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95TH CONGRESS
1sT SESSION
He Re 4169
_
.. .
!
•
IN TilE HOUSE OF REPR,ESENTATIVES
~iAnen
~{r.
1, H>7·7
CoHEN (for himself andl\ir. EnrEHY) introduced the fo1lo·wing bill; which
was referred to the Committee on Interior and Insular Affairs
A BILL
R.ela.ting to cettain Indian la1icl clai1ns in the Sta.te of l\1aine, ·and
for other purposes.
1
Be it enacted by the Jgenate and Ifouse of Representa-
2
tives of the United States of America in Congress assernblecl,
3
That this 1\..ct 1nay he citr4 as the "State of l\Iaine Aboriginal
4
Olain1s Act of 1977".
G
DECIJA.RATION OP FJNDINGS
G
SEC.
2. Congress finds and declares that( 1) there are currently pending ahoriginal land
7
Pa.s~tnnaqnoddy ~and
Penobscot Indinn
,~vhieh
1nay involve over
8
clain1s by the
9
Tribes of the State of l\1aine
40 per centun1 of the land area of the State of l\faine
10
I
�2
1
and which n1ay result in a cloud on the title of the poten-
2
tially affected land areas;
3
( 2)
these 'aboriginal land claims were presumed ex-
4
tinguished by conquest, abandon1nent, or by treaties
5
entered int.o: in t~e l~_te eighteenth a~1d early nineteenth
6
centuries;
..
7
( 3 ) the n1ere pendency of these clai1ns for the
8
return of a.horiginallands and 1nay re'sult in 'irreparable
9
damage and substantial adverse consequences for the
10
State of Maine and its ·citizens "rhich ·consequences -are
11
disproportionate to the u.lti1nate resolution of the
12
litigation;
13
(4) vvhile the -legal basis for the clain1s rests in
14
large part on the alleged failure ··of the Federal Gov-
15
ernment to carry ont its trust responsibility to the
16
Passa1naqnoddy and Penobscot Indian Tribes, the bur-
17
· dei1 of the clain1s falls upon the State ·of · Maine and
18
present-clay go~d-faith titleholders in the State of l\Iaine;
19
( 5) a monetary re1nedy, if any, shall · e the exclub
20
sive re1nedy available for any clain1s arising ·out of or
21
based upon any clailns of violation of aboriginal title
22
rights whic-h 1nay be brought by the Passamaquoddy or
23
Penobscot Indian Tribes; and
24
( 6) no provision of this Act shall be construed as
25
replacil1g or diminishing any right, privilege, or obliga-
�"I
,,
3
1
tion of 111e1nbers of the Passatnaquoddy or Penobscot
.:.J
f)
Indian Tribes as citizens of the United States ·or of the
3
State of l\1aine, -or relieving, replacing, 01~ diminishing
s
4
any obligation of the United States or of the State of
.1
5
:l\faii1e to protect and pron1ote the rights oi· ~elfare of the
6
1nen1bers of these tribes as citizens of the United States
7
·or of the 1State ·of Maine.
l-
DECLAR.ATION OF TITLE EXTINGUISHMENT
8
9
SEc. 3. (a) To the exteilt, if any, that the Passama-
10 quoddy or Penobscot Indian Tribes held a.boriginal title to
11 or interests in lands or waters, or both, in the area now com-
12
prising the State of :l\faine, the Oongres~· hereby recognizes
13
all prior conveyances of such title and interests from such
14 Indian tribes to the 8tate of 1\iaine and its predecessor in
J :=>
interest, the Oon11notnvealth of Massachusetts, and deetns all
16
such title and interests to have been extinguished as of the
17
date of such conveyances.
18
(b) Any relief 'vhich n1ay hereafter be granted as a
19
result of any clain1s arising ,out of or based upon the alleged
20
-vvrongful loss of aboriginal title rights in the State of Maine
21 by the Passatnaquoddy and Penobscot Indian Tribes shall
22
be litn1ted to monetary dan1ages only and such monetary
23
damages shall he the exclusive remedy available for any such
24
claims.
25
SEc. 4. Notwithstanding any other pr.ovision of law, any
�LJ:
1
action brought i~1 any district court other t4an the United
;2
States :Pistriet Court !or tlle Djstriet of
3
ferr~d
~
t}le aotiort il1volved the ()Onstruction, appUcation, or co:p.-
to
th~t pQqrt .iln~nediately
l\f~inc
shoJI be trans-
upon a dotcnuination that
5 .stitution~lity of this Act. 'rhe U n~t~d StPttes Distl·ict Co11:rt
6 for the District of lV[a.ine shall 4~ve t4e duty to o~peclite ~o
7
the greatest extent possible the
8
construotio:t;l,
9
of t]fe
10
ll
ij,pplip~,t~o~1,
distr~()t
qr
disposit~on
of the issue of such
constit~1tionality
and a decision
cqurt -Qf that issqe shjtll 1?~ ~eemed to be a
final order for pml_J,o~es of review.
SEc. 5. If any section of this Act, or any porti~n thereof
12 or allY particular application thereof is held inva.lid, the re-
13 HJ.Arh~der
of tha ·A-ot, and any p,pplication of this
14 lllY1lli(1, shallnqt - Aff{:}ctecl th~reby.
be
A~t
not held
�9iJTH C<?NGRESS
1ST SESSION
H R 4169
e
e
A BILL
Relating to eertain Indian land claims in the
State of ~1aine, and for other purposes.
By
~1r. CoHEN
and
~1r. El\IERY
MARCH 1, 1977
Referred to the Committee on Interior and Insular
Affairs ·
�
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William S. Cohen Papers
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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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Identifier
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UMAINE044
Title
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H.R. 4169, State of Maine Aboriginal Claims Bill of 1977 (03/01/1977)
Date
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3/1/1977
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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, 3.3.13.2 Box 4, Folder 10
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English
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PDF
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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 courtesy of Special Collections, Raymond H. Fogler Library, University of Maine, Orono, Maine. Prior permission is required for any commercial use.
Representative David F. Emery
Representative William S. Cohen
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12c8d8e8d5d3167ebb8003672c5f3115
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Text
RICHARD
JOSEPH E.BRENN.A..'\1"
S. CoHE~
JoHN M. R. PATERSON
DONALD G. ~\.LE..'"U....'IDER
ATTORNEY GENERAL
DEPUTY ATTORNEYS GENERAL
ST.A.TE OF ~L~I~E
DEP.ART~fENT OF THE ...\:rTOfu'rnY GE~ERAL
AUGUSL.-\., ~lAINE 0433£3
Ivlarch 2, 1978
Honorable Leo Krulitz
Solicitor
Depar~uent of Interior
Washington, D.C.
Eliot Cutler
Assistant Administrator
Office of Management & Budget
Executive Office Building
Washington, D.C.
A. Stephens Clay
Kilpatrick, Cody, Rogers, McClatchey & Regenstein
Suite 400
2033 K Street, N.W.
Washington, D.C. 20006
Re:
United States of America v. The State of Maine.
Gentlemen:
In the course of our review of the Joint Memorandum of
Understanding developed by the vfui te House ~'Vork Group and representatives of the Penobscot and Passamaquoddy Tribes, a number of
questions have been raised. We believe that, prior to development
of any final State position on the proposed settlement, answers to
these questions are necessary.
It is unfortunate that we did not
have an opportunity to pose these questions to the Work Group prior
to the preparation of the Joint Memorandum.
1.
Past State Payments.
In the past 15 years, the Maine taxpayers have contributed
approximately $15,000,000 to provide social services, housing and
other support to the Indian Tribes. The federal government now
recognizes that it is obligated to provide support for the Indian
�P~ge
2
Tribes and that it has been obligated to provide support services
for many years past because of the trust relationship it now asserts
to exist.
In light of the present federal position regarding its
responsibilities for financial support of the Indian Tribes, is the
federal government prepared to reimburse the State of Maine for
the support provided by the State in lieu of the federal support
which should have been available to the Indian Tribes?
· :)
Assuming that the federal government is correct in demanding
State participation in a settlement as a quid pro quo for federal
involvement (a principle with which we take exception), why were
Maine's past payments to the Tribes insufficient to satisfy this
principle? Has consideration been given to the fact that none of
the other states involved in Trade and Intercourse Act claims,
Massachusetts, Rhode Island, Connecticut or South Carolina, ever
made similar payments to the Tribes located in those states? In
view of Maine's extraordinary efforts (approximately $10 - $15 million
in the last 19 years alone), why is more expected by the federal
government from Maine citizens and taxpayers? Why is it fair to
Maine to expect more of Maine taxpayers who acted in good faith all
these years in taking care of what are now asserted to be federal Tribes?
2.
Integrity of State Laws.
The Joint Memorandum indicates that any lands acquired by the
Indians be within the State's criminal and civil jurisdiction
subject to "retrocession" which would terminate state authority over
the· lands. The question of the status of enforcement of state laws
on acquired Indian lands would appear to require resolution prior to
any settlement because of the many implications involved. For
example, in developing new businesses, as is proposed wi~~ the $25
million federal contribution, would the Tribes take advantage of
exemption from state consumer protection, environmental, work place
safety or minimum wage laws to compete unfairly with other Maine
business who must remain subject to these laws? What protections,
if any, will exist for wild animals and fish which live in or cross
the acquired Indian lands? What protections will there be for
abutting landowners from such problems as stream siltation, air
pollution or noise which may result from uncontrolled industrial
and commercial activity, such as clearcutting timber, on Indianacquired land?
3.
Tax Losses.
At current rates of taxation ($0.75- $0.80 per acre) the
State will lose at least $400,000 a year in taxes on the 500,000
acres which it is proposed that the Indians would acquire. Assuming
an increase in this tax rate over the course of time, this tax loss
will surely increase. Will this be the limit of tax losses or will
there be other tax losses? For example, w.ill all improvements on
�Page 3
this property be exempt from State taxation? Will business transactions on this property be exempt from State sales and income taxes?
would the exemption from State sales and income taxes be limited to
transactions between Indians or would the exemption, if there is to
be one, also extend to transactions between Indians and non-Indians?
we understand that there is litigation in process in Washington State
to determine whether an Indian Tribe can sell tax free cigarettes to
non-Indians. The sale of such cigarettes has cost the State of
washington an estimated $8 - 14 million in lost revenues already.
Is there likely to be a similar problem in Maine with lost taxes?
4.
Easement Uses and Fish and Game Laws.
The proposed settlement requests the Indians be given easements
to hunt and fish and collect brown and ye 1 1 ow ash on approximately 3 million acres. How intensive a use is contemplated under
these easements? Will the uses under these easements be subject to
State criminal laws, fish and game laws, and other necessary State
controls designed to prevent abuse of land and resources?
5.
Other Indians in Maine.
The Joint Memorandum makes no provision for claims of or federal
support forother Indians in Maine, i.e., the Micmac and Maliseet
(Malicite).
It is entirely possible, however, that either or both
of these tribes may assert against the State the same kind of claims
asserted by the Penobscot and Passamaquoddy.
Indeed, it has curiously
been ignored that the 1794 agreement that forms the basis of the
Passamaquoddy claim was executed by Massachusetts, not only with the
Passamaquoddy, but other eastern tribes, which appears to include the
Micmac and Maliseet. What precedential value will the proposals in
the Joint Memorandum have on these other latent claims? Is the
federal government prepared to extinguish these other claims? Will
the federal government take the same posture toward settlement in
those cases as it does in this?
6.
Changes from the Gunter Plan.
The Joint Memorandum contains an agreement by the White House
to extinguish the Tribal claims to 9,200,000 acres in return for a
payment of $25,000,000. This is in contrast to Judge Gunter's
proposal to extinguish claims to 12,000,000 in return for the same
amount of money. Why did the White House decide to still pay
$25,000,000 to the Tribes but extinguish a smaller amount of the
claim? Since we understand the original proposal of Judge Gunter
to have been characterized generally by President Carter as fair
and equitable, why did the White House retreat from the position of
Judge Gunter that no private landowners be held responsible? Does
the White House now take the position that indeed some landowners
are, because of the size of their holdings, more guilty than others
and less deserving of the protection originally fashioned by Judge
Gunter? If so, why?
�Page 4
7.
Land Acquisition Costs.
The federal government proposes to assist the Indians in
acquiring approximately 300,000 acres of land from private landowners for a payment of approximately $1.5 million, or $5 an acre.
At the same time, we understand that a tentative settlement has
been reached in a similar suit in Rhode Island, that involves a
proposal under which the federal government will acquire land
for the Narragansett Tribe at fair market value. Assuming that
the federal government agrees to assist in that settlement by
acquiring land at fair market value, why should Maine lands purchased to resolve a similar dispute be acquired for far less than
fair market value? Is the federal government prepared to reconsider
its position and pay prices at or near fair market value for land
acquired in Maine?
8.
Payments to Interior Department.
The proposed settlement contemplates that any payments by the
State to the Indians be paid through the Interior Department.
If the
settlement is to be between Maine and Maine's Indians, why should the
Interior Department play a middleman role in payments? Would it be
preferable to keep the money in Maine by making any payments from
Maine direct to Maine's Indians without channeling the funds through
a Washington bureaucracy which might mandate uses of the funds in a way
desired by neither the State nor its Indians?
9.
Baxter
Park Easement.
The Indians have requested, as part of the settlement, a
religious easement in Baxter State Park.
Precisely what uses are
contemplated under this easement? By this request for an easement,
do the Indians seek special privileges not accorded to other citizens, or are they merely requesting permission to do something which
they could now do with approval of proper authorities?
10.
Responsibility for Services.
It has b~en suggested that the Indians would undertake a number
of economic development projects with funds received as part of the
settlement. Such projects will necessarily increase demand for
certain services traditionally provided by the State, such as highway maintenance and highway improvement arid forest fire protection.
Will the State continue to be called upon to supply such services, or
will such services all be provided with the $3 to $5 million a year
which the federal government contemplates giving to the Indians?
�Page 5
11.
Changes in Federal Assistance Patterns.
If the Indians acquire the land they are seeking, will the
federal government provide a greater level of assistance to Maine
to acquire more park lands for use by all Maine citizens? Similarly,
if the Indians acquire the lands they are seeking, will those lands
be deemed federal public lands so that the State will receive an
increase in the funds the State is paid under the Federal Highway
Trust Fund? Are there other areas in which.federal aid patterns to
the State would change - for better or worse - as a result of the
Indian settlement?
12.
Contribution from Massachusetts.
The agreements ("treaties") of 1794, 1796 and 1818 which form
the bulk of the claim against Maine and its citizens were in fact
executed by Massachusetts. Assuming arguendo that these agreements
were made in violation of the Trade anq Intercourse Act, it must be
concluded that the State of Massachusetts perpetrated these "wrongs."
Inasmuch as Maine was only assigned the treaties when it became a
State, an assignment imposed upon it by· Massachusetts as a condition of its statehood, why was no consideration given to, in fairness, demanding a contribution from the State of Massachusetts?
Are citizens of present day Maine any more responsible for the
events of 200 years ago than the citizens of present day
Massachusetts?
I look forward to your answers since they will affect our
response to the proposals in the Joint Memorandum.
Sincerely,
J:::tf.~~
Attorney General
JEB/ec
cc:
Honorable James B. Longley
Honorable Robert Lipshutz
Honorable Edmund S. Muskie
Honorable William D. Hathaway
Honorable William S. Cohen
Honorable David F. Emery
Members of the Maine Legislature
�
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
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UMAINE037
Title
A name given to the resource
Letter to White House Work Group from Attorney General Joseph Brennan (03/02/1978)
Date
A point or period of time associated with an event in the lifecycle of the resource
3/2/1978
Source
A related resource from which the described resource is derived
J. Russel Wiggins Papers
J. Russel Wiggins Papers, Special Collections, Raymond H. Fogler Library, University of Maine, Orono, Maine, Box 53, Folder 28
Language
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English
Description
An account of the resource
Questions that the State would have liked to have posed to the Work Group prior to preparation of Joint Memorandum. Questions regarding loss of state jurisdiction, land use, future Indian claims (incl. Micmac). If Maine must give financial contribution (in addition to the financial contribution of the federal government), why not Massachusetts too?
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.
A. Stephens Clay
Bob Lipschutz
Eliot Cutler
Governor James B. Longley
Governor Joseph Brennan
Leo Krulitz
Micmac
Representative David F. Emery
Senator Edmund Muskie
Senator Hathaway
Senator William S. Cohen
White House Task Force
White House Work Group