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~~--~(
//if~
9f>~h
coNGREss )
2nd-- SESSION
Calendar No.sENATE
TC-W
~E1/,,Ao
---------------------------------------------------------------~~~
s. 2829
.
_________________-Ordere d to be pnnted
Select
:Mr. Me c ~~---------------------------------------, from the Committee on
1
Indian Affairs
.
.
_______________________________ , subrrutted the folloWing
REPORT
[To accompany _____S_: ___ _2JL2_9_____________________]
Select
The tCo n1n1i ttee on
---~-~~-~-~!:?___ A_~_f -~-?: E_:>___________________________________________________________,
to ·which \"ras referred the
~JI t.. t.~E@1 ;.;.,.. .... (-~-:---~-?-~-~--------------------:---------------)
;;
}+,~1
~:--~.lff
To proYide for the settlement of land claim~ of Inruans, Indian nstiom and tribes
and bands of Indians in the St.B te of Maine, including thr P~~sam2 quoddy
Tribe, the Penobscot K ation, and the Houlton Band of Ma1i~ee1 Indians, a.nd
for other purpo.!'es.
having considered the same, reports favorably thereon \vithi~ amendment (s )
·
b·n
~A!
1
and recommends that the ~ln -r-eso1 ._. (as amended) do pass.
- -nt
Ut.H1n
�PURPOSE:
s.
tribes, the Penobscot Nation, the Passamaquoddy Tribe, and the
ton Band of :t-1aliseet
~
tra££fe~s
Indians(~---aJ 1.-o-g.a.:t;;.i~
e~~eaiee
i~
that
~
treaties BCYwesn the States of
setts and Maine in which the tribes surrendered
title to land are invalid for having been made in violation of the
Federal Trade and Intercourse Act of 1790, also
Intercourse Act, and its successor
kno~~
as the Non-
legis~tiQn.
The applicable prot:£{ . 'l oS US'- I 7J
vision of this Act is now codified in ·Section 177, Title 25 United
States· Code and reads as follows:
No purchase, grant, lease, or other conveyance of lan~
s,
or of any title or claim thereto, from any Indian nation
or tribe of Indians, shall be of any validity in law or
equity, unless the same be made by treaty or convention
entered into pursuant to the Cor.stitution.
Maine claims are the largest of several
raised in states on the East coast.
cl~ims
that have been
At issue are land
~
~~s~s~~
~
involving as much as 12.5 million,, or more than 60% of the State,
on which more-than 350,000 people now reside.
I£ these claims were fully litigated it would doubtless cause
~serious
-
---
~
adverse economic impact in the State of Maine.
been estimated that i t would take
litigate these claims,
fr~m s~~ars
includin~tion
of
a~eals.
It has
to +tilly
(ihe ALlor-
pey Ce-fteral QJ tfie State has estlmated the chances o£ success by
~e
5tate-al 60% 40% :i:n the
the State,
better.
~
James St.
~tates fat~o;}.
Clair~ieves
Independent counsel for
the odds are a little
Counsel for the tribes, needless to say, would reverse
the odds . .
�-
·J_c
Everyone agrees that a negotiated settlement is in the best
~Y>~all parties ~one ~~urp~~o
~~~alL'
~
•
the agreemen ( s which have been reached by
the Indian tribes, the State of
vate property from
United
}~aine,
~~nt
States~~e
and certain owners of pri-
lands are to be acquired.
The
Department of the Interior, Department
of Justice, and White House representatives, participated in these
settlewent negotiations and supports this settlement.
··--
~-··-·-- - ---------------------·
-------
-----
�,
;,.
BACKGROUND
-~D
NEED
History of Litigation:
In 1972, the Governors of the Passamaquoddy Tribe asked the
United States to bring. suit on behalf of their · tribe, pursuant to
the Indian Nonintercourse Act.
ouest was denied
tween :t:R.e- Unit:es States
anQ tao
Na:iflo
~~.
The Passamaquoddy
Tribe then brought a declaratory judgment action against the Secretary of the Interior and the United States Attorney General.
/
~ ;d9~2,
In
the tribel won an order forcing the United States to file a
protective action on its behalf.
In 1975, the United States Dis-
rict Court for the District of }iaine held that the Indian Nonintercourse Act applies to all tribes, including these which are not federally-recognized, and that the Act creates a trust relationship between the United States and all such tribes.
Later that year, the
United States Court of Appeals for the First Circuit unanimously~~
affirmed the
Passa~dy
decisiOn, holding that -the trust rela-
0
tionship created by the Act includes, at minimum, an obligation to
investigate and - take- such action as may be warranted under the cirCQ~stances
whan an alleged violation of the Nonintercourse Act is
brought to the government's attention.
~The
•
issues raised in the Passamaquoddy case were reaffirmed in
~subsequent
decisions involving Maine Indians:
Bottomly v. Passa-
�maouoddy Tribe, 599 F. 2d 1061 (1st Cir. 1979) (holding that Maine
Tribes are entitled to protection under the federal Indian common
law doctrines) and State of Maine v. nana, 404 A. 2d 551 (Me. l979),
cert. · denied 100 F. Ct. 1064
(Feb. 1980) (holding that reservation
land of depenoent Maine Indian Tribes constitutes Indian country as
that term is used in federal law) .
Subsequent to the decision in Joint Tribal Council of the Passama~uoddv
Tribe
RassamGyW@~
v. Morton, 528 F. 2d. 370 (1st Cir.
1975), aff'd, 388 F. Supp. 649 (D. Me. 1975), the Department of Justice reviewed the merits of the Maine Indian claims.
1975, the Interior
Deparb~ent
In December,
submitted a litigation request to the
Department of Justice and, 1n January, 1976, the Justice Department
notified the United States District Court for the District of Maine
of its intention to proceed with litigation on behalf of the Passamaguoddy Tribe and the Penobscot Nation, unless
tion could be agreed upon.
~n
out of court solu-
The report included a detailed analysis
of the merits of the Indian claims.
President Carter responded by
appointi~g
tive, the recently-retired Justice of the
a personal representa-
Geo~gia
Supreme Court Wil- _
liam Gunter, who, after substantial study, recommended a settlement
of the claims. - · The White House then appointed a three-person work __
group to develop a settlement for the claims.
This group consisted
of Eliot Cutler, Associate Director of the Office of Management and
Budget for Energy, Natural Resources and Science; Leo Krulitz, Solicitor of the
Depar8~ent
Gunter's law partner.
of the Interior; and A. Stephens Clay, Judge
Negotiations between this work group and the
�j
tribes
proauce~an
the~ministrc-
agreement between the tribes and
tion, which was announced in February, 1978 . . An agreement between
the~dministration
and officials of the State of Maine was announced
in / November, 1978.
But it was not until March, 1980, that an agree-
ment supported by all parties was announced.
Following
~arch
announcement, the current agreement was ap-
proved by the Passamaquoddy Tribe
ton Band of Maliseet Indians.
Meine legislature
and~ned
Brennan, on April 2, 1980.
on June 13, 1980 by Senator William Cohen and Senator George Mitchell
of Maine.
Background of the Claim:
These tribes were first contacted in their
by
the earliest European explorers of Lhe NorLh American continent.
All three tribes are riverine in their land-ownership orientation.
The
-
a~original
territory of the Penobscot Nation
Penobscot River.
i~!entered
~ All
~
on the
The aboriginal territory of the Passamaquoddy Tribe
on the _ Saint Croix River and the smaller river systems .·
to the west.
seet Indians
. _AS
~tentered
The aboriginal territory of the
~entered
Houl~on
Band of Mali-
on the Saint John River.
three of these tribes played an important role ln the Revo-
lutionary War.
General George Washington requested the assistance
of these tribes and,
ector of the federal
tiated a treaty with
on~' Colo~~~j,J~.-Alla
, the dir-
gov~:rnmeft •s Eastern r 1 dian De artm n!j negothese In~ ians, pursuant~ whi~h t ~ ~~.
ns
.• I
,
r
J
' ~tCl
r \ .--Z/1 r')!y
f.!. t\'"' ~
_: '.1
\]
,j
U -'t'~ )v\-./ \
/1.
'
b
�- L.? ~ere
to assist in the
Revolution~ vla
their lands by the United
of need.
,t~{Y~a
This treaty wa~~~
though Allan's journals
i~ica
return for protection of
provision of supplies in times
atified by the United States, ale that the Indians played
a-sr~?l
role in the Revolutionary vvrar
In its first session ln 1790, the Congress of the United States
enacted a series of statutes
regulati~g
a wide variety of activities
between native &oericans and the non-Indian settlers.
were knD\-.1J1 collectj_vely as -thf? Trade and I
the most important
~
L
rcourse Act and perhaps
~~
codified at 25 USC 177,
'fhese statutes
&~e
~-s-o . . ~
Cnrrenoe
s Lcr1':"1:l"t'l"! is a :f?:!S'EY<?i:nt
QP&~en~~inn wbj~prohibits Indian tribes from conveying their
c
lands without the [8t.pl4~ approval of the federal
governme~.
In explaining the 1790 version of the law to the
~~Indian
tribe,, President George Washington wrote:
~
~
The United States must be present in any treaty, by their
agent, and their presence will be your security that you
will not be oefrauded in any bargain you make, that besides
the aforementioned security for your land you will perceive, by the law of Congress for regulating Trade and
Intercourse vlith the Indian Tribes, the fatherly care
the United States intends to take of the Indians.
Despite requests from the Maine Indians, the federal government _
~ !ailed to protect the tribes following the Revolutionary War.
In
1794, the Passamaquoddy Tribe entered into a treaty with the Commonwealth of Massachusetts
(which then had jurisdiction over all of
what is now Maine), in which the tribe ceded all but 23,000 acres of
its
aboriginal-~erri~ory. ~ubsequent
of Maine
acres.
fu~ther
sales and leases by the State
reduced this territory to approximately 17,000
The Penobscot Nation lost the bulk of its aboriginal terri-
�tory in treaties consummated in l796 and
to the State
of Maine resulted in the loss of four townships
Penobscot
~a-
tion.
The Maine Indians
recei~ed
of 1819, but these services were
time, by and
la~ge,
services under the Civilization Act
discontin~ed
in 1832.
Since that
these tribes have been ignored by the f€deral
government.
Although the Trade and Intercourse Act was the subject of con-
\~ inuing
Congressional attention being reenacted in different form
~ ~our times in the succeeding 12 years,
its application within the
boundaries of the thirteen original states was a matter of great conCarolina, and
...
~eorgia
are notable in that
made repeated attempts to force the States to comply
~ith
the Nonintercourse in making treaties with Indian tribes within
their western
frontier~
The Committee is unaware of any evidence,
however, that the federal government ever attempted to apply the restraint on alienation to Massachusetts or Maine, which was a part of
Massachusetts until 1820.
�'
(~~
-rlo~ ~ ::if:~k
SP CIAL ISSUES
Testimony befor
the Committee and written materials
submitted for the · record reveal the following concerns about
the settlement embodied in S. 2829 and the Maine Implementing
Act, all of which the Committee believes to be unfounded:
1.
That the settlement will terminate the three .Maine
In July 1, 1980, testimon~ Interior Secretary Cecil
Tribes.
Andrus stated that the settlement does not terminate the three
Tribes in Maine.
The Committee agrees with the Secretary.
Numerous provisions of S. 2829 and the Maine Implementing Act
make reference to the Maine Tribes as tribes, and Sec. 6(h)
specifically provides "That as Federally recognized Indian tribes
the Passamaquoddy Tribe, the Penobscot Nation and the Houlton Band
of Maliseet Indians shall be eligible to receive all of the financial benefits which the United States provides to Indians,
Indian nations or tribes or bands of Indians, to same extent and
subject to the same eligibility criteria as are generally applicable to other Indians, Indian nations or tribes or bands of
Indians."
2.
That the settlement amounts to a "destruction" of the
sovereign rights and jurisdiction of the Passamaquoddy Tribe and
t h e Peno b scot
.
J~
.
Nat1on.~Unt1l
.
'b
recent 1 y, t h e Ma1ne Trl es were con-
sidered by the State of Maine, the United States, and by the Maine
courts, to have no inherent sovereignty.
Prior to the settlement,
the State passed laws governing the internal affairs of the
Passamaquoddy Tribe and the Penobscot Nation, and claimed the power
to change these laws or even terminate these tribes.
In 1979,
however, it was held in Bottomly v. Passrunaquoddy Tribe, 599 F.2d
�1061 (lst Cir. 1979), that the Maine Tribes still possess
inherent sovereignty to the same extent as other tribes in the
United States.
The Maine SupremeJudicialCourt reversed its
earlier decisions and adopted the same view in State v. Dana,
404 A.2d 551 (Me. 1979), cert. denied, 100 s.ct. 1064 (Feb. 19,C:~(
1980).
While the settlement represents a compromise in which
state authority is extended over Indian territory to the extent
provided in the Maine Implementing Act, in keeping with these
decisions the settlement provides that henceforth the tribes
will be free from state interference in the exercise of their
internal affairs.
of the tribes,
Thus, rather than destroying the sovereignty
recognizing their power to control their in-
ternal affairs
power which Maine previously
claimed to interfere in such matters, the settlement strengthens
the sovereignty of the Maine Tribes.
The settlement also protects
the
sovereignty of the
Passamaquoddy Tribe and the Penobscot Nation in other ways.
For example, Sees. 6206(1) and 6214, and 4733 of the Maine
Imp~eme~t~ng
Act provide that these Tribes, as Indian tribes
under the United States - Constitution, may -exclude non-Indians
from tribal decision-making processes, even though non-Indians
live within the jurisdiction of the tribes.
Other examples of
expressly retained sovereign activities include the hunting and
fishing provisions discussed in paragraph 7 below, and the provisions contained in Title 30, Sec. 6209 as established by the
Maine Implementing Act and Sec. 6 in S. 2829 which provide for
the continuation~nd/o~ establishment of tribal courts by the
�the Passamaquoddy Tribe and the Penobscot Nation with powers
similar to those exercised by Indian courts in other parts of
the country.
Finally, Sec. 7(a) of S. 2829 provides that all
three Tribes may organize for their common welfare and adopt
an appropriate instrument to govern its affairs when acting in
a governmental capacity,
In addition, the Maine Implementing
Act grants to the Passamaquoddy Tribe and Penobscot Nation the
state constitutional status of municipalities under Maine law.
In view of the "homerule" powers of municipalities in Maine,
this also constitutes a significant grant of power to the
3.
\~
n
-'~~;
r~~--Sf'"~j
~IA'f;;J/ :
Tribe~ ~
The settlement provides none of the protections that
~afforded
other tribes.
One of the most important federal
protections is the restriction against alienation of Indian lands
without federal consent.
Sections S(d) (4) and S(g) (2) and (3) of
S. 2829 specifically provide\ for such a restriction and, as was
made clear during the hearings, this provision is comparable to
the Indian Non-Intercourse Act, 25 U.S.C.
§
177.
Sections 6 and
8 of S. 2829 also specifically continue the applicability of the
Indian Bill of Rights of the 1968 Civil Rights Act, the Indian
Child Welfare Act, and all other federal Indian statutes to the
extent they do not affect or preempt authority granted to the
State of Maine under the terms of the settlement.
4.
Individual Indian property and claims by Indians who
hold individual use
assignments will be taken in the settlement.
The settlement envisions four categories of Indian land in Maine:
!
I
I
I
i
1
i
_I
individually-assigned existing reservation land, existing reser-
I
-1
vation land held in common, newly-acquired tribal land within
=-l
11
Indian territory,
11
and newly-acquired tribal land outside "Indian
I
I
j
!
I
i
j
I
I
I
l
I
�territory."
Only newly-acquired land within Indian
and newly-acquired tribal land to be held in trust for the
Houlton Band of Maliseet Indians will be taken in trust by the
United States.
Existing land within the reservations, whether
held by individuals pursuant to a use assignment or in common
by the Tribe as a whole, will not be taken by the United State
These lands will simply be subject to a federal reagainst alienation which will prevent their loss or
transfer to a non-tribal member.
Sec. S(f) (2) (C) of S. 2829
provides that the Department of the Interior will have no role
in transfers of individual tribal property from one tribal rnern
~
to another, and Sec. 18 of the Maine Implementing Act, ends th
power of the Maine Commissioner of Indian Affairs to interfere
~itt.
such internal transfers.
The settlement will also have no effect on claims by
individual Indian land owners or individual Indian assignment
owners.
Section 4 of S. 2829 and Title 30, Sec. 6213 as estab
lished by the Maine Implementing Act specifically protect clai:
which individual Indians have for causes of action arising aft·
December 1, 1873.
For these reasons, trespass actions brought
individual Indians will not be affected
by~
Acf:
5.
The Settlement will subject tribal lands to propert:
taxation.
Sec. 6208 of the Maine Implementing Act specificall:
prohibits the imposition of such a tax.
issue apparently comes from
The confusion over th:
tw~ovisions
of the settlement:
Title 3 0, Sec. 6 2 0 8 ( 2) a.s g,g.tza~hed b)1" the Maine Implementin~
Act, which provides for payments in lieu of taxes on lands witl
Indian Territory, and Sec. 6(h) of S. 2829 which provides that
lands held in trust for the Passamaquoddy Tribe or the Penobscc
�Nation
or subject to a restriction against alienation, shall be
consdidred "Federal Indian reservations for purposes of federal
taxation."
Title 30, Sec. 6208 as established by the Maine Implementing
Act does not impose any taxes on any land within Indian territory.
A tax is a charge against property which can result in a taking of
that property for non-payment of the tax.
Section 6208 does not
provide for such a tax, and S. 2829 forbids such a tax.
The actual
workings of this provision are explained in detail in the Committee
section-by-section analysis of the Maine Implementing Act which appears in this report.
That analysis explains, among other things,
that these payments in lieu of taxes will most likely
tnAPS.
be.pai~with
funds provided to the tribes by the federal government.
Sec. 6(h) of S. 2829, which treats the Passamaquoddy and
Penobscot Indian Territories as federal reservations for purposes
of federal taxes is designed to insure that activities within
1
these Territories are entitled to the same Federal tax exemptions
which apply on reservations of other Federally-recognized tribes.
The provision is intended only to benefit the Tribes .
.- -.
6.
That the provision for eminent domain takings will
to a rapid loss of Indian land.
While Sec. 6205(3),
lead ~
(4), and (5)
of the Maine Implementing Act and Sec. 5(h) and (i) of S. 2829
provide a mechanism for takings for public uses' these provisions
impose preconditions on such takings which are more stringent
than any other known to the Committee.
Before a taking could
ever be effectuated within the reservations, an entity proposing
such a taking must demonstrate that there is no reasonably feasible
[.- .
�alternative to the taking.
No taking, whether within or without
the reservation, can lead to a diminuation of Indian lands, and
any taken land must be replaced.
The settlement provides machinery
for adding such substitute lands to the reservation or Indian
territory fr9m which they are taken.
/!~(
7. Subsistence hunting and fishing rights will be lost
since they will be controlled by the State of Maine under the
Settlement.
Prior to the settlement, Maine law recognized the
Passamaquoddy Tribe's and the Penobscot Nation's right to control
Indian~
hunting and fishing within their reservations,
but the State of Maine claimed the right to alter or terminate
these rights at any time.
Under Title 30, Sec. 6207 as established
by the Maine Implementing Act, the Passamaquoddy Tribe and the
Penobscot Nation have the permanent right to control hunting and
fishing not only within their reservations, but insofar as _hunting
and fishing in certain ponds is concerned, in the newly-acquired
Indian territory as well.
The power of the State of Maine to alter
such rights without the consent of the affected tribe or nation is
ended
by_~~c.
6(e) (1) of S. 2829.
The State has only a residual
right to prevent the two tribes from exercising their hunting and _
fishing rights in a manner which has a substantially adverse affeet on stocks in or on adjacent lands or waters.
power is
~tothat
This residual
which other states have been found to
have in connection with federal Indian treaty hunting and fishing
rights.
The Committee notes that because of the burden of proof
and evidence requirements in Title 30, Sec. 6207(6) as established
by the Maine Implementing Act, the State will only be able to
make use of this residual power where it can be demonstrated by
�~
substantial that the tribal hunting and fishing practices will
or are likely to adversely affect wildlife stock outside tribal
land.
8.
The lands and trust funds provided in the Settlement
will not benefit the Indians because of the lack of adequate
controls.
In testimony before the Committee, one of the Indian
opponents to the bill stated his belief that the Indians would
receive no benefits from the trust fund established under the
settlement, and that all income would be used by the Secretary
of the Interior.
This fear is unfounded.
Section 6(b) of S. 2829
requires the Secretary to make all trust fund income available to
the respective Tribe and Nation quarterlyC and provides that he may
make no deduction for the United States' expense in the administration
of the fund.
Fears that the Tribes will not have adequate control over
the management of the trust funds are equally unfounded.
The le-
gislation specifically provides that the funds shall be managed
in accordance with terms put forth by the Tribes.
As is explained
elsewhere in this report, the Secretary must agree to reasonable
terms put forth - by the .-tribe_
sj and)through the Administrative _
Procedure Act, the Tribes may obtain judicial review
o~\PPY
~J:J(b/QJ
fusal by the Secretary to agree to reasonable terms.
re-
While the
Investments which are outside of the scope of the Department of
the Interior's existing authority can only be made at the request
of the Tribe or Nation seeking the investment.
In that event,
the United States will bear no liability from any losses which
-
may result from the investment the Tribe or Nation has requested.
States will be liable for mismanagement under the doctrine of
....
�c~.
United States v. Mitchell.
9.
Indians.
The Settlement will lead to acculturation of the Maine
Nothing in the settlement provides for acculturation,
t
or is it the intent of Congress to disturb the cultural integrit~
fl the Indian people of Maine.
To th e con t rary, t h e ;ettlement
~
offers protections against this result being imposed by out~ide
entities by providing for tribal governments which are separate
and apart from the towns and cities of the State of Maine and
which control all such internal matters.
The Settlement also
clearly establishes that the Tribes in Maine will continue to be
eligible for all federal Indian cultural programs.
us
United States v. Mitchell.
9.
Indians.
(1980)
The Settlement will lead to acculturation of the Maine
Nothing in this settlement provides for acculturation
of Indians in Maine.
Nor is it the intent of Oongress, through
this Act, to in any way disturb the cultural integrity of the
Indian people of Mline.
On
the contrary, those provisions
of the settlement which establish tribal governments which are
separate and apart from towns and cities of the State of Maine
offer positive protection against any attempt b¥ any entity
outside of the tribal structure to impose policies of acculturation on the tribes.
In addition, the settlement expressly
provides that the Tribes in Maine will continue to be eligible
for all federal Indian cultural programs.
�SPECIAL ISSUES
Testimony before the Committee and written materials submitted for .the record reveal the following concerns about the
settlement ernboc3iec3 in
s.
2 829 ana the
1-~aine
Implementing }1Ct I
all of which the Committee believes to be unfounded:
1.
~n ~~
That the settlement
July 1, 1980
\>.
..
testimon~
ill terminate the three
1·1aine~ibes.
Interior Secretary Cecil Andrus
stated that the settlement does not terminate the three Xa:ne
,(\
1tribes~
~\\~, r~
·
The Co~~ittee agrees with the Secretary.
pro\~isions
of S.
Nlli~erous
2 829 and the l'·~a ine Implementing Act ~ ref-
er~ to the Maine~ribes as tribes, and Sec. 6 (h) specifically
provioes "That as Federally recognized Indian tribes the
P2~saiT.a-
quoddy Tribe, the Penobscot N2tion and the Houlton Band of
Maliseet Indians shall be eligible to
receive-~11
of the financial
benefits which the United States provides to Indians, Inaian
nations or tribes or bands of Indian7 to the same extent and
~s
subject to the same eligibility
U1A.
criteria~generally
applicable
to other Indians, Indian natior..s or tribes or bands of- Indians."-- :__ ---2.
That the settlemPnt amounts to a
~~~~al
destruction ... of
the sovereign rights and jurisdiction of the Passamaauoddy Tribe
da1i* \},.,J.-,1 ~e."'-1-I~J
.-<
and the Penobscot Nation.
prior to 1A79, the Maine tribes were
'-1-f)J.._~~
considered by the State of Maine, and by the Maine courts, to
A
have no inherent sovereignty.
Prior to the settlement, the State
?cssed laws governing the interna 1 affairs of
~uoddy
d.:.~
c the P2 ssail.a-
Tribe and the Penobscot Nation, and claimed the power to
�change these laws or even terminate these tribes.
In 1979,
however, i t \•>as held in Bottomly v: P2ssa.maq-uoody Tribe, 599
F. 2d 1061 (1st Cir. 1979), that the Maine Tribes still possess
inherent ~6vereignt~ to the same extent as other tribes in the
-.
United States ..
The Maine Supreme Judicial Court reversed its
-·
-
earlier oecisions and adopted the same view ·in State v. Dana,
4 0 4 A. 2 d 5 51
1980).
(Me . 19 7 9 ) , ce rt denied ,
\i0 0
~ . Ct . ~6J1
(Feb . 19
?"
I)S
cJJi'.
Wnile the · settlement represents a compromise ln which
state authority is extended over Indian territory to the extent
proviaed in the l1aine. Im- lementing Act, in keeping with these
p
cecisions the settlement provides that henceforth the tribes
~~11
be free from state interference in the exercise of their
internal affairs.
Thu~~ather
than destroying the sovereignty
of the tribes, by recognizing their power to control their
internal affairs and by witharawing the
po~er:~hich
Maine
previously claimed to interfere in such matters, the settlement
a .. cl
. _J
.··;/
streg~tens ~he~ overeignty of the }~aine tribes. t±~-LA.-·-'"·--·>._) r.,---:.~--e..~.-·-'1 · r( Ci)
J
·1. f!..v · _j
The settlement also protects the sovereignty 6£ the
d
suc;e= .
in-
1
l
Pa sscmiguoddy- Tribe ar;d t~e, Penobscot - Nation .
~ther · ways. - =: ~ - -_. . -.:-!Pr. Sec -·. Ai(l ti\ J Ei>iJttl
sa: ; til
For ex21Tlple,f~.;,.._. --6206 (ll't 6214, an
. -~th':__!'~aine
T,.l-lt. 3 o
sec. s
/,"'
~·
1 • 1-/., j~
S'eC. t/13S
Implementing Act provide that these ~ribes, as Indian trib~s
t_,{,"\ t~l; ..s-.L tt4 (" J
unoer the Fsseial-·Constitution, may exclude non-Indians from
f f'-iJ { CJ''S rS'
.a v'-'ic'-- i:1"1 tribal oecision-makin_U even though .
__ non-Indians
live within the jurisdiction of the t>:ibes.
- .,
retalneo
n
Other examples of """ ,bN s1J)"
.lli-(!'\J':'rJ)-7~ ~~ ·,_. . .
SO~erelgn~rAlncluae
. .
the huntlng and IlSDlng prOVlSlODS
discussed in paragraph 7 below, and the provisions contained
-r;J-)t 3D, f Q.S esJ...bi•~~--J bt;~
in
inAjec. 6209 ~ the Maine Implementing Act and Sec. 6 ~ 5.2829
which provide for the continuation and/or establishment of
�-
..
{
tribal courts by the Pcssamaguoody Tribe and the Penobscot Nation
._
~
"0
w.i th ~o~ers · ~irnil~r -~ t~ -~-~~~e ~x~rcised
~ { ~ · part~ of th~ .cou~~r/ 1':~ -~· ·. :_ .
:
( ,~
S · 3. The settlemen~_provloes none
~ J\.
.
_
tions th@
~t ~
1~
'I
~
!
consent. .
L
i{
.
..
.
.
of the protectlo:s that
-t-:ttfa u~
·.
~cdcral
i·s the
to
res~riction agains~ alienation of Indian lands without federal
~ ~ DrOVi~e~
i "X:
J
'\,_
..
by Indian courts in other
Secti~rl ~-5 ::-;-~~r~c ;) _a.nd ~ 3) - Of
~ ~-~-~·~-~~~:-~tiD~
fOr . SUCh
:he hearings·, this
fbintercourse Act,
and I
I
-
s. 2 829
2~
WaS made Clear CUring
p:~~;L'~~ ,i~ :o~pa:rable
25 U.S.C. Sec. 177.
als; specifically continue
th~
specifically
to the Indian Non-
Sections 6 and 8 of 5.2829
applicability of the Indian
_~Bill of Rights of the 1968 Civil Rights Act, the Indian Child
~ ~ ~ \.,-: e 1 fare
~ ~
.. ~ ~ 6
.,.0~
4'
and a 11 other f e cera 1 In a i an s tat u t e s -~p the extent
1
.er- "':I c r . ~ u " I '
I' tJ .....d r c..(
they do not affect or preempt authority f\g-3. "'~';Ul ~o the State of
}~aine
Act ,
1
under the te.rms of the settlement ... _ . ..
.
4-
.
Individual Indian property and claims by Indians - who
hold individual use assignments .\\ i l l be taken\ in •the· settlement.:-~.~_:-.:_:~-::_:_
7
. -
The settlement envisions .four categories -of-..Jndian:- land _in_Haine-:-:: i ~ . . .
individually-assigned existing r_eservation · land, _
existing ·
reservation land held in common, newly-acquired tribal land
Y-~i thin
.. Indian terri tory,
n
and ne\olly-acguired tribal . land outside_-=-
land within the reservations, whether held by individuals pursuant to a use assignment or in common by the tribe as a whole,
will not be taken by the United States in trust.
These land
will simply be subject to a federal restriction against ·alienation
�·.
p-;operty -f~·r -_ n;~.n:-payment of the tax.
._
.:
. .......
Section 6208 does not
~
provide· fo; --~_uch..:·a tax,·- and Sec. 6 (a) of S. 2829 forbids such
-- -· --: · =---~-- , :._ -- :. .,.;._ ..
.
- .. _
a tax. _The ·act~~l workings .of this provision are explained ln
-.
... :~ ·· - ~- -__. -- ~· ~ _1- ·:-:. -=~-~~ ~:.
. .-.. -: _· ~---~ · : -:~ -~
_
:: " :
-
- detail . i.n .the : s ·ec;-ti~~ :·by. section ~-nalysis of the 1-~ai~e Implementing
- ... -· . . .
.
~·-
Act ~lsewhere= i~ ~hi~·re~~rt.
That . 'analysis explains I
a.Jnong
other things, that ·thes.e payinents in-·lieu of tixes will most -.
. ·...
-
.. :_:. ·. -~ ·__ -
. _..
likely be _paid
,.
·_
.\ol.i th -_fund~ ·: . -- - , . :;-
aovernment.
·
f~
-<--.-.
..
- .::-:>~-
- -
·provided to · the- tribes by the federal
-
..
-_- ·
-
·:. ·.,
---~<)3- - ~- . ~·~---- :-~~-~ .-----== ·_--_ .. _:~~~1~:.-----~:~:\-£:::.~+«~k
~~...,etol- : Sec~ .·: 6 _::(h_) -:~:r:>_~---~~~~~--~~_9-~: --~h~i-~h- ~cft9l:der~
~)
1)_~\..S
&r ,_,.-
.
.
tn·e-:
-
~:.- ·:·.:. :.~0
·- .. --.. --:< .. tt-,> - . -... ··--- . .
,
.
'- :...
.
~c~~E Inoian lrerritories 1 ~eoeral reservations for purposes of
-
-
federal taxes is aesigned 'to '®;lsure that- acti.vi ties .wi tb:i:f!_ these.
Pe::3~eruaquood:y
r--::- _/ - -
/1
anJ. ?eno:..scot Indi~ Te::::-ritories are eLtitJed
f& .,1 n ~ .,vueI v "}
<"' I
1
r~)
to the
scmeA~ax
.
_·
·
exernptiens which apply on reservations of other
?eaerall:y-recognizea tribes.
The provision is intenoed only to
benefit the tribes.
6.
That the provision for eminent domain takings will lead
· to a rapid 1 o s s -of In a ian land . _ Wn i 1 e Sec .
*
--
6 2 0 5 ( 3) , - ( 4 ) ; _ and
(5 ) -
__ _ . _
of the Maine Implementing _:Act _ and_ S _ c .-:---5 -Jh) _ and (i) ~ __of S. 2829
e
_
.
.... -·
provide a
~echanism
----~--
impose preconditions on -such- takings which
than any other .known_ to the
effectuated
I
~ithin·the
taking must demonstrate
alt~rnative
. .-- ··-.... -. \. __. . ,_ --=-:. - -- ~
f-or.=takings_ for- publ_
ic uses_:,-_ these.-provisions
a,r,e;
,mor~~in~nt
a taking
~
be _ __ · _
__
reservations, an entity proposing such a
that there is no rec:sonabl:y feasible
to the taking.
No taking, whether within or without
the reservation, can leaa to a diminuation of Indian lands, and
::.. :.-
_ -_--_ · -
~'tkAA~IJ!e~~
Committee~ ~efore
~ --
·
�any taken ·land must be_ replaced .. · The settlement provides
..
-~
..
-
..
.
.
machinery for adding' such_ substitute lands to ~he rese~vation
· ·-or · Indian
territ~ry·-
from-which they
a~e
taken .. ·-.·-~·:
-
-
---<-~---~-~ --_.. ·., .··
--
~ 7 ~ -· · sbb~i~t~nce- h~~ti,~g· ~~d· fis~i~-g ;5_·9·~~5;; ~~-~1- b/ ~o~t-~~j
-·
L<- ··_
. ... _ ... . . ::-·-· . .
..
since- they ~Till. be· controlled by the Stat~ .of !·~aine ~na,er the _ · ,_~ : -- ~c....
Settl~ment.
P~i'O~·- t~ ~~-Settlem~nt~~ . '::s~";t:~";t; T~ib~-~ ":·f_;.
··..
-
..-... -. - . : . .
1
.. - ~· · - .
:,
-~
and the Penobscot Na~i.??J had th~ ·right ~.=er Ba:.: .. J~ la·v; to cont'rol - Indian
:
:.
subSist"e·~;e ··h-~~~i';;~-: a~d- fishi~i~i ·e;-;n t~~i~r;_:;·e"~e-;~~~i~~~-.:
_
.
. . ·_ ~
,~~· ~ ---
._:---:i-~
·.~---
_.. :
--
·-
_: -~-
_.;.,._ . '~~~---·
-
-~ · -
-
.; .
._ - :. _ ..
but the State ~f. 1-~ai~e- ~lalmed. the. ri.ght~- -t·o-· alte-r. or- te~ina te ·-=-~ :; ~:--.. ;
these rights
a~;a~; :;:~:~- .: ·u'naer ~~~~-~ ~iQ~~h:~ ~j";! . ::t!'~;;;e:e~~ing
Act the Passili~aguoddy Tribe ·and the Penobscot Nation have the
.
"
"""
~J
-
.
permanant right_ to control hunting and fishing not only within
.~
ponos~s
't~
.
hunting (and fishing in ~
'
concerned, .in the neY.'ly acquired Indian terri tory as
their reservations, but insofar
..
'9 ~ ~
"'ell.
~ ~
out the consent- .of the affected tribe or nation is ended by
i
Jf
':t:.o
>J.
f-.
The power . of the State of Maine to . alter such r_ights with-
Sec.
to
-
6 (e) (1)
·pre~e.nt
......
•
-:
.
fi-;h-ing
-
of S. 2829.
The State has_ only a
J.
-
-
-
·;ight~~-in~- ~- ma~-;er·
-
-
~
t
~
~
~
and--_:_~.;.:-:- - -~- -_
.-
-
-
..
which -has a - _subst~n~iall~,;~d~er~e-. :; -, ~~.::~-~~;::
land~
or
- -
~aters.-.~This ...
-- - ·--
found to· have _ in connection with - federal -Indian treaty .. hunting . _· ·
.f t
:
1
f -1
right
residual power is not-unlike that . which -other·states have been - -
i ·] f~,
S
-~esioual
the . tw- -tribes from _exercising their hunting
o
_
stocks : in or on adjacent
~
c~rl-eu~
2S
and fishing rights..
burden of proof and evidence requireme;J;
inA~ec.
~en-
l1S
6207(6)
-=-. _
lbr' 1 ~
•S'"'
The Committee notes that because of the
tr 1-ft 3V_,
--
~the
b~
Maine Implementing Act~t~f;?- State will,.be able to make use of -•this residual power etdy
8.
f"
tb"
H'i8'S
t eXueme e.;
rgy,;;u;tance~-;)
--
The lands and trust funds nrovided in the settlement
will not benefit the Indians because of the lack of adeguate
~-~--
�¥>hich ·will
-
prevent. their loss or
--
member . . : ·sec.
:S Cf)- (2) ·(- ) of. s.
c
-
-
tra~sfer
to a non-tribal
2829 orovices that the De~ar~ent
-
.
of the Interior will have no role in transfers of individual
of Indian
Affairs to interfere with such internal transfers.
The
settl~e~t
--
.
will':- a _
lso have no effect on claims by
· i~ai vidual In~ian -l~~d -~"'-ners. or in-oi viaual Indi-a~ - -2ssig~-nent
i:b1'~;:;oc::c; ~Bc;>yu;;;;
•,owners;
L.a.vo-. --
T. l-It
Section 4 of_S.2829 andA3ec.
.
:
.
-_.
l*i-
3.0 .J
6213 ~the Maine Implemen~ing
sM~-<-.
Ho ·- ·
·t,s es~bks-l-eJ b~
~.
c~ .....
~
-= - . ·.:-- _ .
specifically t¥'EGS'iseH!I _. claims;\ which indi vi oual Indians have
t
causes of action arising after Decerrilier 1, 1873.
~.. 'I'
.l-'t
5.
0 "'I....
en+
..
.i="'()~
gt'f!.SC!.
•
'l"'i-Q..S~ no;
The Settlement will subject tribal
The settlement
_ _:.
I
Far the3e
,~:,.,Jd::;::::a:;ao;::j~Gr-~,=c!@~C:S:==~~
.!7
l~nds
to taxation.
;qrCfA~t-,
__ --does not subject any tribal land to taxation.
ft
t
c~e-c-:-~caro:r..;,s'778'Z9-s'p e ci"I'icaiTSr
-~··pr--on:i]5l"'t:s",."t'h~,..:i:-:mpQ,s.~j.on
o-f
5l:le~crx:J.
::J
-confu~ion
The
over this issue appar!ntly comes --;-:.1 -
-=--
b-
,-;1-Jt 3'0' - - _ 4.S esJ..~/,Jh~J ~
from ·two provisions :of. ±.he· settlement: _ pec:.. o -_620 8 ( 2)~~ -- -th~-: .:..:;_--.:--=----- -~- "-
~~aine Implementing-Act, · w~n
~
provides for payments in lieu - of
taxes on lands-within Indian Territory, ano Sec.6(h) of S.2829
which provides that ·lands
Cl·~nod
:by
e£
held in trust £or the_ ·-
,-:- ~r s-'£J~el- ~ o.. t"C-$dr-lePassru~~aoy Tribe or the Penobscot Nationfshall be considered D~
1
~)~f'll'-. I
"Federal Indian reservations for purposes ofltaxation."
T• }1-e
3t> ..J
A 3ection
dS
6208
~
t!sb:I:Jt; r~ J 1-:J
the Maine Implementing Act does not impose
any taxes on any land within Indian territory._ A tax is a charge
against
Q
f~c~~
o~
•
ct. I een.J.. • .,__,
property which can result in a taking of that
�In
controls.
tes~imony
.before the Committee, one of the Indian
opponents to the : bill stated his belief that the Indians would
...
:
-l
reveive no b~nefits from ~h~ trust fund . established under the __
.
-·
settlement/ and t?~t- all income . w.ou~d be used by the Secret~ry -~-:.:_:_. - -: :~---
of the I~terior.
regui~es
c
This fea~ :Ls unfounded.
the Secretary·· to :make cill
Sec.tion 5 (b) of S. 2829 :- ~ .:.
t# ~u~d in-co~e
~~
available .·.. ·
.- - to ihe respective Trib~ and Nation quarterly, and provides th~t
- -
.
() r11
he may I11ake no aeduction for the
rr <1
gr-·pc.-r
,
~ ~ t.(
m,.
,.:_L ;_ d S
~-
.
expense
-.
Fears that the tribes will not have aoesuate control over
the management of the trust fwjds are equally unfounded.
The
legislation specifically provides that the funds shall be
Illanaged in accordance
V.7 i
th terrr:s put forth by the tribes.
As is explained elsewhere in this report, the Secretary must
agree to reasonable terms put forth by the tribes, and through
the ADTtinistra ti ve Procedure
}~ct,
the tribes may obtain judicial
review of any refusal by the Secretary to: agree to
While--the Untied States _ will_. Tloj:._- - be=-_ liable ~ for- los .se-.s -J:--~7--==~"'- __
:_-
terms.
-y;rhich
reasonable~~-~--
resul~-
from - n_ve_ tments that_·the tribes reguest_ \vhich:.-·:·:.:.-t->:;..-:
i
s
·- ·
are outside the scope of the Department of the Interior's
existing authority.,
:~-- -
-. . ·-.:
such investments cannot be made except at_ -
the reguest of the tribe or nation which seeks such an investment . .
Aside from this , the United States will be liable for misffianagement unaer the doctrine of United States v. Mitchell.
9.
e..:--1k
The settlement will lead to acculturation of the Maine
Indians.
- Nothing in the settlement provides for acculturation) N~ IJ
,.1\c.~ t9+ (..J11~tvs~ {o - t,yi""A~ 't-k cuHc.v.a.l \1\~{df\d.J_tf {I,_,_ ;;_,...,J,~r"l r1"it1k o~ (r\upv(.,
To the contrary, the settlement prOYJ:cGJ.B\Jfor -trlbal governments -
r;;~(v5 f"&)icL~,~~.J. ~j?<'n;_t ~h~·l _t=<..(~u.l~ £c''d- J-r{lf.oS.f"~
1
..... ~~,{ <
tn1ti",tJl &., -- ;Jf. .>Z,,J_~~j -- -
�}'
u
.1
which are secarate and apart from the towns and cities of the
W ~ ; I h ('o ~" I' ~ ) c:-< ) / S k l A_. I r1i U f.J c;t. ) ;11 V. f) ( Q S ,
.
State of ___ Ba.inel\_ : ~he_·. s:ttl~ent also ~l:a_rly esta~Ti_ shes that
OJ11-·
.
: · ·
· -
.·
.
1\
tl\~ I r\J(
-
· . ··:
-.
.
the~ t~ibe~~wil~ continue to be eligible for all federal
India:n ·cultural _·p~ogr~s.
.-
..
-
.
-
-
-~ : ...
--
~-
; -
.
-:~
.
,.. :~. -..:~..
._
7•
'"' ·.; __ .. -
~-
-
-
~
-~ -
- ..
.·
�
Dublin Core
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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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UMAINE047
Title
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Draft of a Portion of the Senate Report for the Maine Indian Claims Settlement Act: Sections titled "Purpose", "Background and Need" and "Special Issues" (09/10/1980)
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9/10/1980
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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 9, Folder 1
Language
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English
Description
An account of the resource
Draft of a Portion of the Senate Report for the Maine Indian Claims Settlement Act: Sections titled "Purpose," "Background and Need" and "Special Issues." Includes handwritten notes.
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Text
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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 courtesy of Special Collections, Raymond H. Fogler Library, University of Maine, Orono, Maine. Prior permission is required for any commercial use.
Donald Perkins
John Paterson
Sheldon Hochberg
Sustenance
Thomas Tureen
Timothy Woodcock