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LAW OFFICES
SoNoSKY, CHAMBERS
&
SACHSE
2030 M STREET, N. W.
WASHINGTON, D. C. 20036
MARVIN J. SONOSKY
HARRY R. SACHSE
REID PEYTON CHAMBERS
TELEPHONE
(202) 331-7780
July 15, 1980
WILLIAM R. PERRY
Honorable Cecil D. Andrus
Secretary
Department of the Interior
Washington, D.C.
20240
Attention:
Dear
T:irrothy Vollmmn, Esq.
Mr. Secretary:
As you know, '=.Je represent the Houlton Band of Maliseet
Indians. The purpose of this letter is to supply our ~nts on
"Proposed Changes :in S. 2829," a document furnished by Mr. Vollmmn
at our July 10, 1980 rreeting vrl.th representatives· of the Administration,
the State, the Senate Select Comnittee on Indian Affairs, and 'M:tine' s
other two tribes.
A.
'Sec. 2
1. We agree that Sees. 2 (a) (8) and 2 (a) (9) should be deleted.
SpeGifically, the parties have never executed a "Settlement Agreement"
and the Houlton Band of :Maliseets has never agreed to the l'E.ine ImpleIIEI1ting Act as presently constituted (in fact, the Act presently concerns
only the relations between the State and the Passamaquoddy Tribe and
Penobscot Nation) .
2.
'He agree that Section 2(b) (3) should be deleted., and
that Congress does not need specifically to ratify any state legislation.
3. We agree that Section 2(b) (~) is inconsistent with other
portions of the Act. In our vievJ., it should be deleted. Alternatively,
the· phrase ''as provided herein'' should be added at the end of the
Section. As you knov1, we are now discussing alterations in the Act
that to s~ extent exempt the Houlton Band from state laws, and these
exemptions are an essential precondition to the Band's support for S. 2829.
B.
Sec. 3
4. We concur in your proposed IIDdification of Section 3(a),
and defer to the Passamaquoddy Tribe and Penobscot Nation as to the
I
�Honorable Cecil D. Andrus
July 15, 1980
Page Two
balance of your revisions to Section 3, except that we agree that
"Indian territory" should be defined :in S. 2829. It is essential that
this definition should provide that "Indian territory shall include
not more than 5,000 acres purchased in trust by the United States in
eastern Aroostook County either for the benefit of the Houlton Band
of Maliseets or for the benefit of the Passamaquoddy Tribe and
Penobscot Nation for the benefit of the Houlton Band of Maliseet Indians."
In this regard, we are willing to consider the "trust on a trust" concept, so long as the Passamaquoddy Tribe and Penobscot Nation
irrevocably agree, with the Secretary's approval, that any laws, ordinances, ·
or constitutional provisions of the Houlton Band of 'Maliseets pertaining
to these lands shall without further action have the binding effect
of laws of the Passarm.qooddy Tribe and Penobscot Nation and cannot be
modified without consent of the Houlton Band Coilllcil. The Senate
Comnittee Report should so state. Also, we strongly oppose the cut off
date of January 1, 1983 for acquisition of these lands, and believe
that any definition of this nature in the state bill should be overridden
by the federal definition.
C.
Sec. 4
5. We interpose no objection to your changes to Section 4,
and defer to the Passamaquoddy Tribe and Penobscot Nation on this matter.
D.
. 6.
on your
Sec. 5
We defer to the Passarraquoddy Tribe and Penobscot Nation
concerning Sections 5(a) and 5(b).
c~ges
7. In Section 5(d)(l), we agree that a period should be
placed after Indians, as you have proposed, and that the specific amount
or type of lands to be purchased should be deleted. The section
may also be charged to reflect the "trust on a trust" concept if we
can .a gree with the State on this.
8. We strongly object to your deleting from Section 5(d)
the requirement of tribal consent for all lands purchased. We also
strongly except to the portion of the section giving the Secretary
administrative authority to determine Whether the Houlton Band has
"cease (d) to exist." On this point, we have two alternative proposals.
(a)
The section should read:
�I·
Honorable Cecil D. Andrus
July 15, 1980
Page Three
"If the Houlton Band of Maliseet Indians should
at any time cease to hold the beneficial interest
in lands purchased in trust for it, such lands
shall thereafter be held in . trust by the United
States, one-half for the benefit of the Passamaquoddy Tribe and one-half for the benefit of the
Penobscot Nation;" or
(b) If the ''trust on a crust'' concept is adopted,
the equitable reversionary interest becomes automatic,
and the sentence can be rerroved.
9.
He agree with your proposed arrendrnent to Section 5(e) (2).
10. He agree with your new Section 5(e) (3), -vlith t:VX) minor
additions. First, in the preamble, between "may'' and "be," insert
"with the consent of the affected tribe, nation or band." Second,
delete subsection (vi), as sales should be strictly prohibited. Otherwise, we strongly support your consent applying general Indian law
statutes to lands of the Houlton Band.
11.
We agree that Section 5 (f) should be deleted.
12.
\\Te agree with your changes to Section 5 (g) so long as
all purc'b.ases for the Houlton Band are consented to by it, and if you
add the words ''and shall be held for the benefit of the tribe, nation
or band o-vming beneficial interest to the lands so taken.''
E.
Sec. ''Y''
13. He strongly support the purposes behlnd this new proposed
Section. If your draft language is retained, "shall" should be replaced
by "may" since adoption of a constitution is optional. Alternatively,
the Section could just provide that the tribes are covered by the Indian
Reorganization Act of 1934, 25 U,S.C. 461 et ·seq., since they did not
vote to reject the provisions of that Act tmder 25 U.S. C. 478. We
prefer the latter approach.
F.
Sec. 6
14. We prefer the approach you have taken in Section 6(a)
and 6 (b) to the approach of S. 2829, and will wrk with Hr. Vollmann
at our next meeting to draft constructive teclmical changes.
�Honorable Cecil D. Andrus
July 15, 1980
Page Four
15. If Section 6(c) of S.2829 is retained (or rrodified as
you propose) we propose a specific am:mdment recognizing a goverrunental
inm.mity for the Houlton Band of Maliseets. In the existing bill, this
could be accomplished as follows:
Add at the end of the Section:
''Notwithstanding any other provision of law, the
Houlton Band of Maliseet Indians shall make payments
in lieu of taxes on all real and personal property
withln the lands held in trust by the United States
for the Houlton Band of Maliseet Indians in an arrotmt
equal to that which ~uld otherwise be imposed by a
courity, a district, the State, or other taxing
authority on such real and personal property provided,
however, that any real or personal property, within
· the lands held in trust by the United State for the
Houlton Band of Maliseets used for governmental
purposes shall be exempt from taxation to the same
extent that such real or personal property owned by a
rrnmicipality is exempt under the laws of the State."
16. Section 6 (d) should also recognize the authority of the
Houlton Band of 11aliseets to enter into agreements with the · State, "Whether
it is drafted as you have proposed or as provided in S. 2829. At our
meeting on July 10, both the Administration and State representat}ves
agreed to this change.
17. We defer to the viev1s of the Passamaquoddy Tribe and
Penobscot Nation on Section 6(f).
18. V.Je strongly support your approach to Section 6 (g) .
Certain laws or types of laws should be ·excluded, instead of a blanket
general exclusion of federal Indian law. We v..."':i.ll be pleased to ~JOrk
with the Department in developing agreeable language at our July 17
meeting.
G.
19.
Section 7.
Sec. 7
The Houlton Band of
~aliseets
should be included in
\
\.
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·,
�Honorable Cecil D. Andrus
July 15, 1980
Page Five
H.
Sees. 10-12
20. He defer to the views of the Passamaquoddy Tribe and
Penobscot Nation on these proposed changes.
We look fon.7Clrd to meeting again with your representatives
on July 17 to discuss these matters, which are of the greatest
importance to the F.oulton Band. ML. Terry Polchies , authorized spokesman for the Band, will accompany me at that meeting.
Kind personal regards,
Sincerely,
?_~dL
Reid Peyton Chambers
RPC/cmt
�
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William S. Cohen Papers
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Letter from Reid Peyton Chambers (Attorney for Houlton Band of Maliseet Indians) to Cecil Andrus (Secretary of the Interior) (dated 07/15/1980), Attention to Tim Vollmann (Department of Interior) providing comments to “Proposed Changes in S. 2829,” supplied to Houlton Band by Tim Vollmann at a meeting on 07/10/1980
Date
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7/15/1980
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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 9
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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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1723
1725(h)
Application of State Law
Cecil Andrus
Extinguishment of Claims
Jurisdiction
Maliseet
Passamaquoddy
Penobscot
Reid Peyton Chambers
Terry Polchies
Tim Vollmann
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dd3af35eccd3cba78a23f4d24c6f097f
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Text
. .
0
,July 11, 1978
Kay Oberly
Special Assistant
Land and l~atural Resources Division
P..aine Leqislation.
'.P~r.. Eliot Cutler
r·~. Doug Huron
:Mr. Ed Kn~edler
Hr. TL-n Vollnann /
l'\ttached is a new version of the M:aine
legislati~n reflecting changes drafted by Tqm Tureen.
Tom's cha~ges are underlined.
I think we need a
meeting to discuss Section 4{e)--the indemnification
•
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provision. m•
.d1.e resl- o.t:: _n-: ..... f s cni-;:.. nges are no t
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particularly significan~although I would prefer to
delete his Section 2(a) (4).
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At taclu"!lent
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�A
B I L L
To provide for the settlement of land claims of Indian
tribes in the State of Maine, including the Passamaquoddy
Tribe and the Penobscot Nation, and for other purposes.
Be it enacted by the Senate and House of
Representatives of the United States of Ame~ica in Congress
assembled, that this Act may be cited as "The Maine
Indian Claims Settlement Act of 1978."
CONGRESSIONAL FINDINGS AND DECLARATION OF POLICY
Sec. 2(a)
Congress hereby finds and declares
that -(1)
The Passamaquoddy Tribe and the
Penobscot Nation are asserting claims for damages.and
for possession of large areas of land ih the State of Maine,
on the ground that the original transfers of the lands
by the tribes to the States of Massachusetts and Maine
were made in violation of the Trade and Intercourse Act
of 1790, or subsequent versions thereof.
(2)
Congress recognizes that substantial
economic and social hardship to a large number of landowners
in the St~te of Maine, and therefore to the economy of the
State as a whole, will result if parts of the tribes' claims
are not resolved immediately.
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(3)
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At the same time, it is the desire
of c6ngress to preserve the tribes' claims to at least
a portion of the areas to which they assert rights.
(4)
The Passamaquoddy Tribe and the
Penobscot Nation have entered into a Memorandum of Under~_tanding with ~~-p~~-~_e_nt~-~~ves __ of the President wherein th_§ __
Passa~aquoddy Tribe and the Penobscot Nation agree to a
eartial settlement of their claims.
(b)
Therefore, it is the purpose of this
Act --
(1) to remove the cloud on the titles
to millions of acres of land in the State of Maine re~ulting
from the tribes' claims, while at the same time preserving
the tribes' opportunity to assert their claims with respect
to certain lands held by the State of Maine and tracts
held by private landowners in excess of a minimum acreage; and
(2)
to provide for a timely resolution
of all other similar Indian claims to land or natural
resources in the State of Maine.
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For the purposes of this Act, the term -(a) "Claims )Area" means that portion of th_e_
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DEFINITIONS
·. -· ·; State of Maine which lies ec:i.st and north of the Penobscot River
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lies east of a line from the Northeast
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St. Francis to the Northeast corner of Twp. 5, Range 9, WELS.
(b)
"Land or natural resources" means.any
real property or natural resources, or any interest in or
right involving any real property · or natural resources,
including but not limited to mineral rights, timber rights,
water and water rights, and rights to hunt and fish;
( c)
"Passanaquoddy and Penobscot Indian
Reservations" means that portion of the Passamaquoddy Indian
Reservation and the Penobscot . Indian Reservation in the
possession of the Passamaquoddy Tribe or the Penobscot
Nation or their members as of February 10, 1978;
( d)
"Residua 1 Claims Area" means those
areas of the State of Maine generally defined as:
(1)
that portion of the Penobscot
River watershed in the State of Maine above Eddington Bend;
---
(2)
that portion of the St. Croix
Rivei watersh~d in the State of Maine above Ba~ing Plantation;
and
(3)
that portion of the Kennebec
River watershed east of the eastern shore of Moosehead Lake;
(e)
"Secretary" means the Secretary of
( f)
"Titleholder" means the United States or
the Interior.
any department, agency 6r instrumentality thereof;
a county
�- 4 I'
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or municipality; or a private individual, corporation, trust)
partnership, or other entity, not including the State· of Maine,
that holds an interst in fee simple title to land or water ·in the
State of Maine.
A titleholding subsidiary and its titleholding
parent, or two or more titleholding subsidiaries of the same
parent, or two or more titleholders under substantially
common ownership or control shall be regarded as a single
titleholder for purposes of this Act.
For purposes of
section 4(d) of this Act, a tenant in· common!. joint tenant,
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or any other person who holds an undivided ·~·~ nterest in a
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tract of real property shall be deemed to be a titleholder to
the . entire unpartitioned t r a c t ~ ~ ~
(g)
"Transfers" includes but is not
nec~ssarily limited to any sale, grant, lease, allotment,
partition, or conveyance, any transaction the purpose of
which was to effect a sale, grant, lease, allotment,
partition, or conveyance, and any event or events that
resulted in a change in possession or control of land or
natural resources.
APPROVAL OF PRIOR TRANSFERS AND EXTINGUISHMENT
OF INDIAN TITLE AND CLAIMS OF PASSAMAQUODDY
TRIBE AND PENOBSCOT NATION
Sec. 4(a)
Except as provided in subsection (o),
any transfer of land or natural resources located anywhere
within the United States, other than . in the Passamaquoddy
�-
5 -
and Penobscot Indian Reser~ations, from, by or on behalf of
the Passamaquoddy Tribe or Penobsc?t Nation, or any
other entity presently or at any time in the past known
as the Passamaquoddy Tribe or Penobscot Nation, or
any predecessor or successor in interest, or any member
thereof, and any transfer of land or natural resources located
anywhere within the Claims Area by, from or on behalf
of anr Indian, Indian nation, or tribe of Indians, including
but not limited to a transfer pursuant to any ·statute
of any state, shall be deemed.to have been made in accordance
with the Constitution and all laws of the United States
that are specifically applicable to transfers of land
or natural resources from, by or on behalf of any Indian,
Indian nation, or tribe of Indians (including but not limited
to the Trade and Intercourse Act of 1790, Act of August 4, 1970,
ch. 33, §4, 1 Stat. 138, and all amendments thereto and all
subsequent versions thereof), and Congress does hereby approve
any such transfer effective as of the date of said transfer.
(b)
To the extent that any transfer of land
or natural resources described in subsection (a) may involve
land or natural resources to which the Passamaquoddy Tribe
or Penobscot Nation or any other entity presently or at
any time in past known in the Passamaquoddy Tribe or
Penobscot Nation, or any predecessor or successor in
interest, or any member· thereof, or any other Indian,
Indian nation or tribe of Indians, had aboriginal title,
�-
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subsection (a) shall be regarded as an extinguishment
of such aboriginal title as of the date of said transfer.
(c)
By virtue of the approval of a
transfer of land or natural resources effected by
this section, or an extinguishment ~f aboriginal title
effected thereby, all claims against the United States,
any state or sub~ivision thereof, or any other person or
entity, by the Passamaquoddy Tribe or Penobscot Nation
or any other entity presently or at any time in the
past known as the Passamaquoddy Tribe or Penobscot
Nation, or any predecessor or successor in interest, or
any individual member thereof, o~ any other Indian nation or
tribe of Indians, arising subsequent to the transfer and
based on any interest in or right involving such land
or natural resources (including but _ not limited to claims
for trespass damages or claims for use and occupancy),
----
.
shall be regarded as extingui~hed as of the date of the
transfer.
(d)
Within the Residual Claims Area, this
section shall not apply to
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(1) parcels o~ land or water, and all
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rights and interests incident thereto,
held in fee simple title by . the State of
Maine as of February 10, 1978; and
(2) ~arcels of land or water, and
all rights and interests incident thereto,
'·
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other than parcels of land or water
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/~ approved p~rsuant to section 5 of
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.., th(~--- Act, held in fee simple as of February
1978, by any titleholder who holds or has
an undivided interest in fee simple
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title to more than 50,000 acres of land
or water in the Residual Claims Area.
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( e)
Within one hundred eighty days after the
date of enactment of this Act, any Indian, Indian nation or
tribe of Indians (other than the Passamaquoddy Tribe or
Penobscot Nation or any other entity presently or at
anytime in the past known as the Passamaquoddy Tribe
or Penobscot Nation, or any predecessor or successor
in interest, or member thereof) whose transfers of
land pr natural resources are approved by this section
or whose aboriginal title or claims are extinguished_ by
this -sect ion may bring an action against the Fund established
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pursuant to section 6 of this Act · in lieu of an action against
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would have existed in the absence of this section.
The
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amount to be paid in any such action shall be determined
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by dividing the amount of transferr~d land or natural
resources which any such Indian, Ind~a~ion or tribe
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any other person or entity against whom a cause of action
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~f Indians lr1i~ht prove/ was {e~tin<3uished or appt:"ov~ci"· py ~~~ __
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section by the a~ount oE iand or natural resources in the
.·., Claims Arca ancl multiplying the result by $25,000,000.
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ADMINISTRATIVE IMPLEMENTATION
Sec. S(a)
Within thirty days after the date
of enactment of this Act, the Secretary shall cause ~o
be published in the Federal Register a list of all titleholdE
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who held title to more than
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may amend the list to correct errors at any time prior
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acres of land in the
Residual Claims Area as of February 1 O, 19 7 8. The Secr·e tary
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so,090
to final approval 'of designations pursuant to subsection (d).
.
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(b)
Any titleholder identified in the
originql or amended list published by the Secretary pursuant
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to subsection (a), or any successor in interest thereto, may,
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within sixty days of publication of the list specified
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in subsection (a) or any subsequent amendment of the list
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pertaining to such titleholder, file an application with
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the Secretary designating up to 50,000 acres of the titlehold
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total holdings that the titleholder requests to have covered
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(b} and (c} of this Act.
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(c}
When a parcel held in tenancy in common,
joint tenancy, tenancy by the entirety, or otherwise in
.
common ownership is designated pursuant to this section
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a portion of the total acreage of the parcel shall be charged
against each titleholder's 50,000 acre exemption in the same
proportion as his interest bears to the total of all
of the parcel.
�1
-
(a)
9 -
After notice and opportunity for
hearing, the Secretary shall approve the applications filed
under subsection (b) if he finds that they conform to.the
extent possible with the following general criteria:
(1)
tracts should be selected in such a
way as to minimize checkerboard patterns of ownership;
(2)
the most densely populated areas
of a titleholder's total holdings should be included within
the 50,000 acre exemption, at least insofar as the titleholde
requests such inclusion;
(3)
ongoing business operations,
including but not limited to rnillsites, should be included
within each 50,000 acre exemption, at least insofar as
the titleholder requests such inclusion;
(4)
any timber lands included within
each 50,000 acre exemption should be representative of the
titleholder's overall holdings; and
(5)
parcels of land or water held in
in common, joint tenancy, tenancy by the entirety, or
otherwise by two or more titleholders should be included in
the exe~ptior.s, if one or more titleholders of such parcel
requests such inclusion.
If the Secretary concludes that any application
does not satisfy the foregoing general criteria, he may modif
the titleholder's proposed designation to the extent necessar
to achieve substantial conforrntty with those criteria.
The
Secretary shall then approve the designation as modified.
�- 10 (e)
Any person aggrieved by the Secretary's
approvals or modified designations may seek judicial review
by filing a petition for review in the United States Court
of Appeals for the First Circuit not later than sixty·
days after publication of the Secretary's approvals or
modified designations.
The Secretary's determinations shall
not be set aside unless they are found to be arbitrary,
capricious or an abuse of discretion.
ESTABLISHMENT OF FUND AND INDEMNIFICATION
Sec. 6(a)
The Secretary of the Treasury shall
establish an account in the Treasury of the United States to
be known as the Maine Indian Claims Settlement Fund and shall
transfer $25,000,000 from the general funds of the Treasury
into such account following the appropriation authorized
by section 9 of this Act.
-
--- .
{b) One half of the principal of the Fund
.
/
-
--.
rema1n1ng after allocation to petitioner~ shall be held
~.
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in trust by- the Secretary for the benefit of the
Passamaquoddy Tribe and the other half of the remainder
shall be held in trust for tbe benefit of the Penobscot
. \\
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Nation.
Each portion of the Fund shall be administered in
accordance with terms established by the Secretary and agreed
.
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of '
.,Ji 't7 ( c)\ '._·~ t • to by the respective Tribe or Nation, except that no part of
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the pr1nc1pal of the Fund shall be distributed among the
members of eithi2r tribe on a per capita basis.
The Secretary
�- 11 -
shall make available to each tribe, without liability to or
on the part of the United States, any income derived from
its allocated portion of the Fund,.the use of which shall
be free from regulation by the Secretary.
APPROVAL OF PRIOR TRANSFERS AND EXTINGUISHMENT
OF CLAIMS AND INDIAN TITLE TO AREAS IN MAINE
OUTSIDE THE INDEMNIFICATION AREA
Sec. 7(a)
Except as provided in subsection (b)
(1)
Any transfer of land or natural resources
located within the State of Maine from, by or on behalf of
any Indian, Indian nation or tribe of Indians (ot0er than
transfers covered by section 4 of this Act), i~cluding
but not limited to a transfer pursuant to any statute of any
state, shall be deemed to have been made in accordance with
the Constitution and all laws of the United States that are
specifically applicable to transfers of land or natural
~esources from, by or on behalf of any Indian, Indian nation
or tribe of Indians {including but not limited to the Trade
---
and Intercourse Act of 1790, Act of August 4, 1790, ch. 33,
§ 4, l Stat. 138, and all amendments thereto and all subsequent
versions thereof), and Congress does hereby approve any such
transfer effective as of the d~te of said transfer.
(2)
To the extent that any transfer
of land or natural resources described in subsection (a)
may involve land or natural resources to which such Indian,
Indian nation or tribe of Indians had aboriginal title,
�- 12 subsection (a) shall be regarded as an extinguishment of such
aboriginal title as of the date of said transfer.
{3)
By virtue of the approval of a transfer
of land or natural resources effected by this section or an
extinguishment of aboriginal title effected th~reby, all
claims against the United States, any state or subdivision
thereof, or any other _person or entity, by any such Indian,
Indian nation or tribe of Indians, arising subsequent to the
transfer and based upon any interest in or right involving
such land or natural resources (including but not limited to
claims for trespass damages or claims for use and occupancy),
shall be regarded as extinguished as of the date of the transfer.
(b)
This section shall not apply to any claim,
right or title of any Indian, Indian nation or tribe of
Indians that is asserted in an action commenced in a court of
competent jurisdiction within one hundred eighty days of
the date of enactment of this Act; Provided, that the plaintiff
in any such action shall cause notice of the action to be
served upon the Secretary.
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LIM I TAT ION OF ACTION.S
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Sec. 8
Notwithstanding any other provision of law,
any action to contest the validity or constitutionality of this
Act shall be barred unless the complaint is filed within one
hundred eighty days of the date of enactment of this Act.
Exclusive jurisdiction over such actions is hereby vested in the
United States District Court for the ·District of Maine •
. ·---=--,:::;::;.
�- 13 AUTHORIZATION
Sec. 9
There is hereby authorized to be
appropriated $25,000,000 to carry out the purposes of this
Act.
INSEPARABILITY
Sec. 10
In the event that any provision of Section·
4 of this Act is held invalid, it is the intent of Congress
that the en~ire Act be invalidated.
----
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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
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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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NMAI025
Title
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Memo to Eliot Cutler (White House, OMB), Douglas Huron (Associate Counsel to the President), Edwin Kneedler (Department of Justice) and Tim Vollmann (Department of Interior) from Kay Oberly (Department of Justice, Land and Natural Resources Division), with draft of Maine Indian Claims Settlement legislation attached. This draft reflects changes drafted by Tom Tureen (NARF Attorney for the Passamaquoddy Tribe and the Penobscot Nation). (07/11/1978)
Date
A point or period of time associated with an event in the lifecycle of the resource
7/11/1978
Source
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National Congress of American Indians Records
National Congress of American Indians records, Box 532, Misc. Rec. of S. Harjo, Eastern Land Claims, Folder Titled “[Maine Indian Land Claims - General V]”; National Museum of the American Indian Archive Center, Smithsonian Institution
Language
A language of the resource
English
Description
An account of the resource
Sections 4 and 7 of this draft deal with Extinguishment of Claims (what is now found in 25 U.S.C. 1723). What we know today as 25 U.S.C. 1725 (Application of State Law) is not included. The provision in the 07/07/1977 draft that affirms that the Tribes will be entitled to federal services and assistance has been deleted. What we know today as 25 U.S.C. 1735(b) is not yet included either.
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 by the National Museum of the American Indian Archive Center. Prior permission is required for any commercial use.
1723
Douglas Huron
Draft Bill
Edwin Kneedler
Eliot Cutler
Extinguishment of Claims
Kay Oberly
Thomas Tureen
Tim Vollmann
-
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d3c91f20c215c0716bda7c2f9042c02a
PDF Text
Text
~¥~of£
DEPARTMENT OF THE INTERIOR
OFFICE OF THE SOLICITOR
WASHINGTON,
FROM:
TO:
D.
C. 20240
Special Assistant to the Solicitor
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A
B I L L
To provide for the set tle1:·,en t of land clair1s of Indian
tribes in the State of Maine, including the Passamaquoddy
Indian Tribe anc1 the Penobscot Indian Uation, and for
other purposes.
Be it enacted bv the Senate and House of
Representatives of the United States of America in Conqress
asser..bled, that this Act r,1ay be cited as "The · Maine
Indian Claims Settlement Act of 1978."
CONGRESSI0Nl1L FINDHJGS i:~.ND DECLARA'l'IotJ OF POLICY
Sec. 2(a)
Congress hereby finds and declares
that --
(1)
The Passamaquoddy Indian Tribe and
the Penobscot Indian Nation are asserting claims for damages
and for possession of large areas of land in the State of Maine,
on the ground that the original transfers of the lands
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by the Tribes to the States of Massachusetts and Maine
were made ' in violation of the Trade and Intercourse Act
.
.
of 1790, or subsequent versions thereof.
(2)
Congress recognizes that substantial
economic and social hardship to a large number of landowners
in the State of Maine, and therefore to the economy of the
State as a whole, will result if parts of the Tribes' claiMs
are not resolved immediately.
�-
2 -
At the same tir.:e, it is the desire
(3)
of Congress to preserve, for the pres on t t irne, the Tribes'
claims to at least a portion of the areas to which they assert
rights, pending a comprehensive solution to the Tribes' overall
claims.
(b)
Therefore, it is the purpose of this
Act --
.
(1) to remove the cloud on the titles
to millions of acres of land in the State 9f Maine resulting
from the Tribes' claims, w_ ile at the sar:1e time preserving
h
the Tribes' opportunity to assert their claims with respect
to certain lands held by the State of Maine and tracts
held by private landowners in excess of a rniniFlum acrea']e; cJ nd
(2)
to provide for a timely resolution
of all other similar Indian claims to land or natural
resources in the State of Maine.
DEFINITIONS
-,~,.,:3e~.
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L
3
For the purposes of this Act, the term --
'
• ;
r.
(a) "Indemnification Area" means those areas
in the State of Maine described as -[Note:
(b)
This area of approximately
10 million acres must be
identified.]
"Land or natural resources" means any
real property or natural resources, or any interest in or
right involving any real property.or natural resources,
�- 3 inc 1 ud in g bu t no t 1 i rn i t e d to rn in er a l rig h ts , t i r~1 be r r i g ht s ,
water and water rights, and rights to hunt and fish;
( c)
11
Passamaquoddy and Penobscot Indian
. Reservations" means that portion of the Passamaquoddy Indian
Reservation and the Penobscot Indian Reservation in the
possession of the Passamaquoddy Indian Tribe or the Penobscot
Indian Nation or their members as of February 10, 1978;
(d)
11
Residual Claims Area" P.eans those
areas of the State of Maine generally defined as:
(1)
that por~ion of the Penobscot
River watershed in the State of Maine above Eddington Bend;
(2)
"
that portion of the St. Croix
River watershed in the State of Maine above Baring Plantation;
and
(3)
that portion of the Kennebec
River watershed east of the eastern shore of Mooschead Lake;
(e)
• .
• .-
"Secretary" means the Secretary of
( d)
"Titleholder" means the United States or
't"
the Interior.
, .. ~,.
....
any department, agency or instrumentality thereof; a county
or municipality; or a private individual, corporation, trust
partnership, or other entity, not including the State of Maine,
that holds an interst in fee simple title to land or water in thE
State of Maine.
A titleholding subsidiary and its titleholding
parent, or two or more titleholding subsidiaries of the same
parent, or two or more titleholders under substantially
�- 4 common ownership or control shall be regarded as a single
titleholder for purposes of this Act; and
--------
(g)
"Transfers" incluaes but is not
necessarily limited to any sale, grant, lease, allotment,
partition, or conveyance, any transaction the purpose of
which was to effect a sale, grant, lease, allotment,
partition, or conveyance, and any event or events that
resulted in a change in possession or control of land
o;
natural resources.
/1PPROVAL OF PRIOR TRl\t~SFFRS A"t\:D EXTI1'JGUISW.1FNT
------------ -- ------- - - - - - - - OF INDIAN 'l'ITLE AND cu~ V1S OF P!~~SA!·il-1;QUODDY
- - - - - - - - - - -- --TRIBE AND PENOBSCOT NATION
. Sec. 4(a)
Except as provided in subsection (d),
any transfer of land or natural resources located anywhere
within the United States-, other than in the Passamaquoddy
and Penobscot Indian Reservations, from, by or on behalf of
the Passamaquoddy Indian Tribe or Penobscot Indian Nation, or
-~
'['
any other e;ti~~ presently or at any time in the past known
as the P~~s~maquoddy Indian Tribe or Penobscot Indian Nation, or
any predecessor or successor in interest, or any member
thereof, and any transfer of land or natural resources located
anywhere within the Indemnification Area by, from or on behalf
of any Indian, Indian nation, or tribe of I ·ndians, including
but not limited to a transfer pursuant to any statute
of any state, shall be deemed to have been made in accordance
with the Constitution and all laws of the United States
that are specifically applicable to transfers of land
�-
5 -
or natur.al resou1:ccs from, by or on bc,half of ony IndL:in,
Indian nation, or tribe of Indians (including but not limited
to the Trade and Intercourse Act of 1790, Act of August 4, 1970,
ch. 33, §4, 1 Stat. 138, and all amendments thereto and all
subsequent versions thereof), and Congress does hereby approve
any such transfer effective as of the date of said transfer.
(b)
To the extent that any transfer of land
or natural resources described in su b section (a) may iniolve
land or natural resources to which the Passa~aquoddy Indian
Tribe or Penobscot Indian Nation or any other entity presently
or at any time in past known in the Passa~aquoddy Indian Tribe
or Penobscot Indian Nation, or any predecessor or successor
in interest, or any mc:mber thereof, or .:my other Indian,
Indian nation or tribe of Indians, had aboriginal title,
subsection (a) shall be regarded as an extinguishment
of such aboriginal title as of the date of said transfer.
(c)
. . ...
,r
By virtue of the approval of a
...
transfer of-ia~~ or natural resources effected by
this section, or an extinguishment of aboriginal title
.
~
.
effected thereby, all claims against the United States,
any state or subdivision thereof, or any other person or
entity, by the Passanaquoddy Indian Tribe or Penobscot Indian
Nation or any other entity presently or at any time in the
past known as the Passamaquoddy Indian Tribe or Penobscot
Indian Nation, or any predecessor or successor in interest, or
any individual member thereof, o~ any other Indian nation or
tribe of Indians, arising subsequent to the transfer and
�-
6 -
based on any interest in or right involving such land
or
____ _,., _,.,
natural resources (including but not limited to claims
for trespass damages or claims for use and occupancy),
shall be regarded as extinguished as of the date of the
transfer.
(ii
(d) Within
the Residual Clai;ns Area, this section shall not apply
to -(1) parcels or land or water, and ail
rights and interests incident thereto,
held in fee simple title by the State of
Maine as of February 10, 1978: and
(2) parcels of land or water, and
all rights and interests incident thereto,
other than parcels of land or water
approved pursuant to section 5 of
this Act, held in fee simple as of February 10
·- ·*
'f'
1978, by any titleholder who holds fee
- ,...
_.,
simple title to more than 50,000 acres of land
or water in tie·Residual Claims Area.
A parcel of land or water held in fee simple by two or more
titleholders, whether by tenancy in common, joint tenancy,
tenancy by the entirety, or otherwise, shall be covered by
paragraph 2 of this section only if all titlehclders holding
an interest in the fee simple title to such parcel hold an
interest in the fee simple title to more than 50,000 acres of
land or water in the Residual Claims Area.
�-
(e)
7 -
\within one hundr~d eighty days afler
L;,:.
d a t e o f enact men t o f th i s Ac t , any Ind i an , Ind i an n a t i o n c, ~tribe of Indians (other than the Passar11aquoc1dy Inoit::11 ':'rihL:
or Penobscot Indian Nation or any other entity presently or
at anytime in the past known as the Passamaquoddy Indian
Tribe of Penobscot Indian Nation, or any predecessor or
successor in interest, or member thereof) whose transfers
of land or natural resources are approved by this section
or whose aboriginal title or claims are extinguished by
this section may file a petition with the Secretary s0ckin9
to participate in the Fund established pursuant to section 6
of this Act. The entitlement of any such Indian, Indian
nation or tribe of Indi3ns to participate in the Fund
shall be govercned solely by the provisions of section 6(b)
of this Act.
ADMINISTRATIVE IMPLEMENTATION
Sec. S(a)
•
•il'
Within thirty days after the date
f'
of enactment ofithis Act, the Secretary shall cause to
be publi~~e~ in the Federal Register a list of all titleholders
who held title to more than 50,000 acres of land in the
Residual Claims Area as of February 10, 1978. The Secretary
may amend the list to correct errors at any time prior
·to final approval of designations pursuant to subsection (d).
(b)
Any titleholder identified in the .
original or amended list published by the Secretary pursuant
to subsection (a), or any successor in interest thereto, · may,
�-
8 -
within sixty d2ys of publication of the list specific~
in subsection (a) or any subsequent amena~ent of the list
pert a in i n g
~o
s u c h t i t le ho 1 a c- r , f i 1 e a n a pp 1 i ca t i on ,., i th
. the Secretary designating up to 50,000 acres of the titleholder's
total holdings that the titleholder requests to have covered
by Sections 4(a),
(c)
(b) and (c) of this Act.
i·lhen a parcel held in tenancy in comrrion,
joint tenancy, tc~~ncy by the entirety, or otherwise in
common ownership is designated pursuant to this section
a portion of the total acreage of_thc parcel shall be charged
against each titleholder's 50,000 acre exemption in the same
proportion as his interest bears to the total of all
interests in the fe:c of the parcel.
(q)
After notice and opportunity for
hearing, the Secretary shall approve the applications filed
under subsection (b) if he finds that they conform to the
extent poss!bl~~with the following general criteria:
·"'
.
(1)
tra~ts should b~ selected in such a
..,,
way as to minimize checkerboard patterns of ownership;
(2)
the most densely populated areas
of a titleholder's total holdings should be included within
the 50,000 acre exemption, at least insofar as the titleholder
requests such inclusion;
(3)
ongoing business operations,
including but not limited to millsites, should be included
�- 9 w i t h i n c: a ch
50 , 0 00
.J
c r e c x c, n~ p t 1 on , a t 1 ca s t i n so f a r a s
the titleholder requests such inclusion;
-------
(4)
any timber lands incluaea within
each 50,000 acre exemption should be represent0tive of the
titleholder's overall holdings; and
(5)
parcels of land or water held in
tenancy in common, joint tenancy, tenancy by the entirety, or
otherwise by lwo ur- : ore titleholders should be incluclcd~ in
the exemptions,~tne or more titleholders of such parcel
requests such inclusion.
If the Secretary concludes that any application
does not satisfy the foregoing general criteria, he may modify
the t i t 1 eh o 1 de r ' s prop o !~ c d d e s i 9 n a ti on to t h c e x ten t n cc cs s a r y
to achieve substantial conformity with those criteria.
The
Secretary shall then approve the designation as modified.
{e)
Any person aggrieved by the Secretary's
approvals or modified designations may seek judicial review
-1"
'("
by filing a petition for review in the United States Court
of Appea~~ for the First Circuit not later than sixty
days after publication of the Secretary's approvals or
modified designations.
The Secretary's determinations shall
not be set aside unless they are found to be arbitrary,
capricious or an abuse of discretion.
�- 10 -
Sec. 6(a)
·The Secretary of the Treasury shall
i n t h e Tr ea s u r y o f the Un i tea St a t e s to
e s L:1 bl i s h a n a cc o u n t
be knovm as the I•:a ine Indian Claims Set tlc:mc:n t Fund and shall
transfer $25,000,000 from the general funds of the Treasury
into such account following the appropriation authorized
by section 10 of this Act.
(b)(l)
The principal of the Fund established
pursuant to subsection (a) shall be invested only in
securities of the United States until the later of --
(i) the expiration of one hundred
eighty days after the date of enaclment
of this Act, or
(ii) the date on which the Secretary
has made final determinations of the
extent, if any, to which all Indians,
·* ,.
·
Indian nations or tribes of Indians filing
petitions pursuant to section 4(e) shall
participate in the Fund and such
determinations have become effective
in accordance with the provisions of
paragraph (5) of this subsection.
(2)
In the event that one or more
petitions are filed with the Secretary pursuant to section
4{e) of this Act, the Secretary shall, within eighteen months
�- 11 of the date of e:naclncnt of this Act und under rules 2nd
regulations prescribed by him for this purpose, det~rmine
whether any such petitioners shall participate in the Fund,
subject to the provisions of paragraph (5) of this subsection.
(3)
The Secretary shall determine that
any such petitioner shall participate in the Fund, subject
to the provisions of paragraph (5), only if the Secretary
finds, after applying the same legal principles to the ~lains
of the petitioner and those of the Passamaquoddy Indian Tribe
or the Penobscot Indian Nation, t~at (i) such petitioner had
a claim to title to, or rights in, including any right of
aboriginal use, possession or occupancy .of, land within the
Indemnification Area s uperior to that of the Passana<]uodciy Indian
Tribe or the Penobscot Indian Nation; (ii) there is substantial
evidence to support a finding that such title or rights were
transferred by, from, or on behlaf of the petitioner, or its
predecessor or successor in interest or any member or stockholder
thereof, in-~i6iation of the Constitution or laws of the United
States tbat are specifically applicable to transfers of land or
.'
natural resources from, by or on behalf of any Indian,
Indian nation, or tribe of Indians; and (iii) there is .
no greater evidence that such transfer has been approved
or aboriginal title and claims based thereon extinguished
prior to the date of his determination than there is that
the transfers, title, and claims of the Passamaquoddy Indian
Tribe or Penobscot Indian Nation have been approved or
extinguished.
�- 12 (4)
If the Secretctry determines that one
or more petitioners should participate in the Fun~, any such
petitioner's participation in the Fund shall be in the
same proportion as -·(i) the total nunber of acres to which
the petitioner has a superior claim
(as determined in accordance with
paragraph (3))
bears to
(ii) the total number of acres within
the IndeAnification Area.
(5)
The·secretary's determination
regarcHng the participation in the Fund by any Jndian,
Indian nation or tribe of Indians shall become effective
one hundred eigh£y days after it is published in the Federal
Register, unless before the expiration of such period Congress
enacts legislation providing for a different allocation of
the Fund.
......~
'
f.
(6)
The Secretary's determination
under this section shall not be subject to review by any
court.
(7)
If the determination of the
Secretary under this section becomes effective as provided
in paragraph (5), one half of the principal of the Fund
remaining-after allocation to petitioners shall be held
in trust by the Secretary for the benefit of the
�- 13 -
Passarnaquodoy Ind.icJ.n · Tribe
,;nd tLi-: cl her
hi!l f of the rema irn1er
sh a 11 be he 1 d i n tr u s t for t he b c· :1 e f i t o f the Penobscot I n d i an
----
Nation.
Each portion of th':! Pt..rn,-'. :-:~all be z.c.:i!linistereo in
accordance with terms establish12f~ b~r the Secretary and agreed
to by the respective Tribe or Nation, except that no part of
the pr inc i pa 1 of the Fund r.~ ha 11 t
f:
cl i
st r i but e d anon g the
members of either Tribe on a per capita bnsis.
The Secretary
shall maJ:e available to each Trilv.?, ·.:i thout 1 iabili ty
to
or
on the part of the United States, any income derived from
its allocated portion of the Fund, the use of which shall
be free from regulation by the Secretary.
(8)
becomes e[fective
i1S
If the determination of the Secretary
provic1c~d in 1>1L1graph ( 5), the principal
of any portion of the Fund allocated to any Indian, Indian
nation, or tribe of Indians, other than the Passamaquoddy Indian
Tribe or Penobscot Indian Nation, shall be invested in securities
of the United States until such time as Congress enacts
•
.1J-
t
legislation -pro~iding for some other invest0ent, distribution,
or othe~v?isposition of the Fund. ·
(9)
Until such time as the legislation
referred to in paragraph (8) is enacted, the income from
the allocated portion of the principal shall be paid to or
for the benefit of the Indian, Indian nation, or tribe of
Indians entitled thereto without liability to or on the
part of the United States.
�- 14 l\PPJ~OVld.J OF I'HIOR 'T'!(;\~:~.FSPS hViD f.1/.'T'TiTl1I S::•'.F~·JT
-OF CLAIMS Id;!) rr;DIAtJ 'l'ITLE TO /i,RE/'.S IN I,;/\ItJE
OUTSIDE TliE I1WE!-~NIFICA'1'ION i\REA
Sec. 7(a)
Except as provided in subsection (b)
(1)
Any transfer of land or natural resources
located within the State of Maine from, by o~ on behalf of
any Indian, Indian nation or tribe of Indians (other than
transfers covered by section 4 of this Act), including
but not limited to a transfer pursuant to any statute of any
state, shall be deemed to have been made in accordance with
the Constitution and all laws of the United States that are
specifically applicable to transfers of land or natural
resources from, by or on behalf of any Indian, Indian nation
or tribe of Indians ( including but not limited to the Trade
and Intercourse Act of 1790, Act of August 4, 1790, ch. 33,
§ 4, 1 Stat. 138; and all amendments thereto and all subsequent
versions thereof), and Congress does hereby approve any such
transfer effective as of the date of said transfer.
·*
t
·. ;~
(2)
To the extent that any transfer
of land·R: natural resources described in subsection (a)
may involve land or natural resources to which such Indian,
Indian nation or tribe of Indians had aboriginal title, subsection (a) shall be regarded as an extinguishment of such
aboriginal title as of the date of said transfer.
(3)
By virtue of the approval of a transfer
of land Oc natural resources effected by this section or an
extinguishment of aboriginal title effected thereby, all
�- 15 claims against the United States, ~my state or suboivision
thereof, or any other person or entity, by any such Indian,
Indian nation or tribe of Indians, arising subsequent to the
. transfer and based . upon any interest in or right involving
such land or natural resources (including but not limited to
claims for trespass damages or claims for use and occupancy),
shall be regarded as extinguished as of the date of the transfer.
(b)
This section shall not apply to any~lairn,
right or title of any Indian, Indian nation or tribe of
Indians that is asserted in an action cornraenced in a court of
competent jurisdiction within one hundred eighty days of
the date of enactment of this Act; Provided, that the plaintiff
in any such action shall cause notice of the Action to be
served upon the Secretary.
SERVICES AND ASSISTANCE TO TRIBES
~
Sec. 1(a)
The Passamaquoddy Indian Tribe and Penobscot
Indian Natiqn a~d the members of those tribes are deemed to be
"Indian tribes" and "Indians," respectively, within the
meaning o'f Federal statutes authorizing the provision of
services and assistance to Indians because of their status
as Indians by or through any d~partment, agency or
instrumentality of the United States.
(b)
The provisions of the Act of June 18,
1934 (48 Stat. 484), as amended, are extended to the
Passa~aquoddy Indian Tribe and Penbbscot Indian Nation
Tribes to the members of those Tribes.
�- 16 -
q
LIMITATION OF ACTIONS
Sec. 1ft' Notwithstanding any other provision of law,
.----any action to contest the validity or constitutionality of this
Act shall be barred unless the complaint is filed within one
hundred eighty days of the date o ·f enactment of this Act.
Exclusive jurisdiction over such actions is hereby vested in the
United States District Court for the District of Maine.
AUTHORIZATION
Sec. 10, There is hereby authorized to be
appropriated $25,000,000 to carry out the purposes of this
Act.
INSEPARABILITY
Sec. 1~
In the event that any provision of Section
4 of this Act is held invalid, it is the intent of Congress
that the entire Act be invalidated •
..
._;,
...
.,._
�
Dublin Core
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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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NMAI024
Title
A name given to the resource
Draft Maine Indian Claims Settlement Bill sent to Suzan Harjo (Congressional Liaison for Indian Affairs) from Tim Vollmann (Department of Interior), with his handwritten notes (07/07/1977)
Date
A point or period of time associated with an event in the lifecycle of the resource
7/7/1977
Source
A related resource from which the described resource is derived
National Congress of American Indians Records
National Congress of American Indians records, Box 532, Misc. Rec. of S. Harjo, Eastern Land Claims, Folder Titled “[Maine Indian Land Claims - General V]”; National Museum of the American Indian Archive Center, Smithsonian Institution
Language
A language of the resource
English
Description
An account of the resource
Sections 4 and 7 of this draft deal with Extinguishment of Claims (what is now found in 25 U.S.C. 1723). What we know today as 25 U.S.C. 1725 (Application of State Law) is not yet included. Instead there is a merely a provision that affirms that the Tribes will be entitled to federal services and assistance (Section 8). What we know today as 25 U.S.C. 1735(b) is not yet included either.
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 by the National Museum of the American Indian Archive Center. Prior permission is required for any commercial use.
1723
Draft Bill
Extinguishment of Claims
Suzan Harjo
Tim Vollmann
-
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69585b6e12b54424fea1f275e1821724
PDF Text
Text
,.
.
l ") i·::S-t) BSCOT ~- P. \ SS:\ :\ L\< ..n; o I*} I) Y
TJ:iB \L l'I.:\~NJV; J:OAHO
OLD TOV~'N, f'.~AINE 04468
•
207 827-Ti21
f"\OARD OF ~; !, ::' ;TO~S
G<::or:-;,.. Sl<:?V':-' ·:, .Jr ChJ1rr.ian
N;.:r.o!,15 Sop,~I. 'J1ce c:-.a1rrnan
\'.',iyne New~li . 5-•cr~!tary
Jo;~ph Pulchi-,,,;, Tr<!a3lH.er
EXl:.CUTI\/E OIR~CTOR
Anjrew X. Aw.ir.3
4/11/78
PLANNER
Y•,onn',: Norton
MIL. Fo1t1Le.6t Ge1La1Ld
A.6.oi.6tant Sec..1teta1Ly 6d1t Indian A66al1t~
Buneau 06 Indian A66ain.o ~
U.S. VepaJttment 06 the 1nte1Lio1t
18th and C StJteet, N.W.
Wa.oltington, V.C. 20240
Vean MIL. Ge1La1td:
The Pa.6.6amaquoddy and Penob~c..at T1tibe.6 neq~ilLe youn
.~.o.oi~tanc..e to ne.oolve the pltoblem 06 6unding thtln polic..e depantmentJ in Fiic..al Yean 7979.
'
Sinc..e ea1tly 1974, the Law En601Lc..ement A.o.ol~tanc..e Adminl~tJta:tion
ha.o 6unded the PenobJc..ot and the two Pa.6.6amaquoddy Law En6onc..ement P1tog1Lam.6. LEAA'.6 polic..le.o allow.o :them to 6und polic..e
depaJt:tmen:t.6 601L only :thnee yealL~. Bec..au.6e we have no otheJt
6unding .ooulLc..e, they have agJteed :to c..ontinue thellL .ouppon:t thlLough
thi.o 6i.o c..al y ealL. ·
·
~n attempting to ILe.oolve thi.o plLoblem, we have been lnio~med
by LEAA,and the BIA'.6 Ea.otenn A4ea 066ic..e and Law En6o4c..ement
Vlvi~lon that no 6und.o aJte alloeated at will be 661Lthc..oming
in ·Fl.oc..al · YeaJt 7979. The State 06 Maine will al.oo, not 6und
the total c..o.o:t o 6 oun polic..e .6 eiz.vic..e.6. With no ounding .oou.nc..e.6
in .olght 6on FiJc..al YeaJt 7979 601t ouJt polic..e, we intend :to Jteque.ot,
•text wee~, 06 the Senate Subc..ommittee on the Vepafttmen:t 06 Inte1Llo1t,
and Related Agenc..ie.6 an add-on appltopniation 06 $180,000 to Sund
the Pa/.}Jamaquoddy and Pe.nob.6eot Polic..e Ve.paJttme.nt.6. A.o a matte.It
06 polic..y, :the. BIA doe.6 not noJtmally pltovide. 6und.o 601t law en6o~c..eme.n:t on ~e..6e.1Lvation.o whieh aJte aubjec..t to .o:tate c..Jtiminal juJti.6dietion. We 6e.e.l, howeve.n, that the. BIA ha.o authonl:ty :to make .ouc..h
expe.nditune.o u.nden the. John.6on-O 'Malley Ac..:t.
···
By the tenm.6 06 ouJt Joint Me.moJtan-dum 06 UndeJtJ:tan.ding wlth
the White Hou.oe Wonk GJtoup on ouJt land c..lalm, :the. c..Jtiminal julLl.6dlc..tlon oveJt ouJt Tnibe..o will Jtemain with the State 06 Maine 601t a~
lea.ot the ne.xt :two yean.o. G)Jv.en thil.} .6ituation, by all appe.ananee.6,
.t he BIA Lo unwilling to p1tovlde. 6u.nd,!> undeJt :the. nonmal polic..y.
In R..i.ght 06 the e.xt1taondlna1ty ,5i.tu.ation that we ane in, we. nee.l
�that a hpec.ial add-on appll.op~iation hpec.i6ica.lly pll.oviding 6undh
6on ou,1. po.C.ic.c., thJz.ough the B1A ill both app!T..opJr..iate. and e.!l .6e.ntia.l
and we. ahk that you huppoJr..t ouJz. Jz.eque.ht. Thank you.
Sinc.e.1te.ly,
07 w~
AndJte.W X. Akinh
Copie.h - Leo KJz.ulltz
Suhan Hayo
Tim Vollman.
Gove1tno'1.. Nic.holah Sa.pie!
Gove'1..no'1.. F'1..a.nc.ih Nlc.holah
Gove'1..no'1.. John Steve.nh
Senato'1.. Edmund Muhkie. (Ehtelle. La.vole.)
Senato'1.. William Hathaway (Betty Boyington)
Rep!T..e~entative. William C~he.n (Cynthia. Hilton)
RepJz.e.~entative Va.vid Eme.Jr..y (CaJz.olyn Nightingale.)
.....
..
..
�
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
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>.
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
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Identifier
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NMAI023
Title
A name given to the resource
Letter from Andrew Akins (Penobscot-Passamaquoddy Tribal Planning Board) to Forrest Gerard (BIA, Department of Interior) (04/11/1978)
Date
A point or period of time associated with an event in the lifecycle of the resource
4/11/1978
Source
A related resource from which the described resource is derived
National Congress of American Indians Records
National Congress of American Indians records, Box 531, Misc. Rec. of S. Harjo, Eastern Land Claims, Folder Titled “[Maine Indian Land Claims - General, IV]”; National Museum of the American Indian Archive Center, Smithsonian Institution
Language
A language of the resource
English
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.
Andrew Akins
Forrest Gerard
Francis Nicholas
John Stevens
Joint Memorandum of Understanding
Jurisdiction
Leo Krulitz
Nicholas Sapiel
Suzan Harjo
Tim Vollmann
White House Task Force
White House Work Group
-
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b1ca735123dcc330b4a4b5a622329ae2
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Text
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ESTABLISHMENT OF FUNOO
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PFOVAL OF PRIOR TRANSFERS AND EA'TINGUISHMENT
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Indian, Indiarf nation, or tribe of Indians (other; than transfers
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transfer pursuant to any statute of any state, shall be deemed to
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resources (iric1Uding but not limited to claims for trespass damages
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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
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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>.
Text
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Identifier
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NMAI020
Title
A name given to the resource
Handwritten note from Tim Vollmann (Department of Interior) to Thomas Tureen (NARF Attorney for the Passamaquoddy Tribe and the Penobscot Nation), with a portion of a draft bill attached (07/16/1979)
Date
A point or period of time associated with an event in the lifecycle of the resource
7/16/1979
Source
A related resource from which the described resource is derived
National Congress of American Indians Records
National Congress of American Indians records, Box 531, Misc. Rec. of S. Harjo, Eastern Land Claims, Folder Titled “[Maine Indian Land Claims - General, IV]”; National Museum of the American Indian Archive Center, Smithsonian Institution
Language
A language of the resource
English
Description
An account of the resource
Both Section 4 and Section 6 of this draft deal with Extinguishment of Claims (what is now found in 25 U.S.C. 1723). Section 10 of this draft deals with Application of State Law (an early version of what we now know as 25 U.S.C. 1725). What we know today as 25 U.S.C. 1735(b) is not yet included.
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 by the National Museum of the American Indian Archive Center. Prior permission is required for any commercial use.
1723
1725(h)
Application of State Law
Draft Bill
Extinguishment of Claims
Jurisdiction
Thomas Tureen
Tim Vollmann
-
https://d1y502jg6fpugt.cloudfront.net/26761/archive/files/5ed7f8964fcd925a7ddbe7a44f278528.pdf?Expires=1712793600&Signature=tt232cGDGmUCFa7v2rl9kltQFCTEE2jXhCEfb2Kmu7xZDLPiZ1tCuAdCbyaNzzw8T3AYScTFBK69cezITf0v6sgt4tMcY4OHOQVaC9Y%7EQ9I7KBpBLypkjJR1U65T8XV6SuKvTf%7EHm7DtG%7Es2NcTjJjd88%7EycNqAdEmqlXCpVeA8dX0F7TBFkyu%7EpS4bxNAa5DSy-fcSiJrRhTV6BvdrvBgGLrEUUYvua8qAMqyiG6lC5EfTRVQeuYJx-1wEJ5mwnscDsCag75MC3vKZnlyFo-RTKE8JJQoCv-Q9iPB7VEvjQEbEBct31f-0Ggi6jYRtuFZiZD4nfn0JR9z1RPN--wA__&Key-Pair-Id=K6UGZS9ZTDSZM
c463450e87ee56a1b70a5458691d4a02
PDF Text
Text
UNITED STATES
DEPARTMENT OF THE INTERIOR
OFFICE OF THE SOLICITOR
WASHINGTON. D.C.
20240
J.l 3 r 1979
Leo--
Re:
Muskie drafting request for Maine Indian legislation
Ihe attached draft is based on the fonnat used for the draft bill
we intended to introduce last stmtIIer. Note especiaily the treat-
1
ment of other tribes (namely the Malecites) in §§2(b)(2}, 3(a),
4(a), 4(d)-(e), S(b)-(c), and especially §6. «:£he "Hathaway proposal"
did. not address this issue except to state that it was intended to
extinguish the claims of "all Indians" in the State of Miane.
One p~di>lan area is the application of State law, §10. rrhe Hathaway·
proposal provides for the applicability of "all state laws" and for
taking lands in trust--nutually inconsistent propositions. Tom asked
ne to go back to the drawing board on this, but the best I have come
up with is the current draft.
If this were a ~partnental proposal
rather than a response to a nere drafting request, I v~uld feel more
sanguine about fashioning language out of whole cloth.
Note also §2(a) (5), the State's $5 million credit, and §9(b), the
Indian Financing Act authorization.
Tim Vollrnann
cc:
IpJislative Counsel (attn: Jane Lyder)
~sistant Secretacy - Indian Affairs (attn: Suzan Harjo)
·rom Fredericks
�A
To
B •I L L
provide for the settlement of land clairrs of Indian tribes in
the State of Maine, including the Passamaquoddy Tribe and the
Penobscot Nation, and for the other purposes.
Be it enacted by the Senate and House of Representatives
of the United States of .America in Congress assembled, that this
Act may be cited as "The Maine Indian Claims Settlement Act of 1979."
CONGRESSIONAL FINDIUGS AND DECLARATION OF POLICY
Sec. 2. (a)
Congress hereby finds and declares that -( 1)
The Passamaquoddy Tribe and the Penobscot
Nation are asserting claims for damages and for possession of large
areas of land in the ~tate of Maine, on the ground that the original
transfers of the lands by the Tribes to the States of Massachusetts
and Maine were made in violation of the Trade and Intercourse Act of
1790 (1 Stat. 137), or subsequent versions thereof.
(2)
Congress recognizes that substantial
econanic and social hardship to a large number of lando..mers and comrrunities in the State of Maine, and therefore to the econoll¥ of the
State as a whole, will result if the Tribes' claims are not soon resolved or are permitted to be the subject of litigation in the United
States District Court.
�- 2 -
(3)
This Act represents a good faith
effort on the part of Congress to provide the Tribes with a fair
and just settlement of their ancient land claims which, in the
absence of Congressional action, \\Ould otherwise have to be pursued through the courts--a process which would in all likelihood
consume many years and thereby promote hostility and uncertainty
in the State of Maine to the ultimate detriment of the Tribes and
their members.
(4)
No provision of this Act shall be con-
strued to constitute a jurisdictional act, to confer jurisdiction
to sue, nor to grant implied consent to any Indians or Indian tribes
to sue the United States or any of its ·officers with respect to
the claims extinguished by the operation of this Act.
(5)
The State of Maine bears sorre of the
responsibility for the pendency of these Indian land claims, and
the Congress would normally expect the State to make a contribution
valued at approximately $5,000,00C to.vard the settlement of these
clairrs but for the state's annual provision of special services
to Indians residing within its borders along with the absence of
the provision of any special services by the Federal governrrent; in
view of this provision of special services by the State of Maine,
which it made without being required to do so by Federal law, it
is the intent of Congress that the State not be required to contribute
�- 3 -
directly to this claims settlement, but that it instead be credited
for the provision of special services to the Indians residing within
its borders to the extent of $5,000,000.
(b)
Therefore, it is the purpose of this Act -( 1)
to reirove the cloud on the titles to
millions of acres of land in the State of Maine resulting from the
Tribes' claims; and
(2)
to provide for a timely resolution of all
other similar Indian claims, if any, to land or natural resources
in the state of Maine.
DEFINITIOlJS
Sec. 3.
(a}
For purposes of this Act, the term -"Claims Area" means:
( 1)
that portion of the State of Maine which
lies within and to the east and north of the Penobscot River watershed, including all of Hancock County, but excluding that part of the
St. John River watershed which lies east of a line drawn from the
northeast corner of the Tam of St. Francis to the northeast corner
of Township 2, Range 9, WELS;
(2)
all islands in Penobscot Bay; and
(3)
that portion of the Kennebec River water-
shed in the State of Maine east of the eastern shore of r-t:>osehead Lake.
�- 4 -
(b)
"Land or natural resources" means any real
prof)erty or natural resourc~s, or any interest in or right involving any real property or natural resources, including but
not limited to mineral rights, timber rights, water and water rights,
and rights to hunt and fish.
(c)
"Passamaquoddy and Penobscot Indian Reservations"
('
means thfise :p:>rtions of the Indian To..mship and Pleasant Point Passamaquoddy Indian h.eservations and the Penobscot Indian Reservation in
the possession of the Passamaquoddy Tribe or the Penobscot Nation or
their members as of February 10, 1978.
(d)
"Secretary" means the Secretary of the Interior.
(e)
"Transfer" includes but is not necessarily limited
to any sale, grant, lease, allotment, partition, or conveyance, any
transaction the purpose of which was to effect a sale, grant, lease,
allotment, partition, or conveyance, and any event or events that
resulted in a change in fX)ssession or control of land or natural resources.
( f)
"Tribes" ~ans:
(1)
the Passamaquoddy Indian Tribe as constituted
on July 22, 1790, and any predecessor or successor in interest, including the governing bodies at both the Indian Tavnship and Pleasant
Point l<eservations; and
(2)
the Penobscot Indian Nation, as constituted
on July 22, 1790, and any predecessor or successor in interest.
�- 5 -
APPROVAL OF PRIOR TRANSFERS AND EXTINGUISHMENI'
OF INDIAI.~ TITLE AND CLAIMS OF PASSAMAQUODDY
TRIBE AND PENOBSCar NATION
Sec. 4.
(a)
Any transfer of land or natural resources
located anywhere within the United States, other than in the
Passamaqucx:kfy and Penobscot Indian Reservations, from, by, or on
behalf of the Tribes or any member thereof, and any transfer of
land or natural resources located anywhere within the Claims Area
by, fran, or on behalf of any Indian, Indian nation, or tribe of
Indians, including but not limited to a transfer pursuant to any
statute of any state, shall be deemed to have been made in accordance with the Constitution and all laws of the United States that
are s:E:)ecifically applicable to transfers of land or natural resources
from, by, or on behalf of any Indian, Indian nation, or tribe of
Indians (including but not limited to the Trade and Intercourse Act
of 1790, Act of July 22, 1790, ch. 33, §4, l Stat. 138, and all amendments thereto and all subsequent versions thereof), and Congress does
hereby· approve any such transfer effective as of the date of said
transfer; Provided, however, that:
nothing in this section shall be
construed to affect or eliminate the claim of any individual Indian
which is pursued under any law generally applicable to non-Indians
as well as Indians in the State of Maine.
(b)
To the extent that any transfer of land or natural
resources described in subsection (a) may involve land or natural resources to which the Tribes or any member thereof, or any other Indian,
�- 6 -
Indian nation, or tribe of Indians, had aooriginal title, subsec't ion
(a} shall ue regarded as an extinguishment of such aboriginal title
as of the date of said transfer.
(c}
By virtue of the approval of a transfer of land
or natural resources effected by this section, or an extinguishrrent
of aboriginal title effected thereby, all claims against the United
States, any state or subdivision thereof, or any other person or
entity, by the Tribes or any individual member thereof, or any other
Indian, Indian nation, or tribe of Indians, arising at the time of or
subsequent to the transfer and based on any interest in or right involving such land or natural resources (including but not limited to
claims
for trespass damages or claims for use and occupancy}, shall
be regarded as extinguished as of the date of the transfer.
(d}
Within one hundred eighty (180} days after the
date of enactment of this Act, any Indian nation or tribe of Indians
(other than the Tribes or the individual rrembers thereof} the governing
oody of which was situated in the United States as of February 10, 1978,
and whose transfers of land or natural resources are approved by this
section or whose aboriginal title or claims are extinguished by this
section, may bring an action against the Secretary, which action shall
be in lieu of an action against any other person or entity against whom
a cause of action would have existed in the absence of this section;
Provided, however, that in any such action the judgroont shall be limited
to that p::>rtion of the Fund established in section S(a) which bears the
�- 7 -
same ratio to the total Fund as the number of acres in the Clairrs
Area to which the claimant has established a valid claim superior
to that of the Tribes bears to the total number of acres within
the Claims Area.
(e)
The cause of action authorized in subsection
(d) shall be the exclusive re:rredy available to any Indian nation
or tribe of Indians whose transfers of land or natural resources
are approved by this section or whose aboriginal title or claims
are extinguished by this section.
ESTABLISHMENr OF FUNIB
Sec. 5.
(a)
The Secretary of the Treasury shall establish
an account in the Treasury of the United States to be known as the
Maine Indian Claims Settlement Fund and shall transfer $27,000,000
fran the general funds of the Treasury into such account follc,..,ing
the appropriation authorized by section 9 of this Act.
(b)
One half of the principal of the Fund established
pursuant to subsection {a) (less one half of any award made in an
action brought pursuant to section 4(d) of this Act) shall be held
in trust by the Secretary for the benefit of the Passamaquoddy Tribe,
and the other half of the Settlement Fund (less one half of any award
made in an action brGught pursuant to section 4(d)) shall be held in
trust for the benefit of the Penobscot Nation.
Each }?Ortion of the
Settlement Fund shall be administered in accordance with terms established by the Secretary and agreed to by the respective Tribe or Nation,
�- 8 -
except that no part of the principal of that Fund shall be distributed among the members of either Tribe on a per capita basis.
The Secretary shall make available to each Tribe, without liability
to or on the part of the United States, any income derived from its
allocated :portion of the Settlement Fund, the use of which shall be
free from regulation by the Secretary.
(c)
Any f:X)rtion of the principal of the Settlement
Fund awarded to a claimant in an action brought pursuant to section
4{d) shall be invested in securities of the United States, and the
income from such portion paid to such claimant, unless Congress otherwise directs.
(d)
The Secretary of the Treasury shall establish qn
account in the Treasury of the United States to be known as the Maine
Indian Claims Land Aa:;iuisition Fund and shall transfer $10,000,000
from the general funds of the Treasury into such account following
the appropriation authorized by section 9 of this Act.
(e)
One half of the principal of the fund established
pursuant to subsection (d} shall be held in trust by the Secretary for
the benefit of the Passamaquoddy Tribe, and the other half of the
Land Acquisition Fund shall be held in trust for the benefit of the
Penobscot Nation.
The Secretary is authorized to expend the principal
and any incane accruing to this Land Acquisition Fund for the purpose
of acquiring land for the respective Tribe or Nation and for no other
purpose.
�- 9 -
(f)
be
Lands a<XJuired pursuant to subsection (e) shall
held by the Secretary in trust for the respective Tribe or Nation.
APPROVAL OF PRIOR T!<ANSFERS AND EXTINGUISHMENT
OF CLAIMS AND INDIAN TITLE 'ID AREAS IN MAINE
oursIDE THE CLAIMS AkEA
Sec. 6.
(a)
Except as provided in subsection (b) -(1}
Any transfer of land or natural resources
located within the State of Maine from, by, or on behalf of any
Indian, Indian nation, or tribe of Indians (other than transfers
covered by section 4 of this Act), including but not limited to a
transfer pursuant to any statute of any state, shall be deemed to
have been made in accordance with the Constitution and all laws of
the United States that are specifically applicable to transfers of
land or natural resources from, by, or on behalf of any Indian, Indian
nation, or tribe of Indians (including but not limited to the Trade
and Intercourse Act of 1790, Act of July 22, 1790, ch. 33, §4, 1 Stat.
138, and all amendments thereto and all subsequent versions thereof),
and Congress does hereby approve any such transfer effective as of the
date of said transfer.
( 2}
To the extent that any transfer of land or
natural resources described in paragraph {l) may involve land or natural
resources to which such Indian, Indian nation, or tribe of Indians had
aboriginal title, paragraph {l) shall be regarded as an extinguishrrent
of such aboriginal title as of the date of said transfer.
�- 10 -
(3)
By virtue of the approval of a transfer
of land or natural resources effected by this section or an extinguishment of aboriginal title effected thereby, all claims against
the United States, any state or subdivision thereof, or any other
person or entity, by any such Indian, Indian nation, or tribe of
Indians, arising at the time of or subsequent to the transfer and
based up:>n any interest in or right involving such land or natural
resources (including but not limited to claims for trespass damages
or claims for use and occupancy), shall be regarded as extinguished
as of the date of the transfer.
(b)
This section shall not apply to any claim, right
or title of any Indian nation or tribe of Indians, the governing
body of which was situated within the United States as of February
10, 1978, that is asserted in an action commenced in a court of canpetent jurisdiction within one hundred eighty (180) days of the date
of enactment of this Act; Provided, that the plaintiff in any such
action shall cause notice of the action to be served UFQn the Secretary.
LIMITATION OF ACTIONS
Sec. 8.
Notwithstanding any other provision of law, any
action to contest the constitutionality of this Act shall be barred
unless the complaint is filed within one hundred eighty (180) days
of the date of enactment of this Act.
Exclusive jurisdiction over
such actions is hereby vested in the United States District Court
for the District of Maine.
�- 11 AUTHORIZATION
Sec. 9.
(a)
There is hereby authorized to be appropriated
$37,000,000 for transfer to the Funds established by section 5 of
this Act.
( b)
There is authorized to be appropriated an
additional $15,000,000 to the Secretary (1) to carr:y out the provisions of sections 217 and 301 of the Indian Financing Act of 1974,
Act of April 12, 1974, Public Law 93-262, 88 Stat. 77, such surrs to
remain available until expended, and (2) for administrative expenses
under said Act.
APPLICATION OF STATE IAW
Sec. 10.
Notwithstanding any other provision of law, all
lands ao:;iuired or held in trust for the benefit of the Tribes pursuant to section S(e) of this Act or with funds appropriated pursuant
to section 9(b) of this Act will be subject to all laws of the State
of Maine, except to the extent that their trust status exerrpts them
fran State laws otherwise applicable.
INSEPARABILITY
Sec. 11.
In the event that any provision of section 4 of
this Act is held invalid, it is the intent of Congress that the entire
Act be invalidated.
'IVollnann/revised-7-30-79/dcm -Tape# l
�
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
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>.
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
NMAI015
Title
A name given to the resource
Memo from Tim Vollmann (Department of Interior) to Leo Krulitz (Solicitor), with draft bill attached of Maine Indian Claims Settlement Act (MICSA) (07/31/1979)
Date
A point or period of time associated with an event in the lifecycle of the resource
7/31/1979
Source
A related resource from which the described resource is derived
National Congress of American Indians Records
National Congress of American Indians records, Box 531, Misc. Rec. of S. Harjo, Eastern Land Claims, Folder Titled “[Maine Indians - Land Claims - General, I] [2 of 3]”; National Museum of the American Indian Archive Center, Smithsonian Institution
Language
A language of the resource
English
Description
An account of the resource
Both Section 4 and Section 6 of this draft deal here with Extinguishment of Claims (what is now found in 25 U.S.C. 1723). Section 10 of this draft deals with Application of State Law (an early version of what we now know as 25 U.S.C. 1725). What we know today as 25 U.S.C. 1735(b) is not yet included.
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 by the National Museum of the American Indian Archive Center. Prior permission is required for any commercial use.
1723
1725(h)
Application of State Law
Draft Bill
Extinguishment of Claims
Jurisdiction
Leo Krulitz
Tim Vollmann
-
https://d1y502jg6fpugt.cloudfront.net/26761/archive/files/70154d671ef6edab397f6038410e7f6a.pdf?Expires=1712793600&Signature=XoZ1dPNFkoxu0AWpf1dR3phu24Mo5VN4KpbLc9Ckf%7E73ER8fOUgh6xxCi1zcHldET4rgkucvBC1ATd1rg7XkK1TTK74PMufvXCESK7hdSKA5Xds%7EuxtGZAcDDnwPaL1it%7EknQ82CImI%7EKlgKYXn9X4uFdGtIfBh5Y2F-%7E7G6L7KD407FhggqXgJCqt4r-zEfweh5zgVnTUH4I4lzG4l-UoWULE5tXsrS7czJvFzKbjVtZrl7a9jF14nFXYcL871fLZiUkpyS4mT7w5RCqWauyhSKHKHDkw1IEIXB29uxxLx8JZM-xCmozm8CMv2yj-7RwrDAQ-rAxzTgvaa8YG6Ftg__&Key-Pair-Id=K6UGZS9ZTDSZM
28a2e6ffc626bb5ebd89564b81536156
PDF Text
Text
/.
UNITED STATES GOVERNMENT
REPLY TO
ATTNoF:
--/·
·Vs2,;;1
sue.k~T:
rnen1orandum
July 18, 1978
DATE:
Kay Oberly
Special ~ssistant
Land and Natural Resources Division
Maine Legislation.
TO:
Mr. Eliot Cutler
Mr. Doug Huron
Mr. Ed Kneedler
Mr. Tim Vollmann
~
~
Attached is the latest version of the Maine
legislation, with alternate formulations for Section 4(e).
Attachment
I
I
Buv U.S. Savinas Bonds Reaularlv on the Pt=3vroll S;:3vinas Pbrn
�7/18/78
A
B I L L
To provide for the settlement of land claims of Indian
tribes in the State of Maine, including the Passamaquoddy
Tribe and the Penobscot Nation, and for other purposes.
Be it enacted by the Senate and House of
Representatives of tne United States of America . in Congress
assembled, that this Act may be cited as "The Maine
Indian Claims Settlement Act of 1978."
CONGRESSIONAL FINDINGS AND DECLARATION OF POLICY
Sec. 2(a)
Congress hereby finds and declares
that -(1)
The Passamaquoddy Tribe and the
Penobscot Nation are asserting claims for damages and
for possession of large areas of land in the State of Maine,
on the ground that the original transfers of the lands
by the tribes to the States of Massachusetts and Maine
were made in violation of the Trade and Intercourse Act
of 1790, or subsequent versions thereof.
(2)
Congress recognizes that substantial
economic and social hardship to a large number of landowners
in the State of Maine, and therefore to the economy of the
State as a whole, will result if parts of the tribes' claims
are not resolved immediately.
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· (3)
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At the same time, it is the desire
of Congress to preserve the tribes' claims to at least
a portion of the areas to which .they assert rights.
(4)
The Passamaquoddy Tribe and the
Penobscot Nation have entered into a Memorandum of Understanding with repres~ntatives of the President wherein the
Passamaquoddy Tribe and the Penobscot Nation agree to a
partial settlement of their claims.
(b)
Therefore, it is the purpose of this
Act
(1) to remove the cloud on the tittes
to millions of acres of land iri the State of Maine resulting
from the tribes' -claims, while a~ the same time preserving
the tribes' opportunity to assert their claims with respect
to 6ertain lands held by the State of Maine and tracts
held by piivate landowners in excess of a minimum acreage: and
(2) to provide for a timely resolution
of all other similar Indian claims to land or natural
resources in the State of Maine.
DEFINITIONS
Sec. 3
For the purposes of this Act, the term -(a) "Claims Area" means that portion of the
State of Maine which lies east ?nd north of the Penobscot River
watershed, including the Penobscot River watershed, but
excluding that part of the St. John's River watershed which
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lies east of a line from the Northeast corner of the Town of
St. Francis·to the Northeast corner of Twp. 5, Range 9, WELS.
( b)
"Land or natural resources" means any
real property or natural resources, or any interest in or
right involving any real property o~ natural resources,
including but not limited to mineral rights, timber rights, ·
water and water rights, and rights to hunt and fish;
( c)
"Passamaquoddy and Penobscot Indian
Reservations" means that portion 6f the Passamaquoddy Indian
Reservation and the Penobscot Indian Reservation in the
possession of the Passamaquoddy_Tribe or the Penobscot
Nation or their membeis as of February 10, 1978;
( d_)
"Residual Cl&.;_ Area" means those
rns
areas of the State of Maine generally defined as:
(1)
that portion of the Penobscot
River watershed in the State of Maine above Eddington Bend;
(2)
that portion of the St. Croix
River watershed in the State of Maine above Baring Plantati9n;
and
(3)
that portion of the Kennebec
River watershed east of the eastern shore of Moosehead Lake; ·
(e)
"Secretary" means the Secretary of
( f)
"Titleholder" means the Uni tea States or
the Interior.
any department, agency or instrumentality thereof; a county
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or municipality; or a private individual, corporation, trust
, partnership, or other entity, not including the State of Maine,
that holds an interst in fee simple title to land or water in the
State of Maine.
A titleholding subsidiary and its titleholding
parent, or two or more titleholding subsidiaries of the sam~
parent, or two or more titleholders under substantially
common ownership or control shall be regarded as a single
titleholder for purposes of this Act.
For purposes of
section 4(d) of this Act, a tenant in common, joint tenant,
Qr any other person who holds
ar
undivided interest in a
tract of real property shall be deemed to be a titleholder to
the entire ·unpartitioned tract; ~nd
(g)
"Transfers• includes but is not
necessarily limited to any sale, grant, lease, allotment,
partition, or conveyance, any transaction the purpose of
which was to effect a sale, grant, lease, allotment,
partition, or conveyance, and any event or events that
resulted in a change in possession or control of land or
natural resources.
APPROVAL OF PRIOR TRANSFERS AND EXTINGUISHMENT
OF INDIAN TITLE AND CLAIMS OF PASSAMAOUODDY
TRIBE AND PENOBSCOT NATION
Sec. 4(a)
Except as provided in subsection (d),
any transfer of land or natural resources located anywhere
within the United S~ates, other than in the Passamaquoddy
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and Penobscot Indian Reservations, from, by or on behalf of
the Passamaquoddy Tribe or Penobscot Nation, or any
other entity presently or at any time in the past known
as the Passamaquoddy Tribe or Penobscot Nation, or
any predecessor or successor in interest, or any member
thereof, and any transfer of land or natural resources located
,,,,
anywhere within the Claims Area by, from or on · behalf
of any Indian, Indian nation, or tribe of Indians, including
but not limited to a transfer pursuant to any statute
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of any state, shal~ be deemed to have been.made in accordance
with the Constitution and all laws of the United States
that are specifically applicable to transfers of land
or natural resources from, by or on behalf of any Indian,
Indian nation, or tribe of Indians (including but not limited
to the Trade and Intercourse Act of 1790, Act of August 4, 1970,
ch. 33, §4, 1 Stat. 138,·and all amendments thereto and all
subsequent versions thereof), and Congress does hereby approve
any s~ch transfer effective as of the date of said transfer.
(b)
To the extent that any transfer of land-
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or natural resources described in subsection (a) may involve
land or natural resources to which the Passamaquoddy Tribe
or Penobscot Nation or any other entity presently or at
any time in past known in the .Passamaquoddy Tribe or
Penobscot Nation, or any predecessor or successor in
interest, or any member thereof, or any other Indian,
Indian nation or tribe of Indians, had aboriginal title;
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----subsection {a) shall be rega~ded as an extinguishment
of such aboriginal title as of the date of said transfer.
{c)
By virtue of the approval of a
transfer of land or natural resources .effected by
this section, or an extinguishment of aboriginal title
effected thereby, alJ claims against the United States,
any state or subdivision thereof, or any other person or
entity, by the Passamaquoddy Tribe or Penobscot Nation
or any other entity presently or at any time in the
past _known as the Passarnaqu~dy Tribe or Penobscot
Nation, or any predecessor or successor in interest, or
any _individual member thereof, or any other Indian nation or
tribe of Indians, arising subsequent to the transfer and
based on any interest in or right involving such land
or natural resources (including but not limited to claims
for trespass damages or blaims for use and o~cupancy),
shall be regarded as extinguished ~s of the date of the
transfer.
. (d)
Within the Residual Claims Area, this
section shall not apply to
{l) parcels or land or water, and all
rights and interests incident thereto,
held in fee simple title by the State of
Maine as of.February 10, 1978; (2) parcels of land or water, and
all rights and interests incident thereto,
�- 7 other than parcels of land or water
approved pur~uant to section 5 of
this Act. held in fee simple as of
FebruarJ 10~ 1978, . by any titleholder
who holds or has an undivided interest
in fee simple title to more than 50,000
acres of land or water in the Residual
Claims Area; and
(3) any claims _for trespass damages, against .
the State of Maine or against any titleholder
who holds or has an undivided interest in
fee simple title to more than 50,000 acres
of land or water in the Residual Claims
Area, relative to the parcels of land or
water included in paragraphs (1) and (2) of
this subsection.
(e)
Within one year. after the date
of enactment of this Act, any Indian nation or tribe of Indians
(other than the Passamaquoddy Tribe or Penobscot Nation, or
any other entity presently or at anytime in the past known as
the Passamaquoddy Tribe or Penobscot Nation, or any predecessor
or successor in interest, or member thereof) [the governing
body of which was situated in the United States as of February
10, 1978,]
[to whom the United S~ates owed a trust
responsibility_under the Trade and Intercourse Act of 1790,
Act of . August 4, 1790, ch. 33, §4, 1 Stat. 138, or subsequent
�- 7a .-------version thereof, on the date immediately preceding
passage of this Act,] and whose transfers of land or
natural' resources are approved by this section or whose
abor~ginal title or claims are exting~ished by this section
may bring an action against the Secretary in lieu of an
.action against any other person against whom a cause of
action may have existed in the absence of this section;
Provided, however, that in any such action the remedy
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shall be limited to that portion of the Fund established
· pursuant to section 6 which bears the same ratio to the
total Fund as the number of acres in the Claims Area to
which the claimant has established a claim superior to
that of the Passamaquoddy Tribe or Penobscot.Nation bears
to the total number of acres within the Claims Area,
excluding . land and water identified in section 4(d).
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ADMINISTRATIVE IMPLEMENTATION
Sec. S(a)
Within thirty days after the date
of enactment of this Act, the Secretary shall cause to
be published in the Federal Register a list of all titleholders
·who held title to more than 50,000 acres of land in the
Residual Claims Area as of February 10, 1978. The Secretary
may amend the list to correct errors at any time prior
to final approval of designations pursuant to subsection (d).
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(b)
Any titleholder· identified in the
I
originql or amended list published by the Secretary pursuant
to subsection (a), or any successor in interest thereto, may,
within sixty days of publication of the list specified
in subsection (a) or any subsequent amendment of the list
pertaining to such titleholder, fil~ an application with
the Secretary designatin~ up to 50,000 acres of the titleholder~s
total holdings that the titleholdei requests to have covered
by Sections 4(a), (b) and (c) of this Act.
(c)
When a parcel held in tenancy in common,
joint tenancy, tenancy.by the entirety, or otherwise in
_common ownership is designated pursuant to this section
a portion of the total acreage of the parcel shall be charged
against each titleholder's 50,000 acre exemption in the same
proportion as his interest bears to the total of all
interests in the fee of the parcel.
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( d)
After notice and opportunity for
hearing, the Secretary shall approve the applications filed
under subsection (b) if he finds that they conform to the
extent possible with the following general criteria:
(1)
tr~cts should be selected in such a
way as to minimize checkerboard patterns of ownership;
(2)
the most densely populated areas
of a titleholder's total holdings should be included within
, the 50,000 acre exemption, at least insofar as the titleholder
requests such inclusion;
(3)
ongoing business operations,
including but not limited to ~illsites, should be included
within each 50,000 acre exemption, at least insofar as
the titleholder requests such inclusion;
(4)
any timber lands included within
each 50,000 acre exemption should be representative of the
titleholder's overall holdings; and
(5)
parcels of land or water held in
tenancy in common, joint tenancy, tenancy by the entirety, or
otherwise by two or more titleholders should be included in
·the exemptions, if one or more titleholders of such parcel
requests such inclusion.
If the Secretary_concludes that any application
does not satisfy the foregoing g~neral criteria, he may modify
the titleholder's proposed designation to the extent necessary
. to achieve substantial conformity with those criteria~ ·
The
Secretary shall then approv~ the designation as modified.
�- 10 (e) · Any pers,on aggrieved by the Secretary's
approvals or modified designations may seek judicial review
by filing a petition for review in the. United States Court
of Appeals for the First Circuit not later than sixt~
days after publication of the Secretary's approvals or
modified designations.
The Secretary's determinations shall
not be set aside unless they are found to be arbitrary,
capricious, or an abuse of discretion.
ESTABLISHMENT OF FUND AND INDEMNIFICATION
Sec. 6(a)
The Secretary of the Treasury shall
establish an account in the Treasury of the United States to
be known as the Maine Indian Claims Settlement Fund and shall
transfer $25,000,000 from the general funds of the Treasury
into such account following the appropriation authorized by
section 9 of this Act.
(b)
One half of tHe principal of the Fund
established pursuant to subsection (a) (less one half of
any ~ward made in an action brought pursuant to section 4(e))
shall be held in trust by the Secretary for the benefit of
the Passamaquoddy Tribe, and the other half of the Fund (less
one half of any award made in an action brought pursuant to
section 4(e)) shall be held in trust for the benefit of the
Penobscot Nation.
Each half of the Fund shall be administered
in accordance with terms established by the Secretary and agreed
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to by the respecti~e Tribe or Nation, except that no part of
the principal of the Fund shall be distributed among the
members of either trib~ on a per capita basis.
The Secretary
shall make available to each .tribe, without liability to
or on the - part of the United States, any income derived .from
its half of the Fund, the use of which shall-be free from
.,
regulation by th~ Secretary.
(~)
Any portion of the Fund awarded to a
claimant ·in an action brought pursuant to section 4(e)
shall be invested in securities of the United States,
and the income from such portion paid to such claimant,
unle- Congress otherwise directs.
ss
APPROVAL OF PRIOR TRANSFERS AND EXTINGUISID1ENT
OF CLAIMS AND INDIAN TITLE TO AREAS IN MAINE
OUTSIDE THE CLAIMS AREA
Sec. 7(a)
Except a~ provided in subsection (b)
(1)
Any transfer of land or natural
resources located within the State of Maine from, by or on
behalf of any Indian, Indian nation or tribe of Indians
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(other than transfers covered by section 4 of this Act),
~ncluding but not limited to a transfer pursuant to any statute
of any state, shall be deemed to have been made in
accordance with the Constitution and all laws of the
United States that~are specifically applicable to transfers
of land or natural resources from, by or on behalf o~ any
r
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Indian, Indian nation or tribe of Indians (including but
not limited to the Trade and Intercourse Act of 1790,
· Act of August 4, 1790, ch. 33t . §4, 1 Stat. 138, and all
amendments thereto and all sub~e~uent versions thereof),
·. .
··:··
and Congress does hereby approve any such transfer effective
as of the date of said transfer.
{2)
To the extent that any transfer
of land or natural resources described in subsection (a)
may involve land or natural resources to which such Indian,
Indian nation or tribe of Indians had aboriginal title,
�- 12 subsection (a) shall be rega~ed as an extinguishrnent of such
aboriginal title as of the date of said transfer.
(3)
By virtue ~!_!he approval of a transfer
of land or natural resources effected by this section or an
extinguishment of aboriginal title effected thereby, all
c~aims against the United States~ any state or subdivision
thereof ., or any other person or entity; by any such Indian,
Indian nation or tribe of Jndians, arising subsequent to the
transfer and based upon any interest in or right involving
such land or natural resources (including but not limited to
claims for trespass damages or claims for use and occupancy),
shall be regarded as extinguished as of the date of the transfer.
(b)
This section shall not apply to any ~laim,
right or title of any Indian, Indian nation or tribe of
Indians that is asserted in an action commenced in a court of
competent jurisdiction within one hundred eighty days of·
the date of enactment of this Act; Provided, that the plaintiff
in any such action shall cause not~ce of the action to be
served upon the Secretary.
LIMITATION OF ACTIONS
Sec. 8
Notwithstanding any other provision of law,
any action to cont~st the validity or constitutionality of this
Act ~hall be barred unless t~e complaint is filed within one
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hundred eighty days of the date'of enactment of this Act.
Exclusive jurisdiction over such actions is hereby vested in the
United States District Court for th~ District of Maine.
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Sec. 9
There is hereby authorized to be
appropriated $25,000,000 to carry ou~ the purposes of this
Act.
...
INSEPARABILITY
Sec. 10 -~In the event that any provision of Section
4 of this Act is held invalid, it is the intent of Congress
that the entire Act be invalidated.
�
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National Congress of American Indians Records
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NMAI011
Title
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Memo to Eliot Cutler (White House, OMB), Douglas Huron (Associate Counsel to the President), Edwin Kneedler (Department of Justice) and Tim Vollmann (Department of Interior) from Kay Oberly (Department of Justice, Land and Natural Resources Division), with draft of Maine Indian Claims Settlement legislation attached (07/18/1978)
Date
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7/18/1978
Source
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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 Indian Claims Settlement Act”; National Museum of the American Indian Archive Center, Smithsonian Institution
Language
A language of the resource
English
Description
An account of the resource
Sections 4 and 7 of this draft deal with Extinguishment of Claims (what is now found in 25 U.S.C. 1723). What we know today as 25 U.S.C. 1725 (Application of State Law) is not yet included. The provision in the 07/07/1977 draft that affirms that the Tribes will be entitled to federal services and assistance has been deleted. What we know today as 25 U.S.C. 1735(b) is not yet included either.
Type
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Text
Documents
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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
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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 National Museum of the American Indian Archive Center. Prior permission is required for any commercial use.
1723
Douglas Huron
Draft Bill
Edwin Kneedler
Eliot Cutler
Extinguishment of Claims
Kay Oberly
Tim Vollmann
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https://d1y502jg6fpugt.cloudfront.net/26761/archive/files/f068df4eecb9ba6ac5755f6cdf072f1f.pdf?Expires=1712793600&Signature=mbezhVAlEsfDL03KkPp6bGv-TZL-OA1BTQmembByqWoXD2NLa8wUwFAUL%7E9i0M1DUT12pbK1HF-3R%7EU7CI3cB2XcWdpzHkwGVsvLpPzE%7EptyTKHF6c20BL7JLqGXh9ukfDwIPJxBEpau7-MnWYI-lPcBMVj7hii9h01y5netJgFHW6wPf-cEG5kj80-oM%7E2qZiXzGHpwoYZez6DrLUHpPzmDJjIJrIIuIlG7AWxKYICnWpyC6Zzm4r0QGqGTrYpfWUJ1ULwl7iYhRbQwn%7E3-%7EAjOAEpYaHRQREHHTtE9OonMsWH3llHaRFA%7EJA7gpeGPA525TvE2849vnDj-qqSPNQ__&Key-Pair-Id=K6UGZS9ZTDSZM
e62302d65577ff9fcf9060391df7e859
PDF Text
Text
STEPHEN
RicHARD S. CoHEN
L. DIAMOND
JoHN S. GLEASON
ATTORNEY GENERAL
JOHN M.R.PKrERSON
RoBERT J. STOLT. ·
DEPUTY AT "ORNEYS GENERAL
STATE OF MAINE
DEPARTMENT OF THE ATTORNEY GENERAL
AUGUSTA. MAINE 04333
July 21, 1980
The Honorable Cecil D. Andrus
Secretary of Interior
United States Department of Interior
Washington, D. C. 20240
Re:
Maine Indian Land Claims
Settlement Act., S. 2829.
Dear Secretary Andrus:
Since the hearings before the Senate Select Committee
on Indian Affairs concerning S. 2829, the various parties
affected by S. 2829 have met to discuss in detail the concerns you mentioned in your testimony. Representatives of
the Department of Interior ("Interior") and Department of
Justice ("Justice") have proposed clarifying language to address those concerns. The State of Maine ("State") in turn
has evaluated those proposals and has responded in writing
to them. The purpose of this letter is to confirm the State's
position on each of the various issues and proposals that have
been discussed with representatives of Interior and Justice.
The revisions proposed by or agreed upon by the State
are intended only to be a clarification of the original mutual
intent of the State and the Passamaquoddy Tribe and Penobscot
Nation. We believe that substantive changes to S. 2829 are
inappropriate because the substanpe of S. 2829 represents the
results of extensive arms-length negotiations between the State
and the Passamaquoddy Tribe and Penobscot Nation. Any substantive alteration in S. 2829 by the United States could upset the
balance of interests that the parties established through negotiations and upon which the Legislature of the State relied in
enacting the Maine Implementing Act.
�The Honorable Cecil D. Andrus
July 21, 1980
Page Two
Congressional Findings - Section 2
The State agrees with the Interior's proposal that
Section 2(a)(2) be redrafted to read:
"(2) Indians, Indian nations and tribes
and bands of Indians, other than the Passamaquoddy Tribe, Penobscot Nation and Houlton Band
of Maliseet Indians, that once may have held
aboriginal title to lands within the State of
Maine long ago abandoned their aboriginal holdings."
The State proposes that Section 2(a)(8) be deleted
since the "Settlement Agreement" referred to in that section was never executed by the parties.
The State also proposes that Section 2(a)(9) be amended
to delete the reference to the Houlton Band of Maliseet
Indians.
Definitions - Section 3
The State agrees with Interior's proposal that subsections (a) (h) and (k) be redrafted to provide:
"(a) 'Houlton Band of Maliseet Indians' means
the sole successor to the Maliseet Tribe of Indians
as constituted in aboriginal times in what is now
the State of Maine, and all its predecessors and
successors in interest. The Houlton Band of Maliseet
Indians is represented, as of the date of enactment
of this Act, as to lands within the United States,
by the Houlton Band Council of the Houlton Band of
Maliseet Indians.
"(h) 'Passamaquoddy Tribe' means the Passamaquoddy Indian Tribe as constituted in aboriginal
�The Honorable Cecil D. Andrus
July 21, 1980
Page Three
times, and all its predecessors and successors in
interest. The Passamaquoddy Tribe is represented,
as of the date of the enactment of this Act, by the
Joint Tribal Council of the Passamaquoddy Tribe,
with separate councils at the Indian Township and
Pleasant Point Reservations.
"(k) 'Penobscot Nation' means the Penobscot
Indian Nation as constituted in aboriginal times,
and all its predecessors and successors in interest.
The Penobscot Nation is represented, as of the date
of the enactment of this Act, by the Penobscot Nation
Governor and Council."
The State agrees that the term "lands or other natural
resources" in Section 3(b) should be redrafted to read "land
or natural resources". The use of this term throughout S.
2829 should be similarly amended.
Subsection (e) should be redrafted to provide:
"(e) 'Maine Implementing Act' means Section
1 of the 'Act to Implement the Maine Indian
Claims Settlemen~ enacted by the State of
Maine in Chapter 732 of the Public Laws of
1979."
The remaining definitional changes proposed by Interior
are neither necessary nor appropriate. In particular the
terms Passamaquoddy Indian Territory, Passamaquoddy Indian
Reservation, Penobscot Indian Territory and Penobscot Indian
Reservation should be defined by reference to the Maine Implementing Act. This definition by reference is particularly
necessary because the Passamaquoddy Tribe and Penobscot
Nation and State could later vary the boundaries of these
areas by mutual agreement without further approval by the
United States.
The Maine Implementing Act defines the Passamaquoddy
and Penobscot Indian Territories as land in specified areas
�The Honorable Cecil D. Andrus
July 21, 1980
Page Four
to the extent acquired by the Secretary of Interior on or
before January 1, 1983. Because it is possible that the
contemplated Congressional appropriation for the purchase
of these lands may be delayed, Interior proposed that S.
2829 be redrafted to extend the date for acquisition of
land. This proposed extension cannot be accomplished without
amendment of the Maine Implementing Act and the Legislature
of the State would be unwilling to so amend the Maine Implementing Act at this time. Speaking for myself, however, if
the appropriation is in fact delayed so that land acquisition
for the Passamaquoddy and Penobscot Indian Territories cannot
be effected by 1983, I would be willing to recommend to the
Legislature of the State that it agree to amend the Maine
Implementing Act to extend the date for acquisition.
Extinguishment of Claims - Section 4
The State cannot agree with Interior's proposed amendment to Section 4(a)(l). The adoption of the proposed redraft of Section 4(a)(l) would result in a major substantive
change in the agreed upon settlement.
The State cannot agree with the request by the Passamaquoddy Tribe and the Penobscot Nation that extinguishment be
conditioned upon actual appropriation of monies. Any such
change would result in a major substantive change in the
agreed upon settlement. Moreover, we are confident that
Congress will honor its undertaking to appropriate the monies
authorized by S. 2829. We also think there is ample precedent
for the approach embodied in S. 2829 including the Alaska
Native Claims Settlement Act, and the recent Rhode Island
Indian Claims Settlement Act.
Similarly, the State cannot agree with Interior's proposal to condition extinguishment of claims upon the execution of releases by the Tribes. Conditioning extinguishment
of claims upon execution of releases would provide the
Passamaquoddy Tribe and Penobscot Nation an opportunity to
�The Honorable Cecil D. Andrus
July 21, 1980
Page Five
delay the extinguishment of claims agreed upon by the parties.
Although the present language of Sections 4(a)(2) and
4(a)(3) is sufficient, the State proposes the following to
the extent redrafting is essential:
"(2) The United States is barred from asserting
by or on behalf of any Indian, Indian nation or
tribe or band of Indians any claim under the laws
of the State arising from any transfer of land or
natural resources located anywhere within the State
of Maine, from, by or on behalf of any Indian
nation or tribe or band of Indians including but
without limitation any transfer pursuant to any
treaty or compact with or any statute of any state.
"(3) The United States is barred from asserting
by or on behalf of any individual Indian any
claim under the laws of the State arising from
· any transfer of land or natural resources located
\ anywhere within the State from, by, or on behalf
\ of any individual Indian, which occurred prior to
December 1, 1873, including but without limitation
any transfer pursuant to any treaty or compact
with or any statute of any state."
Settlement Fund and Land Acquisition Fund - Section 5
While the language in S. 2829 is sufficient and appropriate, we would agree to the following clarifications to
Sections (d), (e) and (g) if clarification is deemed essential:
"(d) The principal of the Land Acquisition Fund
shall be apportioned as follows:
(1)
-$900,000 to be held in trust for the
Houlton Band of Maliseet Indians;
�The Honorable Cecil D. Andrus
July 21, 1980
Page Six
(2)
(3)
~
$26,800,000 to be held in trust for
the Passamaquoddy Tribe; and
$26,800,000 to be held in trust for
the Penobscot Nation.
The secretary is authorized and directed to expend,
with the consent of the affected Tribe, Nation, or
Band, the principal and any income accruing to the
respective portions of the Land Acquisition Fund
for the purpose of acquiring at least 147,500 acres
of land for the Penobscot Nation, at least 147,500
acres of land for the Passamaquoddy Tribe, and at
least 5,000 acres of land for the Houlton Band of
Maliseet Indians. Land within Passamaquoddy and
Penobscot Indian Territories shall be held in trust
by the United States for the benefit of the respective Tribe or Nation. Land outside the boundaries
of Passamaquoddy and Penobscot Indian Territories
shall be held in fee simple by the respective Tribe,
Nation or Band, and the United States shall have no
further trust responsibility with respect thereto.
Except as provided in this section, or as otherwise
provided in the Maine Implementing Act, the United
States shall have no other authority to acquire lands
in trust for the benefit of Indians, Indian nationsor
tribffior banrnof Indians in the State of Maine. Notwithstanding the provisions of Section 257 of Title
40 of the United States Code, the Secretary may acquire land under this Act only if the Secretary and
the owner of record of the land have agreed upon the
identity and price of such land.
"(e)(2) Except as provided in paragraph (3) of this
subsection, any transfer of land or natural resources
within Passamaquoddy Indian Territory or Penobscot
Indian Territory, except (i) takings for public uses
pursuant to the Maine Implementing Act, (ii) takings
for public uses pursuant to the laws of the United
States, or (iii) transfers of individual Indian use
assignments from one member of the Passamaquoddy
�The Honorable Cecil D. Andrus
July 21, 1980
Page Seven
Tribe or Penobscot Nation, to another member of the
same Tribe or Nation, shall be void ab initio and
without any validity in law or equit~
"(3) Land or natural resources within Passamaquoddy Indian Territory or the Penobscot Indian
Territory, may be-(i) leased in accordance with the Act of
August 9, 1955 (69 Stat. 539), as amended,
(ii) leased in accordance with the Act of
May 11, 1938 (52 Stat. 347), as amended,
(iii) sold in accordance with section 7 of
the Act of June 25, 1910 (36 Stat. 857), as
amended,
(iv) subject to rights-of-way in accordance
with the Act of February 6, 1948 (62 Stat. 17),
(v) exchanged for other land or natural
resources of equal value, and
(vi) sold, only if the proceeds of the sale
are deposited in the Land Acquisition Fund established pursuant to subsection (c).
"(g) If land or natural resources within the Passamaquoddy Indian Territory or Penobscot Indian Territory
is taken for public purposes pursuant to the Maine
Implementing Act or the laws of the United States,
the proceeds paid in compensation for such taking
shall be deposited in the Land Acquisition Fund established by subsection (c)."
Tribal Government - Section Y.
Although the proposed Section Y is not necessary, the
�The Honorable Cecil D. Andrus
July 21, 1980
Page Eight
State does not object to the following language to the extent clarification is deemed essential:
"Sec. Y.
(a) The Passamaquoddy Tribe and
the Penobscot Nation shall each organize for their
common welfare, and adopt an appropriate instrument in writing to govern the affairs of the Tribe
or Nation, when each is acting in its governmental
capacity. Such instrument and any amendments
thereto, must be consistent with the terms of
this Act and the Maine Implementing Act, and must
be approved by a majority of the adult members of
the Tribe or Nation participating in an election
conducted by the Secretary.
"(b) Any business corporation created by the
Passamaquoddy Tribe or Penobscot Nation with the .
approval of a majority of the adult members of such
Tribe or Nation participating in an election conducted by the Secretary shall not constitute for
, purposes of federal taxation a corporation within
· the meaning of section 11 of the . Internal Revenue
; Code of 1954, as amended, provided, however, that
any business corporation created by the Passamaquoddy Tribe, Penobscot Nation or any member of
either Tribe or Nation shall be subject to all the
laws of the State."
Application of State Laws - Section 6
Although the language of S. 2829 is sufficient and
appropriate, the State would agree to the following to
the extent clarification is necessary:
Redraft Section 6(c) by adding to the end of the first
sentence the following clause:
�The Honorable Cecil D. Andrus
July 21, 1980
Page Nine
"; and 28 U.S.C. § 1362 shall be applicable
to civil actions brought by the Passamaquoddy
Tribe and Penobscot Nation."
Redraft Section 6(c) by adding in the second sentence
the word "valid" before "money judgment".
Redraft Section 6(d) to provide:
"(d) The consent of the United States is
hereby given to the State of Maine to amend the
Maine Implementing Act with respect to either
the Passamaquoddy Tribe or Penobscot Nation, provided that such amendment is made with the agreement of the affected Tribe or Nation, and that such
amendment relates to (1) the enforcement or application of civil, criminal or regulatory laws of thePassamaquoddy Tribe, the Penobscot Nation and the
State within their respective jurisdictions; (2)
allocation or determination of governmental responsibility of the State and the Tribe or Nation over
· specified subject matters or specified geographical
\ areas, or both, including provision for concurrent
jurisdiction between the State and the Tribe or
Nation, or (3) the allocation of jurisdiction between tribal courts and State courts."
Redraft Section 6(f) to provide:
"(f) The Passamaquoddy Tribe, Penobscot Nation
and the State of Maine shall give full faith and
credit to the judicial proceedings of each other."
The State would have no objection to a provision in S. 2829
to the effect that the United States and other states shall
honor judgments of the Passamaquoddy and Penobscot tribal
courts.
Redraft Section 6(g) to provide:
�The Honorable Cecil D. Andrus
July 21, 1980
Page Ten
"(g) No law or regulation of the United
States (i) which accords or relates to a special
status or right of or to any Indian, Indian
nation, tribe or band of Indians, Indian lands,
Indian reservations, Indian country, Indian territory or land held in trust for Indians and (ii)
which affects or preempts the civil, criminal or
regulatory jurisdiction of the State of Main~ including but without limitation the Act of June 25,
1948, c. 645, 62 Stat. 757, as amended, and the
Act of July 12, 1960, 74 Stat. 469 as amended,
shall apply within the State of Maine, provided,
however, that the Passamaquoddy Tribe, the Penobscot
Nation, and the Houlton Band of Maliseet Indians and
State shall be eligible to receive all the financial
benefits which the United States provides to Indians,
Indian nations and tribes or bands of Indians or
States to the same extent and subject to the same
eligibility criteria generally applicable to other
Indians, Indian nations or tribes or bands of
, Indians or states and for the purposes of deter\ mining eligibility for such financial benefits, the
respective Tribe, Nation and Band shall be deemed to
be federally recognized Indian tribes; and provided,
further, that the Passamaquoddy Tribe, the Penobscot
Nation and the Houlton Band of Maliseet Indians shall
be considered federally recognized Indian tribes for
the purposes of federal taxation and any lands owned
by or held in trust for the respective Tribe, Nation
or Band shall be considered federal Indian reservations for purposes of federal taxation."
It has been proposed that S. 2829 be amended to authorize
that land acquired for the Houlton Band of Maliseet Indians
under Section 5 be held in trust subject to restraints on
alienation and be exempt from taxation. Any proposal that
would exempt the Houlton Band of Maliseet Indians from the
laws of the State in any respect would constitute a serious
�Tne Honorable Cecil D. Andrus
July 21, 1980
Page Eleven
departure from the agreed upon settlement and would be a
major substantive amendment to which the State cannot agree.
The State believes, however, that there is ample provision
in the bill as drafted to permit the Passamaquoddy Tribe or
Penobscot Nation to agree to allow the Houlton Band of
Maliseet Indians to occupy up to 5,000 acres of land in either
the Passamaquoddy or Penobscot Indian Territory. If specific
authorization language is necessary, the State would agree to
clarification of S. 2829. This issue, however, is of paramount
importance; accordingly, it is essential that the State examine
specific language and insure that it is consistent with other
provisions of S. 2829 and the Maine Implementing Act.
In addition, the State would be willing to clarify that
the State and Houlton Band of Maliseet Indians can negotiate
jurisdictional agreements in the future and to that end proposes the following new subsection:
"(h) Notwithstanding the provisions of subsection 6(a), the State of Maine and the Houlton
, Band of Maliseet Indians are authorized to execute
· agreements regarding the jurisdiction of the State
' of Maine over lands owned by or held in trust for
the Band or its members. Unless and until such agreement i~ made, the Houlton Band of Maliseet Indians,
its members and any land owned by the Houlton Band
of Maliseet Indians or any of its members shall be
subject to the laws of the State of Maine to the
extent provided in subsection 6(a)."
The other amendments to this section proposed by
Interior are unnecessary and inconsistent with the agreement
of the parties.
Indian Child Welfare Act - Section 7
The amendment proposed by Interior is unnecessary and
inconsistent with the Indian Child Welfare Act.
�The Honorable Cecil D. Andrus
July 21, 1980
Page Twelve
Although Interior has made no proposal concerning the
application of the Indian Child Welfare Act to the Houlton
Band of Maliseet Indian~ in response to the legitimate concerns of the Houlton Band, the State agrees that S. 2829
may be clarified by the addition of a new Section 7(f) to
provide:
"(f) Except as may otherwise be subsequently
agreed to by the Houlton Band of Maliseet Indians
and the State of Maine pursuant to Section 6(h),
Section 1912 of Title 25 of the United States Code
shall apply to the Houlton Band of Maliseet Indians
to the same extent that that section applies to
Indian tribes as defined in Section 1903 of Title
25 of the United States Code."
State and Federal Funding to the Tribes - Section 8
Although the State
is necessary, the State
that used in the second
extent clarification is
believes no redrafting of Section 8
would agree to language similar to
sentence of 25 U.S.C. §459e, to the
essential.
Interior expressed concern over the interplay between
the provisions of Section 8 of S. 2829 andSections 6211(2)
and (4) of the Maine Timplementing 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 amendment 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, however, it would be
preferable to embody this understanding in the Committee Report. Accordingly, the State proposes the following language
for inclusion in the Committee Report:
�The Honorable Cecil D. Andrus
July 22, 1980
Page Thirteen
"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 inquiry, the Committee 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 program would not be
'substantially similar' to a basic State educational
grant and would not supplant State funding."
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.
State Held Tribal Trust Funds - Section 10
Section 10 is essential and any change would work a
major substantive alteration of the negotiated agreement.
Section 10 is particularly necessary because there are now
claims of mismanagement of tribal trust funds pending against
the State by the United States. Because these tribal trust
�'
I
The Honorable Cecil D. Andrus
July 22, 1980
Page Fourteen
funds were created out of proceeds of the land transactions
in dispute, final resolution of claims arising from State
management of these funds is essential. In recognition of
Interior's concern, however, the State proposes substituting
the term "shall constitute" for "shall be accepted" in the
first sentence of Section 10. Any other change cannot be
agreed to.
General Discharge of State Treaty Obligations - Section ll
For the reasons stated above, any change in Section ll
would constitute a major substantive alteration. It would
not be inconsistent with the intent of the parties, however,
to delete the words "any Indian" in the first sentence of
Section 11.
Limitations of Actions - Section 12
The State believes Interior's proposed subsection, (b)
may be unconstitutional.
We look forward to discussing these matters further with
your representatives in the hope that we can promptly resolve
all the remaining issues.
Sincerely,
RICHARD S. COHEN
Attorney General
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Tim Vollman
Barbara N. Coen
Peter s. Taylor
Tim Woodcock
Thomas N. Tureen
Reid P. Chambers
Donald Perkins
James Case
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James D. St. Clair
William F. Lee
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National Congress of American Indians Records
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Letter from Maine Attorney General Richard Cohen to Cecil Andrus, Secretary of Interior, after the hearings before the Senate Select Committee on Indian Affairs (Re: Bill S. 2829) (07/21/1980)
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7/21/1980
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National Congress of American Indians Records
National Congress of American Indians records, Box 532, Misc. Rec. of S. Harjo, Eastern Land Claims, Folder Titled “Maine Land Settlement Legislation [2 of 2]”; National Museum of the American Indian Archive Center, Smithsonian Institution
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English
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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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Attorney General Richard Cohen
Barbara N. Coen
Cecil Andrus
Donald Perkins
James D. St. Clair
Peter S. Taylor
Reid Peyton Chambers
Thomas Tureen
Tim Vollmann
Timothy Woodcock
William F. Lee