e~:ect-
=n:p2.eiLer:.ting Act as being counter to the
over ths past 20 ye::.rs of requir:_ng St2.tes to n:'ovi-:ie s.eTvices to
to all
•
the
o~~er
t~ibss
citizens af the bt:at:e •
~rom
• .L..
ot~er
Clt..lzens of
or
of the -::ribes fl"om other rnu.nicipalit:.es for .Zt::..te
the
.::'"'·_,_~-r2ing
funds provided the tribes for t~e ;s==s
si:s.il2r progr2.:o exceed the local or ?:Junicipal sl:.:::.::.,e
a
con~
i ti 021 of State
fL,_~d ir:g.
T~e
o::-· di~c.ri::!.y
fu~~s
bPcause of their status as :=ndic.ns; i"lJ.nds ;,rl:_ich Y;'01J.ld
to
ot~s~ ~u~cinalitiss
qj??jC~
c
p:.::::·;-::;~es.
--
- ~'
?
p • .J '
n~~~
_:..· ~ -
-
•
or
ot~er
~n
req_u_ired
question
not be sv2il3.ble
State citizens.
2 2!1·~ 3) •
a c c e s s to s ";J.C r-~ f un::1 s •
p~ovision
is
t~at
it
~ay
lock
th~
t~i~es
an~
t~eir
~9~~e~s
into 2
�- E
~
ftll
position of equality unless the Fede:--al govE-rnment is willing, through
In~ian ~o~ies,
to
upgr~de
to totally
suppla~t
the State funding.
?ederal policy
the con1itions of the American Indian through special
pro grams m2.y thus be thwarted·.
�
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Title
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William S. Cohen Papers
Description
An account of the resource
Documents from the William S. Cohen Papers have been provided by the Raymond H. Fogler Library, University of Maine. Additional information about the collection can be accessed on their <a href="https://library.umaine.edu/cohen/" target="_blank">web page</a>.
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UMAINE042
Title
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Analysis of Section 6211 of Maine Implementing Act (MIA) in relation to Federal Program Delivery to Maine Indians (Undated)
Date
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Undated
Source
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William S. Cohen Papers
William S. Cohen Papers (MS 106), Special Collections, Raymond H. Fogler Library, University of Maine, Orono, Maine, 3.3.13.1 Box 8, Folder 1
Language
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English
Description
An account of the resource
Discuses conflicts between federal Bill S.2829 and the state Maine Implementing Act ((MIA)), jurisdiction and municipalities.
Type
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Text
Documents
Format
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PDF
Subject
The topic of the resource
Indians of North America--Maine--Land tenure
Indians of North America--Maine--Claims
Indians of North America--Legal Status, Laws, etc.
Indians of North America--Government Relations
Indians of North America--Politics and Government
Rights
Information about rights held in and over the resource
Copyright is retained by the creators of items in this collection, or their descendants, as stipulated by United States copyright law. This item is made available for research and educational purposes courtesy of Special Collections, Raymond H. Fogler Library, University of Maine, Orono, Maine. Prior permission is required for any commercial use.
Jurisdiction
Municipality
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6cb2119c9475a449bc304eaae8c7781f
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Text
~
To: Bill
Jirom: Tim
Re: Meeting in Portland to revise the federal Indian Settlement
legislation
Date: 7/11/80
A meeting was held in Portland yesterday, July·lo, to iron out some
of the problems in the federal legislation that carne out during the
Senate hearings.
1. The Maliseets:
The federal and state acts do not provide any restraints on alienation
to protect the land which would be acquired for the Maliseets.
The State:
•
•
Maine does not feel the restraints -are warranted because
it feels that the Maliseet .claim would fail in court.
It contends, and rightly so, that the Maliseets have
been included in the settlement only because the other
tribes have taken them under their wings.
As long as
Maliseets are only taking a portion of the settlement
which would otherwise have gone to the Penobscots and
Passamaquoddys, the State will not object.
The Maliseets:
Contend that, unless restraints are placed on the
alienation of the land, it will be lost.
History would
support their position.
The restraints they propose
include prohibiting the State from imposing a direct
tax on the land. Although the State would still be
able to extract "payments in lieu of taxes," it opposes
the provision.
Comment:
This could be a real problem if a compromise is not
effected before the bill goes to mark-up.
Those senators
from western states will .be sensitive to the argument
that the Maliseet land will end up in private hands
unless protected. The further argument could be made
that the Congress should not appropriate money for
land which will almost certainly suffer such a fate.
I told the parties to the settlement that this should
not become the Committee's problem and to work out a
compromise for us.
2. Federal money supplanting State money:
Interior:
Sec. 6211(4) of the Maine Implementing Act provides
that if a resident of the Indian Territory receives
federal.money which is for a purpose which is "substantially similar" to a state program for which he
is eligible, the State contribution will be reduced
pro tanto by the federal contribution.
Interior
objects to this provision as being to broad and
being likely to cost the federal government a . lot
of money.
Interior will not yield on this point .
The State:
The State says that it did not draft the section
with an eye to costing the federal government a lot
of money _ and is amenable to a compromise.
�Page -2-
•
Comment:
Although all parties are willing to compromise, it appears
from the discussion that finding the exact language will not
be easy.
3. Extinguishment:
Interior: Interior raised some objections to the extinguishment
language which concerned its trustee · duties. They would
like to have the tribes stipulate to the dismissal of
any cause of action they have against the State of Maine.
Comment: · This will be resolved . but finding the language will be hard.
Conclusion:
Several other points were made including the Interior -Department's
concern that, although the tribes were to be given municipality
status, they do not have governing charters. Interior is, however,
committed to the legislation and will not insist on compromises
which would be fatal to it.
I should note that the provision in
the federal bill providing for in futuro Congressional approval
of Tribal-State agreements also-came up.
I told the parties that
the present language and .another formula would have to be found.
•
•
Interior and the Oommittee will meet on Monday. Another meeting
is s~eduled for Portland on July 17, next Thursday .
�
Dublin Core
The Dublin Core metadata element set is common to all Omeka records, including items, files, and collections. For more information see, http://dublincore.org/documents/dces/.
Title
A name given to the resource
William S. Cohen Papers
Description
An account of the resource
Documents from the William S. Cohen Papers have been provided by the Raymond H. Fogler Library, University of Maine. Additional information about the collection can be accessed on their <a href="https://library.umaine.edu/cohen/" target="_blank">web page</a>.
Text
A resource consisting primarily of words for reading. Examples include books, letters, dissertations, poems, newspapers, articles, archives of mailing lists. Note that facsimiles or images of texts are still of the genre Text.
Dublin Core
The Dublin Core metadata element set is common to all Omeka records, including items, files, and collections. For more information see, http://dublincore.org/documents/dces/.
Identifier
An unambiguous reference to the resource within a given context
UMAINE039
Title
A name given to the resource
Memo from Timothy Woodcock to Senator William S. Cohen, containing notes regarding 07/10/1980 meeting in Portland for revisions to the federal Maine Indian Claims Settlement bill
Date
A point or period of time associated with an event in the lifecycle of the resource
7/11/1980
Source
A related resource from which the described resource is derived
William S. Cohen Papers
William S. Cohen Papers (MS 106), Special Collections, Raymond H. Fogler Library, University of Maine, Orono, Maine, 3.3.13.2 Box 5, Folder 11
Language
A language of the resource
English
Type
The nature or genre of the resource
Text
Documents
Format
The file format, physical medium, or dimensions of the resource
PDF
Subject
The topic of the resource
Indians of North America--Maine--Land tenure
Indians of North America--Maine--Claims
Indians of North America--Legal Status, Laws, etc.
Indians of North America--Government Relations
Indians of North America--Politics and Government
Rights
Information about rights held in and over the resource
Copyright is retained by the creators of items in this collection, or their descendants, as stipulated by United States copyright law. This item is made available for research and educational purposes courtesy of Special Collections, Raymond H. Fogler Library, University of Maine, Orono, Maine. Prior permission is required for any commercial use.
Attorney General Richard Cohen
Extinguishment of Claims
Maliseet
Municipality
Timothy Woodcock
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8659f51622604ca0b5be85d1fbdef12c
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Text
•
To:
Bill
From: Tim
Re: Maine Indian Land Claims Legislation
Date:
8/28/80
On th~ plane to Maine last night, I ran into George Mitchell who
said that you and he are to meet with Cecil Andrus on Wednesday.
This memo is a brief synopsis of the disagreement between Interior
and the State.
I have appended a second memorandum which summarizes
the history of the proposals offered by the State and the Administration to resolve the impasse.
At the heart of the problem is the Indian tribes' new status as
municipalities under the Maine Implementing Act.
The municipality
concept was adopted because it was believed to be the best device
to ensure that the tribes remained under Maine law and did not
take on the substantial attributes of sovereignty which characterize many of the tribes in the West.
The municipality construct
was also seen as the best way of tieing the tribes irrevocably to
Maine law:
a body of law with a substantial history of case law
behind it. By endowihg the ' ttibes · with~the characteristics of
municipalities, the State believed it was avoiding the creation
of a "nation within a nation" which Governor Longley had so vigorously decried.
••
The State and tribes realized, however, that, as municipalities, the
tribes would be eligible for state municipal-aid programs and, at
the same time, would be eligible for federal assistance based on
their status as federally recognized tribes.
In drafting section
6211(2) and {4), the provision which has proved so controversial,
the State was, in part, trying to ensure that this combination of
federal and State assistance did not result in a duplication of
services to the tribes.
In other words ; ' for example, the State
was attempting make certain that each Indian classroom did not
have two ~eachers, one paid by the state and one by the Bureau
of Indian Affairs.
After analyzing the provision, the Administration became apprehensive
that it would have the effect of forcing the federal government to
assume the State share of its obligations toward.the tribes as municiplaties whenever the federal government decided to fund the tribes
in an amount greater than that represented by the combined effort
of the tribe as a municipality and state under its municipal assistance programs. The following example will illustrate the point:
•
Suppose, for purposes ofl~~f~~~~~~ion only, the State, through its
school funding formula,~~~vr~Share it owed to the Passamaquoddy
tribe as a municipality was $25,000.
Suppose, through that same formula, the amount the Passamaquoddy
tribe owed to meet the state entitlement was $75,000.
The total formula, then, would amount to $100,000.
All parties agree that, at this point, the federal government could
assume all of the amount due the Passamaquoddy tribe without relieving the State of its obligation to supply the $25,000 .
-more-
�/
1?age -2-
August 2 8, l9_8Q
The problem arises when the federal government decides that, the
$100,000 to.be spent on the tribe's schools is insufficient to
provide the proper quality of education and determines to contribute some more.
*At this point, if the federal program under which the additional
money would flow to the tribe is found to be "substantially similar"
to a State program, then section 6211(2) would require that, for
each additional dollar the federal government provides, the state
share is reduced pro tanto. Thus, the additional federal contribution
effects a dollar for dollar reduction of the amount due under the
State entitlement program.
Therefore, in the example given above, if the federal government
decided that the proper amount of money necessary to secure a
quality education for the Passamaquoddy children was $110,000
rather than $100,000, it would have to replace the entire state
share before it could increase the tota~ · amount.
The $10,000
increase, then, would cost the federal government $35,000.
As
•
you will be able to see from the appended ~emorandum, attempts
to circumvent this provision have centered on narrowly construing
the term "substantially similar" so that, for practical purposes,
no federal program could be determined to be substantially similar
to a State program and the section would not be triggered.
In this
regard, I believe the State has gone a long way.
This impasse now centers on whether the federal programs cited
be described as "intended" to be supplemental or "required" to be
supplemental.
The Interior Department advocates the former position
and the State the latter.
Other programs are also implicated by this provision.
They include
General Assistance, workmen's compensation (under section 6211(4))'
and so on.
*Following the mark-up, we met in George Mitchell's office with
Interior, representatives of the State, and Pete Taylor, special
counsel on the Indian Committee. At that point, it became obvious
that much of the disagreement between the State and Interior was
based on the ignorance of each party of the other's funding mechanisms.
Accordingly, Pete and I met with a representative ~ from the Interior
Department the following day and discussed several Indian assistance
programs and the conditions which each placed on State participation.
"
As a result of that meeting, we drafted several questions for the
Attorney General's office to determine how the Stabe programs would
interact with the federal programs we had discussed.
I think that,
before we can at all sure of the interaction of these programs, we
will have to run several models on them using various figures.
I would expect that we will have these figures quite soon.
-more-
�1980
should be aware that I will not be back in the office on Wednesday
s my · plane does not come in until that night.
If you feel it is
appropriate for the kind of meeting you are to have with Secretary
Andrus, however, I would suggest that you ask Pete~ Taylor if he
is interested in attending. He has been very helpful on the Maine
Legislation, is fair-minded, and can tug Interior back into line
if it misrepresents the operation of one its programs. He would
be more than happy to do this.
If you would like to talk to me about this, I will be at either of
the following numbers:
942-3350 (Bangor) or 422-3176 (Hancock Point)
I brought all my file information on this problem with· me so I
should be able to answer your questions without any problem.
Enjoy your birthday·and the , Valley .
•
�
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Title
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William S. Cohen Papers
Description
An account of the resource
Documents from the William S. Cohen Papers have been provided by the Raymond H. Fogler Library, University of Maine. Additional information about the collection can be accessed on their <a href="https://library.umaine.edu/cohen/" target="_blank">web page</a>.
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UMAINE003
Title
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Memo to Senator William S. Cohen from Timothy Woodcock summarizing disagreement between the U.S. Department of Interior and State of Maine regarding the status of Tribes as municipalities under the Maine Implementing Act (MIA) (08/28/1980)
Date
A point or period of time associated with an event in the lifecycle of the resource
8/28/1980
Source
A related resource from which the described resource is derived
William S. Cohen Papers
William S. Cohen Papers (MS 106), Special Collections, Raymond H. Fogler Library, University of Maine, Orono, Maine, 3.3.13.1 Box 8, Folder 6; or 3.3.13.2 Box 5, Folder 11
Language
A language of the resource
English
Description
An account of the resource
Memo from Timothy Woodcock to Senator Cohen, summarizing disagreement between Interior and State: status of Tribes as municipalities under the Maine Implementing Act (MIA). The State specifically wanted to keep the Tribes under Maine law and not give them the same sovereignty as tribes in the West have.
Type
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Text
Documents
Format
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PDF
Subject
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Indians of North America--Maine--Land tenure
Indians of North America--Maine--Claims
Indians of North America--Legal Status, Laws, etc.
Indians of North America--Government Relations
Indians of North America--Politics and Government
Rights
Information about rights held in and over the resource
Copyright is retained by the creators of items in this collection, or their descendants, as stipulated by United States copyright law. This item is made available for research and educational purposes courtesy of Special Collections, Raymond H. Fogler Library, University of Maine, Orono, Maine. Prior permission is required for any commercial use.
Jurisdiction
Municipality
Senator William S. Cohen
Timothy Woodcock
-
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72f2d3732d1518f0de6126b8f4b26253
PDF Text
Text
PROPOSED CO~lliiTTEE REPORT LANGUAGE FOR MAINE
SETTLEMENT ACT
Section 6211 of the Maine Implementation sets forth
provisions for funding of the Passamaquoddy Tribe and Penobscot
Nation as municipalities and provides additionally for participation of their members residing within their respective
Indian territories in State programs.
This section is broken into four subsections.
Subsections
one and three provide that the Passamaquoddy Tribe and the
Penobscot Nation shall be eligible for participation in State
programs which provide financial assistance to State municipalities,
including discretionary grants or loans, to the same extent and
subject to the same conditions as any other State municipality.
To the extent local matching funds are required, the tribes may
use funds from any source available, including Federal funds.
Subsection four provides further that individuals residing within
their Indian territories are eligible for and entitled to receive
state grants, loans, or other social service entitlements on the
same basis as all other citizens of the State.
Subsections two and four provide limitations on eligibility
of the Passamaquoddy Tribe or Penobscot Nation or their members
for State funds based on receipt of Federal benefits.
Subsection
two provides:
"Any moneys received by the respective tribe or
nation from the United States within substantially
the same period for which state funds are provided,
for a program or purpose substantially similar to
that funded by the State, and in excess of any
local share ordinarily required by state law as
a condition of state funding,shall be deducted
in computing any pa}~ent to be made to the respective tribe or nation by the s.tate.
11
�•
Subsection four provides:
In computing the extent to which any person is
entitled to receive any such funds, any moneys
received by such person from the United States
within substantially the same period - of time
for which state funds are provided and for a
program or purpose substantially similar to
that funded by the State, shall be deducted in
computing any payment to be made by the State."
11
If these provisions of State law were to be broadly construed,
they could have an adverse impact on the ability of the United
States to provide assistance to the tribe or their members under
programs designed to aid Indian tribes or persons or other general
programs designed to aid local governments or individuals regardless of legal status.
The supplanting provisions could result in
a dollar for dollar reduction of State aid for every dollar of
•
special assistance offered the Indian tribes or members by the
United States because of their status as Indians or otherwise
provided under more general programs.
In testimony before this on June
, 1980, the Secretary
of the Interior expressed concern regarding the application
of
this provision in the Maine Implementation Act and its impact
on the ability of the United States to provide services to the
Indian tribes and individuals in the State of Maine.
He also
expressed concern with regard to the precedential aspects of the
Maine "supplanting" provision on delivery of services to Indians
in other states.
The Maine Implementation Act is a codification of an
agreement reached by the Passamaquoddy Tribe and Penobscot Nation
t
• ~'
with the State of Maine.
By letter of August 22, 1980, Attorney
General Richard Cohen of the State of Maine explained the intended
�reach of Section 6211 of the Maine Act.
in full in this Committee report.
This letter is printed
The following excerpts are
relevant to understanding the intent of Section 6211 and the construction to afforded it.
It was ... understood ... that treating the
Tribes as municipalities could place . the Tribes
in a unique position with respect to their eligibility for Federal funds. As recognized
Indian Tribes, the Passamaquoddy Tribe and
Penobscot Nation will be eligible for funds
and services available only to Indian Tribes
(e.g., Johnson-O'Malley Act and Snyder Act funds
from the Bureau of Indian Affairs). * * * In
addition, since the Maine Tribes would be municipalities under Maine law, it was thought that
the Tribes might also be eligible for Federal
funds available to municipalities (e.g., Federal
municipal revenue sharing) . The possible availability of these Federal funds in conjunction
with State "rnunicipal entitlements made it apparent that in some circumstances the Passamaquoddy
Tribe or Penobscot Nation would be eligible for
multiple funding of Tribal programs from both the
State and Federal governments. This multiple
State/Federal funding would not be available to
other municipalities in Maine nor to the Indian
Tribes elsewhere in the United States. Because
of this, the State and Tribes agreed that if a
basic service was funded by the Federal government,
as a result of the Tribes' special status under
Federal law, then duplicate funding by the State
would be inappropriate.
It was with that end in
mind that Section 6211 was drafted.
11
*
•
*
*
[I]t was the understanding of the parties that
the set-off provisions in Section 6211(2) and (4)
of the Implementing Act were intended only to encompass Federal funds that would be actually
received by the Tribes and their members by virtue
of their status as recognized Indian Tribes and
their status as Indians under Federal Law. Since
the State had agreed to treat the Tribes as municipalities for State funding purposes, it was
anticipated that any Federal monies received by
Tribes as municipalities would not be treated any
differently than similar monies received by any
other municipality.
However, since the Tribes'
status as recognized Indian Tribes would in all
�probability make them eligible for additional
Federal monies unavailable to other citizens
and municipalities, such Federal funds received
by them as recognized Tribes would be treated
differently and would be subject to the set-off
provisions.
•
[I]n drafting Section 6211, it was not the
intention of the parties to alter the effect of
Federal law.
It was understood among all the
parties that to the extent the United States
provides funds for a program which are required
by Federal law to be supplemental to and not to
supplant State and local funds, that the set-off
provisions in Sec-tion 6 211 ( 2) and ( 4) would not
apply to Sl~sh Federal funds.
The term "substantially similar purpose" as used in Section 6211
of the Maine Implementing Act was not intended
to refer to such Federal funds that enhance,
enrich or supplement programs provided for under
Maine law.
Such Federal funds received by the
Tribes would be outside the scope of Section 6211
entirely and would neither be deemed to be eligible to initiate a State match under Section
6211(1) nor would they offset or supplant any
State match or State funds under Section 6211(2)
and (4).
Consistent with the foregoing, the
usual State participation in the State/Federal
cost sharing of social services such as AFDC,
Medicare and Food Stamps would be unaffected by
Section 6211(2) or (4).
From this letter, the following salient points emerge:
(1) the supplanting provisions of Section 6211
apply only to Federal funds provided the Tribe or
Nation or their members because of their status as
Federal recognized Indians.
Federal funds provided
the tribe or their rneniliers which are generally available to other local governments or persons are not
subject to the supplanting provisions of Section 6211.
(2) the purpose of Section 6211 is not to establish
•
a basis for withdrawal of State funding from the tribes
or their members by virtue of the Federal recognition
and their eligibility for Federal Indian services,
�but rather it is to avoid duplicate funding by
both the State and the Federal government of the
same or substantially similar programs.
(3) in the absence of Federal funding in excess
of the local share ordinarily required by State law
as a condition of State funding, the State contribution to the Tribe or Nation and their members
will be equal to that provided other municipal
governments and their citizens, and
(4) there will be no withdrawal or diminishment
of effort by the State based on Federal funding of
programs which enhance or enrich basic programs
or which are required by Federal law to be supple-
•
mental to and not supplant State and local funds .
The Department of the Interior has expressed concern that
the supplanting features of Section 6211 of the Maine Implementing
Act may be counter to the policies persued by that Department,
and indeed all Federal agencies, over the past 20 years of requiring States to provide services to their Indian citizens on .
the same basis as they provide services to all other citizens of
the State.
The supplanting provisions of Section 6211, however, do
not appear to result in any difference in treatment of individual
members of the tribes from other citizens of the· State or difference in treatment of the tribes from other municipalities for
•
State funding purposes.
The supplanting provisions of Section
6211 are triggered only when the Federal funds provided the tribes
for the same or substantially similar program exceed the local or
�municipal share ordinarily required by State law as a condition
of State funding.
The objection of Interior that the supplanting
provision may deny the tribes or their members equality of treatment with other State municipalities or citizens does not appear
well founded.
It would appear the real objection to the sup-
planting provision is that it may lock the tribes and their
members into a position of equality with other municipalities
in Maine or other State citizens unless the Federal government
is willing to totally supplant the State funding.
Federal policy
to upgrade the conditions of the American Indian through special
programs may thus be jeopardized.
The treatment accorded the Passamaquoddy Tribe and the
Penobscot Nation as units of State government under the laws of
~
the State of Maine for funding purposes is unique in Federal
Indian law.
So far as this Committee is aware, no other State
accords the Indian tribes within its boundaries this status.
Under general Federal law governing Indian affairs, Indian tribes
are considered for all purposes domestic dependent sovereigns.
Their sovereingty is recognized through Federal treaties and
statutes and it pre-dates the U.S. Constitution or the organizational documents of the individual States where they may be
located.
The Indian tribes are dependent upon the United States
for their protection.
They donotconstitute a unit of local
government in the State within which they are located.
Nation v. Georgia,
U.S.
Cherokee
(183l)i Worcester v. Georgia, 31 U.S.
(6 Pet.) 515 (1832); McClanahan v. State Tax Commission of Arizona,
411 U.S. 164 (1973); Martinez v. Santa Clara Pueblo,
(1978).
�In recent years, there has been a growing tendency in
Federal legislation to include the Indian tribes on the same
basis as other units of local government for purposes of Federal
funding.
However, the States do not treat Indian tribes as
political subdivisions of the State and to the extent State funds
are provided their local governments, Indian tribes do not participate.
The provisions of the Maine Implementation Act are unique
in this respect.
It is very likely that the extent of State par-
ticipation in the provision of funds to the Indian tribes in that
State for governmental operations and the provision of general
services will exceed that provided by most states with Federally
recognized Indian tribes or populations.
Under the circumstances, the Committee believes the Maine
Implementation Act should be ratified without modification.
In
the event it should be shown that the effort of the State of
Maine does not match that provided by other states, the Congress
may amend the provisions of this Act to provide equitable funding
provisions.
1
�
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Title
A name given to the resource
William S. Cohen Papers
Description
An account of the resource
Documents from the William S. Cohen Papers have been provided by the Raymond H. Fogler Library, University of Maine. Additional information about the collection can be accessed on their <a href="https://library.umaine.edu/cohen/" target="_blank">web page</a>.
Text
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Identifier
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UMAINE001
Title
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Proposed Committee Report Language for Maine Settlement Act (or Maine Implementing Act), drafted by the Maine Legislature’s Joint Select Committee on Indian Land Claims (09/03/1980)
Date
A point or period of time associated with an event in the lifecycle of the resource
9/3/1980
Source
A related resource from which the described resource is derived
William S. Cohen Papers
William S. Cohen Papers (MS 106), Special Collections, Raymond H. Fogler Library, University of Maine, Orono, Maine, 3.3.13.1 Box 8, Folder 1
Language
A language of the resource
English
Description
An account of the resource
Proposed Committee Report Language for Maine Implementation Act
Type
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Text
Documents
Format
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PDF
Subject
The topic of the resource
Indians of North America--Maine--Land tenure
Indians of North America--Maine--Claims
Indians of North America--Legal Status, Laws, etc.
Indians of North America--Government Relations
Indians of North America--Politics and Government
Rights
Information about rights held in and over the resource
Copyright is retained by the creators of items in this collection, or their descendants, as stipulated by United States copyright law. This item is made available for research and educational purposes courtesy of Special Collections, Raymond H. Fogler Library, University of Maine, Orono, Maine. Prior permission is required for any commercial use.
Jurisdiction
Municipality
-
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360482de21016a16d48c4a072198d2cc
PDF Text
Text
Governor
Harold Lewey
Indian 'Cownsbip·· t:ribal 00"tl'nment Council Members
Albert~na
Anna Harnois
Phyllis Sabat~us
Allen Sockabasin
George Stevens
Dennis Tomah
Passama·quoddJ Tribe
Motahkmikuk
L~. Governor
Carl Nicholas
Tel (207) 796~~01
Mailing Address: Bn 301 Princeton, Maine 04668
Hon. Richard Cohen
Attorney General
State of Maine ·
State House ·
Augusta, Maine
September 7, 1979
Dear Mr. Cohen,
After discussing your· rec·ent me·e ·ting with. ·our a tto·rney
and the attorney for the· large 1andhoTdeis ,- we· ·have ·deci_ded
that we would be· ·willing, in the· ·interes·t of· res·olving the
land claims,- to the" "
follow·i ng ter·ms ·of settlement for our
existi~g res·ervations and lands ·to be· ·acquire·d in a settlement:
1. ·All State : of Maine civil and criminal laws ·o f general
application. would be adopted by our tribes· and. wo·uld:: .. a.pply
on our lands .·in the· ·m anner that such ·1aws· apply to Maine ·
municipalities·, so· long as the·s·e· ·1aws· do not discriminate,
either as written or as applied, against membe·rs of our tribes,
or vest in the State or the state · ·c ourts the· ·pow·e ·r· to alienate
our lands.:
.
2. Our tribes will comtrol hunting, fishing, and trapping
on our lands. In so doing w~ will ag~e~ ·to im~ose adequate ·
conservation safeguards ·so· that our· practice~· do not substantially
diminish "fish ·or· game stodks on adjacen·t lands or_ waters. Sµch
an agree·mefrt wo."u ld require -a satisfactory provision for transportation of" fish and game.
3. Our lands will be ·treated as federal Indian reservations
for purpose·s· of taxation.
.
4. Federal criminal statutes·, such as the Maj or Crimes
Act and th~ General Crimes Act,· will apply on our lands,.and.
our tribes.will have the ·right, · if th~y so ch6ose,· to establish
courts in accordance with ·the ·rec·e:n.'t decision by the· Maine
Supreme Judicial Court in ·sta·te· v .· ·na·na·. to he·a:r minor Indian
vs. Indian offenses, and Imd1an civil matters arising on our
lands, including those whicn fall under the· Indian Child Welfare
Act.
.
This proposal, which accords· with our understanding of the
Hathaway Proposal, meets the concerns which we have heard voiced,
�Hon. Richard Cohen, p. 2.
and represents our best faith effort to meet you half way.
But beyond this we cannot go. We must have your response
by September 14, 1979.
�
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Title
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National Congress of American Indians Records
Description
An account of the resource
Documents from the National Congress of American Indians Records have been provided by t by the National Museum of the American Indian Archive Center. Additional information about the collection can be accessed on their <a href="http://www.nmai.si.edu/explore/collections/archive/" target="_blank">web page</a>.
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Identifier
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NMAI010
Title
A name given to the resource
Letter to Maine Attorney General Richard Cohen from Tribal Negotiation Committee Regarding Settlement Terms (09/07/1979)
Date
A point or period of time associated with an event in the lifecycle of the resource
9/7/1979
Source
A related resource from which the described resource is derived
National Congress of American Indians Records
National Congress of American Indians records, Box 530, Misc. Rec. of S. Harjo, Eastern Land Claims, Folder Titled “Maine”; National Museum of the American Indian Archive Center, Smithsonian Institution
Language
A language of the resource
English
Description
An account of the resource
Letter describes settlement terms that the Tribes are willing to agree to after recent meetings between the State and the attorneys for the Tribes and the large landholders. Signed by Gov. Harold Lewey, Gov. M. P. (?), Timothy Love, Lt. Gov. Carl Nichols, James Sappier, Reuben ("Butch") Phillips, Andrew Akins, Robert Newell, and one other (signature illegible).
Type
The nature or genre of the resource
Text
Documents
Format
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PDF
Subject
The topic of the resource
Indians of North America--Maine--Land tenure
Indians of North America--Maine--Claims
Indians of North America--Legal Status, Laws, etc.
Indians of North America--Government Relations
Indians of North America--Politics and Government
Rights
Information about rights held in and over the resource
Copyright is retained by the creators of items in this collection, or their descendants, as stipulated by United States copyright law. This item is made available for research and educational purposes by the National Museum of the American Indian Archive Center. Prior permission is required for any commercial use.
Attorney General Richard Cohen
Hunting and Fishing
Jurisdiction
Municipality
Passamaquoddy and Penobscot Negotiation Committee
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c64a13e2093095cf4855547bad18013e
PDF Text
Text
I1nittb &>tatt~ &>tnatt
MEMORANDUM
SENATOR:
This is the analysis
the ~lliite House provided
two weeks ago.
Jim
�THE WHITE HOUSE
WASHINGTON
June 13, 1980
Dear Jim:
Enclosed is a document prepared within
the Administration which addresses the
principal features of the proposed Maine
Indian legislation. Please note that
this document neither endorses nor rejects
the bill generally or any of its provisions;
rather it is an attempt to identify issues
which must be addressed as the bill is
considered.
Senior Associate Counsel
to the President
Mr. James W. Case
Legislative Director for
The Honorable George J. Mitchell
United States Senate
Washington, D.C.
20510
�·June 9, 1980
Issues Involving the Proposed
"Maine Indian Claims Settlement Act of 1980"
I.
Level of Federal Funding
II.
Status of the Houlton Band of the Maliseet Indians
III. Changes in Existing Federal Indian Policy Proposed by the
Settlement
•
f
�1 ,
I,
Level of Federal Funding
--The $81.5 Dillion in new budget authority authorized by the settl ement
far exceeds the $37 million in new Federal funding approved by the
Administration for settling Maine land claims.
--Funding difference stems from differing amounts of land contained in
the settlement and the average per-acre valuation of the land:
Tribes/State:
300,000 acres x $18l.66/acre
$54.5 M
Administration: 100,000 acres x $IOO/acre
-$10.0 M
$44.5 M
--Major uncertainty exists concerning ~ffect on Federal programs of the
settlement provisions that (1) treat the tribes in Indian Territory as
municipalities under State law -- a rare status for tribes within the
United States;l/ (2) require the Federal Government to disregard settlement
payments to the tribes, or any State payments to them, when determining
individual or tribal eligibility for Federal financial assistance, and
(3) provide general tribal and individual eligibility for State
financial assistance programs on the same basis as other municipalities
and persons, but Federal payments to the tribes or individual Indians
for substantially similar purposes shall be deducted from the amount
of State funding provided.
· Could the tribes as municipalities receive more Federal funding than
would be the case today where they are treated only as tribes?
· If the State could withdraw all health care funding for its Indian
citizens in anticipation of Indian Health Service (IHS) aid, the incremental cost for the IHS is estimated at about $1 million per year in
~1aine, and $285 million per year if this provision establishes a
nationwide precedent.
Federal fupding would supplant State funds in other programs as well, although no estimates of cost are available. The legislative history for
some programs like employment and training under CETA or public school
assistance under the Johnson - 0 t~1alley Act indicates a clear Congressional intent to prevent States from supplanti~g their o\~ funds with
Federal dollars.
· Effect of the settlement on general revenue sharing is uncertain. Clarification is needed concerning whether the tribes should be ·regarded as tribal entities, local governments, or both, for revenue sharing purposes.
--The settlement would expand Federal tax law to treat as "involuntary
conversions", and therefore subject to capital gains deferral, the sale
of private land to the t-1aine Indians pursuant to the settlement, if the
proceeds froe the sale are used to buy similar land within two years
after the year of sale (3 years for business property). The estimated Federal tax loss would be $15 million. Existing Fede~al tax
law allows involuntary conversions if the sales:stem from Federal
or State condemnation -- not private la\vsuits or out-of-court settlements. Enactment of this provision would set a precedent for other
Indian claim settlements as well as for a gen~ral expansion of tax deferrals
for real estate.
1/ The sett 1ement defines "Indian Terri tory" in ~Iaine as the current Passamaquoddy
and PenoQscot reservations plus the first 300,000 acres of land · acquired by the
U.S'.I for the tribes in designated, unincorporated areas of the State.
�II.
St atus of the Houlton Band of M lis eet Indians
a
Various settlement provis i ons raise m jor questions:
a
--Does the Band meet the standard criteria for a Federally
recognized tribe?
--What is the number and location of Band members?
is that the Band numbers about 350 persons.)
(The present estimate
--Does the Band have a credible land claim pending? (Very little historical
or anthropological data is currently available to the Federal Government
on this issue.)
--What status for the Band does the settlement envisage? (The
State act does not give "municipal" status to the Band nor recognize any power or authority of the Band; however, the proposed
Federal act "recognizes" the band, and does not specifically revoke
concomitant tribal power.) Further, what is the relationship between
the Band and the Federal Government under the settlement? The Band
would be eligible for financial benefits to which other tribes may be
entitled, but their lands would not be subject to any restrictions on
alienation. The nature of the Federal "trust responsibility" over such
lands is unclear, since the u.S. might not have any authority with respect
to their disposition.
--Although Congress has the authority to recognize the Band as a tribe,
it would be contrary to positions taken by the u.S. in Federal court
for the Executive Branch to take a .position on the Band's status as a
tribe without the Band proceeding through the recently initiated Federal
Acknowledgement Project administered by Interior. This project was implemente~ to enable Indian groups to establish their entitlement to a
government to government relationship with the U.S.
":
•
I
..-
�3.
III.
Changes in Existing Federal Indian Policy Pr opos ed by the Settleme nt
1. State civil and criminal jurisdiction over Indians and Indian
Land -- Sec. 6(a)
Assumption by the State of Maine of jurisdiction over civil and
criminal actions by or against Indians in Indian country is similar
to the existing situatiori in certain other States as authorized by
Federal law, but the provision
--although containing some protections, lacks the same protections for
trust land and federally guaranteed water, hunting, . trapping or fishing
rights as contained in existing Federal law -- 2S USC l321(b) and 1322(b),
--covers lands and other natural resources owned by the United
States, for its own use and not held in trust.
--leaves in doubt whether the Houlton Band retains any civil or
criminal jurisdiction.
2. Waiver of sovereign immunity -- Sec. 6(c)
This provision would \'laive sovereign immunity for the Houl ton Band and the
corresponding waiver for the Passamaquoddy and Penobscot tribes when they
act in a proprietary function.
-- Although Congress has the authority to waive a tribe's sovereign
i8ffiunity, it has done it only occasionally and then usually in a
limited fashion, and
-- the provision needs clarification to determine what types of tribal
business;are covered for the Passamaquoddy and Penobscots.
3. Payment of money judgments from tribal trust fund income -- Sec. 6(c)
This provision allows persons with unpaid final, money judgments
against the Passamaquoddy or Penobscot tribes to obtain payment from the
Secretary of the Interior, using income from the proposed tribal trus~
funds. The provision
~ -is
unique in regard to Federal Indian law,
--imposes an administrative burden on Interior to assess money judgment
claims and defend litigation, and
--creates ambiguity because the Secretary is required by an earlier
provision to make avaiiable to the tribes their trust fund income
"without any deductions".
l,
4. Congressional consent to amendments made to t~e State law implementing
the settlement
Sec. 6(d)
This provision is an apparent attempt to authorize unilateral State
changes to the State and Federal laws implementing the settlement.
�4.
--111e provI sIon is un iq ue bec aus e it \\'ould (1llow th e Federal
act and Un i t ed St a t es int e r ests re ga rd i ng th e s e ttl ement to
be amend ed by subsequent St a t e amendments.
"
- -In addition, should a Fed eral act ratify an ambiguous State
act in a blanket manner?
5.
Full faith and credit for tribal judici a l proceedings--Sec. 6 (f)
Pursuant to this provision, the United States, every State, every
U.S. territory, and every Indian tribe shall give full faith and
credit to the judicial proceedings of the Passamaquoddy and Penobscot
tribes, but,
--under recent Federal case law, full faith and credit is not given
to tribal court proceedings by Federal courts, although "comity"
pl ® a role,
ys
--the United States would be treating the judicial proceedings of
the two Maine tribes differently from those of. all other tribes,
and
--the provision would require Federal courts to recognize tribal
adjudications even if they violate the Indian Bill of Rights,
since Federal courts do not have jurisdiction to review tribal
government actions as a result of the 1978 Supreme Court decision
in Santa Clara Pueblo v. Martinez.
6.
General non-applicability of Federal laws affording special status
to Indians--Sec. 6 (g)
This provision requires that Federal la\vs providing benefits,
programs, or services to Maine Indians or tribes because of their
status as~Indians not apply in Maine, except to the extent Federal
funds were provided the tribes. The provision
~-is
unique, because in no other instance does the Federal Government
. provide funding to tribes without statutory guidance as to the nature
of the trust responsibility,
--is unclear as to tribal and
St~te
intent,
--would cause major uncertainty over which laws in Title 2S of the
U.S. Code apply to M
aine, and
--raises questions whether individual tribal members could receive
Federal scholarship, employment, \</elfare, or heal th care assistance
directl y from the United States because only the tribes ar~ eligible
for such fundin g . HO\,'ever, th e tribes mi ght be prohibi ted from
administeri ng cer t ai n Fed er a l .pr ograms due · to the non-applicability of the
Indian Se lf-Determination Act which authori zes tribes to run the~e
pro gr ams th emselves .
• r
�I.
Lnif lU
j-\11Cn(1Tl0 n--~ e c.
~
le)
The .settlement provision involving trus t l and s tatus authori z.es
substantial changes from existing Federal law:
- -The general restriction on non-alienation of tribal land except
pursuant to Federal law is removed.
--Land owned by the Houlton Band, whether in trust or not, is not
subject to any restrictions on alienation.
--Land in Indian Territory held in trust for the Passamaquoddy or
Penobscot tribes retains restrictions on alienation, and, pursuant
to the settlement, the Secretary of the Int~rior's authority to
approve conveyances is some\vhat more limi ted than for other tribes.
--Passamaquoddy or Penobscot land outside Indian Territory and in
"organized and incorporated" areas of the State would be subj ect
to no alienation restrictions--whether or not the land is held in
trust. (Apparently, a substantial portion of the land to be
purchased for the tribes will be outside of Indian Territory.)
--The removal of the traditional non-alienation provisions for trust
land affects the U.S. ability to protect its title to the land,
is a major change from Federal policy protecting tribal trust lands
from alienation, and renders the U. S. trust responsibi Ii ty ambiguous
at best.
--Tribal land would be subject to State eminent domain proceedings.
8.
Tax~.t io~ ~";Sec.
6208 of the State act
The State act provides for State tax exemption for the settlement
trust fund and income derived therefrom--this is similar to the
State action taken in the Rhode Island Indian claims settlement.
However, other tax provisions in the State act differ substantially
from Federal la\\1:
--The Passamaquoddy and Penobscot tribes agree to make payments . in
lieu of State real estate and personal property taxes on land in
Indian Territory--currently, all trust property is exempt from such
taxation, and tribes do not make alternative payments.
trust property (i.e., all land held for the Houlton Band
and all land held for the other two tribes outside of Indian Territory)
is subject to levy and collection of taxes by all State taxing
authorities--this, apparently ,."ould mean tax payment by the United
States as trustee, or by the beneficiary tribes, and could allow
trust property to be sold for non-payment of taxes. The Federal
Government could be placed in the position of investing millions
of its dollars in a legislative scheme for tribal deve~opment, only
to see the resources dissipated in a short period of time.
-~Other
--Taxation of trust ,land has two importarif _implications: (1) it is
contrary to current Federal law and policy whereby Indian lands
are held by the U.S. in trust in order to prevent their loss from
Indian ownership; and (2) it would, in an unprecedented manner,
allow the State to tax interests of the Federal Government contrary
to basic constitutional law .
.,
�6.
- - Under exi s t i ng Federal c ase l aw, Sta t es cannot t~x Indi an in com
e
earned on re s ervat i ons or income dir ectly derive d from t n lst
property. Similarly, income f r om tribal activiti es is not tax ed
by the State, unless the tribal business is incorp orat ed pursuant
to State law. The State act eliminates these tax exemptions for
the tribes and individual Indians.
9.
~1un i cipality
Status of the Tribes--Sec. 6206 of the State act
The State act would provide the Passamaquoddy and Penobscot tribes
\vi th the powers and ·liabili ties of a municipality under Maine law.
However, other sections of the State act would largely repeal current
State law provisions on tribal organization. The ~-faine tribes have
no constitution, charter, or organic act defining their structure and
powers (as have many tribes nationwide and all other Maine municipalities).
--By granting the t\vO tribes municipality status, :the State act
would seem to limit tribal authority and subject it to State control
(a unique situation for the U.S.). What authority will be delegated
is not specified.
--Can the tribes exercise municipality powers without a charter? Hmv
will the future stability of tribal government be assured without
some type of organic act for each tribe? Should the Federal legislation provide for such a constitution, charter, or organic
document? Any entity, whether private or public, would seem to
need such a charter to conduct business and manage valuable resources
in an efficient manner.
10.
Extinguishment of cl· ims under State la\v--Secs. 4 (a) Cii ) and 11
a
These provisions would extinguish Indian claims existing under State,
not Federal, law.
--Is this appropriate in Federal legislation?
State matter?
Is it. not purely a
--Is the Federal Government being unnecessarily exposed to potential,
unnecessary liability?
�
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George J. Mitchell Papers
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Memo from James Case (staffer to Senator Muskie, and then to Senator Mitchell). This memo is probably addressed to Senator George J. Mitchell, and has a White House analysis of Bill S. 2829 attached. (06/13/1980)
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George J. Mitchell Papers
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Indians of North America--Maine--Land tenure
Indians of North America--Maine--Claims
Indians of North America--Legal Status, Laws, etc.
Indians of North America--Government Relations
Indians of North America--Politics and Government
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Copyright is retained by the creators of items in this collection, or their descendants, as stipulated by United States copyright law. This item is made available for research and educational purposes by the George J. Mitchell Dept. of Special Collections & Archives, Bowdoin College Library. Prior permission is required for any commercial use.
1723
1725(h)
Application of State Law
Extinguishment of Claims
Jurisdiction
Maliseet
Municipality
-
https://d1y502jg6fpugt.cloudfront.net/26761/archive/files/4b9e923f6a1630aeb318bde735ed86ca.pdf?Expires=1712793600&Signature=g-O9YrC7%7Ez3RHoofacurUIur-gPtT7QKnnqkIzytY2QfEjJnxGzOZdgvZUqcPBIlq2ROSy5bhvmzGmuj7osi7C5Obzc0948s4amlbTsQFtTfhHuSAO5KLbSwK7YnPBu9gwq2aFmzThCkX3XgAjrzrzSr5IXtOrZnWMOoW6i6X501cTK1NV0Yfp8HwVdjNEtjEij4Z-IInuMVwaIWqahjYDQh%7EKJ4auM1qiz0nIKYjWVRdUNaJ12s64YRUSHvk1GH2F3IZXA8cxtTdYZmKZdFMm3Slk7UTvV7CMPh0xYZRnYOscXZETcAUPHE6ZX5DTvFLUpVQ7LnUA%7EOH2kUdAt8uw__&Key-Pair-Id=K6UGZS9ZTDSZM
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PDF Text
Text
\
\
}
~tale
o6 GYFiaine
~·
OFFICE OF THE GOVERNOR
AUGUSTA, MAINE
04333
FOR IMMEDIATE RELEASE
STATEMENT OF GOVERNOR JOSEPH E. BRENNAN
REGARDING THE INDIAN LAND CLAIMS SETTLEMENT
March 21, 1980
M skle Archives
EdmundS. u · ns Library
& special Colle~~pOSES ONLY
FOR RESEARC~ r ccordance with
Reproduc~d In~ uses
Tl~le 1 be subiect to
1
Th .s matenal mav . . "
•
copyng
nt 1estnct1on<>
I have promised to make my decision on the proposed Indian
land claim settlement public this morning.
I have asked the President of the Senate, Joseph E. Sewall,
and the Speaker of the House, John Martin, to join me today.
As
leaders of the Legislature, they are the two other ranking representatives
of the- people of our state. Their presence underscores the tremendous
importance of this issue to all the people of Maine and affirms the
bi-partisan nature of our efforts to resolve this litigation.
As you know, the original claims were of incredible dimensions.
The Penobscot and Passamaquoddy tribes have argued that their
lands were transferred illegally between 1794 and 1834 to the states
of Massachusetts and Maine, and to private citizens.
They claimed that
the consent of the federal Congress was necessary before these lands
could be conveyed -- but that the consent was never given.
So these claims are nearly 200 years old.
They involved nearly half the state-- more than 12 million acres.
-more-
�-2And the claim for the lost rental value of the land topped
$25 billion.
So long as these claims exist, there will be a threat to the
transfer of property in northern and eastern Maine.
There may also be a serious problem with selling state bonds.
These two problems could potentially seriously affect the economy
of our state.
Since these claims were first brought to court in 1972,there have
been a number of decisions concerning the legal status of Haine's
Indians.
First, in 1974 in Passamaquoddy Tribe v. i·1orton, the Naine Federal
District Court and the Circuit Court in Boston both decided that the
Maine tribes were entitled to the representation of the United States
government in assessing the validity of the claims against the state.
Subsequent decisions have suggested that these tribes are entitled
to the same kind of sovereign immunity as western tribes and even to
application of federal law in federal courts in crirr.inal cases.
Elsewhere in the country a very confused and uncertain picture
has emerged as to the status of Indians all over the eastern United
States.
During much of this claims period I served
~·f.:!ine
as Ar:cor:1.2?·
General and was directly and daily involved in the p=oblems
prese~ted
by the Indian claims.
~.;_fter
t~e
~.r2ry
exte~sive
conside:-ation, I for:n-2·:. ::he ccr:clusi.or: that:
legal claims of these tribes
c~~~d
-me-re-
be
s~ccessfu:lv
d~~~nded.
�-3-
I continue to hold to that conviction.
I believe that if this case has to be tried. the state will
ultimately prevail.
However, there is very respectable legal
~
authority which believes that· litigation ~auld mean some risks.
I believe that the Congress did in fact ratify the land transfers
and that it has always acted as if the land belonged to the non-Indi2n
owners.
But with a claim of this magnitude, you may be sure that every
party would take every appeal, exhaust every avenue, and
every issue to the bitter end.
litiga~e
This prolonged legal combat "Y7ould
undoubtedly require one and possibly several appeals to the United
States Supreme Court.
litigation.
It would probably take another decade of
It \.vould certainly take hundreds o:f thousands, if not
millions of dollars, to resolve.
And during this long period, as I
noted, there could be adverse economic consequences for the state
and the people.
Because of these considerations, because of these potential costs,
I have always felt that, while the state would ultimately win, the
best interests of the people could be bette= served if we could
achieve a fair and equitable settlement.
We have tried · to achieve such a settlement
be~ore.
Two years ago, the President appointed Judge Gunther, a
Georgia Suprerne · Court Justice,
to look
i~to
reti~ed
the matcer and make
recommendations.
But, his report called .:or
to the settlement he
p~cposed,
~he
and
donat:..on of s ::ate land and :ncr..e·-'
~as,
ther2~ore
~ejected.
�' 1
-4Later a "White House Work Group" came up \vi.th a scheme that
not only would have required the state to contribute $25 million,
but also would have forced private lando\mers to "sell" their land
for $5 an acre.
Needless to say, this was totally unacceptable to us.
Then, in the fall of 1978, the so-called Hatha\o;ay Plan was
advanced.
This solution called for the federal government to create
a $27 million trust fund for the tribes and a $10 million land acquisition
fund with r.vhich to ?Urchase 100,000 acres.
any terms regarding jurisdiction.
This proposal did not have
Those would be worked out later.
This settlement was agreed to by former Governor Longley: Senators
~uskie
and Hathaway and Representatives Emery and Cohen and myself
as Attorney General, but never came to fruition.
~~ith
this difficult history, Attorney General Cohen beg2n anew
the negotiations a year ago.
At the outset of his negotiations I
laid down
t~·lO
principles
for a settlement which I always believed were absolutely essential
before I
could accept any agreement.
First, the claims should not be settled with any state money.
Second, the sovereignty of the state government
ove~
all the land
and a:.l the people of Haine should not be compromised ir1 2.ny subst:antia.l
way.
I
have
al~v-a:rs
been guided by these
t~vo
principles because I have
alwavs believed that the people of Maine were 2uiltv of no wrongdoing
.J
•
-
'-""
m:-h-er and,t::,.erefore, should not have to pay
:nay have :nade.
-more-
fo~
""
c._:
t:,.e Elistakes och2:-s
-
�-5-
Likewise, I have always believed that all the people of Maine,
regardless of race, religion, ethnic origin or sex should be
treated equally.
could not have a "nation within a nation."
\~e
I have examined this settlement very carefully, both step-by-step
as the parties were developing it over the last year, and as a whole
since it was submitted to us about two weeks ago.
Part of the settlement proposal involves the state and the
people of Maine and requires the approval of the Legislature and
the Governor.
I
am satisfied that this part meets my two tests.
It does not involve state money.
And it does not diminish the sovereignty of the state as we have
known it.
On the contrary, this proposal offers the potential for building
a whole new relationship with our Indian citizens, a relationship unlike
that which exists in any other state.
By treating the Indian territories as municipalities, this settlement
provides that our Indian citizens will be on a substantially equal footing
with their fellow citizens in other towns for the first time in our
history.
The Indians would be full-fledged citizens responsible for
their own services, taxes, welfare and destiny, just like the other
people in every other Maine town and city.
I am hopeful that this settlement will mark a new era in which
Indians will live and govern with the same dignity and self-respect
is other citizens.
-more-
�\
-6-
So this settlement would not only elirinate a ·3erious threat
of prolonged, expensive and unproductive litigation, but would
also promise an opportunity for a new beginning for the members of
these tribes.
I am sure that these considerations have
l~d Preside~t
Sewall
and Speaker Martin to join me here today, for as you can see, this
is a jurisdictional agreement that is of major and lasting significance
and one that transcends
all considerations of partisan interest or
selfish political gain.
So I will introduce legislation concerning jurisdiction to settle
and conclude the role of the state in this continuing contro'. :-ersy.
Obviously, this legislation and this Legislature cannot and will not
address the federal questions raised by the potential settlement
between the tribes and the present land owners and the federal government
itself.
Tl1e tribes and the landowners have appparentl:r reached an agreerr..ent
for the sale of some 300,000 acres for an announced price of $54 million.
This would be, in addition, as I understand it, to the $27 million
trust fund proposed in the old
Hath~~ay
Plan.
I was not involved on this aspect of the proposed
settle~ent.
Anci understandably so.
It is not our land
I : is not our
~oney.
We were never in a position to
in auestion.
-more-
eval~ate
the true value ot
t~e
�-7~ior
were we in a position to dictate how or how much federal
money would be spent.
These are issued that can only be addressee by our national
counterparts --the President of the United States and the Congress.
And I know that, just as ;..;e have been evaluating very closely
the state jurisdictional issues. our Congressional delegation will
be scrutininzing the money aspect of this settlement very closely.
I
will only say that for any resolution on the federal level
to be successful, it Hill require the same kind of bi-part:i..san
spirit Senator Sewall and Speaker Martin have represented at the
state level.
I
am sure you can all imagine the disarray and
confusio~
which
would be caused if Senators Muskie and Cohen and Representatives
figu.~e.
Emery and Snowe each advocated or endorsed a different
But I know that they all well understand the
i~mense
of a fair and equitable settlement to all the people cf
i~portance
~aine
--
I~dian
and non-Indian alike.
So I am very hopeful that after their careful deliberation -;;.;ith
the parties, oer Congressional representatives
~ill
consensus and present the united front so important to
reach a
~he
seccess
of this settlement.
I
fig~re
will, of course, support the ultimate consensus
they
develop.
In conclusion, I am hopeful that wich
and the enact:nent of the legislat:i..cn I
Le;:i..slat~re,
~e ~~~l ~ake
t~e
Indian
~and
cl~iills
jurisd:i..c~i0nal
case.
agree~ent
submit t:J the :·!a:i..:1e
significant ?regress ccwari
~ucscanding proble~ fac~ng ~aine
:z
~..;ill
~his
~
solu:ion
~a
~~e
cocay -- t~e juac and equ~:2~~2 ~eso~~=~:~
�-8-
I want to thank President Sewall and Speaker Martin for joining
me ror this occasion in an ecumenical and non-partisan basis.
I believe they share my hope that this settlement will bring an
end to this difficult problem in a way that ensure justice for
all the citizens of Maine.
•"':"·-J
�
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The Edmund S. Muskie Papers
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A selection of documents from the Edmund S. Muskie Papers have been provided by by the Edmund S. Muskie Archives and Special Collections Library, Bates College. Additional information about the collection can be accessed on their <a href="http://abacus.bates.edu/muskie-archives/?_ga=1.58550314.1828118176.1485979172">web page</a>.
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Statement of Governor Joseph Brennan regarding the Maine Indian Land Claims Settlement (03/21/1980)
Date
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3/21/1980
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The Edmund S. Muskie Papers
The Edmund S. Muskie Papers, Box 2353, Folder 11, The Edmund S. Muskie Archives and Special Collections Library, Bates College, Lewiston, ME,
Language
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English
Type
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Indians of North America--Maine--Land tenure
Indians of North America--Maine--Claims
Indians of North America--Legal Status, Laws, etc.
Indians of North America--Government Relations
Indians of North America--Politics and Government
Rights
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Copyright is retained by the creators of items in this collection, or their descendants, as stipulated by United States copyright law. This item is made available for research and educational purposes by the Edmund S. Muskie Archives and Special Collections Library, Bates College. Prior permission is required for any commercial use.
Governor Joseph Brennan
Jurisdiction
Municipality
State Sovereignty