1
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34
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APPLICATION OF STATE LAWS
6(b) (1) To the extent not inconsistent with this Act, the
Passamaquoddy Tribe, the Penobscot Nation, the Houlton Band of
Maliseets, their members, and the land and natural resources owned
by or held in trust for the benefit of the Tribe, Nation, or Band,
or their members, shall be subject to the jurisdiction of the State
of Maine to the extent and in the manner provided in the Maine
Implementation Act and the Act is hereby approved, ratified, and
confirmed.
(b) Funds appropriated for the benefit of Indian people
or for the administration of Indian affairs may be utilized by the
Passamaquoddy Tribe and the Penobscot Nation to provide part or all
of the local share as provided by the Maine Implementing Act.
(Federal funds used by the Tribe or Nation as local matching funds
shall be considered as local funds for purposes of any maintenance
of effort requirements imposed by Federal law or regulation.)
(c) Nothing in this section shall be construed to supersede
any Federal laws or regulations governing the provision or funding
of services or benefits to any person or entity in the State of
Maine unless expressly provided by this Act.
�
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William S. Cohen Papers
Description
An account of the resource
Documents from the William S. Cohen Papers have been provided by the Raymond H. Fogler Library, University of Maine. Additional information about the collection can be accessed on their <a href="https://library.umaine.edu/cohen/" target="_blank">web page</a>.
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UMAINE046
Title
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Draft II of part of § 6 (now known as 25 U.S.C. 1725) (09/03/1980)
Date
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9/3/1980
Source
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William S. Cohen Papers
William S. Cohen Papers (MS 106), Special Collections, Raymond H. Fogler Library, University of Maine, Orono, Maine, 3.3.13.1 Box 8, Folder 1
Language
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English
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Text
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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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1725(h)
Application of State Law
Jurisdiction
Peter S. Taylor
Senator William S. Cohen
-
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a5cd037559579189ca2af95fe8f00258
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PROPOSED CHANGES IN S. 2829
Delete paragraphs (8) and (9) of Section 2, and insert in their stead the
following new sections:
Sec. X.
None of the provi;>i~ns of this Act shall, take effect~until
the Secretary finds(a)
~--~JxP-~~hJ-k~· ,.
6wJ..9.- ·~ ~ QA._~D
that authorized
ficial'""
,....r;
4-'h,....
n .... ...,..., .....,., ....I"T.,,..,~~ .. m..... ;~
~ho
Penobscot Nation, and the Houlton Band of Maliseet Indians have executed
;( appropriate documents relinquishing all claims to the extent
j.
dismissal of their clairrs, ·and
lP)l1)
lC
provid~e·n
section 4 of this Act, ei.ncluding stipulations to the final judicial
(b)
I
~
tft:1;;_ / ~ '-
~~~
4
that the State of Maine has enacted legislation essentially
identical to the Maine Implementing Act, except that-(1)
(revisions necessary to make the state law acceptable)
(2)
"
(3)
"
(4)
"
Para:.3raph (b) (3) of Section 2 soould b2 deleted in light of the above.
Paragraph (b)(4) is inconsistent with paragraph (a)(2) of Section 2.
The
first paragraph states that Con:jress finds arrl d=clares that "The Indians,
Indian nations, and tribes and bands of Indians, other than the Passarncquoody
Tribe, the Penobscot Nation, and the Maliseet Tribe • • • have ceased to
exist."
But (b) (4) states that "all other Indians, Indian nations and
tribes arrl J:ands of Indiars
rDN
or hereafter existing • • • shall be
subject to all laws of the State of Maine."
Paragraph (a) (2) should be rurended
to read as foll<:M.5:
(2) Indians, Indian natiors, and tribes arrl J:arrls of Indians,
other than the Passarncquoddy Tribe,
~~e
Penobscot Nation, and the Houlton
Barrl of Maliseet Indiars, that once may have held aboriginal title to
lands within the State of Maine long ago abandoned their aboriginal holdings.
~
~
�•
-2Arrend subsections (a}, (h), and (k} of section 3 to read:
(a)
''Houlton Barrl of Maliseet Indians" Ireans the sole successor
to the Maliseet Tribe of Indians as constituted in aboriginal times in
what is no.v 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 enactnent of this Act, as to lands within the United States, 1:¥
the Hoolton Band Council of the Houlton Band of Maliseet Indians.
(h)
•
'tpassarraquoddy Tribe" neans the Passamaquoddy Indian Tribe
as constituted in aboriginal tirres, and all its predecessors and successors
interest.
The Passamaquoddy Tribe is represented, as of the date of the
enact:Irent of this Act, by the Joint Tribal Council of the Passamcquoddy
Tribe, with separate councils at the Indian TCMnShip and Pleasant Point
Reservations.
(k}
'tpenobscot Nation" means the Penol:Ecot Indian Nation as
constituted in aboriginal tirres, and all its predecessors and successors
in interest.
The Penol:Gcot Nation is represented, as of the date of the
enactment of this Act, by the Penobscot Nation Governor and Council.
Regarding other definitions in Section 3:
"Indian Territory", "Passamcquoddy Territory", "Penobscot
Terri tory", ''Passamaquoddy Indian Resetvation", and ''Penol:scot Indian
•
Reservation" should be defined in full rather than Irerely incorporating
·:
~
~
reference the definitions in the state law which could be changed in
the future.
"Lands or other natural resources" soould read "LarrlYor natural
resources."
..,.:-.--:-
�-3Amend Section 4(a) to read:
Sec. 4. (a)
Any transfer of land•or natural resources located anywhere
•
within the United States from, by, or on behalf of the Passail'lCqUoddy Tribe,
the Penobscot Nation, the Houlton Barrl of Maliseet Indians,
o~
any of
their nernbers, and any transfer of land or natural resources located
anywhere within the State of Maine, fran, by, or on
Indian nation, or tribe of Indians,
includi~
~half
of any Indian,
but not limited to a transfer
c_ursuant to any treaty or statute of any state, shall
~
deemed to have
been made in accordance with the Constitution and all laws of the United
States that are specificall
applicable to transfers of larrl or natural
resources from, by, or on behalf of any Indian, Indian nation, or tribe
of Indiars ( includil'"lSJ but not limited to the Trcrle and Intercourse Act of
1790, Act of July 22, 1790, Ch. 33, §4, l Stat. 138, and all anerrlnents
thereto arrl all subsequent versiors thereof), and Congress does hereby
approve and ratify any such transfer effective as of the date of said
tramfer; Provided, hONever, that:
Nothirg in this section shall be
construed to affect or eliminate the claim of any individual Indian which
is pursued under any law generally designed to protect non-Indians as
well as Indians.
�•
-4- Arrend Section 5 (a) to read:
/
, Sec. 5. (a) There is hereby established in the United States Treasury
a fund to be kna.vn as the Maine Indian Claims Settlenent Fund in which
$27,000,000 shall be deposited following the appropriation of sums
authorized~
section 13 of this Act.
-Delete everythirg in Section 5 (b) after the first sentence and ·insert the
following language in its stead:
Each p::>rtion of the Settlement Fund shall be administered
~
the Secretary and
invested in accordance with Section 1 of the Act of June 24, 1938 (52 Stat.
1037), or, in accordance with terms agreed ur:on between the Secretary arrl the
•
Passamcquoddy Tribe or the Penobscot Nation, respectively, shall be invested by
the Secretary in any bonds or obligations in which fiduciary, trust, or public
funds under the authority and control of the United States may be invested.
(2) Under no circumstances shall any part of the principal of the
Settlerrent Fund be distributed to either the Passamcqucrldy Tribe or the
Penotscot Nation, or to any nember of either Tribe or Nation, Provided, hooever,
that:
Nothing herein shall prevent the Secretary from· investing the
principal of said Fund in accordance with paragraph (1) of this subsection.
(3) The Secretary shall make available to the Passarncquoddy Tribe and the
Penotscot Nation in quarterly payrrents, wit.OOut liability to or on the part of
the United States, any incorre derived from that portion of the Settlerrent Fund
(/
allocatoo to the respective Tribe or Nation, the use of which shall be free of
regulation by the Secretary.
•
Once these paynents have been made to the Tribe or
Nation, the UnitErl States shall have no further trust responsibility to the
Tribe or Nation or their rrembers with respect to the sums paid, any sul:sequent
distribution of these sums, or any property or services purdlased therewith.
----
( 4) The Passamcquoddy Tribe and the Penobscot Nation shall each annually
e~nd
~
7.4 percent of the incane paid fran their respective portions of the
Settlement Fund for the benefit of their members who are over the age of 60
years on Jaruary 1 of that year.
The provisions of this paragraph may be enforced
by nerrbers of the Tribe or Nation ~ filing suit against the respective Tribe or
Nation in the United States District Court for the District of Maine.
�. ~-
.
I'
(2) Under no circumstances shall any part of the principal of the
Set:-tlerrent Fund be distributed to either the Passa.Ina:J.uoody Tribe or the
Penofucot Nation, or to any rrember of either Tribe or Nation, Provided, hOHever,
that:
Nothing herein shall prevent the Secretary from investing · the
principal of said Frmd in accordance with f.Bragraph (1) of this subsection.
{3) The Secretary shall make available to the Passa.maguoddy Tribe and the
Penol:scot Nation in quarterly payrrents, wi th::>ut liability to or on the part of
the United States, any incorre derived from that J;X)rtion of the Settlerrent Fund
allocatW to the respective Tribe or Nation, the use of which shall be free .of (/
regulation
by the Secretary. Once these payrrents have been
rn.ade to the Tribe or
Nation, the UnitErl States shall have no further trust resp:msibility to the
Tribe or Nation or their rreiTlt€rs with res:p=ct to the surrs paid, any subsequent
distribution of these surrs, or any prcperty or services purmased therewith.
�-5Arrend Section S(c) to read:
(c)
There is hereby establishED in the United States Treasury a fund to be
kno.-m as the
~1aine
Indian Claims Land ACXjuisition Fund in which $54,500,000 shall
be d2posi too follCNJing the apprcpriation of surrs authorized by section 13 of this
Act.
Arrem Sect ion 5 (d) to read:
(d)
The principal of the Lard Acquisition Fund shall be ap:r;xJrtioned as follONS:
$900,000 to be held in trust for the Hoolton Band of Maliseet Indians;
$26,800,000 to b= held in trust for the Passarraquoddy Tribe; and
$26,800,000 to be held in trust for the Penobscot Nation.
The Secretary is authorized to expend the principal and any income accruing to
the respective p-Jrtions of the Land Acquisition Fund for the purpCEe of acquiring
land for the Passarraquoddy Tribe, the Penotscot Nation, and the Houlton Band of
Maliseet Indians.
Land a<XJuired
w~ndian
terri tory shall be held in trust
l.----,
f!j2,the United States for the l:enefit of the respective Tribe, Nation, or Band.
Land aa:]uired w.ts i~ the boundaries of Indian terri tory shall be held in fee
·-
s~ the respective Tribe, Nation, or Bard, aoo the United States shall have
no further trust res,e;:msibility with respect thereto.
The Secretary is
Q
-
authorized to take in trust for the respective Tribe, Nation, or Bard any land
acquired within Indian territory by purchase, gift, or exchange by sum Tribe,
Nation, or Barx3.
If the Secretary finds that the Houlton Band of Maliseet Indians
shall cease to exist, any lands aoquired for their benefit pursuant to this Act,
ard still held for their benefit at the tirre of the Secretary's firiiing, shall b=
divided Equally by the Secretary and held in trust, one-half for the benefit of
the Passarraguoddy Tribe ard one-half for the tenef it of the Penol:::scot Nation.
Except for the provisions of this section, the United States shall have no other
authority to acquire lands in trust for the tenefit of Indians or Indian tribes
in the State of !'-!aine.
�v
Arrend Section 5(e) (2) to reed as follDHs, and add a new paragraph (3);
(2)
Except as provided in paragraph {3) of this sub3ection, any transfer of
land or natural resources held in trust by the United States for the benefit of
the Passam:quoddy Tribe, Penol:::scot Nation, or the Houlton Bard of Maliseet Indians,
except ( i) takings for public uses consistent with the Maine Inplerrenting Act, as
---
amended in according with section
X
(b) of this Act, ( ii) takings for public uses
_,---
oursuant to the laws of the United States, or {iii) transfers of individual Indian
J,..
---
use assignments fran one member of the PassaJT\::lg:uoddy Tribe, Penobscot Nation, or
Hool ton Bard of Maliseet Indians to another merrber of the sarre Tribe, Nation, or
Bard, shall te void ab initio ard without any validity in law or e::juity.
(3) Land or natural resources held in trust for the benefit of the Passarna:Juoody
Tribe, the Penol:::scot Nation, and the Houlton Band of Maliseet Indians may be-(i) leased in accordance with the Act of August 9, 1955 (69 Stat. 539),
as arre nded,
(ii) leased in accordance with the Act of May 11, 1938 (52 Stat. 347),
as arre nded,
(iii) sold in accordance with section 7 of the Act of June 25, 1910 (36
Stat. 857), as arrended,
J~
(iv) subjected to rights-of-way in accordance with the Act of February 5,
1948 (62 Stat. 17),
{v) exchan:jed for other lard or natural resources of e::jual value, and
(vi) sold, only if the proceeds of the sale are deposited in the Land
Acquisition Ftmd established pursuant to sul:Eection (c).
Regulations at 25 CFR §141. 4 already provide
as
;~
p
for the develc:prrent of tirrber managerrent plaTE , and the BIA just released new
manual provisions on forestry management planning on March 17, 1980.
With respect
to non-timber lands few reservations are subjected to management plans developed
by the Secretary, thoogh there is nothing under existing law to prevent the Tribe,
or the Secretary in cocperation with the Tribe, to develc:p such plans.
addition, the Tribe may
re
In
able to contract with the BIA for forestry ffi311agement
plannirg pursuant to the Indian Self-Determination Act.
/
�)~
-7-Amend Section 5(g) to read:
~ '\
~"'J
~~
~
Passam<quoddy Tribe, the Penobscot Nation, or the Houlton Band of Maliseet Indians
f'i-· ,
~t 1
'N
~
(g) When land or natural resources held in trust for the benefit of the
i & for a public
P"~
pursuant to the Jaws of the State of Maine or of
the United States, the proceeds paid in compensation for such taking shall/be
depositErl in the Land Acquisition Fund established by subsection (c). /
I - Add a new section to read:
Sec. Y. (a) The Passanaquoddy Tribe, the Penol:Ecot Nation, and the
Houl~~)
Barrl of Maliseet Indians shall each organize for their cannon welfare, andf"fdopt
an
apprq:>ria~_9
govern the affairs of the Tribe, Nation, or Bam
when each is acting in its governrrental capacity.
Such constitution, and any
amendments thereto, must be consistent with the terms of this Act and the Maine
Implementing Act, as amended in accordance with section X(b) of this Act, and
ITUst be approved by the Secretary and b] a majority of the adult members of the
Tribe, Nation, or Band participa.ting in an election conducted by the Secretary.
w~~
Cu\X..
In addition to all powers CNer their membership arrl assets ~ested in the Tribe,
Nation, or Band by existirg law, the constitution adcpted and approved pursuant
~
~
to this section shall prooide the Tribe, Nation, or Barrl with all the rights,
privileges, po.vers and irranunities of a municipality of and subject to the laws of
the State of Maine.
(b) The Secretary rray not approoe a constitution adopted pursuant to
subsection (a) unless he also approves a charter of incorporation to govern the
proprietary affairs of the Tribe, Nation or Barrl.
Such a charter must be approved
by a najority of the adult merrbers of the Tribe, Nation, or Band participating
in an election conducted by the Secretary.
Any tribal corporation created by
such a charter shall be subject to all the laws of the State of Maine, but such a
tribal co:rporation shall not constitute a corporation within the meaning of
section ll of the Internal Revenue Code of 1954, as anended.
""
.
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JP
Omit S2829 §6(a), 6(b) and insert the following:
6(a)
The United States shall not have any cr>iminal jur>isdictionlin the State of Maine under sections 1152, 1153, 1154, 1155,
1156, 1164 and 1165 of Title 18, U.S. Code.
(Act of
June 25, 1978, C.645, 62 Stat. 757, 758)Act of July
12, 1960, §1 and 2, 74 Stat. 469).
6(b)(i)
The State of Maine shall have jurisdiction over
offenses committed by or against Indians in the State of
Maine to the same extent that the State has jurisdiction
over offenses committed elsewhere within the State,
and the criminal laws of the State of Maine shall
•
have the same force and effect on lands owned by
Indians or Indian tribes, nations, or bands in Maine,
or by the United States in trust for such Indian,
Indian tribe, nation or baud.
(ii)
Nothing in this section shall authorize the alienation,
encumbrance, or taxation of any real or personal
property, including water rights, belonging to any
Indian or any Indian tribe, band, or community that
is held in trust by the United States or is subject
to a restriction against alienation imposed by the
United States; or shall authorize regulation of the
use of such property in a manner inconsistent with
•
any Federal treaty, agreement, or statute or with
any regulation made pursuant thereto.
6(c)(i)
The State of Maine shall have jurisdiction over all
civil causes of action between Indians or to which
Indians are parties which arise in the State of
Maine to the same extent that the State has jurisdiction over other civil causes of action, and those
�•' ·~ \~, ,;.( ••,.::-:-·.:::-~::. ~· ' :::-.-;:~ .....:.:-·.··:"'·~::y o ' • •' ',. C' • L·:, : ,- <, ~·::J.·,, .•; .~ ',
J
0
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~
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f)
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•' • .: •. •;._
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. :
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:;
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~·~·:~.~~ .;-,-....... -.:.:~~<:~_'.:J, ,.-•..<'. ~ ··C:: -~··· •.'~ . .·,")_' -.::.,•
-7c-
•
civil laws of the
Stat~
of Maine that are of general
application to private persons or private property
shall have the same force and effect on lands owned by
Indians or Indian tribes, nations, or bands in
Maine~
or by the United States in trust for such Indian, Indian
tribe, nation or band.
(ii)
Nothing in this section shall authorize the alienation,
encumbrance, or taxation of any real or personal
property, including water rights, belonging to any
Indian or any Indian tribe, band, or community that is
held in trust by the United States or is subject to a
restriction against alienation imposed by the United
•
States; or shall authorize regulation of the use of
such property in a manner inconsistent with any Federal
treaty, agreement, or statute, or with any regulation
made pursuant thereto.
6(d)
The Maine Implementing Act is not an agreement within
the meaning of §109 of the Act of November 8, 1978, 92
Stat.
6(e)
3074.
Retain.
A revised 82829 §6(c) and 6(d) follows on page 8:
•
.':' •:.
�-8-
- Section 6 (c) shoold be arrended to read as follCMS:
•
(c) (1) The Passanaquoddy Tribe, the Penotscot Nation, and the Houlton
Band of Maliseet Indians, and all nembers thereof, and all other Indians, Indian
nations, or tribes or bands of Indians in the State of Maine may sue and be sued
in the courts of the State of Maine and the United States to the same extent as
any other entity or person residin] in the State of Maine may sue and be sued in
those
courts,~,
(i) the Passarncquoddy Tribe and the_Penobscot Nation+-
and their officers and employees shall
~ -~e
from suit when the respective
S~-1~·
.
Tribe or Nation /s acting in its ~verrnren~ capacity or is acting pm:suant to
its~t~n· adcpted pursuant to section Y(a)
of this Act; and (ii) 28
u.s.c
~ §1362 shall be applicable to civil actions brought by the Passamcquoddy Tribe,
I
•
the Penobscot Na tion,j£
_;rl the Houlton Barrl of Maliseet Indians.
;'
(2 ) Notmvi thstanding the provisions of section 34 77 of the Revised
Stab.ltes, as arrenc3ed (31
u.s.c.
§203), the Secretary is authorized to recognize~ /
valid court orders entering noney judgrrents against either the Passamaquoody
Tribe or the Penotscot Nation by assigninJ to the judgrrent creditor the right to
receive future income from the Settlement Fund established pursuant to section
5 (a) of this Act.
The Secretary shall issue regulations necessary to carry out
the purpcses of this paragraph.
- Amerrl section 6 (d) to read:
(d) The corcent of the United States is hereby given to the State of Maine
and the Passamcquoody Tribe and the Penobscot Nation and the same are hereby
authorized to enter into compacts and agreements between themselves on matters
~'y
~·;
•
relating to (1) the enforcement or application of civil, crirrdnal, and regulatory
laws of each within their respective jurisdiction, and (2) allocation or
determination of governmental responsibility of the State and the Tribe or Nation
over
s~cifiErl
subject matters or s:t;ecified geographical areas, or both, including
agreements or compacts which provide for concurrent jurisdiction between the
State arrl the Tribe or Nation, and (3) agreements or canpacts which provide for
transfer of
jur~sdiction o~
individual cases from tribal courts to State courts
or State ccu-r·t s to tribal courts in
ac~;ordance
laws of the State anc3 Tribe or Nation.
with procedures established by the
�•
-9Section 6 (f) soould b= <Eleted for the reasons stated in the statement of Secretary
Andrus to the Senate Select Canmittee.
Sect ion 6 (g) sh:>uld
re revised to read as follCMS: -
(g) The follCMing statutes shall not
re applicable to Indian lands or
tribes in the State of Maine;
(1) Section 5 of the Act of August 15, 1876 (19 .stat. 200);
(2) Section 1 of the Act of March 3, 1901 (31 Stat. 1066), as amended;
(3) Section 2132 and Section 2133 of the Revised Statutes, as amended;
(4) Sections 405(k) and 710 of the Act of August 3, 1977 (91 Stat.
459, 523);
(5) Section 164(c) arrl (e) of the Clean Air Act, as anended by section
•
127(a) of the Act of August 7, 1977 (91 Stat. 735);
(6) Act of October 31, 1979 (93 Stat. 721);
(7) Section 8(d) of the Act of November 16, 1977 (91 Stat. 1397);
(8) Section 23 of the Federal Insecticide, Fungicide, and Rodenticide
Act, as arrended by section 21 of the Act of September 30, 1978 (92 Stat. 834),
insofar as this section authorizes the Adndnistrator to enter into cooperative
agreerrents with Indian tribes;
•
•
(
'!be verb in the second second sentence of section 7 (a) shoold be changed to say
11~1.. .... 1 1
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Section 10 should be rurended to read:
Sec~ All funds of either the Passamaquoddy Tribe or the Penobscot Nation
held in
t~
by the State of Maine as of the effective date of this Act shall be
tramferred by the State of Maine to the Secretary to be held in trust for the
benefit of the Tribe or Nation as part of the principal of the Settlenent Fund
allocatoo to that Tribe or Nation by section 5 of this Act:
Provided that, the
Secretary shall accept the transfer of those funds only after he has found that
autrorized officials of the respective Tribe or Nation have executed general
releases of the State of Maine and the United States in connection with any claims
~
regarding past administration or management of those funds.
Section 11 should be deleted as unnecessary.
To the extent that the State desires
a general release or discharge of any obligations it may have toward the Indians
or Indian tribes within the State as a result of agreenents or treaties entered
into with those Indians or Indian tribes, the United States need not be a party
to any such release or discharge since any obligation arises under state law and
may be addressed adequately by the state legislation.
Section 12 should be cuoonded by m:lking the existing provision subsection (a) and
adding a new subsection (b) as follows:
(b) NothwithstarX3ing any other prooision of law, any action to oontest the
constitutionality of this Act shall be barred unless the crnplaint is filed within
•
one hundred eighty (180) days after the date of the enactnent of this Act •
Exclusive jurisdiction over such actions is hereby vested in the United States
District Court for the District of Maine.
�
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William S. Cohen Papers
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UMAINE045
Title
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Proposed changes in S. 2829 (Undated)
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Undated
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William S. Cohen Papers
William S. Cohen Papers (MS 106), Special Collections, Raymond H. Fogler Library, University of Maine, Orono, Maine, 3.3.13.1 Box 8, Folder 12
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PDF
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Indians of North America--Maine--Land tenure
Indians of North America--Maine--Claims
Indians of North America--Legal Status, Laws, etc.
Indians of North America--Government Relations
Indians of North America--Politics and Government
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1723
1725(h)
Application of Federal Law
Application of State Law
Extinguishment of Claims
-
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PDF Text
Text
·-
PUBLIC LAW 96-420-0CT. 10, 1980 ,
94 STAT. 1785
Public Law 96-420
96th Congress
An Act
r· -• . •
To provide for the settlement of land claims of Indians, Indian nations and tribes
and bands of Indians in the State of Maine, including the Passamaquoddy Tribe,
the Penobscot Nation, and the Houlton Band of Maliseet Indians, and for other
purposes.
Oct. 10, 1980
[H.R. 7919)
Be it enacted by the Senate and House of Representatives of the ~~~~es Indian
United States of America in Congress assembled, That this Act may be Settlement Act
cited as the "Maine Indian ClaimsSettlem~nt Act of 1980".
of 1980.
25 usc 1721. note.
CONGRESSIONAL FINDINGS AND DECLARATION OF POLICY
SEc. 2. (a) Congress hereby finds and de~lares that:
(1) The Passamaquoddy Tribe, the Penobscot Nation, and the
Maliseet Tribe are asserting claims f<;>r pos?ession of lands within
the State of Maine and for damages on the ground that the lands·
in question were originally transferred in violation of law,
including, but without limitation, the Trade and Intercourse Act
of 1790 (1 Stat. 137), or subsequent reenactments or versions
thereo(
·
(2) The Indians, Indian m;1tions, and . tribes . and · bands of
Indians, other than . the Passamaql,loddy Trjbe,.·th~ Penobscot
Nation, and the Houlton Band of Maliseet.· Iru;lians, that once
may have held aboriginal title to lands within-the State ofM~ine
long ago abandoned their aboriginal holdings.
·
·
(3) The Penobscot Nation, as represented as. of the time of
passage of this Act by the Penobscot-. :Nati9n's Qovernor and
Council, is the sole successor in interest to the. ~boriginal entity
generally known , as · the Penobscot-_ Nation · which years ago
claimed aboriginal title to certain lands. in the State of Maine.
(4) The Passamaquoddy 'rtibe, as represent~~ as of the time of
passage of this Act ·by the Joint. Tribal . Coul}~il of the Passamaquoddy Tribe, is the sole succ~ssor in interes_:to .tpe aboriginal
t
entity generally known_ the P~ssama_quoddy Tribe which years
as
ago claimed:, aboriginal title to c_ rtain lands . ip the State of.
e
Maine.
·
·
(5) The Houlton-Band.ofM_ liseet Indian.s~ as :~~presented as of
a
the time of passage of this Act by the HouJton :ij~nd Co~ncil, is
the sole successor in interest, . as to . lands . withiq·_ the United
States, to the aboriginal entity generally known as· tpe .Maliseet
Tribe which years ago claimed aboriginal title to . cer:t~in lands in
the State of Maine.
(6) Substantial economic and social hardship to a h:u:ge number
of landowners, citizens, and commu,nities iiJ the State of Maine,
and therefore to the economy of the State of Maine as ~ whole,
will result if the aforementioned claims are not resolved
· ·
····
··
·
promptly.
(7) This Act represents a good faith effort OQ ~he part of
Congress to provide the Passamaquoddy Tribe, the Penobscot
Nation, and the Houlton Band ofMaliseet Indians \\,'ith ~fair and
25USC 1721..
79-139 0 - 80 (251)
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PUBLIC LAW 96-420-0CT. 10, 1980
just settlement of their land claims. In the absence of congres- _. , ...:
sional action, these land claims would be pursued through the ...
courts, a process which in . all likelihood would consume many .. .
years and thereby promote hostility and uncertainty in the State :-· ·
of Maine to the ultimate detriment of the Passamaquoddy Tribe, · ·....;~:.; · -·'
the Penobscot Nation, the Houlton Band of Maliseet Indians,
.- ·., ...
their members, and all other citizens of the State of Maine. · ··· -: '.
(8) The State of Maine, with the agreement of the Passama-· .. .
quoddy Tribe and the Penobscot Nation, has enacted legislation · ·: ~., .. ·
defining the relationship between the Passamaquoddy Tribe, the . · ·
Penobscot Nation, and their members, and the State of Maine. _. ... ·:..-~
(9) Since 1820, the State of Maine has provided special services ·:. ~ .:···..,
to the Indians residing within its borders, including the members .··... ,· ·
of the Passamaquoddy Tribe, the Penobscot Nation, and the ,-: . ·
Houlton Band of Maliseet Indians. During this same period, the . .
United States provided few special services to the respective.· ..·.' .·:· ·
tribe, nation, or band, and repeatedly denied that it had jurisdic- ..· .
tion over or responsibility for the said tribe, nation, and band. In · ·
view of this provision of special services by the State of Maine, .. _-,requiring substantial expenditures by the State of Maine and
made by the State of Maine without being required to do so by · · ~ '·~ -~
Federal law, it is the intent of Congress that the State of Maine · ·· · ·
not be required further to contribute directly to this claims ' · · ·
settlement.
(b) It is the purpose of this Act(1) to remove the cloud on the titles to land in the State of
Maine resulting from Indian claims;
.
(2) to clarify the status of other land and natural resources in· · .. ·
-. .. .
the State of Maine;
(3) to ratify the Maine Implementing Act, which defines the · · .. . .
relationship between the State of Maine and the Passamaquoddy :-:::· ~ ...
Tribe, and the Penobscot Nation, and
. ... ::.::~ .•
(4) to confirm that all other Indians, Indian nations and tribes ,.: -:·..:~; .:
and bands of Indians now or hereafter existing or recognized in :.:.:>:<:
/
the State of l\1aine are and shall be subject to all laws of the State ·... · .... ·
of Maine, as provided herein.
·;"' ....:.
i.
I
1
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DEFINITIONS
25
usc 1722.
SEc. 3. For purposes of this Act, the term. ~' ·~-":':· .
(a) "Houlton Band of Maliseet Indians" means the sole succes- . •. ':'.·.: .· ..
sor to the 1\'Ialiseet 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 the enactment of this Act, as to
lands within-the United States, by the Houlton Band Council of
the Houlton Band of Maliseet Indians;
(bl "land or natural resources" means any real property or r
natural resources, or any interest in or right involving any real !
property or natural resources, including but without limitation
minerals and mineral rights, timber and timber rights, water
and water rights, and hunting and fishing rights;
(c) "Land Acquisition Fund" means the Maine Indian Claims
Land Acquisition Fund established under section 5(c) of this Act;
(d) "laws of the State" means the constitution, and all statutes,
regulations, and common laws of the State of Maine and its
political subdivisions and all subsequent amendments thereto or
judicial interpretations thereof;
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PUBLIC LAW 96-420-0CT. 10, 1980
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94 STAT. 1787
.,
·~~
(e) "Maine Implementing Act" means section 1, section 30, and
section 31, of the "Act to Implement the Maine Indian Claims
Settlement" enacted by the State of Maine in chapter 732 of the
public laws of 1979;
(0 "Passamaquoddy Indian Reservation" means those lands as
defined in the Maine Implementing Act;
(g) "Passamaquoddy Indian Territory" means those lands as
defined in the Maine Implementing Act;
(h) "Passamaquoddy Tribe" means the Passamaquoddy Indian
Tribe, as constituted in aboriginal 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;
(i) "Penobscot Indian Reservation" means those lands as
defined in the Maine Implementing Act;
(j) "Penobscot Indian Territory" means those lands as defined
in the Maine Implementing Act;
(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 enactment of this Act, by the Penobscot Nation
Governor and Council;
(1) "Secretary" means the Secretary of the Interior;
(m) "Settlement Fund" means the Maine Indian Claims Settlement Fund established under section 5(a) of this Act; and
(n) "transfer" includes but is not limited to any voluntary or
involuntary sale, grant, lease, allotment, partition, or other
conveyance; any transaction the purpose of which was to effect a
sale, grant, lease, allotment, partition, or conveyance; and any
act, event, or circumstance that resulted in a change in title to,
possession of, dominion over, or control of land or natural
resources.
~
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APPROVAL OF PRIOR TRANSFERS AND EXTINGUISHMENT OF INDIAN
TITLE AND CLAIMS OF THE PASSAMAQUODDY TRIBE, THE PENOBSCOT
NATION, THE HOULTON BAND OF MALISEET INDIANS, AND ANY OTHER
INDIANS, INDIAN NATION, OR TRIBE OR BAND OF INDIANS WITHIN
THE STATE OF MAINE
• r
.
:- •
,
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,-:. ..
.
.'
SEc. 4. (a)(l) Any transfer of land or natural resources located
,..
. ·,,
anywhere within the United States from, by, or on behalf of the
Passamaquoddy Tribe, the Penobscot Nation, the Houlton Band of
Maliseet Indians, or any of their members, and any transfer of land
or natural resources located anywhere within the State of Maine,
from, by, or on behalf of any Indian, Indian nation, or tribe or band of
Indians, including but without limitation any transfer pursuant to
any treaty, compact, or statute of any State, shall be deemed to have
been made in accordance with the Constitution and all laws of the
United States, including but without limitation the Trade and Intercourse Act of 1790, Act of July 22, 1790 (ch. 33, Sec. 4, 1 Stat. 137, 138),
and all amendments thereto and all subsequent reenactments and
versions thereof, and Congress hereby does approve and ratify any
such transfer effective as of the date of said transfer: Provided
.
however, That nothing in this section shall be construed to affect or
This prov lSO was added eliminate the personal claim of any individual Indian \except for any The excepti n
to make clear that the Federal common law fraud claim) which is pursued under any law of in the prov'so
Act did not extinguish general applicability that protects non-Indians as well as Indians. relating to
25
usc 1723.
!~ -
any ordinary land title
claim of an individual
Indian in Maine.
(S. Rec. pp. 92-93)
~
: .. .
'
Federal co
law fraud claims was inserted at t
reque~t of the State.
The State
concerned lthat the Nonintercourse
claims might be recast as a feder . · ..~~ -.; ·;
common law fraud · claim . (the · theory <-.
applies both to Indian and non-Indians:
and that the statute of limitations
might be held not to apply to the Fegeral cause of action~ Interior disaci-
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94 STAT. 1788
PUBLIC LAW 96-420-0CT. 10, 1980
i
: .. ; - .. .
(2) The United States is barred from asserting on behalf of any
.T his section w.as added in
Indian, Indian nation, or tribe or band of Indians any claim under the
lieu· -of a ~~ovision which
laws of the State of Maine arising before the date of this Act and
ld h
ih d
arising from any transfer of land or natural resources by any Indian,
wou.
c;.ve ; a
the Congress Indian nation, or tribe or band of Indians, located anywhere within
.~xtlngulsh jState-based cla- the State of Maine, including but without limitation any transfer
lms •.
The Ip. terior Dept fel tpursuant to any treaty, compact, or statute of any State, on the
such a proc;e dure was "inap- grounds that sue~ transfer was not made in accordance with the laws
.
(S R
)
of the State ofMame.
P ropria te" · ,
·
• es • P 9 3
(3) The United States is barred from asserting by or on behalf of any
individual Indian any claim under the laws of the State of Maine
arising from any transfer of land or natural resources located
anywhere within the State of Maine 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,
compact, or statute of any State.
(b) To the extent that any transfer of land or natural resources
described in subsection (a)(l) of this section may involve land or
natural resources to which the Passamaquoddy Tribe, the Penobscot
Nation, the Houlton Band of Maliseet Indians, or any of their
members, or any other Indian, Indian nation, or tribe or band of
Indians had aboriginal title, such subsection (a)(l) shall be regarded
as an extinguishment of said aboriginal title as of the date of such
transfer.
(c) By virtue of the approval and ratification of a transfer of land or
natural resources effected by this section, or the 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
Passamaquoddy Tribe, the Penobscot Nation, the Houlton Band of
Maliseet Indians or any of their members or by any other Indian,
Indian nation, tribe or band of Indians, or any predecessors or
successors in interest thereof, 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 without limitation claims for
trespass damages or claims for use and occupancy, shall be deemed
Effective date.
extinguished as of the date of the transfer.
(d) The provisions of this section shall take effect immediately upon
appropriation of the funds authorized to be appropriated to implePublication in
ment the provisions of section 5 of this Act. The Secretary shall
Federal
publish notice of such appropriation in the Federal Register when
Register.
such funds are appropriated.
,
1
ESTABLISHMENT OF FUNDS
Maine Indian
Claims
Settlement
Fund.
25 usc 1724.
Waiver.
25 USC 162a.
SEc. 5. (a) There is hereby established in the United States
Treasury a fund to be known as the Maine Indian Claims Settlement
Fund in which $27,000,000 shall be deposited following the appropriation of sums authorized by section 14 of this Act.
(b)(l) One-half of the prfncipal of the settlement fund shall be held
in trust by the Secretary for the benefit of the Passamaquoddy Tribe,
and the other half of the settlement fund shall be held in trust for the
benefit of the Penobscot Nation. Each portion of the settlement fund
shall be administered by the Secretary in accordance with reasonable
terms established by the Passamaquoddy Tribe or the Penobscot
Nation, respectively, and agreed to by the Secretary: Provided, That
the Secretary may not agree to terms which provide for investment of
the settlement fund in a manner not in accordance with section 1 of
the Act of June 24, 1938 (52 Stat. 1037), unless the respective tribe or
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PUBLIC LAW 96-420-0CT. 10, 1980
• .•. t._;:W" ..
94 STAT. 1789
nation first submits a specific waiver of liability on the part of the
United States for any loss which may result from such an investment:
Provided, further, That until such terms have been agreed upon, the
Secretary shall fix the terms for the administration of the portion of
the settlement fund as to which there is no agreement.
(2) Under no circumstances shall any part of the principal of the
settlement fund be distributed to either the Passamaquoddy Tribe or
the Penobscot Nation, or to any member of either tribe or nation:
Provided, however, That nothing herein shall prevent the Secretary
from investing the principal of said fund in accordance with paragraph (1) of this subsection.
(3) The Secretary shall make available to the Passamaquoddy Tribe
and the Penobscot Nation in quarterly payments, without any
deductions except as expressly provided in subsection 6(d)(2) and
without liability to or on the part of the United States, any income
received from the investment of that portion of the settlement fund
allocated to the respective tribe or nation, the use of which shall be
free of regulation by the Secretary. The Passamaquoddy Tribe and
the Penobscot Nation annually shall each expend the income from
$1,000,000 of their portion of the settlement fund for the benefit of
their respective members who are over the age of sixty. Once
payments under this paragraph have been made to the tribe or
nation, the United States shall have no further trust responsibility to
the tribe or nation or their members with respect to the sums paid,
any subsequent distribution of these sums, or any property or
services purchased therewith.
(c) There is hereby established in the United States Treasury a fund
to be known as the Maine Indian Claims Land Acquisition Fund in
which $54,500,000 shall be deposited following the appropriation of
sums authorized by section 14 of this Act.
(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 ofMaliseet
Indians;
(2) $26,800,000 to be held in trust for the Passamaquoddy Tribe;
and
(3) $26,800,000 to be held in trust for the Penobscot Nation.
The Secretary is authorized and directed to expend, at the request 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 land or natural resources for the Passama_quoddyTribe, the Penobscot Nation, and the Houlton Band ofMaliseet
Indians and for no other purpose.<.The first 150,000 acres of land or
natural resources acquired for the Passamaquoddy·Tribe and the first
150,000 acres acquired for the Penobscot Nation within the area
described in the Maine Implementing Act as eligible to be included
within the Passamaquoddy Indian Territory and the Penobscot
Indian Territory shall be held in trust by the United States for the
benefit of the respective tribe or nation. The Secretary is also
authorized to take in trust for the Passamaquod,dy Tribe or the
Penobscot Nation any land or natural resources acquired within the
aforesaid area_by purchase, gift, or exchange by such tribe or nation.
Land or natural resources acquired outside the boundaries of the
aforesaid area]. shall be held in fee by the respective tribe or nation,
and the United States shall have no further trust responsibility with
respect thereto. Land or natural resources acquired within the State
of Maine for the Houlton Band of Maliseet Indians shall be held-in
trust by the United States for the benefit of the band: Provided, That
Intertor fo ...
standard of
original ver
be "difficul "
recommended ~ .a pproac
taken from t
~ericc
Indian Polic Rev1ew
Commission.
he AIPRC
recornmenda tio ·. wa·s the
tribes be all w~d to
manage their rust
fqnosd.if they releasee
M ameln 1an
Claims Land
the U.S. from
Acquisition
1 i ab i i t y . . ..
Fund,
. .
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establishment. (sen.
.
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Land or natural
resources,
acquisition.
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�94 STAT. 1790
State of Maine
and Houlton
Band of Maliseet
Indians,
negotiations.
PUBLIC LAW 96-420-0CT. 10, 1980
no land or natural resources shall be so acquired for or on behalf of
the Houlton Band of Maliseet Indians without the prior enactment of
appropriate legislation by the State of Maine approving such acquisition: Provided fur.j.h.er,_ That the Passamaquoddy Tribe and the
Penobscot Nation shall each have a one-half undivided interest in the
corpus of the trust, which shall consist of any such property or
subsequently acquired exchange property, in the event the Houlton
Band of Maliseet Indians should terminate its interest in the trust.
(4) The Secretary is authorized to, and at the request of either
party shall, participate in negotiations between the State of
Maine and the Houlton Band of Maliseet Indians for the purpose
of assisting in securing agreement as to the land or natural
resources to be acquired by the United States to be held in trust
for the benefit of the Houlton Band. Such agreement shall be
embodied in the legislation enacted by the State of Maine
approving the acquisition of such lands as required by section
5(dJ(3). The agreement and the legislation shall be limited to:
- / ( A ) provisions providing restrictions against alienation or
taxation of land or natural resources held in trust for the
Houlton Band no less restrictive than those provided by this
Act and the Maine Implementing Act for land or natural
resources to be held in trust for the Passamaquoddy Tribe or
Penobscot Nation;
(B) provisions limiting the power of the State of Maine to
condemn such lands that are no less restrictive than the
provisions of this Act and the Maine Implementing Act that
apply to the Passamaquoddy Indian Territory and the
Penobscot Indian Territory but r?ot w1th1n either the
Passamaquoddy Indmn Reservation or the Penobscot Indian
Reservation;
(C) consistent with the trust and restricted character of
the lands, provisions satisfactory to the State and the Houlton Band concerning:
(i) payments by the Houlton Band in lieu of payment
of property taxes on land or natural resources held in
trust for the band, except that the band shall not be
deemed to own or use any property for fcovernmental
purposes updP.r thf ~~ine Implementin~ ct~
(ii) paymer{fS o (f er tees and tax to 1:he extent
imposed on the Passamaquoddy Tribe and the Penobscot
Nation under the Maine Implementing Act, except that
the b
deemed to be a overnmental
lementin Act or to ave t e
powers Of a milnlcljJality under the Maine- mp em en~
mg;Act;
tm) securing performance of obligations of the Houlton Band arising after the effective date of agreement
between the State and the band.
(D) provisions on the location of these lands.
Except as set forth in this subsection, such agreement shall not
include any other provisions regarding the enforcement or appli. cation of the laws of the State of Maine. Within one year of the
date of enactment of this Act, the Secretary is directed to submit
to the appropriate committees of the House of Representatives
and the Senate having jurisdiction over Indian affairs a report on
the status of these negotiations.
(e) Notwithstanding the provisions of section 1 of the Act of
August 1, 1888 (25 Stat. 357), as amended, and section 1 of the Act of
s
Report to
congressional
committees.
. :.·
4
i.
•
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PUBLIC LAW 96-420-0CT. 10, 1980
..;~
. . .... ·-·-"...
94 STAT. 1791 ::
·-:-
"l
c
.
February 26, 1931 (46 Stat. 1421), the Secretary may acquire land or~" The cited proiis~or:~
natural resources under this section from the ostensible owner of the allow Federal
genclE
land or natural resources only if the Secretary and the ~sten.sible to utilize con emna-:·ownerofthe land or natural resources have agreed upon the Identity of t ·
procedures ·and
the land or natural resources to be sold and upon the purchase price
lOll
.
,
· k. '
and other terms of sale. Subject to the agreement required by the dec lara tlons of~ ta 1 -ns
preceding sentence, the Secretary may institute condemnation pro- to acquire land .:fo.r .
ceedi~gs in orde: to perfect title, satisfact~ry to the Attorney Gen- F edera 1 l?1lrpos~s. . O.u:r
eral, I}l the Umted States and condt;n:n mtere~ts adverse to .the (Interior~ s) ptroposec
ostensible owner. Except for the provisiOns of this Ac~, _,the United
· .
.
; ·
·
States sha.ll have no other authority to. acquire la~cl@;vor !latural sect1on 5 (d) w:9uld
resources m trust for the benefit of Indians or Indian natiOns, or· not bar the us!e of.
tribes, or bands oflndians in the State of Maine.
·
such procedures but
(f) The Secretary may not expend on behalf of the Passamaquoddy
t .
.
Tribe, the Penobscot Nation, or the Houlton Band ofMaliseet Indians would only requlre
any sums deposited in the funds established pursuant to the subsec- the consent of the
tions (a) and (c) of this section unless and until he finds that landowner to tihe tern
authorized officials of the respective tribe, nation, or band have
f
h takin J " ( s er
executed appropriate documents relinquishing all claims to the 0
sue
Sf·
extent provided by sections 4, 11, and 12 of this Act and by section Re c . P • 9 9 )
I
6213 of the Maine Implementing Act, including stipulations to the
·
final judicial dismissal with prejudice of their claims.
2116 R~vised
(g)(l) The provisions of section 2116 of the Revised Statutes shall 25 usc 177.
not be applicable to (A) the Passamaquoddy Tribe, the Penobscot statutes (25 u~c 177)
Nation, or the Houlton Band ofMaliseet Indians or any other Indian, is the Noninte~course
Indian nation, or tribe or band of Indians in the State of Maine, or (B)
any land or natural resources owned by or held in trust for the Act in its pr~se~~
;
Passamaquoddy Tribe, the Penobscot Nation, or the Houlton Band of form.
Maliseet Indians or any other Indian, Indian nation or tribe or band
I
I .:
of Indians in the State of Maine. Except as provided in subsections
(d)(4) and (g)(2), such land or natural resources shall not otherwise be
1. •:::-. •... ' ; •• •
···.
I•
subject to any restraint on alienation by virtue of being held in trust
by the United States or the Secretary.
(2) Except as provided in paragraph (3) of this subsection, any Special restra nt ;dh:
transfer of land or natural resources within Passamaquoddy Indian alienation rep aces .
Territory or Penobscot Indian Territory, except (A) takings for public
SC
b t has·
17 7 u ·
uses consistent with the Maine Implementing Act, (B) takings for 2 5 U
·
public uses pursuant to the laws of the United States, or (C) transfers same effect.
.ta.t~ ..
of individual Indi~n use assignments. from one member of the and Tribes d if .~t:e:Q. ·· .-.
Passam~quoddy 'l:'nbe or Penobs~ot N~t~o~ to ano~her member of~he
r whether c · · - J,.aw
se
same tnbe or nation, shall be vmd ab 1n1tlo and without any vahd1ty 0 ':e
f
'·s· 1? 7
c
25 !.' ·. ·.,
in law or equity.
h1story o
.
(3) Land or natural resources within the Passamaquoddy Indian Land or natur~l appl1es to
Territory or the Penobscot Indian Territory or held in trust for the ~esorces held m this! special
benefit of the. Hou~ton Ba~d of Maliseet Indians may, at the request rus .
restraint.
of the respective tnbe, natiOn, or band, be(A) leased in accordance with the Act of August 9, 1955 (69 Stat.
539), as amended;
25 usc
(B) leased in accordance with the Act of May 11, 1938 (52 Stat. 415-415d. 396.
34 7), as amended;
25 USC
(C) sold in accordance with section 7 of the Act of June 25, 1910 ~~~:;396 f and
(36 Stat. 857), as amended;
25 usc 407 .
(D) subjected to rights-of-way in accordance with the Act of
February 5, 1948 (62 Stat. 17);
25 usc 323-328
(E) exchanged for other land or natural resources of equal and note.
value, or if they are not equal, the values shall be equalized by
the payment of money to the grantor or to the Secretary for
deposit in the land acquisition fund for the benefit of the affected
.~·
�94 STAT. 1792
5 (h) . was added il1Land or natural
•
1
leU Of 5 (f) Of S • reSO';Jr~eS, .
S2 g
It ..L.
•
admtmstrabon.
•
PLOVldes, by retating exi~t~ng law, that
he Secre~a:ry may 25 usc 450f.
nter into contracts for
he managem~nt of Indian
erritory u~der the Selfeterminati~n Act.
.t
:.
•
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r
Condemnation
proceedings.
State
jurisdiction, U.S.
judicial review.
'-------'5>
•
PUBLIC LAW 96-420-0CT. 10, 1980
tribe, nation, or band, as the circumstances require, so long as
payment does not exceed 25 per centum of the total value of the
interests in land to be transferred by the tribe, nation, or band;
and
(F) sold, only if at the time of sale the Secretary has entered
into an option agreement or contract of sale to purchase other
lands of approxi:rpate equal value.
(h) Land or natural resources acquired by the Secretary in trust for
the Passamaquoddy Tribe and the Penobscot Nation shall be managed and administered in accordance with terms established by the
respective tribe or nation and agreed to by the Secretary in accordance with section 102 of the Indian Self-Determination and Education
Assistance Act (88 Stat. 2206), or other existing law.
(i)(l) Trust or restricted land or natural resources within the
Passamaquoddy Indian Reservation or the Penobscot Indian Reservation may be condemned for public purposes pursuant to the Maine
Implementing Act. In the event that the compensation for the taking
is in the form of substitute land to be added to the reservation, such
land snan-become a part of the reservation in accordance with the
Maine Implementing Act and upon notification to the Secretary of
the location and boundaries of the substitute land. Such substitute
land shall have the same trust or restricted status as the land taken.
To the extent that the compensation is in the form of monetary '
proceeds, it shall be deposited and reinvested as provided in paragraph (2) of this subsection.
(2) Trust land of the Passamaquoddy Tribe or the Penobscot Nation
not within the Passamaquoddy Reservation or Penobscot Reservation
may be condemned for public purposes pursuant to the Maine
lmp_lementins Act. The proceeds from any such condemnation shall
be deposzted m the land acquisition fund established by section 5(c)
and shall be reinvested in acreage within unorganized or unincorporated areas of the State of Maine. When1lle proceeds are reinvested in
land whose acreage does not exceed that of the land taken, all the
land shall be acquired in trust. When the proceeds are invested in
land whose acreage exceeds the acreage of the land taken, the
respective tribe or nation shall designate, with the approval of the
United States, and within thirty days of such reinvestment, that
portion of the land acquired by the reinvestment, not to exceed the
area taken, which shall be acquired in trust. The land not acquired in
trust shall be held in fee by the respective tribe or nation. The
Secretary shall certify, in writing, to the Secretary of State of the
State of Maine the location, boundaries, and status of the land
acquired.
(3) The State of Maine shall have initial jurisdiction over condemnation proceedings brought under this section. The United States
shall be a necessary party to any such condemnation proceedings.
After exhaustion of all State administrative remedies, the United
States is authorized to seek J·udicial review of all relevant matters in
the courts of the United States and shall have an absolute right of
removal, at its discretion, over any action commenced in the courts of
the State.
(j) When trust or restricted land or natural resources of the
Passamaquoddy Tribe, the Penobscot Nation, or the Houlton Band of
Maliseet Indians are condemned pursuant to any law of the United
States other than this Act, the proceeds paid in compensation for
such condemnation shall be deposited and reinvested in accordance
with subsection (i)(2) of this section.
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PUBLIC LAW 96-420-0CT. 10, 1980
- -
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94 STAT. 1793
APPLICATION OF STATE LAWS
SEc. 6. (a) Except as provided in section 8(e) and section 5(d)(4), all Stnte civil and
Indians, Indian nations, or tribes or bands of Indians in the State of criminal
Maine, other than the Passamaquoddy Tribe, the Penobscot Nation, jurisdiction.
and their members, and any lands or natural resources owned by any 25 usc 1725·
I
.
.
such Indian, Indian nation, tribe or band of Indians and any lands or
~ . . . .. ' .
natural resources held in trust by the United States, or by any other
,. .
person or entity, for any such Indian, Indian nation, tribe, or band of
~ .
.- -.
Indians shall be subject to the civil and criminal jurisdiction of the
,.- . : ·.
State, the laws of the State, and the civil and criminal jurisdiction of
the courts of the State, to the same extent as any other person or land
therein.
(b)(l) The Passamaquoddy Tribe, the Penobscot Nation, and their
members, and the land and natural resources owned by, or held in
trust for the benefit of the tribe, nation, or their members, shall be
subject to the jurisdiction of the State of Maine to the extent and in
the manner provided in the Maine Implementing Act and that Act is
hereby approved, ratified, and confirmed.
(2) Funds appropriated for the benefit of Indian people or for the
administration of Indian affairs may be utilized, consistent with the
purposes for which they are appropriated, by the Passamaquoddy
- .
- . ·.
Tribe and the Penobscot Nation to provide part or all of the local
share as provided by the Maine Implementing Act.
(3) Nothing in this section shall be construed to supersede any
Federal laws or regulations governing the provision or funding of
services or benefits to any person or entity in the State of Maine
unless expressly provided by this Act.
(4) Not later than October 30, 1982, the Secretary is directed to Report to
submit to the appropriate committees of the House of Representa- congressional
tives and the Senate having jurisdiction over Indian affairs a report committees.
I·:.--· ..
on the Federal and State funding provided the Passamaquoddy Tribe
and Penobscot Nation compared with the respective Federal and
State funding in other States.
(c) The United States shall not have any criminal jurisdiction in the State criminal
State of Maine under the provisions of sections 1152, 1153, 1154, 1155, jurisdiction,
1156, 1160, 1161, and 1165 of title 18 of the United States Code. This effective date.
I provision shall not be effective until sixty days after the publication
of notice in the Federal Register as required by subsection 4(d) of this
Act.
(d)(l) The Passamaquoddy Tribe, the Penobscot Nation, and the
I· , . . .
Houlton Band of Maliseet Indians, and all members thereof, and all
t
.
other Indians, Indian nations, or tribes or bands of Indians in the
!'··
State of Maine may sue and be sued in the courts of the State of
r
Maine and the United States to the same extent as any other entity
!.
or person residing in the State of Maine may sue and be sued in those
courts; and section 1362 of title 28, United States Code, shall be
applicable to civil actions brought by the Passamaquoddy Tribe, the
Penobscot Nation, and the Houlton Band of Maliseet Indians: Provided, however, That the Passamaquoddy Tribe, the Penobscot
Nation, and their officers and employees shall be immune from suit
to the extent provided in the Maine Implementing Act.
(2) Notwithstanding the provisions of section 3477 of the Revised
Statutes, as amended, the Secretary shall honor valid final orders of a 31 USC 203.
Federal, State, or territorial court which enters money judgments for
causes of action which arise after the date of the enactment of this 6 (d) ( 2) was
dd d
Act against either the Passamaquoddy Tribe or the Penobscot Nation in lieu
f
(.a e
6 C) of
by making an assignment to the judgment creditor of the right to S
I
.
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. \~
'/
,I
~
•
•
.~
l<·.
r ..
2
°· . ,
the Secretary of the Inte ·. have :permitted judgment c~ed ~~9 Whlch woulc
strative attachment" of t~lor .. Thls new section orovid l.fors"to . ~u7
ment ,Act is also made inap;li~!~f~ ~rust fund ~nc~me.
;~e ~~ti:~~~l-o such ass l.qnmen ns
(S R
I lgn
·
· ec. p !lOl)
;
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~
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�. ·,..
94 STAT. 1794
...~;r..
.
o.· . • •
\21·~r:·:·;·~ \ ~;;:.:·~
PUBLIC -LAW 96-420-0CT. 10, 1980
· • '"
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receive income out of the next quarterly payment from the settlement fund established pursuant to section 5(a) of this Act and out of
such future quarterly payments as may be necessary until the
judgment is satisfied.
(e)(l) The consent of the United States is hereby given to the State Lan \iacje.
of Maine to amend the Maine Implementing Act with respect to tak n..- · rorn .
t
either the Passamaquoddy Tribe or the Penobscot Nation: Provided,
S•
·.~ ·81 1
That such amendment is made with the agreement of the affected
tribe or nation, and that such amendment relates to (A) the enforce- 96t Congre~
ment or application of civil, criminal, or regulatory laws of the the Tribal- .
Passamaquoddy Tribe, the Penobscot Nation, and the State within
their respective jurisdictions; (B) the 'allocation or determination of !~re compac
governmental responsibility of the State and the tribe or nation over
specified subject matters or specified geographical areas, or both,
I
including provision for concurrent jurisdiction between the State and
1
the tribe or nation; or (C) the allocation of jurisdiction between tribal
courts and State courts.
(2) Notwithstanding the provisions of subsection (a) of this section,
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 benefit of
the band or its members.
Separate
(D The Passamaquoqdy Tribe and the Penobscot Nation are hereby
jurisdiction.
authorized to exercise jurisdiction, separate and distinct from the
civil and criminal jurisdiction of the State of Maine, to the extent
authorized by the Maine Implementing Act, and any subsequent
amendments thereto.
(g) The Passamaquoddy Tribe, the Penobscot Nation, and the State
_
Note: J;n testimony---7 of Maine shall give full faith and credit to the judicial proceedings of
each other.
· ·before tfhe Indian
. This
(h) Except as other wise provided in this Act, the laws and NOt
Affairs · committee, Tim
ula is ·
regulations of the United States which are generally applicable to"""f 0
Vollmatin s~id that the
Indians, Indian nations, or tribes or bands of Indians or to lands
lete reowned by or held in trust for Indians, Indian nations, or tribes or
fuil faith . and credit .
al of thE
bands of Indians shall be applicable in the State of Maine, except that
ques~tion might be more
ul·a in tl
no law or regulation of the United States (1) which accords or relates
properly . d~scribed as a
i'ntrc
to a special status or right of or to any Indian, Indian nation, tribe or
question of comity.
Ne- band of Indians, Indian lands, Indian reservations, Indian country, due d ~ .. _:: rrhis ·
Indian territory or land held in trust for Indians, and also (2) which seqtion ; was ·
vertheless ~ the terms
affects or preempts the civil, criminal, or regulatory jurisdiction of
remained i~ the Act.
the State of Maine, including, without limitation, laws of the State thEf, subj'~c.t ... (
relating to land use or environmental matters, shall apply within the a t ·uch · dis~u~
(See Sen. ~ec. p 49)
State.
si n and corrhe language was Certain Indian
(i) As federally recognized Indian tribes, the Passamaquoddy Tribe, re pondence j
changed, howevert,l'ibes, financial the Penobscot Nation, and the Houlton Band of Maliseet Indians
to limit the
benefits and tax shall be eligible to receive all of the financial benefits which the th~ Cornrni t teE
full faith and c~~~_i~·
United States provides to Indians, Indian nations, or tribes or bands re ort is inof Indians to the same extent and subject to the same eligibility te ded to clc:
terms to the State and
criteria generally applicable to other Indians, Indian nations or tribes
the tribes rather than
or bands of Indians. The Passamaquoddy Tribe, the Penobscot ri ·Y i t . .(S.
96-957)
including the U.S. and
Nation, and the Houlton Band ofMaliseet Indians shall be treated in
a 11 the 0 ther states .
the same manner as other federally recognized tribes for the purposes
·
of Federal taxation and any lands which are held by the respective
~·
Interior noted that this tribe, nation, or band subject to a restriction against alienation or
~
\
it form of comity" could
which are held in trust for the benefit of the respective tribe, nation,
'
have been agreed to by
or band shall be considered Federal Indian reservations for purposes
the State and the tribes of Federal taxation.
...
a's..
Reft
Nithout the consent of Congress.
It was included at the request
of the State of Maine and the Indian tribes.
(S.Rec. p 102)
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PUBLIC LAW 96-420-0CT. 10, 1980
~~·
_ r
. .. · .. ·.
"\ ~
TRIBAL ORGANIZATION
J
i
t?e·¢tion. 7 (a lis
SEc. 7. (a) The Passamaquoddy Tribe, the Penobscot Nation, and
iti.tenqeq to .rQ.ake
the Houlton Band of Maliseet Indians may each organize for its
clear that the
common welfare and adopt an appropriate instrument in writing to
t 1b ·
·
'
govern the affairs of the tribe, nation, or band when each is acting in
e s , have ~he
its governmental capacity. Such instrument and any amendments
r
au thor1 ty ·to org- thereto must be consistent with the terms of this Act and the Maine
ani ze. under fedImplementing Act. The Passamaquoddy Tribe, the Penobscot Nation,
eral law.
(S. Rec. and the Houlton B~nd of M~liseet In.dians shall each file with the
· l 0 3 ) Al.
~
Secretary a copy of 1ts organ1c governing document and any amendP•
.
so' see ments thereto.
In ter1or' s con erns (b) For purposes of benefits under this Act and the recognition
at S. Rec. p. ~)
extended the Houlton Band of Maliseet Indians, no person who is not
State at torne s
a citizen of the United States may be considered a member of the
.
.
Houlton Band of Maliseets, except persons who, as of the date of this
h a d a d V l sed t: e
.
Act, are enrolled members on the band's existing membership roll,
In ter1or Dept tha tand direct lineal descendants of such members. Membership in the
the tribes need
band shall be subject to such further qualifications as may be
not organize -to
provided by the band in its organic governing document or amendments thereto subject to the approval of the Secretary.
-.
t a k_e a d vantage of
rnunicipali ty ~ Status.
IMPLEMENTATION OF THE INDIAN CHILD WELFARE ACT
( S • Rec • P 1 0 ~
·:·t, '.; ~~
94 STAT. 1795
2!i
usc 1726.
Houlton Band of
Maliseet
sirnila
Indians,
p
1
membership. ascua l
to
Yaqu1.
lirnita}ion
(P.L. 95-3751, , (See
s.Rec. P· lr3)
·
•
,
I.
)
SEc. 8. (a) The Passamaquoddy Tribe or the Penobscot Nation may Indian child
assume exclusive jurisdiction over Indian child custody proceedings custody
proceedings,
ffoul ton Band of
pursuant to the Indian Child 'Velfare Act of 1978 (92 Stat. 30G9). tribal
~aliseet Indians
Before the respective tribe or nation may assume such jurisdiction jurisdiction.
added to
· over Indian child custody proceedings, the respective tribe or nation 25 usc 1727.
.
. o: 1.- shall present to the Secretary for approval a petition to assume such 2il usc 1901
g1.nal ve.r sl.on jurisdiction and the Secretary shall approve that petition in the note.
25 usc 1918.
of S • 2 8 2 9 •
manner prescribed by sections 108(a)-( c) of said Act.
(b) Any petition to assume jurisdiction over Indian child custody
proceedings by the Passamaquoddy Tribe or the Penobscot Nation
shall be considered and determined by the Secretary in accordance
with sections 108 (b) and (c) of the Act.
(c) Assumption of jurisdiction under this section shall not affect
any action or proceeding over which a court has already assumed
jurisdiction.
(d) For the purposes of this section, the Passamaquoddy Indian "Reservation."
Reservation and the Penobscot Indian Reservation are "reservations" within section 4(10) of the Act.
(e) For the purposes of this section, the Houlton Band of Maliseet "Indian tribe."
Indians is an "Indian tribe" within section 4(8) of the Act, provided.
that nothing in this subsection shall alter or effect the jurisdiction of
the State of Maine over child welfare matters as provided in subsec\
tion 6(e)(2) of this Act.
(f) Until the Passamaquoddy Tribe or the Penobscot Nation has Indian child
assumed exclusive jurisdiction over the Indian child custody proceed- custodv
proceedings,
ings pursuant to this section, the State of Maine shall have exclusive jurisdiction.
jurisdiction over Indian child custody proceedings of that tribe or
nation.
I
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EFFECT OF PAYMENTS TO PASSAMAQUODDY TRIBE, PENOBSCOT NATION,
AND HOULTON BAND OF MALISEET INDIANS
SEc. 9. (a) No payments to be made for the benefit of the Passamaquoddy Tribe, the Penobscot Nation, or the Houlton Band of Maliseet
25
usc 1728.
.
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94 STAT. 1796
~--~--~--
PUBLIC LAW 96-420-0CT. 10, 1980
Indians pursuant to the terms of this Act shall be considered by any
I
,_ ;:~f!:; : .t.~\ < ·; , : , .· ;
~~a1~~~~\if~~~:~Jf}:~~£i::JJ:~~~~ifo~e~;~~i~~1i~~c?:;~~~
(b) The eligibility for or rece~pt of payments from th~ State of
Maine by the Passamaquoddy Tnbe a!ld the Penobsc_ot Nation or any
oftheir_members pursuant to the Mame Implementmg.Act shall n?t
be cons1dered by any department or agency of the Umted States m
determining the eligibility of or computing payments to the Passamaquoddy Tribe or the Penobscot Nation or any of their members under
any financial aid program of the United States: Provided, That to the
extent that eligibility for the benefits of such a financial aid program
is dependent upon a showing of need by the applicant, the administering agency shall not be barred by this subsection from considering the
actual financial situation of the applicant.
-. f -ted that 9 (c)
(c) The availability of funds or distribution of funds pursuant to
test~ ...~.
section 5 of this Act may not be considered as income or resources or
Tom Tureen
·the NaVaJootherwise utilized as the basis (1) for denying any Indian household or
ken from ·
The
member thereof participation in any federally assisted housing
was ta
tion Act.
program, (2) for denying or reducing the Federal financial assistance
Hopi Reloca
d -was that'
or other Federal benefits to which such household or member would
·
1e offere
rat~ona
.
language, the
otherwise be entitled, or (3) for denying or reducing the Federal
withoUt th~ ~
aid to the financial assistance or other Federal benefits to which the Passamaent moneY P ld simplY quoddy Tribe or Penobscot Nation would otherwise be eligible or
se ttlem members "cou
"
'ld
.. 1
.
curi tY. entlt e .
· ·
_
i
.
9 (b) -was
_ .
.
in s~ct~on
he
rhe prov~so k
clear that ~ d r
· dded- to ma e .
1 maY
cons~ e .
3. _ d ral agenc~e s :
. al s i tua t~on
f e ·_ e" · tual fin arc~
p
10 4)
the ac
.
n · ( S.
ReC ·
.
:>f the Tr~b ·
·
e
tr:l:ba
- . ·soc~al se
duce the~r i
~~- ReC· p 183) :
25 USC 1729.
26
usc 1033.
DEFERRAL OF CAPITAL GAINS
SEc. 10. For the purpose of subtitle A of the Internal Revenue Code
of 1954, any transfer by private owners of land purchased or otherwise acquired by the Secretary with moneys from the land acquisition
fund whether in the name of the United States or of the respective
tribe, nation or band shall be deemed to be an involuntary conversion
within the meaning of section 1033 of the Internal Revenue Code of
1954, as amended.
TRANSFER OF TRIBAL TRUST FUNDS HELD BY THE STATE OF MAINE
25
usc 1730.
SEc. 11. All funds of either the Passamaquoddy Tribe or the
Penobscot Nation held in trust by the State of Maine as of the
effective date of this Act shall be transferred to the Secretary to be
held in trust for the respective tribe or nation and shall be added to
the principal of the settlement fund allocated to that tribe or nation.
The receipt of said State funds by the Secretary shall constitute a full
discharge of any claim of the respective tribe or nation, its predecessors and successors in interest, and its members, may have against
the State of Maine, its officers, employees, agents, and representatives, arising from the administration or management of said State
funds. Upon receipt of said State funds, the Secretary, on behalf of
the respective tribe an.d nation, shall execute general releases of all
claims against the State of Maine, its officers, employees, agents, and
representatives, arising from the administration or management of
said State funds.
OTHER CLAIMS DISCHARGED BY THIS ACT
25
usc 1731.
SEC. 12. Except as expressly provided herein, this Act shall constitute a general discharge and release of all obligations of the State of
Maine and all of its political subdivisions, agencies, departments, and
�:;: ~~..-:.-···-· :..:..: . ·--'"'----•
-- -·· ..
...
.._.
.. - - · . ,
~~~.- ... . . .;.
•
•••
t •':..-
i
;'~-~' . ;[.~f!:t~~:f~t~_~f':;';;;• ',i
94 STAT. 1797
PUBLIC LAW 96-420-0CT. 10, 1980
all of the officers or employees thereof arising from any treaty or
agreement with, or on behalf of any Indian nation, or tribe or band of
Indians or the United States as trustee therefor, including those
actions now pending in the United States District Court for the
District of Maine captioned United States of America against State of
Maine (Civil Action Nos. 1966-ND and 1969-ND).
~
~...
.·~
:
LIMITATION OF ACTIONS
SEC. 13. Except as provided in this Act, no provision of this Act shall 25 usc 1732.
be construed to constitute a jurisdictional act, to confer jurisdiction to
sue, or to grant implied consent to any Indian, Indian nation, or tribe
or band of Indians to sue the United States or any of its officers with
respect to the claims extinguished by the operation of this Act.
AUTHORIZATION
SEc. 14. There is hereby authorized to be appropriated $81,500,000 25 usc 1733.
for the fiscal year beginning October 1, 1980, for transfer to the funds
established by section 5 of this Act.
INSEPARABILITY
SEc. 15. In the event that any provision of section 4 of this Act is 25 usc 1734.
held invalid, it is the intent of Congress that the entire Act be
invalidated. In the event that any other section or provision of this
Act is held invalid, it is the intent of Congress that the remaining
sections of this Act shall continue in full force and effect.
CONSTRUCTION
SEc. 16. (a) In the event a conflict of interpretation between the 25 usc 1735.
provisions of the Maine Implementing Act and this Act should
emerge, the provisions of this Act shall govern.
(b) The provisions of any Federal law enacted after the date of
enactment of this Act for the benefit of Indians, Indian nations, or
tribes or bands of Indians, which would affect or preempt the
application of the laws of the State of Maine, including application of
the laws of the State to lands owned by or held in trust for Indians, or
Indian nations, tribes, or bands of Indians, as provided in this Act and
the Maine Implementing Act, shall not apply within the State of
Maine, unless such provision of such subsequently enacted Federal
law is specifically made applicable within the State of Maine.
;
'
:·I
.
j:.
~·,~
._.-.:
~
I
I
1
Approved October 10, 1980.
J
(
LEGISLATIVE HISTORY:
HOUSE REPORT No. 96-1353 <Comm. on Interior and Insular Affairs).
SENATE REPORT No. 96-957 accompanying S. 2829 (Comm. on Indian Affairs).
CONGRESSIONAL RECORD, Vol. 126 (19801:
Sept. 22, considered and passed House.
Sept. 23, considered and passed Senate.
WEEKLY COMPILATION OF PRESIDENTIAL DOCUMENTS, Vol. 16, No. 42:
Oct. 11, Presidential statement.
0
...,
PW!Ji!...
F %2
- .,.. __.,.._.~5'"niV+...,>_
_......,.._..._,_..,........--- ----.......... .- -- · ........ ,.. - - -· -
.... ··-· ~ - - -
-- ·
-
- - -~ ••
-
-.-.-
·-
�Note:
As introduced, S. 2829, section 6(g) read as follows:
"(g) Except as provided in this Act, the laws of the United
States which relate or accord special status or riqhts to Indians,
Indian nations, tribes or bands of Indians, Indian lands, Indian
reservations, Indian country, Indian territory, or lands held in
trust for Indians, shall not apply with the State of Maine:"
This exclusion of federal Indian law was explained by Tom
Tureen at the hearing of the Joint Select Committee of the Maine
State Legislature on Indian Land Claims as springing from an
"area( ) of mutual interest" between the Maine tribes and the
State of Maine.
The tribal interest in making federal Indian
law inapplicable was explained by Mr. Tureen as follows:
"in the case of the General Body of Federal Indian Requlatory
Law which the Tribes carne to see as a source of unnecessary
Federal interference in the management of Tribal property ... "
Mr. Tureen described the State interest as follows:
" ... and the
State carne to see (federal Indian law) as a source of uncertainty
in future Tribal-State relations."
(unpublished MS at page 25)
At the hearing before the Senate Select Committee on Indian
Affairs, Mr. Tureen described the tribal interest in making federal
Indian law inapplicable in the State of Maine as follows:
" ... it
is also true to say that the tribes are concerned about the
problems that existed in the West because of the pervasive interference and involvement of the Federal Government in internal
tribal matters."
(Hearings before the Senate Select Committe on
Indian Affairs, July 1 and 2, 1980, p 182)
�
Dublin Core
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Title
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William S. Cohen Papers
Description
An account of the resource
Documents from the William S. Cohen Papers have been provided by the Raymond H. Fogler Library, University of Maine. Additional information about the collection can be accessed on their <a href="https://library.umaine.edu/cohen/" target="_blank">web page</a>.
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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UMAINE035
Title
A name given to the resource
Public Law 96-420 (H.R. 7919), with notes in the margins
Date
A point or period of time associated with an event in the lifecycle of the resource
10/10/1980
Source
A related resource from which the described resource is derived
William S. Cohen Papers
William S. Cohen Papers (MS 106), Special Collections, Raymond H. Fogler Library, University of Maine, Orono, Maine, 3.3.13.2 Box 9, Folder 3
Language
A language of the resource
English
Type
The nature or genre of the resource
Text
Documents
Format
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PDF
Subject
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Indians of North America--Maine--Land tenure
Indians of North America--Maine--Claims
Indians of North America--Legal Status, Laws, etc.
Indians of North America--Government Relations
Indians of North America--Politics and Government
Rights
Information about rights held in and over the resource
Copyright is retained by the creators of items in this collection, or their descendants, as stipulated by United States copyright law. This item is made available for research and educational purposes courtesy of Special Collections, Raymond H. Fogler Library, University of Maine, Orono, Maine. Prior permission is required for any commercial use.
1723
1725(h)
Application of Federal Law
Application of State Law
Extinguishment of Claims
Jurisdiction
Tribal authority
-
https://d1y502jg6fpugt.cloudfront.net/26761/archive/files/40557cc88ad0bedb236c18ca58d16cca.pdf?Expires=1712793600&Signature=hU%7Eag1ZHp2zuAqmoE8DyvOOx25ns%7Eh8LxBdJ5De6wk9qTSNV2-0gT-Uw7q6haGn04dB6cRfcdc02PwaIFEbveYTCJ-gEnG3spUOVzY2oWynnWNY7wfqsHxInK6QqWVWk-oqZvPzPXEttQbQbXv9-WkrLkGrDMHFRWzpbcGrGtUYrwgpk30MCgAZ6C0cdU-tkZz3y9A3di9DMXS55cqhE5ESXZYdLomaC-e8xaS6rDFqccJx21XEyHZzHChE16h4ZrQWxJjILM5y0GrUqgpKOwd-ABbU7cKlVAvEYKyin3gl5E%7E-pAjVHPwruVzgENtzHXaMuYhFNRqjTt7JvV9oCvw__&Key-Pair-Id=K6UGZS9ZTDSZM
92d31aa1dbfe7b642b1b7369756410c3
PDF Text
Text
State Proposals for Amendments to S. 2829
Status of Maliseet Land
The State does not agree to any changes in S. 2829 with regard
to the legal status of land to be acquired by or for the Houlton
Band of Maliseet Indians.
However, the State would agree to
its long-standing offer to add language enabling the State and
Maliseets to negotiate with respect to the status of those lands
Specifi~
in the future.
amendments to
§
language is included under the proposed
6 of the bill stated below.
Meaning and Scope of § 6211(2) and (4)
of the Implementing Act and RelationshiJ2 to S. 2829.
The State believes that any necessary clarification of the
meaning and scope of the set-off .provisions in
§
6211(2) and (4)
of the Implementing Act is best achieved through a statement ln
the Committee Report on S. 2829 and accordingly proposes the
following language for the report:
"The Com"Tlittee 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 this Dill. Specifically, the
Commit tee unde .r s tands the Ma inc Imp l.cmcn t ing
Act to work in the following manner.
�/
/ ...
Page 2
TO the extent the United States providc~s
funds for a program which would otherwise
receive State funds, then the set-off provisions of § 621.1(2) and (4) apply.
To th~
c.xtcnl the Un.i.LL~d SLcJ.tcs 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 purposr'
as used in the Implementing Act w~s not
intended to include federal funds intended
to enhance, enrich or supplement programs
prov j dcd for under State la\.,'.
Thus, for
example, where the BIA funds a remedial
reading program for the Tribes, such program
would not be 'substantially similar' to a
b .1. s i c S t a t C' <.' c1 u c L1 t i on a I q r ll. n I- L1 n c1 \v o 11 1c1 n o t
sup p _t an L S l u t e [ u n \l i_ n g . "
11
FindiYlgs -
§
2
The State proposes the follo~ing changes:
Paragraph (a) (2) should be amended as proposed
by the Secretary.
Paraqraph
(a) (8)
should be dcl0tcd.
Definitions -
§ 3
The definitional changes as proposed by the Secretary in
subsections are
Th('
(a),
(h)
term "J a nels or
and
oth( ~ r
(k)
are acceptable.
na tur<1 I resources"
( b ) s h o u l d b c amended to " l an <..1 or n d t u r- a l
r
1
n subsc-.ct ion
c~ sour c c~ s
" and the
�Page 3
Subsection (e)
should be amended to read:
"(e)
"Maine Implementing Act" means Section 1
of the ''Act to Implement the Maine Indian
Claims Settlement" enacted by the State of
Maine in Chapter 732 of the Public Laws of
] 97 9.
II
s~crctary
The other definitional changes proposed by the
are
not necessary and such terms are best defined by reference to the
Maine Implementing Act.
Extinguishment -
§
4
The State proposes that Paragraph 4(a) (2) and
(4) (a) (3) be
deleted and the following substituted in place thereof:
''(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
prior to the effective date of this Act of land
or other natural resources located anywhere within
the Stute of MainL:~.
The other changes in Section 4 and the new
Scctio~
X
proposed by the Secretary are not acceptable.
Establishment and Operation of
Settlement and Land Acquisition
Funds - § 5.
'l'hc SLate. .
propost.~s
the_: follovJi.IHJ
ch~1nqcs
to
tht~
prnpo~-;ul
mad8 by the Secretary:
l\m<'nd §
S(d)
"(d)
to rc ..1d:
'l'IH' pr inc i p(·J L of
! li1·
Lt1nd !\cqu i ~'it
1 u1'
Fund s h a 11 b c a p po r t ion Q d as f o l 1 O\•/ s :
(l)
(2)
(3)
$900,000 to be held in trust for
t h C' H o u 1 t. on B e1 n d o f t-1.J. I j s c~ c l I n d i ll. n s ;
$26,800,000 to be:- lH'lcl in trust for
the Passnmuquoddy Trib~; and
$26,800,000 to be held in trust for
the Penobscot Nation.
s
�P~t<]C
4
"The Secretary is authorized to expend the
principal and any income accruing to the
respective portions of the Land Acquisition
Fund for the purpose of acquiring land for
the Passamaquoddy Tribe, the Penobscot Nation,
and the Houlton Band of Malisect Indians.
Land
within Indian Territory shall be held in trust
by the United States for the benefit of the
respective Tribe or Nation.
Land outside the
boundaries of Indian Territory 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.
If the Secretary finds that the
Houlton Band of Maliscet Indians shall cease
to exist, any land acquired for such Band
pursuant to this Act, and held by such Band
at the time of the Secretary's finding 1 shall
be divided equally by the Secretary and transferred in fee, one-half to the Passamaquoddy
Tribe and one-half to the. Penobscot Nation.
Excc~pt for the provisions of this section
t h '-~ U n j ted Stat. e s s h a 11 have no o t h c r author i t y
to acquire lands in trust for the benefit of
Indians or Indian. tribes in the State of Nainc." ·
1
Amend § 5(e)
to read:
" (2)
Ex c c p t u.s lJ r o v j_ d c d i. n par a 9 rap h ( 3 )
of this subsection, any transfer of land or
natural resources within Passamaquoddy Indian
Territory or Penobscot Indian Territory 1
except (i) takings for public uses pursuant
to
the Maine Implementing Act, (ii) takings
for public uses pursuant to the laws of thr2
United States, or (iii) transfers of individual
Indian use assignments from one member of tho
Passamaquoddy rrr.ibe or Penobscot Nation I to anothc:r
member of the same Tribe or l~ution, shall be void
ab ini ti~. and vvi thou t any valid i. ty in la\-7 or equj ty.
" (3)
T. an c1 o r n a t u r u. 1 r c' s u u r c l' s w j t h i_ n
PassamaquoJdy Indi~n T~rritory or the P~noG~cot
lnd i i..ln TL'rr i tory may oc'-1
( i. )
le ~~ s e d i n a c cor c1 an c; c vJ j t h . t h c A c t
of 1\uqu.st ~), 1955 (G!J StaL. 5lC3) 1 ~~.> umc'nc1c,d,
( i i)
l(' . l!;(•tl iJ1 dl'('CJ!"d.tll('(' v.;i (It l lie'
M.J.y 11, 193B (.S2 Stal. 347), u.s amcndc.:J,
tlH~
(iii)
soJd in
Act of June·~~~'
accordu.nc~
l910
(JG
/\<:l
ul
with section 7 of
857)
as omc.'ndcd,
~:3tat.
1
�Page 5
(iv)
subject to rights-of-way in accordance
with the l\ct of February 6, 1948 (62 StClt. 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) .
Amend § 5(g)
to read:
"(g)
V~hen land or natural resources with in
Passamaquoddy Indian Territory or Penobscot
Indi~n Territory is taken for a public purpose
pursuant to the laws of the State of Maine or of
the United States, the proceeds paid in compensation
for such takjng sllaJ 1 be 'dcposi ted in the Lanc.l
Acquisition Fund established by subsection (c)."
Tribal Governments The Sta tc
by t
llL~
propos(~S
§ Y
the following i.n pJ ace of that propos0.d
S e c r c tar y :
"Sec. Y.
(a)
The PassamLJ.quoddy Tribe and
Penobscot Nation shaJl each organize for their
conm1on welfare 1 and adopt an appropr i a tc
instrument in wrjting to qovcrn the affairs of
the Tribe or Nation, when each is acting in its
governmental capacily.
Such instrument and any
amendments thcrc·to, must b<~ consistent wit.h thL ~
terms of this 1\ct 2nd the Maine Implementing Act,
and must be approv e d by the Secretary and by a
majority of the adult members of the Tribe or
N a l: j on par L i. c .i p z.1 l ·j n q i n <:n1 t • l <~ c t ion con d u c L c cl l 1·;
th~ s~crc tar:/.
(I•)
/\r1y Ill\~> in··~·~' c·nrJlllJ- ill 1 r1n en·.1t t•d hy I !11·
l ' . I : ; : ; • I Ill ol ' Jll I )I I t! '/ I I I I )' . l ) I I 1 t • I )( d ): ; 1 • I II N ol I j t ) I I w I I II I II I •
L.l[Jprov;!l of d IliLlJOI"ily of llll · c.~duiL Illt•J11h<•r~· ; ol
~; u t ~ ll T r i h 1 • <. n - N a t i o 11 p <1 r t. i c i p, ll i " 1 r i n ; 1n 1 • I 1 • c 1 i c 1 n
con d u c I ' ·d h y t.IH ~ S t : c n · t u r- y : ; !1 il I I no I c u 11 ! .: I i 1 u I • ·
I
I
for pnrposcs of [£.·d<•rCll tcJ.xal ion a ccn·tJorat·ion
v;.ithin the mcaninq of ~;ecLion 11 of the.' Tnll'rnal
R c v c nut_: Cod~ of l. 9 5 4 1 as am t ~ n d c d 1 pro v j c.1 c d , h o v.r t..: v ~ r ,
that any busint~ ss corporution cr ~ afecr-·sy--thc ------··Pas surnaquoddy Tr i. bc~ , Pcnobscn l Nat ion or any member
of ei t :
Tribe or Natjon
lJ be subject to a1l
E t 11L' s l u LL"· 0 [ .
tilL~
] il.'•
"
�Page 6
Application of State Laws -
§ 6
The State proposes the following amendments to § 6:
Amend § 6(c) by adding to the end of the first sentence the
following clause:
"; and 28 U.S.C. § 1362 shall be applicable
to civi 1 l'lctions brouqht by t h<' Pusr;arnaquoddy
'l'r i bL' (}nd Pc~nobscol Nat .i.on."
Amend § 6 (c) by adding in the second sen·tcnce the word "valid"
before "money judgment."
Amend§ 6(d)
to read:
"(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 n.1ncnc111~cni- rc!atc:s t-r.
(l) the enforcement or applicot:ion of civ:i1,
criminal or regulat.ory laws of each w.ithin
their respective jurisdiction; (2) allocation
or c1l'll't-mirl;lt ion of <JOVl'rnm<'nl,,.l r<·~-1pon~;il1i I it . y
o [ LIH ' S L a L L~ a n d l I H • 'l' r i l.J (' o r N ll L i o n o v ' · r
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."
Amend
§
6(f)
to read:
"(f)
The Passamaquoddy Tribe, Penobscot
Nation and the State of Maine: shcl1l give fu1l
faith and crL~d it to the jud i.e i cJ.] proceedings of
each other."
�Page 7
Amend§ 6(g) to read:
"(g)
No law or regulation of the United
States which (i) accords or relates to a
special status or right of or to any Indian,
Indian Nation, tribe or band of Indians and
(ii) affects the civil, criminal or regulatory
jurisdiction of the State of Maine 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 determining 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."
Add a new§ 6(h) to read:
"(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
the Houlton Band. Unless and until such agreement
is made the Houlton Band, its members and any
lands owned by the Band or
its members shall be subject to the laws of the
State of Maine to the extent provided in subsection
G(u) ."
�T .
Page 8
J
The other proposo.ls of Lhc Secr('LcJry arc
Indian Child Welfare -
unacccpl::.ablc~.
7
§
The State believes the language in S. 2829 is sufficient
and accurate and docs not propose any changes.
Tribal Trust Funds -
10
§
'rhe State proposes that the phrase "shall constitute" be substituted for "shall be accepted _.in the first sentence.
11
The other proposed changes are not acceptable.
General Discharqe -
§
11
The State believes the language in S. 2829 is sufficient and
accurate and does not propose any changes.
Limitations of Action -
The State believes the langu .~gn
. .._,
l.
s
n . .
§
12
2829 l· s s u f [ i c i en t
and accurate and does not propose any ch 2 nges.
�
Dublin Core
The Dublin Core metadata element set is common to all Omeka records, including items, files, and collections. For more information see, http://dublincore.org/documents/dces/.
Title
A name given to the resource
William S. Cohen Papers
Description
An account of the resource
Documents from the William S. Cohen Papers have been provided by the Raymond H. Fogler Library, University of Maine. Additional information about the collection can be accessed on their <a href="https://library.umaine.edu/cohen/" target="_blank">web page</a>.
Text
A resource consisting primarily of words for reading. Examples include books, letters, dissertations, poems, newspapers, articles, archives of mailing lists. Note that facsimiles or images of texts are still of the genre Text.
Dublin Core
The Dublin Core metadata element set is common to all Omeka records, including items, files, and collections. For more information see, http://dublincore.org/documents/dces/.
Identifier
An unambiguous reference to the resource within a given context
UMAINE034
Title
A name given to the resource
State of Maine's Proposals for Amendments to Bill S. 2829, including handwritten notes (Undated)
Date
A point or period of time associated with an event in the lifecycle of the resource
Undated
Source
A related resource from which the described resource is derived
William S. Cohen Papers
William S. Cohen Papers (MS 106), Special Collections, Raymond H. Fogler Library, University of Maine, Orono, Maine, 3.3.13.1 Box 9, Folder 9
Language
A language of the resource
English
Type
The nature or genre of the resource
Text
Documents
Format
The file format, physical medium, or dimensions of the resource
PDF
Subject
The topic of the resource
Indians of North America--Maine--Land tenure
Indians of North America--Maine--Claims
Indians of North America--Legal Status, Laws, etc.
Indians of North America--Government Relations
Indians of North America--Politics and Government
Rights
Information about rights held in and over the resource
Copyright is retained by the creators of items in this collection, or their descendants, as stipulated by United States copyright law. This item is made available for research and educational purposes courtesy of Special Collections, Raymond H. Fogler Library, University of Maine, Orono, Maine. Prior permission is required for any commercial use.
1723
1725(h)
Application of State Law
Extinguishment of Claims
-
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August 28, 1980
tttC'D SEP 2 1980
Honorable John Melcher
Chairman, Select Committee
on Indian Affairs
United States Senate
Washington, D.C.
20510
Dear Mr. Chairman:
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I am writing with regard to Interior Secretary Cecil
Andrus' August 8, 1980 letter to you concerning S. 2829.
As the Secretary indicates, the parties to the settlement
have made great progress in resolving the problems raised at
the July 1, 1980 hearing before your Committee. My clients
are very grateful for the assistance which the Administration has provided in this regard.
The Tribes do have various
concerns, however, which require attention.
The Secretary's draft bill omits a sentence in Section
5(d) of S. 2829 which provided that, "If the Houlton Band of
Maliseet Indians should cease to exist, any lands acquired
for the Maliseet Tribe pursuant to Section 5 shall be divided
equally and held in trust, one-half for the benefit of the
Passamaquoddy Tribe and one-half for the benefit of the
Penobscot Nation." The funds for the Houlton Band were provided in S. 2829 as a result of an agreement with the
Passamaquoddy Tribe and the Penobscot Nation. The Tribes were
prepared to have $900,000 from their land acquisition fund
used to purchase land for the Houlton Band, but only if lands
purchased with such fQnds were to revert to the Passamaquoddy
Tribe and the Penobscot Nation in the event the Houlton Band
ceased for any reason to be able to continue to hold beneficial
title thereto. We therefore feel it essential that this provision appear in the final version of the bill.
Section 3(2) of the Secretary's draft bill defines Indian
territory in a manner which might suggest that the lands within the existing Passamaquoddy and Penobscot Reservations are
to be counted in calculating the 300,000 acres specified in
that section.
The problem arises because of potential confusion over the meaning of the term "subparagraph" as used
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�Native Arnerican Rights Fund
Honorable John Melcher
August 28, 1980
Page 2
in the proviso at the end of Section 3(2). We understand
the term "subparagraph" in this context to relate only to
language contained in 3 (2) (c).
If this is the case, land
within the existing reservations would clearly be excluded ln
calculating the 300,000 acre Indian territory. As this was
the intent of the parties, we ask the Committee to take
appropriate action to ensure that there is no confusion on
this issue.
•
Section 4 of the Secretary's draft deals with approvals
of prior transfer and extinguishment of Indian title. As
originally drafted, Section 4 (a) (3) only purported to approve
transfers of individual Indian land pursuant to state law which
occurred prior to December 1, 1873. The notion that only those
individual Indian claims which arose prior to 1873 would be
affected by the settlement was an integral part of the negotiations.
In the process of revising Section 4, the Secretary
has deleted this concept. We feel it essential that this
aspect of the original settlement be included in the final bill.
To accomplish this end we would recommend that the parenthetical
expression at the end of Section 4(a) (l) be altered to read as
follows: "(except for any Federal common law fraud claim which
arose after December 1, 1873"). We would also recommend that
Section 4(a) (2) be amended by inserting the words nby any
Indian tribe, band or nation after the word "resources" and
before the word ''located" in the fourth line of the subsection,
and by including a new subparagraph 4(a) (3) to read as follows:
"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."
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We note. that the bill as drafted by the Secretary does
not provide the same kind of flexibility in management for the
Land Acquisition Fund as it provided for the Maine Indian Claims
Settlement Fund. We believe that it would be appropriate to
provide the same degree of flexibility for both funds.
•
Section S(g) of the Secretary's draft provides in part
that the lands shall be administered in accordance with the
Indian Self Determintion Act.
We be1ieve that it is unnecessary
�Native ArT1erican Rights Fund
Honorable John Melcher
August 28, 1980
Page 3
to make specific reference to this Act, as that Act is, and
will be, clearly applicable to the ~1aine Tribes without specific reference.
The first and second sentences of Section 5 (h) (1) and
the first sentence of Section 5 (h) (2) of the Secretary's
draft make reference to "the laws of the State of Maine
relating to such lands,u or "the laws of the State of Maine."
To avoid possible confusion with the general condemnation
laws of the State of Maine, which are not applicable, we would
recommend that the words "the Maine Implementing Act" be
substituted in the quoted phrases.
Section 6 (d) (2) relates to payments to claimants against
the Tribes. We would recom1nend that the word final" be inserted before the word "orders" of the second line of the subsection. This amendment, together with appropriate language
in the Committee Report, will make it clear that the Secretary
is not to make any payment from income of the trust funds
until the judicial order in question is truly final, including
the running of the time for appeals.
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We note that two different formulations are used in
Section 6(h) of the Secretary's draft to describe federal
statutes relating to Indians.
There appears to be no reason
for the distinction, and we recommend that the language be
harmonized to prevent possible confusion.
•
The first two provisos to Section 6(h) ensure that the
Passamaquoddy Tribe and the Penobscot Nation will continue,
as federally recognized tribes, to be eligible for all of the
special federal Indian services and federal tax treatment which
other federal tribes receive.
The section also provides that
the Houlton Band of Maliseet Indians will become eligible for
such benefits. As drafted, however, the section provides that
the Tribes shall be "deemed to be Federally recognized tribes,"
or "considered Federally recognized" for these purposes. Since
the settlement provides that the Passamaquoddy Tribe, the
Penobscot Nation and the Houlton Band of Maliseet Indians are
and will be federally recognized tribes and entitled to the
benefit of such status except to the extent of any limitation
provided in the settlement, we believe that this section should
be stated more positively. For this reason, we recommend that
the words "as Federally recognized Indian tribes" be inserted
�Native An1erican Rights Fund
Honorable John Melcher
August 28, 1980
Page 4
after the word "That" and before the article "the" in the first
line of the first proviso in Section 6(h); that the language
beginning with the words "and on the purposes ... " and ending
with the words" ... recognized Indian tribes:" be stricken; that
the phrase "treated in the same manner as other Federally recognized" be inserted after the phrase "Maliseet Indians shall
be" in the second proviso to Section 6(h); and that the phrase
"considered Federally recognized" be deleted from that second
proviso.
We would recommend that the word "subsection" be substituted for the word "section" in Section 9(b). This change
will ensure that the limitation contained in the proviso to
Section 9(b} will only relate to funds provided to the Tribes
by the State of Maine.
•
The last line of Section 9(c) (3} should be amended by
adding the words "eligible or" before the word "entitled" at
the end of the subsection. Comparatively few Federal services
are "entitlements ' and this change will make certain that the
subsection has the broad application which was intended.
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In closing, we also believe it would be most helpful if
the Committee Report would provide some guidance to the Secretary,
or to the courts, should judicial review ever be necessary, in
determining what would constitute a reasonable plan for the
management of the trust funds.
To this end, we would reco.nunend
inclusion of the following language:
·The Settlement Fund will be divided into two
shares, one to be held, together with income
therefrom, in trust by the Secretary for the benefit
of the Passamaquoddy Tribe and the other to be held,
together with income therefrom, in trust by the
S~cretary ~or the benefit of the Penobscot Nation.
The Secretary will invest and administer each share
in accordance with terms applicable to it as established
by the Passamaquoddy Tribe or the Penobscot Nation,
as the case may be, and agreed to by the Secretary.
The Secretary is obligated to agree. to any reasonable
terms for investment and administration proposed by
such Tribe or Nation.
Such terms need not be the
same for each. The standard of reasonableness as
eq~al
�Native An1erican Rights Fund
Honorable John Melcher
August 28, 1980
Page 5
applied to the terms of investment and administration should be determined by reference to
modern standards by which endowment funds are
invested and administered in the United States.
Standards such as those found in the Management
of Institutional Fund Act, for example, would be
considered reasonable.
It is not intended that
the Secretary or the Department of the Interior
would necessarily make the investment decisions
or carry them out.
It would be reasonable, for
example, for the Passamaquoddy Tribe or the
Penobscot Nation to establish an investment committee and charge it with responsibility for
(A) setting investment pol1cies; (B) selecting
one or more professional investment managers to
carry out those policies; (C} monitoring both
the policies and the managers; and (D) effecting
changes in policies and managers from time to
time as circumstances and experience may warrant.
The committee might include, in addition to
tribal members, representatives of the Secretary
and persons experienced in the management of
endowTients, including, in particular, the establishment of policies and the selection of investment
managers.
Similar standards will apply to the investment and administration of the Land Acquisition
Fund until fully utilized to acquire lqnd.
~ve also believe that the Committee Report should explain
that the term ''principal" as used in Section 5 mea,ns the
return in ~oney or proper~y derived from the use of the assets
in the Settlement Fund, including net appreciation, both
realized and unrealized.
We thank you for your assistance in this most important
matter.
TNT/crm
ccs: Honorable
Honorable
Honorable
Honorable
Donald W.
William Cohen
George Mitchell
Cecil Andrus
Richard Cohen
Perkins, Esq.
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Letter to Senator John Melcher from Thomas Tureen (NARF Attorney for the Passamaquoddy Tribe and the Penobscot Nation) (08/28/1980)
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Indians of North America--Maine--Land tenure
Indians of North America--Maine--Claims
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1723
1725(h)
Application of State Law
Extinguishment of Claims
Jurisdiction
Thomas Tureen
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26486f45362d82efb615f372c9fb349e
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United States Department of the Interior
OFFICE. _ F THE~ ~ECRETAR~
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. WAS_~IN<;;tpN, :0.~. 20240
·AUG i
1980
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Honorable John Meldler
Chainnan, Select Ctmm:i.ttee on Indian Affairs
united States Senate'
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v7ashington, D.C. 20.510
Dear Mr. Chairman:
This resporrls to yaur · reqqest- far our vi~ on s. 2829, a bi~+ "To provide.
for the settlerrent: . of :. la~ .·claims of .India.nS, i'ndian nations an<] tribes an.dt
Ca.nds of Indians in . the_ s-t;ate ·of Maine~ i'ncludinci the PasSamaquoddy' Tribe~,: ·:
the Penobscot Nation, and the. Houlton Bancf of Maliseet Indians, and for other
purposes. "
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We viEM the settlement of· the . Iridian -larrl claims in -the State of Maine as one~
of the rrost irrport;ant:-issu~·-in Indian affai-rs:· facing Congress tOday • . ·After·
three arrl one-half:: ye~~· ·: of·: eff9tt a · legi!Sl_: ive se- tlement proposal is befure.
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the Congress, one. whim is_ support_ d ·bY the State, the Tri~s, an_; the majore
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landowners in the State,_ aricf'\ifuich has :alfe'ady recei.ved· the endorserrent of the·
State Legislature •. .. That ptopesi:U· i _ ·i?redicated upan the authorizatiQn of ·the
s
appropriation by Con;~~ of $81.5 million tO can:y· out its prCNi.sions • . · · ·
At the July 1, 1980 he~ring before- the Canmittee or.(S. _2829, we ·stated .that
tecause years of continued.- ~t;igation ·would ~ have a s~vere:. i~d;. on· the pecple
of Maine - both Indian_ and· non-In~an -- · ~e do not object to t!;le:Federal .
contribution contemplated by: the bill. However, we also :raised a:· .series:- of
questions regardi ll9 .-a..- numbe:r . -of~'. the pr~visions of -the bill, es~ci, ally -insofar
as it prCNides for. _
the role_ of · the ~~eral Government -as ·trustee -:eqr.. 'the Maine.
Tribes. Since the-n we-' . hav~· rret on ·seVeral. occasions ·wi.th officials-. of · the . ·.
State arrl Tribes, aoo 'we. fully -appreciate_. the efforts the _ arties have made to:
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achieve agreenent· .on maey of ..'the frrlportaiit proVisions of s. 2829. . we:·hav-e:
worlced with t.OOse of- icials . t:i? ·r:earcift a 'I'll.lllbe~ ·. of' those pr~sions . and . have·.
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adlieved a large rneas.ure of. ag:reem:~t - sul:sti t~te language . to clarify th~- ·
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g:>vernrrental resFOI'l.?iPili-tie$. ·and jurisdicti_ nal --relationships arrong the parties.
o
It has not been oul;' intent- t:O :~ter in ·an_Y way th~ · agreerrent between the: s·tate
of Maine and the Passamaquoddy. T~be - and Penobseot Nation vii tir respect to·
their new relationship. . We pave ·only sooght ·to ·assist in making that agreement
canpletely worlcable.
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We have enclosed a prcposed ~trlmetit to s.- 2829 in the. nature of . a su.b s.t itut.e-,
which we believe woold c1arify the· provisions of the ·bill while adhering
clcsely to the intent· · m ·sut:stance of it. - We discuss ~ belotv the more significant
a
manges which our propas-~1 would ~e in the language of S. 2829 ~· as introduced.
Discussion arrong the pa- ties has not yet been concluded with res:p:ct to oner
provision of the bill, Section 6{b). We have therefore noted ip .the proposed
amendment that the language . of that section is to be supplied. we· anticipate
concluding the diso.Iss;i.'on of"· th?:t· provision shortly and ·will· re!XJrt to the·
Carani. ttee on prcposed Iarguage for it as ~~- ·a s possible •
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we have provided in section 3(2} :..of
prq;x:sed •ronent ~fqr a ~efiniti~n
of "Irman territory", ·~,n.i~rl.~y to C)ig·..in a readi-n; of ~revised- Sectl6n:-: S{d)
which has been redrafted .-tx). clapfy ·bOO ti:.t le to l.an& -acquir~d··. pui:Suant .to
the teDTIS of the Act· ::;hall ~ - .held.:. .' The·· ~finiti~11 · of .. "Indi~~·;te~teeyt.:.. ~.·
tracks the definitions· of.. ~-~ass~dy Indian · ~rritocy" . ah:l ···~:PeilQ~ot.:·~ .·,~· ··.
Indian Territocy" ·c·ontai,p~ .~n- the - a;ine· Implem=riti_ g 'A ct/·.ana····is ·riOt.." :Lnte~ed
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to be inconsistent wi·th..~e ~s~ : of· ~ase tez:msi ·.. _It is inpottant tp. ~~e: that
.
tbe juri;sdictiona1 charqcter of ·the J.arrls desqribed iri .section 3 <2 -.{Cl .will ' .
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pot: re altered yplgSs tb·ey .are .actually, ampired W the ·Uhitecl- States~ ip :· . .·'·'·
-tm§.t for the Passatna:Iuoody Tribe ·.:Qt--. the Penol::scOt::·=
Nation 'pursuant . ·~t:O-~Seci:'ion
S(d). We also note -.th~t; -~Indian· temtoJ:Y 11 has been def±ned . in:·a-·~~r.::.:-.~·,L! ·
which r::eonits the pa·rties_. to vacy _' the b:.undaries ae ·- this-area 1ater-:.by-~tu~
agreeirent.
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One 1.nportant concern a,nses 1.n connect1.·on w1 th these def1.m. tiOns • ·I:.a.OOs
may only be included -~thi-~t;l·.-?as~_~oddy or Penobsc6t ·Indi~ · Pemtcilj. -:··_.:~
'
under Section 6205· of the ~~n~ ..Implenentin:J Act if ,.they. a_ a~r~ . 1:;1y the
t;"e
United States on or _be·f~t;e. -.~.an~i:y :.i~ l9~3'. · · ·.-nes~gnation pf, lan~-:~;:·i'nd:i.ah:
terri tocy is critical_ .)~~ti:~. -Qnly -~-ar.d~ ·:so ~<Esi'gnat:ed .Will l::e .bel4 'ir{' ~st...
by the United States,.·s\lbje~: ... ~~~j;al ~:-·restti~·oli$: against -~~~nation,· ... .
to
arrl within the limi ~~ ,~vex::rlren_ta! :;a1It.l}c?~·t¥ of -thOSe Tribes:~: .I..c:loos' acc;iuired
outside Indian terri to~~r- ~~ch catmot be .._ held/ are,.'niicif·le~~ ~ely tO
so
·
provide a las tin; larid ·. l:ase -f~r th~_ T.~s. The &·te. chas~n .apJ;Eal:s tO h~ve.
been based on the assun9.~9~. :that· ·l and . . aa:}Uisition woold-:begin early ' - in . . .
1981, thus gi vin; tt?-~ Sepr~~:cy and ~e Tribes nearly~·two years. W;£-~~ w~ch .
to aoq:uire lands within: ·+~qi.~ territory.· It now appears· that hcy~~ver quiCkly
.
s. 2829 is enacted, it.~-~ di.ffic~lt to acquire the c.ontemplat~ C!lcreage
within the time limi. ~-~ -- ·
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Initially, we
re~~rrl~. ~o· State of~~ci:als
that
~e:M~-~~: ImPl~~cl:~-~Act
l::ie emended to acklress..·.:W,s.-.:.c oncem -1:::~/ p1:oviding for a nore realisti_ dab:(:·.
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for cutting off the .crea~Or:t· _ f Ihdi.an ·~terri tocy·. They · resp:>nded. ~~t ~ueh ··
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a concern is prema.t\1-re,_,.a~ that the ~e¢..-~lature_ woold therefore -~-~unwi-~p;Flci
to arrend the Act. at. this tine.-·:- Nevertpeless, we have teen ass~~)¥. St4te · ... .. ,
Attorney General Ri d;lar9 . s.~. Ccb~n that_· _-i f· the appropriation. ·of ,-~~ ~):i~ceS~cy·- ·. .-. .
SLUnS is delayed SO. ::that the ·cqn~$plated laoo a~ Si.tiori Q:iild _not }:;i$' ._e"f-f~cb:~d
by Januacy 1, 19-83, he woo~d -~r5on?!l:ly,: . be willing :to .recc:innend .. t:O ~e - _ state
Legislature that the ·Implerneri):ili9' ~¢1; J:e arrerrled ·t:o ·provide 'for -~ cid~te
extension of tirre. ·At any rate, ·'~e note .that- Corigres·s:h~·-'.ple~ry:.- Pc::wer·. :-to
rerredy this concern if lam · acquisition is · delayed ·for•reasens l:ley.or-d· the .. ·
control of the Tri~s, and tpe s~te. Legislature -does not · Pt"Qviae ,;for an .·
extersion of the ti~: li~ t. The 'Administration will seek an apprOpriation· ·
of $81.5 million i 0 fj ernJ }tear 1981 '- upon enactirent' of an appropriate settlere~.
..
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The rrcst iiTPOrtant provision· i .n s. ~ 2829 i _ clearly section 4·, whl<:;l p~c;ies~
s
for the final extin;uishrrent· of all_Indian land clains .. iil the State . of · M~~~ ·
We have revised Section 4(a)(l) of s. 2829 only to ·add a .proviso which woold .
make it clear that nothirg in tpe section should J:e construed to aff~ct art . .
ordinary land title c~m ·¢_ an indi vidt.;t~ Indian within ~e State. _ i thqj~ _ :
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the prO\Ti.so the section, ·_ :r;e~ :q. terally, · woold extirgui.sh the ~ tle c~im of· _. ·
an Indian hareo.mer in the~ State wries~ claim is based on a :f.ede~al ~aw gene~aiiy
designed to protect nol"l-o"Indians as .w ell as Indians, such ·as law5 governing
·
Federal horre loans.
The effect of this premsion of s. 2$29 wruld re that all Indian land cllims ·
in Maine arising un&r F~r:al 1~ wil~ . Pe extingUished. on the date .. of"'.the .
enactrrent of the Act.-· HoWever, the Tribes have eXpressed.:the concern .that - ~
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there is no guarantee· th~~ they will reeei -ve the cori.;ideration authorized i:ii1..· l:~ . _
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the bill for their agreement to give up their claim;. · Therj !)ave th~~fore- . .
advocated that the bill Pe arrended to condition exti'nguish!Tent 9~· the..cliiim5 ·
under Section 4 on the apprc:priation of $81.5 million by Con;re;;s~ ...AnOth~-~ ~ .!..
Indian land claim settl~nt· pill ~n this Gongress, H.R. 6631 conce.,iriing :~~ · cgyuga larrl claim in . N~ _
YoJ;k State, was agerrled by the HouSe ·Ipteqor-·arid-. ,,
Insular Affairs Cgnmittee . to provide tor sudl a conditional arrgjrlrt§nt•.. The .
state of Maine, on the . other ·h~, desires· imrredi.ate . extinguishrrent ·ofj the .. ._ .·.::
land claims in order. ·to.-:blear ·_ i.t les ir,.' the; · ~tate ·QS·.s06n as ._pc.Ssl:.bl~.'. ~ State:· .
t
officials note that the· aborigi_ al t{tle· cJ.al.irs of AlaSka ~atives we~ extiil.:.:
n
guished on the date of enactment of. the Alaska Native: Clai~ S~~tl~pt _
Act ·
(43 u.s.c. § 1601 et ~.. -) • . We think it. is clear that Conaress does hav= ... ~
plenaty J?Q.~er to extinQuish · c}airrs of al:x;)riginal Indian titl~-. Tee:-Hi:t-Ton·.~ -· ..
·
Indians v. United StateS.,. -'348 u.s. 272 (1955). Nevertheless, we appt"eciate ·.the·~·
Tribes • concern, and we wd.lld therefore not l;;e g;gsed to · ~ arrerx]rretj .whi<:;:~ ·. f~
J} .
~~tfs~i~~. ~~=t~~ ~&~.>:lt~r!Decerrber 31, 1982. Thus,. ·a._ ~
~tz~"::':%a~:ftm't-;'
tions at 28 u.s.c.
2415--.ls
due to. run on
§
"OCJW
delay in ~prqpriatiqns he:tond. that date IDC1¥ force the Tribes to file ·p rP:
tective lawsni ts.
·
Sections 4 (a) (2) arx1 (3 ). of· s~- 2829 would extihguish .c laims of Indiar(ti.fl~ :~. :. ~ . : ·
arising under State law:. · We think this i_s an inappropriate suQjed: .·foi: ;·Fe~rai'
legislation, and indeed·~ the iqentic~l provisions ap~ar_ in Section . 6~13 ··o~
the State Irrplerrenting Act. N_ verthe1ess, we have agreed tq · include · ~n- ouj;·.·..
e
prc::pooed arrendrrent la~uage in · 4eu. of those two paragraphs . -~hi'ch · woiiia·..b£_ ~:~,.~ ,the United States from .asserting as· trustee for th~ Indians past land cla1incr.
arisin;t under State law. Because of the iiitfOrtance of the larig.uage· fimllyextinguishing Indian land clairrs within the State,. and in 'i:e5:p:mse· to .a ·· .. ... ~ " ~u:.L
s~cific ~~st made at t.?e. July 1 pearln;·, w~ will l::e ' J?rovidiri~ . _th~_:S:~mtl:~.-~~e ~-~
W1. th an op1.mon of our SoliCl tor on the effectl. veness of the extingw.shrrent
lai'X3'uage of Section 4 of our proposed arrerrlrrent.
_
,-
-
�section 5 (a) of s. 2829 woold ~tcmlish a $27 million settl~nf ti:US.t ~un~: .
for the eenefi t of the Passanaquoddy Tribe and the Penobscot Nat;i.on.- .We
have revised Section 5 (b) of s. 2829. to clarify the role of the Secre~ty:
as the trustee charged with the resp:msibili cy of cdmi.nistering this fund:••
The two Tribes and the Administration agreed in February 1978 that arfJ sti<$
trust fund sh::>uld l:e administered i-n accordance with ~ agreetrent _et:Weeh·
b
the Secretary and each Tribe. The Tribes desire the g?p?rtunity' for a rore
liberal inyestrrent wlicy thari' has historical 1Y been autborized' for triba1
tn1st funds under the Act. of June 24. 1938 (25 U.S.C. § 162§;), We respect··
that desire an:] are willing to penni t future investm:mt of . the trust fund
to be carried oot pursuant to an agreexrent between the Secre~ and each
Tribe, but we are concerned that the ,4inguage of Section 5 (b);(i) of .s .. 2829
does not ad~tely protect the United States fran urwarrant;ed: ).iabi-]fi:cy.· ~
pr~ision contains the reqtd. rerent that the Secretary nust· agree to "mason@· A·
l
terms" for investrcent within 30 days of subnission· of proposed) te:rriiS·· oy -t:he·
Tribe. We J:eli eve tha,t this is a difficult st.arrlard and an uri.Wtirkal?:l~ pr~~re~·
nCJ
In our propcsed arrendrcent, we ad~t an approach suggested in. the 1977 Fi-rlaJ.
'· ~J·LCJ
Report of the American Indian Policy Revie.w Commission. Uride:li that· ~projich~ ' '/tt~)'
trust funds coold be utilized by Tribes for potentially nore pr6fitaele. · · .A-v--J:l~
investrrents, but only after the Tribes specifically release the Om~ St~te~ 7b~
fran liabili cy in the event ·:the· chosen inv~tment res~lts in a less.
f2· ::1
7
~
proviso in Section 5 (b) (3) of s. 2829 w,~J.d requi-r~- ~ach Tribe. to ~cl~
annually the inccrre fran $1 million of. i.tS portion ~ the Settlerrent Fun:l
for the b:nefit of tribal. rtembers over the age of 60. we understan:J th~t
this was an important factor in disrussions of the proposed sett)..~nt
between the tribal negotiatirg canmi ttees an:l the memberships· of ~e ·.'J5.ti,:~a·,
and we applaud their ·desire to provide special assistance tO the ~bes:t ·
senior merrbers. Hc:::wever, we questioned whether such a provision sno~ld ·
appear in the bill since the Secretacy h.as no restxJnsibi l i ty under -~e
bill for any distribution of trust fund· i'ncane, a point which has been aifr.eep /'\
. ....}upon anong all the parties. Tribal officiels have assured us that i t is
f~\
the Tribes alone. Dot the Secretaty. wbo will l:e rest?Onsib1e for the exoeodi- /L
ture of tp15t fund incc:mf for the tenefit of tribal liEIJ'l};grs over 60.
In ~ f/BA~
light of that understamirg, we do not object· to the provision rena.i'r:U:·n g_ ~ »~
in the bill.
~
A
Section 5 (c) of s. 2829 woold establish a- $54. 5 million· Lar)d ··AO:iuisi·tiarL~q~
The Tribes had insisted upon the ' aa;IW.sition of 300.,00.0 · . ~er-~ :. of a~rag~ -qUaJ.i:t;y
Maine woodland as the integral tem Qf the settlement ofi' their land ctai·n$..
i
·
Our gppraisers have determined that $54.5 million is sufficient to aaruil;e
such wog:U.and, but we t:elieve the legislation should not l:e tied · to any:
given acreage figure, since woodland of vatying quality may becare· avcii~a.Ql~
in the marketplace at any given time.
�-sOur prcposed arneroment would reword Section 5 {d) to clatify that th~ t.;i.tie to:
lands ao:juired in Indian terri tocy shall be held by· the United States in 'tz:uSt
for the Passam:.q:uoddy Tribe or Penol:scot Nation. Lands acquired for the ; ~~
or Nation outside Indian terri tory shall be held in fee sinple by the res~ct:i ve
Tribe or Nation. Our propose:J Section 5 {d) ~ contains an authorization for -1 /)
the Secretacy to take lands within Indian territory in trust after~ have ci~/J.~
teen irx3ependently a~n rei tq _
the Passanaquoddy Tribe or Penol:scot Nation.
This is necessary because the Tribes cx:mtenplate the aCX}Uisi tion of lands .
outside Indian terri tory which woold later l:e used for exchal')3e purposes. onc;e.
cddi tional lands within Indian terri tocy go on ·sale.
The title to lands acquired for the l:enefi t of the Houlton Bam of Maliseet
Indians is also addressed by this subsection. 'nle Barrl desires to a~r~ .
lan::ls in eastern Arcostook Camty mich woold 1::e held in trust for . .them t:rj
the United States. Officials of the State of Maine, hOtYever, ini.ti'c:U;l:~(-,. ... . :
objected to the acquisition of lams in trust status outside the 'tx:x~nd.~;t~s·
of Passarncquoddy Indian Terri tory or Penobscot Indian Terri tocy.' .:.we h~~~ ·
sought to accanrrodate l:oth their concerns by redraftin:r the sul::sect~oil:., to:_:_ autoorize the secretacy to ao:jUi.re lands in trust for the Hoolton' ·aa'IXi~ :.bUt··
only after obtainin:J· the concurrence of auttprized State officia1S · bJ.::·.t±i~~~~ :" :·: ..
ao:jllisi tion. We have provided further th·a t the Houlton Band . woold be aut,~;;~ea
to enter into oontracts with apprcpriate government agerkies ·for the pr0\Ti~~qt1. · ·~
of services, similar to these we recamend belOYt with respect. to the _pgss~oddy
Tribe arrl the Penobscot Nation. He exr;ect t;.hat State am Barp offiCieJ."s W,il · ·
wot:k together in cpod faith tO identify suitable lands for the Houlton Barxi.
,
;,
,. r:
•
The revised subsection also prOt.Tides that notwi thstarrling the provisiOn's of'·
the Act of August 1, 1888, and the Act of Februacy 26, 1931 {40 u.s~¢·:~
257, 258a), the Secretacy nay acquire larrl under this section only if-the·
Secretary and the amer of the land have agreed upon the identity of the .
lanCi to 1:e sold am uPJn the purdlase price arrl other terms of sale. The ·. ·.~
cited provisions allow Federal agencies to utilize condemnation procedur~.
arrl ~clarations of takirg to acquire laoo for Federal purposes. Qtr·..Pire9B.ftd.
Section 5 Cdl woold not bar the use of such procedures, rut woold only r.~te
the coreent of the landg.mer to the teptlS of the taking. This lirni. tatl9n -. - ~
was r~ested by the larrlcwners who intend to sell lands to the Tribes, ·:· a na·
we have no objection to it.
. ·.: ~
·ss ·":
Section 5(e) of our prq:osed anen:irrent is new. At the July 1 heq.ring . ~--· .. . .
expressed the view that no Fed:ral rroney shmld be paid to the· Tribes~ ~ : .e~:ther
for the trust fund or for larrl a<X!Ui si tion - until they each have si;iput~t~~ci(
to a final dismissal of their clairrs. This subsection wruld condi. tion
Secretary's a1 trori ty to expend the two trust funds for the benefit of the
Passamc:quoddy Tribe, the Peoobscot Nation, and the Hrul ton Bam of Maliseet
Indiars on a firrlirg that autoorized officials of each of the Tribes have
executed docurrents relirquishing all their claims and have stipulated to
the.._:. ·
�-6a final judicial dismissal of their claims. Sudl relirquishments and
dismissals will insure that there can be no future claim against the United
States for the extinguishirent of the Indian claims e~fected by this
legislative settlement.
Our prc:posed sul:section (f) of Section 5 is a clarification of Section 5 (e)
of s. 2829. Subsection (f) provides that the Indian Nonintercan;se Act
(25 U.S.C. § 177) shall not l::e applicable in Maine, rut that larrls in Indian
territory or held in trust for the Hoolton Barrl of Maliseet Indians $hall
nevertheless be subject to restriction; against a1ienation·. Paragraph (3)
provides specific, thoogh limited, authorizations for the alienation of sudl
trust larrls. These are consistent with the teDnS of the prooso to Section
5(e) {2) of s. 2829, except that a st=ecific authorization for rights-6f~ay,
with the consent of the affected Tribe, Nation, or Barrl, has been· added to
provide for rights-of-way without resort to con:lennation. The authOrization
for exchan;es in prcposed Section 5 (f) {3) (E) has l:een made rrpr~: fleXible by
inserting language taken from Section 206 (b) of the Federal Land Policy 9.00
MaM:lerrent Act (43 u.s.c. § 1716). WitOOut such flexibility such an exchange
authority may prove useless l::ecause it is often difficult to . find exchange
lands of precisely equal value. Finally, the authorization in s. -2829 for
transfers of land the proceeds of which In..Ist be reinvested within two years
has been revised in prc.posed Section S(f) (3} (F) to reflect the Tribes' intent
that sales 1:e autoorized only if the Secretacy has already made specific
arrargerrents for the aQ:illisition of replacenent larrl.
of s. 2829 wculd rE3:1Uire the Secretary to agree within 30 d~ to
"reasonable terms" for the managerrent and administration of land held in trust
for the Passait'la:Illoddy Tribe and Penobscot Nation. We 'believe the procedures
outlinoo in this sursect.ion are unwieldy but, rrore inp:>rtantly, existing Federu
laws arrl regulations provide ade::;Iuate authority for the Trites t . manage their
o
am trust larrls. We have therefore rewritten the provision, which app:ars as
Section 5(g) of our proposed amen:Jrrent, to restate existing law which woold
au th::::>rize the Secretary to enter into land nanagerrent agreerrents with ei. ther
Tribe in accordance with Section 102 of the Indian Self-Determination ACE (2S
u.s.c. § 450f). We note that the contract declination pr~ures of that ·A ct
arrl existing regulations wruld be applicable to such agreements.
6}section 5 (f)
C
l
j ·
ov rt-- _,
\
\}q ~
':;)
In rur prcposed arrerrlrrent we have ad&d a new sul:section (h) to provide for
corrlemnation of Passaina:JUoddy, Penobscot, and Hculton Band lands in accordance
with state law relatin; to such lands. This snb;ecti on is necessary becat.lsa
Indian trust or restricted 1ands may not be condeiiDed under state law without
cooore5siona1 autrorization. Congressional authorizations have geperalJ.¥
r~red that the condemnation be in Federal court and that the United States
b: a party. We relieve it wruld be unwise to di.ve~e fran this practice.
Subsection (h) also s~cifies the dispcsition of the carpensation received.
�-7The disi;X:)Si tion st=eci.fie:J diffeJ:S slightly fran Section 5 (g) of S. 2829 in
that it dJannels ;QtPQ;ed; tbroogb the Larrl Acmrl-sition Fupd rather than requiring
their reinvest:nent within two yeaJ:S. Since it is the Tribes who initiate 1an:l
purchases under the sc:herre of the bill and since sUitE in the Larrl AOi'lisi tion
Fund rrey only be used for that purpose, the two year requi rem:nt is sup=rfluous
an:l confusing. Subsection ( i l provides that the proceeds from the ooOOemnation
of trust or I;§!;ricted Indian larrls in Maine ptrrstJant to aey law of the United
States other than this Act sbal 1 likewise be reinyested thrgJgh the LaOO Agmisition Fund.
Section 6 (a) of s. 2829, arrl as revised in oor prcposed anerorrent, is interrled
to effectuate t1Je broad assunption gf juri sdi ct.ion oyer Ipdi. an lands b:/ the
state of Maine. 'As noted aOO.Te, we will b= reporting to the Camnittee OI'J.
Section 6 (b) as soon as disOJssion on it is ooncluded.
OUr prcposed arrerrlrrent contains a new Section 6 (c) to make absolutely ciear
the intention of the parties that the Federal governiient will not have
"Indian country" type law enforcenent jurisdiction on Indian larrls in the
State of Maine. See State v. Dana, 404 A. 2d 551 (Me. 1979) cert. denied
48 U.S.L.W. 3537 (February 19, 1980). Our prc:posed Section 6(d) is merely
a restaterrent arrl clarification of the first sentence and proviso of Section
6 {c) of s. 2829. No sul:stantive dlange is interrled, except to clarify that
the oarties have agreed that the jurisdictional proyisioos Qf Secti oo 1362
of Title 28, United States Code, sha11 cpply to t11e three Tril:?es, notwi thstanding the othel:Wise broad language of the provision.
At the July 1 hearirxJ we hcrl objected to the secorrl part of Section 6 (c) of
s. 2829, which woold permit suits against the Secretary by judgrrent creditors
of the PassarcB:Iuoddy Tribe and Penohscot Nation to force payrrent of the
judgrrents out of Settlem:nt Fund incare. Our concern was that such litigation
~ld te buraensqme arrl uooecessa:Q'..
Our prq:osed Se.c tion 6 (d) (2) woold
provide instead a procedure for adrninistrati ve attachirent of future trust
ftmd incane by judgnEnt creditors of the two Tribes. Under that provision
the Secretary woold oo re:;!Ui red to honor valid coort oraers of rroney judgrrents
against either Tribe frcm causes of action accruing after the date of the.
enactrrent of the bill, by making an assignrrent to the judgrrent creditor of
the right to receive future incane fran the Settlerrent fund, notwi thstai'Xlirg
the provisions of the Anti-Assigrment Act (31 u.s.c. § 203).
Under Section 6 (d) of s. 2829 Col'ljress wruld consent in a1vance to arrt arrerrlment of the Maine Implerrenti ng Act as long as the Tribes agreed to arr:1 such
arren:Jment. '!he breadth of this "consent" gave us cause for roncern. We have
�-atherefore included in cur. pr~ed Sectioq 6(e) (1), language taken fran
1181 (96th Con;.) which woold authorize future jurisdictional agreements
between the State and either the PassaiiLCqUoddy Tribe or the Penobscot Nation
in the fot:m of ane~nts to the Impleuenting Act. State and tribal officials
ha-ve agreed to this provision. Our proposed Section 6 (e) ( 2) wculd authorize
similar agz:eerrents with the Houlton Bar:rl of Maliseet Indians.
s.
Section 6{f) of oor prcpcsed arrerrlnent is identical to Section 6{e) of s. 2829.
It aJth::>rizes the Passamaquoddy Tribe and PenoJ::scot Nation to exercise jurisdiction, separate an:J distinct from that of Maine, to the extent authorized
1::¥ the Maine Implenenti~ Act. That Act in tum leaves the two Tribes with
exclusive authority over their am internal tribal affairs, certain misdeneanor
jurisdiction e»er tribal rrembers, small clai:rrs jurisdiction, arrl a significant
residut.nn of regulatory author.i. ty over their o..m lands. The two Tribes will
also l:e treated as mtmicipali ties under State law for purposes of jurisdiction over their lands in Indian terri tory, which neans that no other
municipalicy, the main unit of local government in Maine, may exercise art:/
authority · over tribal affairs in these areas. Lands and personal property
in Indian terri tocy may not 1:e taxed; nor may inc:x:me fran the Settlerrent
Furrl. The Tribes and their m=nt:ers shall for the m:::st part be otherwise
subject to State taxes.
We note that Section 6208(2) of the Maine Implementing Act wc:uld· require the
Passama::auoody Tribe and the Penobscot Nation to make paym:nts in lieu of taxes
for trust larxls within Indian terri tocy. As we minted oot at the July 1
hearing, we prefer that, instead of making in-liw paynents, the Tribes IIEre,W
oe:rotiate contracts with the cgmties a;rrl other districts for the ;provision
,o£ services. Nevertheless, this is a matter for tribal discretion, am
Section 6 (e) of our prcposed arrerrlment wculd allCM for future jurisdictional
agreements to accommodate our preference.
At the July 1 hearirg we objected to the full faith and credit provision
of Section 6 (f) of S. 2829. In lieu of that provision the Tribes and State
have offered language which appea:t:S in our prcposed Section 6 (g}. It
states that the Passarncquoddy Tribe, the Penobscot Nation, and the State
of Maine shall give full faith arrl credit to the judi ci. al proceedings of
each other. The parties coold agree to this form of cani. ty without the
cornent of Con:Jress, but we have no objection to its inclusion, in the settlerrent legislation. There is, of coorse, no reason why the Tribes may not
establish similar ccmi cy with other jurisdictions.
Section 6(g) of s. 2829 provides that Federal laws of general applicability
to Indian:;, Irrlian tribes, and Indian lands shall not l:e applicable in Maine,
�-9ex~t that the Passanaquoddy Tribe, the Penol::scot Nation, and the Houlton
Band of Maliseet Indians shall be eligible for all financial benefits for
which all other Federally reccgnized Indian tribes are eligible. We found
this provision trrublesare and confusing in that Federal financial benefits
to Indian tribes woold l:e divorced fran general Federal statutes applicable
to Indians. This was a subject of san: di.saJSsion with representatives
of the State ard Tribes, aoo agreem=nt was reached on the language of our
prc:posed Section 6 (h). In soort, this woold provide that no Federal law or
regulation (1) wbich accords or relates to a S:Pec:ial status or right of or
to arr:t Indian, Indian nation, tril:::e or band of Indians, Indian lands, Indian
rese:tVations, Indian cnmtry, Indian territory, or land held in trust for
Indians, arrl also (2} which affects or preerrpts the civil, criminal, or
regulatory jur:Lsaiction or laws of the State of Maine, shall apply within
the State. This limitation woold include such Federal laws, anong others,
as the Indian trader statutes (25 U.s .C. §§ 261-264) arrl the provision
of the Clean Air Act Anen:lrrents of J.977 which t:ennits Indian tribes to
designate air quali cy sta.rrlards (42 U.S.C. § 7474).
Section 6(g) of s. 2829 also states that the Passamcqua:Jdy Tribe, the Penobscot
Nation, aoo the Houlton Ban::l of Maliseet Indians are Federally-recognized
Indian tribes and that they shall be eligible for Federal financial prograrrs
on the sane l:asis as all other Federally-reco;nized Tribes. Since the bill
conterrplates significant aa:jllisition of lands to be held in trust for the
Tribes, we reed this provision to rrean that such trust lands should be treated
as Indian reservations for purpcses of the provision of Federal Indian sePdces.
we do not object to the provision, so intetpreted.
We have also included a proviso to this subsection which woold limit the rrent:ership of the Houlton Ba.nJ of Maliseet Indians, for purposes ¢ the proosion
of Fegeral services or benefits, to t:ersons who are citizens of the United
States. This is similar to the limi,tation in Sgctj gp 3 gf ppbli c r,aw 95;375
wbich recggnized thg Pascua X~ Tribe fgr pprpg;es Qf the pmyj si on gf
Ffideral I odj
an
FePO CAS
With the agreerrent of the parties we have included in our proposed anel"rllreht
a new Section 7, which woold clearly :p:Dni t the Tribes to organize for
their cannon welfare arrl adept constitutions or charters. While we have
been assured by attorneys for the State of Maine that the Pass~a:Jdy
Tribe and the Penot:scot Nation need not adopt dlarters under State law to
avail therrselves of the benefits of the status of rmmicipalities of the State,
we l::eliare it preferable to make clear that this option contirues to exist
und:r Federal law. And, since these Tribes will t:e administering large land
holdi.n;s am valuable assets, the adcption of organic governing docurrents,
whidl wruld be filed with the Secretary, seems advisable.
�-lDOur prcpased Section 8 (f) wculd Jl'lake Section 102 of the Indian Child Welfare
Act of 1978 (25 u.s.c. § 1912) app~cable to the Hoolton Bam of Maliseet
Indian;. Officials of the State of Maine consented to this provision and we
have no objection to it.
Section 8 (b) of s. 2829 pr0t1ides that the eligibility for or receipt of payrrents from the State of Maine by the Passai'CI.Cqlloddy Tribe and the Penobscot
Nation pursuant to the Maine Implerrenti~ Act shall not te considered by
Federal agencies in determining the eligibility of either Tribe for Federal
financial aid prCXJrams. To clarify this prCNi.sion, which appears as Section
9(b) of our propcsed anerx3Irent, we have added a proviso to the effect that
Federal agencies shall not be l:arred ~ this section fran considering the
actual financial situation of the Trlbept.~~.
Section 8 (c) of s. 2829 woold prevent Federal agencies fran considerirg the
availability or distribution of funds pursuant to Section 5 of the bill for
purpcses of denying Federal financial assistance to Indian households or to
the Passamcquoddy Tribe or Penobscot Nation. We read this provision to
refer only to in~ fran the Settlement Fund to te established pursuant to
Section 5 (a) , arrl exp:ct that the two Tribes will otherwise be treated as C1.r¥
other tribe irnofar as their inccme fran other sources are concerned, including
incorre derived fran land or natural resources aa:;IUi. red pursuant to the Act.
As read, the prO\Tision is unobjectionable. It appears as Section 9(c) of
our proposed arrerx3Irent.
The Office of Managerrent ard Budget has a:lvised that there is no objection to
the presentation of this report from the standpoint of the Administration's
program.
Enclcsure
�Arnen:lment to S. 2829 in the
Nature of a Substitute
Strike out all after the enactirg clause and insert in lieu thereof the
following:
That this Act may be cited as the "Maine Indian Claims Settlerrent
Act of 1980".
a:NGRESSIQ\IAL FINDINGS AND DECI:ARATICN OF :OOLICY'
Sec. 2.
(1)
(a) Congress hereby finds and declares that:
The Passan:aquoddy Tribe, the Penobscot Nation, and the Maliseet
Tribe are asserting claims for pcssession of lands within the State of
Maine an:J for damages on the grounds that the lands in question were
originally transferred in violation of law, including the Trade and
Interoourse Act of 1790 (1 Stat. 137), or sut:sequent reenactrrents or
versions thereof.
(2)
The Indians, Indian nations, and tribes and l:arrls of Indians,
other than the Passam:quoddy Tribe, the Penobscot Nation and the Hoolton
Band of Maliseet Indians, that once may have held aboriginal title to
lands within the State of Maine long ago abarnoned their aboriginal holdings.
(3)
The Penobscot Nation, as represented as of the tirre of passasge
of this Act by the Penobscot Nation's Governor and Council, is the sole
successor in interest to the aboriginal entity generally knCMn as the
Penobscot Nation which years ago claimed aboriginal title to certain lands
in the State of Maine.
�-2( 4 ) The Passam.a:;IUoddy Tribe, as represented as of the tine of passage
of this Act
1:¥
the Joint Tribal Camcil of the Passamaquoddy Tribe, is
the sole successor in interest to the aboriginal entity generally knam as
the Passamr;quoddy Tribe which yean; ago clained aboriginal title to
certain lands in the State of Maine.
(5)
The Houlton Barrl of Maliseet Indians, as represented as of
the tine of passage of this Act by the Hculton Band Council, is the sole
successor in interest, as to larrls within the United States, to the
aboriginal entity generally knc:Mn as the Maliseet Tribe which years ago
claim:d aboriginal title to certain larrls in the State of Maine.
(6)
Sul:stantial econanic and social hardship to a lareje number
of laooownets, citizens arrl ccmmmi ties in the State of Maine, and
therefore to the econCXt¥ of the State of Maine as a whole, will result if
the aforementioned claims are not resolved praTq?tly.
( 7)
This Act represents a good faith effort on the part of
Con:Jress to proode the Passamaquoddy Tribe, the Penobscot Nation
am
the
Hwlton Barrl of Maliseet Indians with a fair arrl just settlenent of their
laoo claim.
In the absence of congressional action, these land claim;
wculd be pursued thrcugh the courts, a process which in all likelihood
wruld consurre many yean; arrl thereby prarote hostility and uncertainty in
the State of Maine to the ultimate detrirrent of the Passc3l'l'l.CGUoddy Tribe,
the Penol:Gcot Nation, the Houlton Ban:J of Maliseet Indians, their members,
and all other citizens of the State of Maine.
�-3(8)
The State of Maine, with the agreerrent of the Passamcquoddy
Tribe arrl the Penobscot Nation, has enacted legislation defining the
relationship between the
Passaina:;~Uoddy
Tribe, the Penobscot Nation, and
their merrbez:s, and the State of Maine.
(9)
Since 1820, the State of Maine has prorided special services
to the Indians residing within its borders, including the
nemeers of the
Passam.::quoddy '.rribe, the Penol:scot Nation, arrl the Houlton Barrl of l-1aliseet
Indians.
During this sane :r;eriod, the United States provided few special
services to the respective Tribe, Nation or Barrl, and repeatedly denied that it
had jurisdiction over or resp:msibility for the said Tribe, Nation, and
.
Bar:rl. In view of this prOQ'ision of s:r;ecial services by the State of Maine,
requiring sul::stantial expenditures l:1j the State of Maine and made 'by the
~uire1
State of Maine with::>ut l:eirg
to do so by Federal law, it is the
intent of Congress that the State of Maine not l:e required further to
contribute directly to this claim settlerrent.
(b)
It is the_puqx:se of this Act( 1)
to renove the clcud on the titles to· larrl in the State of Maine
resulting from Indian claims;
(2)
to clarify
the
status of other land arrl natural resources in the
State of Maine;
(3)
to ratify the Maine Implenenting Act, which defines the relationship
between the State of Maine and the Passaina:illcddy Tribe and the Penobscot Nation,
except to the extent that it is inconsistent with the prC\Tisions of this Act;
�-4( 4) to confinn that all other Indians, Indian nations and tribes
am
bands of Indians new or hereafter existing or recognized in the State of
Maine are arrl shall be subject to all laws of the State of Maine, as
provided herein.
IEFlNITICNS
Sec. 3.
(1)
For puz:pa:;es of this Act, the term"Houlton Barrl of Maliseet Indians" neans the sole successor
to the Maliseet Tribe of Indians as constituted in al:x>riginal tirres in
what is nON the State of Maine, and all its predecessors arrl successors
in interest.
The Houlton Band of Maliseet Indians is represented, as of the
date of the enact:nent of this Act, as to lands within the United States, by the
Hrulton Band Cotmcil of the Hoolton Barrl of Maliseet Indians;
(2)
"Indian terri toty" neans (A) the Passamaquoddy Indian Reservation;
(B) the Penobscot Indian Reservation;
(C) until Januaxy 1, 1983, the lands in
~{:cq\
--1-D ~(v{_;
the State of Maine of Great Northern Nekocsa Co1:p0ration located in T.l, R.S,
W.B.K.P. (Lowelltown), T.G, R.l, N.B.K.P. (Holeb), T.2,
R.lO~
W.E.L.S. and T.2,
R.9, W.E.L.S.; the land of Raymi.dga Canpany located in T.l, R.S, W.B.K.P. (Jim
Pond), T.4, R.S, B.K.P.W.K.R. (King and Bartlett), T.S, R.6, B.K.P.W.K.R. and
T.3, R.S, B.K.P.W.K.R.; the land of the heirs of David·Pingree located in T.G,
R.S, W.E.L.S.; aey portion of Sugar Island in Moasehead Lake; the lands of Prentiss
arrl Carlisle Canpany located in T.9, S.D.; any portion of T.24, M.D.B.P.P.; the
lands of Bertram C. Tackeff or Northeastern Blueben:y Company, Inc. in T .19,
M.D.B.P.P.; any portion of T.2, R.S, N.W.P.; any portion of T.2, R.S, W.B.K.P. (Alder
.
�-sStreamh the lands of Dead River Canpany in T.3, R.9, N.W.P., T.2, R.9, N.W.P.,
T.S, R.l, N.B.P.P. and T.S, N.D.B.P.P.; any portion of T.3, R.l, N.B.P.P.;
~
portion of T.3, N.D.; acy p::>rtion of T.4, N.D.; arry portion of T.39, M.D.; any
p:>rtion of T.40, M.D.; any r:ortion of T.41, M.D.; af¥ p::>rtion of T.42, M.D.B.P.P.;
and the lands of Diarcond International Corp:>ration, International Pa:per Canpany
arrl Lincoln Pulp arrl Paper Canpany located in Argyle:
Provided, That "Indian
terri tory" within the m=anin:J of this subparagraph may not exceed 300,000 acres
of larrl; arrl (D)
a:rrx
other larrls designated as Passamaquoddy Indian Terri tocy
or Penobscot Indian Terri tocy pursuant to the laws of the State;
(3 )
"lan::l .or natural resources" rrears any real prc:;perty or natural
resources, or a.rry interest in or right involving any real property or natural
resources, includirg but wi th::>ut limi. tation minerals ai-rl mineral rights, tirrber
and timber rights, water and water rights, and hunting and fishing rights;
( 4)
"Lan:l Acx;IUi si tion Fund" rream the Maine Indian Claims Land
Aoquisi tion Fum established under Section 5 (c) of this Act;
(5)
"laws of the State" rreans the Constitution, and all statutes,
regulations arrl camron laws of the State of Haine and its political subdivisions,
arrl all subseq':Ent arrerdnents thereto or judicial inte1:pretations thereof;
(6)
"Maine Implenenting Act" means Section 1 and Section 30 of the
"Act to Implenent the Maine Indian Claims Settler:ent" enacted by the State of
Maine in Chapter 732 of the Public Laws of 1979;
( 7)
"Passamaquoddy Indian Reservation .. rrearn those lands as defined in
the Maine Inplercenting Act;
(8)
"Passarraquoddy Indian Terri tocy" rreans those lands as defined in
the Maine Inplerrenti ng Act;
�-6(9)
"Passarraquoddy Tribe" neans the Passamaquoddy Indian Tribe, as
constituted in al::original tirres arrl all its predecessors and successors in
interest.
The Passarr.::quoddy Tribe is represented, as of the date of the enactnent
of this Act, by the Joint Tribal Council of the PassaJnCGUa:ldy Tribe, with separate
Councils at the Indian Township and Pleasant Point Reservations;
(10)
"Penobscot Indian Reservation" neans those lands as defined in the
Maine Implenenting Act;
(11)
"Penobscot Indian Terri tocy" neans those lands as defined in the Maine
Irrplerrenting Act;
( 12)
"Penol::scot Nation" rreans the Penot:scot Indian Nation as constituted
in aboriginal tirres, and all its predecessors and successors in interest.
The
Penobscot Nation is represented, as of the date of the enactrrent of this Act,
cy
the Penobscot Nation Governor and Council;
(13)
"Secretar:y" rreans the Secretary of the Interior;
(14)
"Settlement Fund" rreans the Maine Indian Clairrs Settlement Fund
established under Section 5 (a) of this Act; aoo
(15)
"transfer" includes b.lt is not limited to arr:1
~luntary
or involuntacy
sale, grant, lease, allotrrent, partition, or other conveyance; any transaction
the puqx:>se of which was to effect a sale, grant, lease, allotrrent, partition, or
conveyance; arrl any act, event, or ci.rc:urrstance that resulted in a change in
title to, }?CSsession of, dani.nion over, or control of land or natural resources.
�-7APPIDVAL OF PRIOR TRANSFERS AND EXTINGUISBMENr OF INDIAN TITLE AND CLAIMS OF THE
PASSAMAQUODDY TRIBE, 'lEE PENOBS<Dr NATICN, 'mE HCXJL'ltN BAND OF
MALIS~
INDIANS,
AND M:ri om:ER INDIANS, INDIAN NATICN, OR TRIBE OR BAND OF INDIANS
WITHIN THE STATE OF MAINE
Sec. 4. (a) (1) Any transfer of laOO or natural resources located anywhere
within the United States fran,
cy,
or on l:ehalf of the Passamaquoddy Tribe, the
Penobscot Nation, the Houlton Ban:l of Maliseet Indians, or a:trf of their nenbers,
am arrt
transfer of larrl or natural resources located anywhere within the State
of Maine, fran, by, or on behalf of arrt Indian, Indian nation, or tribe or band
of Irrlia.rc, including but without limitation air:f transfer pursuant to arr;t treaty,
canpact or statute of aey State, shall be deeired to have been made in accordance
with the Constitution and all laws of the United States, including but without
limi.tation the Trade and Intercourse Act of 1790, Act of July 22, 1790 (ch. 33,
§ 4, 1
Stat. 137, 138 ) , am all anendm:nts thereto arrl all subsequent reenactnents
an:J versions thereof, and Congress hereby does approve and ratify any such
transfer effective as of the date of said transfer:
Provided, hc:Mever, that
nothing in this section shall be construed to affect or eliminate the claim of
a.rrt ii'rlividual Indian (except for aT¥ Federal o::rrtm:>n law fraud claim) which is
pursued under a:trf law generally designed to protect non-Indians as well as
Irrlians.
(2)
The United States is barred fran asserting on
beh~f
of arrt
ri. <7'?)~(;1)
~+(3)d
S' ,- ';J B
Indian, Indian nation or tribe or band of Indians a.rq claim under the laws of
the State arising t:efore the date of this Act and arising fran arrt transfer of
land or natural resources located anywhere within the State of Maine, including
f.
�-abut without limi. tation arr:f transfer pursuant to
air;f
treaty, cc:::rrpact or statute
of art:/ state, on the grounds that such transfer was not made in acoordance
with the laws of the State.
(b)
To the extent that acy transfer of land or natural resources described
in subsection (a) (1) of this section may
in~lve
land or natural resources to
whidl the Passam:quoddy _ ribe, the Penobscot Nation, the Houlton Band of Maliseet
T
Indians, or any of their rrembers, or any other Indian, Indian nation, or tribe
or l::and of Indians ha:l aboriginal title, sudl subsection (a) (1} shall be regarded
as an extinguishl'rent of said aboriginal title as of
(c)
~;e
date of such transfer.
By virtue of the approval and ratification of a transfer of land or
natural resources effected by this section, or the extinguishlrent of aboriginal
title effected thereby, all clains against the United States, any State .or
subdivision thereof, or any other :p:rson or entity, by the Passamcquoddy Tribe,
the Penobscot Nation, the Houlton Band of Maliseet Indians or any of their
nerrbers or by any other Indian, Indian nation, tribe or band of Indians, or airf
predecessors or successors in interest thereof, arising at the tine of or
sUbs9:1Uent to the transfer and based on a.rry interest in or right involving sudl
land or nawral resources, including but without lirni tation claims for trespass
damages or claims for use and ocrupancy, shall be
eeemed extinguished as of the
date of the trans fer.
ESTABLISHMENT OF FON1l3
Sec. 5. (a)
'lbere is hereby established in the United States Treasury a
fund to l:e knCMn as the Maine Indian Clairns Settlerrent Fund in which $27,000,000
shall be deposited folloong the appropriation of surrs authorized by Section 14
of this Act.
�-9-
(b) ( 1)
One-half of the principal of the Settlerrent Fund.-.shall be
held in trust l:1j the Secretaty for the benefit of the Passam;:qucqdy Tribe 1 and
the other half of the Settlenent Fund shall be held in trust for the benefit of
!t!'~;Q
Each portion of the Settlerrent Fund shall be administered ~~
~
l:1j the Secretacy in accordance with tenns established ~ the Passamaquoddy
the Penobscot Nation.
Tribe or the Penobscot Nation, respectively 1 and agreed to by the Secretacy:
Provided, That the Secretary may not agree to terms which prooide for investnent
of the SetUerrent Fum in a manner not in accordance with Section 1 of the Act
of June 24, 1938 (52 Stat. 1037) 1 unless the respective Tribe or Nation first
sul:mits a specific waiver of liability on the part of the United States for a.rrt
less which may result fran such an investrrent:
Provided, further 1 That until
such terms have been agreed upon, the Secretary shall fix the tetms for the
administration of the I;X)rtion of the Settlem=nt Fund as to which there is no
agreerrent.
(2)
Under no circumstances shall aey part of the principal of the
Settlenent Fund be distributed to either the
Passar£la:1Ucd~J
Nation, or to aey nember of either Tribe or Nation:
Tribe or the Penol:scot
Provided, however 1 That
nothing herein shall prevent the Secretacy froiLl investing the principal of said
Fund in accordance with :paragraph (1) of this sul:section.
(3)
The Secretaz:y shall make available to the Passamcqucrldy Tribe an.:! the~
Penol:scot Nation in quarterly payments, without ar'¥ deductions except as
expressly~·
prollided in Section 6(d)(2) and without liability to or on the part of the
United~
Settlem:mttf.~/
FuOO allocated to the respective Tribe or Nation, the use of which shall be free~~
of re:Julation by the Secretaz:y. The Passana::{\.lOddy Tribe and the Penobscot Nation -Ju
States, any in=ne received fran the investnent of that portion of the
£t.
annually shall each expend the incare fran $1,000,000 of their portion of the 'it,
2'2ii;:j
~~.
�-loSettlerrent Fund for the benefit of their
of sixty.
Once paynents under this
res~ctive
pa~raph
m:ITbers who are over the age
have teen made to the Tribe or
Nation, the United States shall have no further trust responsibility
to
the
Tribe or Nation or their members with resP=ct to the sums paid, any sutsequent
distribution of these sums, or arrt prq:erty or setvices purchased therewith.
(cl
There is hereby established in the United States Treasury a fund to
be~
c1a;vv~~- s;/.~t-. A/
knam as the Maine Indian Clains Land Aa;{Uisition Fund in which $54,500,000~ ~ ~·
shall be deposita3 follOOrg the apprqJriation of surrs authorized by
Secti~ ~ e,Do]
14 of this Act.
(d)
The principal of the Land Acquisii;ion Fund shall J:e apportioned as
follows:
(1)
$900,000 to be held in trust for the Houlton Ban:l of Maliseet
(2)
$26,800,000 to be held in trust for the Passamaquoddy Tribe; and
(3)
$26,800,000 to be held in trust for the Penobscot Nation.
Indians;
fThe Secretary is authorized arx1 directed to
expeoo,
/ affected Tribe, Nation or Band, the principal and
I
respective p:lrtiom of the Lan:l
A~sition Fund
at the request of the
~ incate
accruing to the
for the purpose of
\tS) ·-
1
-~~~ ,\.~·£'
the Houlton Barrl of Maliseet Indians and for no other purpose.
7 t
I.cind or
f
natural resources acquired within Indian terri tocy for the Passam:quoddy Tribe
\ .t;y. )
}
J1
,Y' U
\_J 0
) ~
\
arrl the Penol:scot Nation shall l:e held in trust by the United States for the
~'
\J
~
benefit of the
res~cti ve
Tribe or Nation.
Land or natural resoorces aCXiUired
ootside the l::o.mdaries of Indian territory shall be held in fee simple by the
~-
res:p=cti ve Tribe or Nation, and the United States shall have no further trust
resp:lmibili ty with respect thereto.
.
acq;iring~b..,
i 1.an:J or natural resources for the Passam:quc:rldy Tribe, the Penobscot Nation,
(] '--am
.
The Secretacy is also a1thorized to
tak-;; i?YY/L
�-J.J.-
in trust for the Passamoquoddy Tribe or the Penobscot Nation arq land or
~tm.,.l~
al resources acquired within Indian territory by purchase, gift, or ~xdlange
by such Tribe or Nation.
.4Mr~1..,..
~
LanJ or natural resources acquired within the State
~
of Maine for the Houlton Ban:1 of Maliseet Indians shall be held in trust by
the United States for the benefit of the Band:
J
Provided, That no land or .
-~~IV j;J/
natural resources shall be oo aOllJired with:lut the concurrence of -authorized
officials of the State of Maine.
~e
~~rp>'
~y~
Houlton Barrl of Maliseet Indians is
authorized to enter into contracts for payment for the provision of services
from the State, county, or muni.cipali ty
exercisi~
jurisdiction over the
larrls ro acquired, anrually not to exceed an arrount equal to the real prcperty
taxes which woold have been levied in the given year against the a-mer of the
larXI or natural resources, were they not cwn.ed by the United StabesJ Notwithstarrling'
the provisions of Section 1 of the Act of August 1, 1888 (25 Stat. 357}, as
~Jj
arrerrled, arXI Section 1 of the Act of Februacy 26, 1931 (46 Stat. 1421), the
Secretacy may
a~uire
{)~ ~~1--
larrl or natural resoorces under this section from the
cstensible a-mer of the larrl or natural resources only if the Secretacy and
Ut~,.,.~
the~~
cstensible cwner of the 1aOO or natural resources have agreed upon the identity 7 ~a."!.
~~~~(
of the Jarrl or natural resources to l:e rold arrl UJ:X>n the purchase price and ~.....~ ~
1
other tenrs of sale.
Subject to the agreenent required by the preceding
sent~ ~
the Secretary may institute con:Jermation proceedings in order to perfect title ~l...tf/1...
satisfactory to the Attorney General in the United States and condenn interests
adverse to the cstensible CMner.
Except for the provisions of this Act, the
United States shall have no other authority to
a~re
lands or natural resources
in trust for the benefit of Indians or Indian tribes in the State of Mai~
{V et,J
( e}
The Secretacy may not expeoo on 1::ehalf of the Passamcqucx:ldy
Tribe, the Penol:scot Nation, or the Houlton Barrl of Maliseet Indians
arrt sums
depcsited in the funds established pursuant to sul:sections (a} and (c) of this
section unless arrl until he fin:Js that autoorized officials
Tribe, Nation, or Band have e:xecuted appropriate doOJrrents
of the respective
reli~uishing
all
�-12claiiT5 to the extent provided by Sections 4, 11, and 12 of this Act and
cy
Section 6213 of the Maine Implerrenting Act, including stipUlations to the
final judicial dismissal of their claims.
~::,
(f) (1)
''} shall not be applicable to (A) the Passamcqucddy Tribe,
t:·
~
.
,.,~~
,
~
~·
or the goulton Barrl of Maliseet Indiare or any other Indian, Indian nation or
~- ~ibe
'f~
~{<"')
the Penobscot Nati~ ~·
o-·
The prOITisions of Section 2116 of the Revised Statutes, \o
or band of Indians in the State of Maine, or (B) any land or natural
resources owned by or held in trust
f~r
the Passamaquoddy Tribe, the Penobscot
Nation or the Houlton Band of Maliseet Indians or any other Indian, Indian
'{ nation or tribe or l::e.nd of Indians in the State of Maine.
'·~ ' ~ in subsection
~,,'-.:,
Except as prOITided
(f) (2 ) , such land or natural resoorces shall not othe:tWise be
"···.\~ .:~, subject to aey restraint on alienation by virtue of being held in trust by the
United States or the Secretary.
(2)
~
Except as prO\Tided in paragraph (3) of this subsection, 9-rr:l transfer
of land or natural resources within Passamcquoddy Indian Territory or P~obscot
~ Indian Territory, or transfer of land
1 ~~·~the Hoolton Band of Maliseet Indians,
or nab.lral resources held in trust for
except (A) takings for public uses consis-
tent with the Maine Implenenting Act, (B) takings for public uses pursuant to
the laws of the United States, or (C) transfers of individual Indian use
assigrunents fran one member of the Passamaquoddy Tribe, Penobscot Nation, or
Hoolton Band of Maliseet Indians to another rreml:er of the sarre Tribe, Nation,
or Barrl, shall l:e void ab initio arrl without arrt validity in law or equity.
11 J
__.J ~
1'2t-~~
-
')L. (n!--t-~n~
~ ~(e>J(Q)
JS fd-BJ- ·
t
(3 ) Land or natural resources within the Passc3Il'lC:qUoody Indian Terri tory
or the Penobscot Indian Terri tory or held in trust for the l:enefit of
�-13-
the Hool ton Baoo of Maliseet Indians may, at the request of the respective
Tribe, Nation, or
(A)
Bam,
be--
leased in accordance with the Act of August 9, 1955 ( 69
Stat. 539), as arrended;
(B)
34 7 ) , as
leased in accordance with the Act of May 11, 1938 (52 Stat.
arrended~
(C)
sold in accordance with Section 7 of the Act of June 25, 1910
(36 Stat. 857), as am:nded;
(D)
subjected to rights-of-way in accordance with the Act of
February 5, 1948 (62 Stat. 17);
{E)
exchanged for other land or natural resources of e:;rual value,
or if they are not equal, the values shall l::e e:jtlalized by the payrrent of
lt;) noney
to the grantor or to the Secretacy for deposit in the Land Acqui~ition
~~Fund for the benefit of the affected Tribe, Nation,
1 'ltl
\.o
~r-t~
~\
or Band, as the cirCUII5tances
re:qui re, so long as paynent does not exceed 25 per centum of the total value of
t0
the interests in land to be transferred by the Tribe, Nation, or Band; and _~__,.......,..,.
~
{g) Land or natural resources acquired by the Secretacy in trust for
the Passa.rncquoddy Tril::e and the Penobscot Nation shall be rranaged and administered
·vv'
1
/);
l~\
rr
in accordance with te:rms established by the respective Tribe or Nation and
agreed to by the Secretary§ ac=dance with Section 102 of the Indian Self-
~. ~f.;Detez:mination
~S"n ~ ..~,d
JJl'\l'\
.J
and Education Assistance Act (88 Stat.
22~
�-14-
\j)..,)
(
(h) (1)
Trust or restricted larrl or natural resources within the Passamaquoddy
or Penobscot Indian Reservations may be condenned for public put:pOSes pur.;uant
to the laws of the State of Maine relatil'l3 to such lands.
In the event that
the carpensation for the taking is in the form of substitute land to be added
to the
reser~ation,
such land shall becane a part of the resetvation in
accordance with the laws of the State of Maine and upon notification to the
Secretary of the Interior of the location arrl l:oundaries of the substitute
land.
Such substitute land shall have the sarre trust or restricted status as
the land taken.
To the extent that the canpensation is in the fonn of rronetat:y
proceeds, it shall be deposited and reinvested as provided in paragraph (2) of
5
\ . _ this
'\.)'
::ct:~t
land of the Passaxraquoddy Tribe, the Penobscot Nation or
-~~"~ ~the Hrulton Band of Maliseet Indians not within the Passam:quoddy or
\'i~·v. /·~ Penobscot Reservations may
~~~y
be condemned for public purposes pursuant to the
laws of the State of Maine relating to the condemnation of such land.
The
proceeds fran arq such corrlernnation shall l:e deposited in the Land Acquisition Fund established by Section S(c) and shall l:e reinvested in acreage
within uno-rganized or unincotparated areas of the State of Maine or in
Indian territory.
When the proceeds are reinvested in land whose acreage
\
does not exceed that of the land taken, the larrl shall be aa:jUi.red in trust. (
vfuen the proceeds are invested in land whose acreage exceeds the acreage of
the land taken, the
res~ctive
Tribe, Nation or Barrl shall designate, with
the approval of the United States, and within 30 days of such reinvestrrent,
that portion of the land aQ:iui.red by the reinvestrrent, not to exceed the area
~ (,,;uJ'i"
~ (b)- J}
(V)~ tj of/
�-15taken, which shall
~
~
ac::quired in trust.
The land not aCXIUired in trust shall
held in fee by the respective Tribe, Nation, or Barrl.
The Secretary shall
certify, in writing, to the Secretary of State of the State of Maine the
location, bc:undari es arrl status of the land aCXjlli red.
y~
\~,/IJ~
~
actijn t3!;r
~
A'?~ ~l
umer this subsection and exclusive jurisdiction shall be in the United
States District Court for
~- f.~ this
~~,
l\
The United States shall be a party to any conderrnation
(3)
th~
District of Maine:
gL~-~
-p() I
t
Provided, That nothing in ·..-..--,
section shall affect the jurisdiction of the Maine Superior Court
provided for in Section 6205 (3) (A) of the Maine Inplementing Act to review the
fin:ling of the Public Utility Canmission or a public entity of the State of
Maine.
(i)
When trust or restricted land or natural resources of the Passarraquoddy
Tribe, the Penobscot Nation or the Houlton Band of Maliseet Indians are
corrlermed pursuant to arry law of the United States other than this Act, the
proceeds paid in compensation for such condemnation shall
~
depasi ted and
reinvested in accordance with subsection (h) (2) of this section.
-;/a~ ~.t ~tt·~;~l=:_-~.~ ·
APPLICATICl~
""
OF STATE I.AWS
sec. 6. (a) Except as othetwi.se provided in subsections (d)
am
of this section, all Indians, Indian nations, tribes, and bands of
.
{e)
t.·:r:
~~~--(
~~. .
Indians~ ~h
+.
0
~-
in the State of Maine, other than the Passamaquoddy Tribe and the Penobscot
Nation and their rreml:ers, and any lands or natural resources C'Mled by
airf
such Indian, Indian nation, tribe, or band of Indians and aey lands or
natural resources held in trust by the United States, or by any other person
or entity, for any such Indian, Indian nation, tribe, or band of Indians
shall l:e subject to the civil and criminal jurisdiction of the State, the laws
�-16of the State, and to the civil and crirrd.nal jurisdiction of the coorts of the~·
State, to the sarre extent as
arrt other person or
·
&Cf!dh4~
land therein:
Provided, That
·
nothing in this section shall be construed as subjecting land or natural resources
held by the United States in trust to taxation, encurrbrance, or alienation.
( b}
(To l:e supplied. ]
~:lore --b~qrJc> The United States shall not have aey criminal jurisdiction in the State
Uof Maine under the Act of June 25, 1948 (62 Stat. 757}, as anended, or the Act
of July 12, 1960 (74 Stat. 469}, as anerrled.
(d) (1)
The Passamaquoody Tribe, the Penobscot Nation, and the Houlton
Ban:l of Maliseet Indians, arrl all rrembers thereof, arrl all other Indians, Indian
nations or tribes or bands of Indians in the State of Maine may sue and l:e sued
in the courts of the State of Maine and the United States to the sarre extent as
any other entity or person residing in the State of Ma4ne may sue and be sued in
those courts; arrl Section 1362 of Title 28, United States Cede, shall be applicable
to
civil actions brooght by the Passarncquoody Tribe, the Penobscot Nation, and
the Houlton Ba.n1 of Maliseet Indians:
Provided, hcwever, That the Passamaquoddy
c/6CJCJ6r
~ ytl e
A·
Tribe, the Penobscot Nation and their officers and errployees shall l:e immune
fran suit when the respective Tribe or Nation is acting in its .governrrental
capacity to the sarre extent as a-a:J municipality or like officers or errployees
thereof within the State of Maine.
(2) Notwi thstarrlirg the provisions of Section 3477 of the Revised Statutes,
as arrended, the Secretary shall honor valid orders of a Federal, State, or
~
terri to rial aJUrt which enters IIOney judgrrents for causes of action which arise
after the date of the enactl'rent of this Act against either the Passamcquc:rldy
Tribe or the Penobscot Nation by
rraki~
an assigrurent to the judgirent creditor
of the right to receive incorre out of the next quarterly payment from the
settlerrent Fund established pursuant to Section 5 (a) of this Act arrl out of
~J--
,&v;~v~ cJ/
~
~ · ~t) {/.,
(}-'L·L~!l~ t)N(
�-17such future quarterly payrrents as nay be necessary until the judgrrent is satisfied.
(e) (1) The consent of the United States is hereby given to the State of Main;-;
to anend the Maine Implementing Act with respect to either the Passanaquoddy
Tribe or the Penobscot Nation:
~~
Provided, That sudl anendrrent is made with the
agreenent of the affected Tribe or Nation, an:J that such aneoorrent relates to
~. ·.....fli•~
~~ ··
(_ c; ~ .Jlj
k
(A) the enforcem:!nt or application of civil, criminal or regulatocy laws of the
-f.~SIIcl
Passamaquoddy Tribe, the Penobscot Nation an:1 the State within their respective
jurisdictions; (B) allocation or determination of governrrental responsibility of
the State an:J the Tribe or Nation CNer specified subject matters or specified
geographical areas, or both, including provision for concurrent jurisdiction
l:etween the State an::l the Tribe or Nation; or (C) the allocation of jurisdiction
between tribal courts and State coorts.
(2) Notwithstandin:; the provisions of sul:section (a) of this section, the
State of Maine and the Houlton Band of Maliseet Indians are authorized to
execute agreerrents regardin:; the jurisdiction of the State of Maine over lands
cwned by or held in trust for the benefit of the Band or its rrembers.
~rc~ ·~~~~
't-Ot rt
~(e)
(f) The Passamaquoddy
Tribe and the Penobscot Nation are hereby authorized to
cfl--<~·e*7xbrcise jurisdiction, separate arrl distinct from the civil and criminal
jurisdiction of the State of Maine, to the extent authorized by the Maine
Inplerrenting Act, and any sul::sequent arrerrlrrents thereto.
(g) The Passamaquoddy Tribe, the Penobscot Nation, and the State of Maine
shall give full faith and credit to the judicial proceedings of eadl other.
(h) The laws arrl regulations of the United States which are generally
4· G{~ ) c:/0
.s . ';) s ~;.
applicable to Indians, Indian tril:es, and Indian lands shall be applicable to
Irrliars, Indian tribes, arrl Indian lams in the State of Maine, except that no
�,,_
rf
'0:r
,t-
~ r<'~:'~
l
-18-
law or regulation
J!
())Y' ··/r
the United States0 which accords or relates to a special
status or rightebr to any Indian, Indian nation, tribe or band of Indians,
Indian Jarrls, Indian reservations, Indian country, Indian territory or land
held in trust for Indians, arrl
a9
(2) which affects or preenyts the civil,
criminal or regulatocy jurisdiction of the State of Maine, shall apply within
the State:
Provided, hONever, That the
Pass~oddy
Tribe, the Penobscot
Nation, and the Houlton Barrl of Maliseet Indians shall be eligible to receive
all of the financial benefits which the United States provides to Indians,
Indian nations or tribes or l:arrls of Indians to the sane extent and subject to
the sarre eligibility criteria generally applicable to other Indians, Indian
nations or tribes or bands of Indians, arrl for the purposes of detennining
l'1 eligibi li cy for such financial benefits the respective Tribe, Nation, or
·
:
~
~~ " ~~~C:.~ to be Federally recognized Indian tribes: Provided, further,
Band
\
\._~~~ ~at the Passamcquoddy Tribe, the Penobscot Nation,
and the Hoolton Band of
Maliseet Indians shall l:e considered Federally recognized tribes for the purposes
of Federal
taxati~ and
any lands cwned by or held in trust for the respective
Tribe, Nation, or Barrl shall 'be considered Federal Indian reservations for
purposes of Federal taxation:
\. r"\.;
1:~
\~ ~
Provided, however, That no person who is not a
T
citizen of the United States may be considered a member of the Houlton Bard of
~aliseet
Indians for pu!:pCGes of the provision of Federal set:Vices or benefits.
TRIBAL ORGANIZATICN
Sec. 7.
The Passama:;ruoddy Tribe, the Penobscot Nation, and the Houlton
Barrl of Maliseet Indians may each organize for their comrron welfare, and adopt
an appropriate instrurrent in writing to govern the affairs of the TriPe,
�-19Nation, or Band when each is actin; in its governrcental capacity.
Such instrunent
and any arrendrrents thereto I11lst be consistent with the term; of this Act and
the Maine Implementing Act.
The Passamaquoddy Tribe, the Penobscot Nation,
and the Hrul ton Band of Maliseet Indians shall each file with the Secretary a
copy of their organic g::>verning docunent an:l
arrt amerx:lrrents thereto.
IMPLEMENTATICN OF THE INDIAN CHILD WELFARE AC!r
Sec. 8. (a)
The Pas.sarnaquoddy Tribe or the Penobscot Nation may assurre
exclusive jurisdiction over Indian child rustody proceedings pursuant to the
Indian Child Welfare Act of 1978 (92 Stat. 3069).
Before the respective Tribe
or Nation nay assurre such jurisdiction over Indian child custody proceedings,
the res:r:ective Tribe. or Nation shall present to the Secretary for approval a
petition to asslllte such jurisdiction and the Secretary shall approve that
petition in the manner prescribed by Sections 108 (a)-(c) of said Act.
(b) Arrj
petition to assume jurisdiction over Indian child custody
proceedinjs by the Passamaquoddy Tribe or the Penobscot Nation shall be considered
arrl determined by the Secretary in accordance with Sections 108 (b) and (c) of
the Act.
(c)
Assumption of jurisdiction under this section shall not affect
any action or proceeding over whidl a court has already assumed jurisdiction.
(d)
For the purposes of this section, the Passarraquoddy Indian
Reservation and the Penobscot Indian Reservation shall be deerred to be
"resel:Vations" within Section 4 (10) of the Act a.OO the Passamaquoddy Tribe and
the Penobscot Nation shall be
of the Act.
~erred
to be "Indi. an tribes" within Section 4 ( 8 )
�-2Q(e)
Until the Passanaquoddy Tribe or the Penobscot Nation has assuned
exclusive jurisdiction over the Indian dlild rustody proceedings pu:=,uant to
this section, the State of Maine shall have exclusive jurisdiction CNer the
Indian child custody proceedings of that Tribe or Nation.
(f)
Except as may otherwise
re
subsequently agreed to by the Houlton
Barrl of Maliseet Indians and the State of Maine pursuant to Section 6(e)(2) of
this Act, Section 102 of the Indian Child Welfare Act of 1978 shall apply to
the Hool ton Barrl of Maliseet Indians to the sarre extent that that section
applies to Indian tribes as defined in Section 4 of the Act.
EFFEcr OF PAYMENTS 'ID
PASSA.~QUODDY
TRIBE, PENOBSCDr NATICN, AND HOUL'IO'l BAND
OF MALISEET INDIANS
Sec. 9. (a)
No payrrents to be rrade for the t::enefi t of the PassaJna:iUcddy
Tribe, the Penobscot Nation, and the Houlton BanJ of Maliseet Indians pursuant
to the tenrs of this Act shall l:e considered by any agency or depa.rt.m:nt of the
United States in determinirg or canputing the State of Maine's eligibility for
participation in any financial aid program of the United States.
(b)
The eligibility for or receipt of payrrents fran the State of Maine
,. ., by the Passamcqucddy Trite and the Penobscot Nation or any of their nembers
tlf~l[ ( \ .
)J'iJ:~v
~ ~ursuant to the Maine Implerrenting Act shall not l:e considered by any departrrent
1,;'\!
~~yJ. \ Jv!JI~r agency of the United States in determining the eligi bill ty of or ccxrputing
~j-Y~ ~
?
payrrents to the PassaJPaquoddy Tribe or the Penobscot Nation or any of their
rrerrbers under any financial aid program of the United States:
Provided, That
to the extent that eligibility for the benefits of such a financial aid program
is dependent upon a shcwi ng of need by the applicant, the administering agency
shall not t:e rerred by this section fran considering the actual financial
situation of the applicant.
�-21(c)
The availability of funds or distribution of funds pursuant to
Section 5 of ·this Act may not l:e considered as incorre or resources or othetwise
utilized as the basis (1) for denyirg arry Indian household or member thereof
participation in any Federally assisted hOJ.Sing program, (2) for denying or
reducing the Federal financial assistance or other Federal l:enefi ts to which
sudl hoosehold or rrerrber woold othenvise l:e entitled, or (3)
for c?enying or
reducing the Federal financial assistance or other Federal l:enefi ts to which
the Passarncquoddy Tril:e or Penobscot Nation wculd otherwise be entitled.
DEFERRAL OF CAPITAL GAmS
Sec. 10.
For the purpooe of subtitle A of the Internal Revenue Code of
1954, any transfer by private owners of larrl purchased by the Secretacy with
rroneys from the Land Ao:;ruisi tion Fund shall be deemed to l:e an involunta:r:y
conversion within the meaning of Section 1033 of the Intemal Revenue Code of
1954, as arrended.
TRANSFER OF TRIBAL TRUST FUNDS HELD BY 'ffiE STATE OF MAINE
Sec. 11.
All funds of either the Passamc:qucddy Tribe or the Penobscot
Nation held in trust by the State of Haine as of the effective date of this Act
shall l:e transferred to the Secreta:r:y to be held in trust for the respective
Tribe or Nation an:l shall te added to the princip3.l of the Settlement · Fund
allocated to that Tribe or Nation.
The receipt of said State funds by the
�-22Secretary shall constitute a full di.scnarge of arr:t claim of the respaCti ve
Tribe or Nation, its predecessors arrl successors in interest, arrl its rreml::ers,
may have against the State of Maine, its officers, ent>loyees, agents, and
representatives, arisirg fran the administration or managerrent of said State
funds.
Upon receipt of said State funds, the Secretary, on behalf of the
respective Tribe arrl Nation, shall execute general releases of all claims
against the State of Maine, its officers, enployees, agents, and representatives,
arisirg fran the administration or managenent of said State funds.
OI'HER
Sec. 12.
ClAIMS DISrnAR:;ED BY THIS ACJr
Except as expressly prooided herein, this Act shall constitute a
general discharge and release of all obligations of the State of
~iaine
an:J all
of its political subdivisions, agencies, depart.ments, arrl all of the officers
or enployees thereof arising from arrt treaty or agreerrent with, or on behalf of
any Iooian nation or tribe or band of Indians or the United States as trustee
therefor, including those actions presently pending in the United States District
Court for the District of Maine captioned United States of Arrerica v. State of
Maine (Ci vi1 Action Nos. 1966-,'ID and 1969-ND).
LIMITATICN OF ACTIONS
Sec. 13.
Except as provided in this Act, no provision of this Act shall be
construed to constitute a jurisdictional act, to confer jurisdiction to sue,
or to grant implied consent to any Indian, Indian nation or trite or bam of
Indiars to sue the United States or any of its officers with resp:ct to the
claims extinguished by the op:ration of this Act.
�-23AtY.!HORIZATICN
sec. 14.
There is hereby authorized to l:e apprcpriated $81,500,000 for
transfer to the Funds established by Section 5 of this Act.
INSEPARABILI'IY
Sec. 15.
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 l:e invalidated.
In
the event that any other section or provision of this Act is held invalid, it
is the intent of Corgress that the remaininJ sections of this Act shall continue
in full force and effect.
�
Dublin Core
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Title
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William S. Cohen Papers
Description
An account of the resource
Documents from the William S. Cohen Papers have been provided by the Raymond H. Fogler Library, University of Maine. Additional information about the collection can be accessed on their <a href="https://library.umaine.edu/cohen/" target="_blank">web page</a>.
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UMAINE032
Title
A name given to the resource
Letter from Cecil Andrus (Secretary of the Interior) to Senator John Melcher, with proposed amendment to Bill S. 2829 in the nature of a substitute (amendment not attached to letter) (08/08/1980)
Date
A point or period of time associated with an event in the lifecycle of the resource
8/8/1980
Source
A related resource from which the described resource is derived
William S. Cohen Papers
William S. Cohen Papers (MS 106), Special Collections, Raymond H. Fogler Library, University of Maine, Orono, Maine, 3.3.13.1 Box 9, Folder 12
Language
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English
Type
The nature or genre of the resource
Text
Documents
Format
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PDF
Subject
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Indians of North America--Maine--Land tenure
Indians of North America--Maine--Claims
Indians of North America--Legal Status, Laws, etc.
Indians of North America--Government Relations
Indians of North America--Politics and Government
Rights
Information about rights held in and over the resource
Copyright is retained by the creators of items in this collection, or their descendants, as stipulated by United States copyright law. This item is made available for research and educational purposes courtesy of Special Collections, Raymond H. Fogler Library, University of Maine, Orono, Maine. Prior permission is required for any commercial use.
1723
1725(h)
Application of State Law
Cecil Andrus
Extinguishment of Claims
Internal Tribal Affairs
Jurisdiction
Senator John Melcher
-
https://d1y502jg6fpugt.cloudfront.net/26761/archive/files/61c017c55e3cc7a5e39db07cfb877b04.pdf?Expires=1712793600&Signature=E4j2hHiaqxLN2KTU-1wxkvaGmQ3vJckS4GvfEkEL9xFBWGdzxIXMgv6x3i0NuWLloo67G%7EFFohmYg8gHg9LUvAEpc9CNVs8OXtf%7EYZxE7VonIUMOwNZHQwdq43HACx5%7EgvwaPMz9pnT-MTOU%7EIdKT38wRwSegOeA%7EY0EkGhU793Lz%7EY7as3tX6to-OHmI5pu3aWzwFM4k3oaSNXo2K7h1wf4%7ENHGf2%7E2azjlIHlxhWLXwFXgi7joNwFYzo1Aw4gj9euZLhPnfFmKTUHVbjFH2coJU7cJVxduRZPmApTe%7Eq7P-NG545BFxx7mT6ZDteEqc%7ElrL9pYwIN2TUUaDNL40A__&Key-Pair-Id=K6UGZS9ZTDSZM
17443282dd02a81a9fd00adbf1a26f1a
PDF Text
Text
STATEMENT OF SEN. WILLIAM S. COHEN
AT THE MARK-UP OF S. 2829, THE MAINE
INDIANS CLAIMS SETTLEMENT ACT, BY THE
SENATE SELECT COMMITTEE ON INDIAN
AFFAIRS: AUGUST 26, ]980.
•
Mr. Chairman and my colleagues on the Senate Indian Committee,
the legislation before the Committee today is of the utmost importance to the people and the State of Maine as well as the entire
nation.
In view of its importance, I ·.w ould like to take a moment
to describe the events which have produced this proposed legislation and to describe its salient provisions.
Nearly ten years ago, the Passamaquoddy Tribe asserted
a claim that land which it held by aboriginal title had been
taken from it illegally by the State of Massachusetts of which
Maine was once a part in a treaty signed in 1794.
•
The gravamen:.
of the tribe's case was that the treaty had never been approved
by the federal government and that such approval was required by
the Nonintercourse Statute.
The Nonintercourse statute was first enacted as part of the
Trade and Intercourse Act of 1790 and was re-enacted with some
in the
modifications several times years which immediately followed.
It is, in essence, a restraint on the alienation of Indian land operates
to
prohibit
the transfer of Indian-held land without the approval
of the federal government.
It is currently codified at 25 USC 177
and is widely acknowledged to be the legal cornerstone of federal
Indian policy.
When the Passamaquoddy Tribe initially raised its claim it
asked the United States to press the suit in its
request was n=jected,
~
howeve~,
behalf.
The
because the United States denied both
that the Nonintercourse statute applied to the Passamaquoddy Tribe
�Page -2-
•
and that it had any trust duties toward the tribe.
In so doing,
the federal government was acting on the same assumption as the
representatives of the States of Maine and Massachusetts who
had effected treaties with the Passamaquoddy and Penobscot tribes
in the good faith belief that they were not constrained by the
Nonintercourse Statute.
In January of 1975, the United States District Court for the
District of Maine held that the Nonintercourse
d~d
in fact apply
to the Passamaquoddy Tribe and that the statute created a trust
relationship between the tribe and the federal government.
Later
in that same year, the First Circuit Court of Appeals affirmed
the decision.
•
In upholding the District Court, however, the
Court of Appeals express.ly refused to decide whether the Nonintercourse statute applied to the land transactions which were
embodied in the several treaties which had been made with
Maine Indians.
Among the most troubling aspects of this case, a point which
was noted by the federal District Court in its decision, is the
lack of legislative history of the Nonintercourse statute.
The
problems caused by the absence of legislative history is compounded
by the jurisdictional history of the statute in Maine.
Although
the statute was inspired by a native of Maine and Massachusetts,
Henry Knox, and was enacted ;:and .re-enacted several times by a
and later Maine, too,
Congres:s in which Massachusetts was represented, no attempt was
made to apply i t to the treaties which have only so recently
come into doubt.
~
This experience contrasts sharply with the
definite attempts of the federal government to apply the Noninter-
�Page -3-
It
course statute in states such as New York.
In their allegations before the federal district court, the
Passamaquoddy Tribe and the Penobscot Nation contended that, because the treaties signed by their ancestors lacked federal approval,
they still held aboriginal title to 12.5 million acres, or 60 per
cent, of the State of laine.
In the more than 180 years that had
passed since the first treaty was signed, more than 350,000 persons
had moved onto the now-disputed land and, consequently, the potential
the suit posed for economic dislocation and sheer human misery was
enormous.
Accordingly, negotiations between the State, the Indians,
and other interested parties began.
In pursuing this route, the
negotiators were actively encouraged by the present Administration
•
which endorsed the process as being that most likely to lead to
a fair and equitable resolution.
The first effort at solving the problem was made by retired
Supreme Court Justice William Gunter who had been personally chosen
for his task by President Carter.
Justice Gunter's proposal for
a settlement was ultimately rejected but his conclusion that the
federal government was primarily responsible for the problem has
remained a hallmark of all subsequent proposals to resolve the
Indian claim.
Despite the failure of several suggested resolutions to the
dispute, negotiations continued until the present proposed settlement was reached in March of this year.
This settlement, then,
represents the product of a process of negotiation which has taken
•
nearly four years to complete.
It is a process that has had the
�Page -4-
~
blessing and encouragement of the present Administration from the
start and the Administration has testified to its support of the
arrangement we are considering before this Committee just last
month.
I would like to turn
briefly to provisions of the bill.
In exchange for the tribes' extinguishing their claims based
on the Nonintercourse statute, the federal government will
provide $27 million to be held in trust for the benefit of the
Penobscot and Passamaquoddy Tribes.
A land acquisition fund
is also established by the bill in the amount of $54.5 million
and it is to be used to acquire 300,000 acres of Maine timberland.
I should note that the Houlton Band of Maliseet Indians will
•
also participate in the apportionment of the Land acquisition
fund but to a lesser degree than other two tribes.
This reflects
a judgment by the State of Maine that the Maliseet claim is much
weaker than those raised by the Passmaquoddy and Penobscot Tribes.
S. 2829 incorporates by reference the Maine Implementing Act
which was passed by the Maine Legislature in April of this year.
That Act contains many of the
bind the parties.
jurisid~ctional
arrangements which will
The Maine Implementing Act provides for, among
other things, the establishment of tribal courts of specific jurisdiction and describes the various ways in which the Indian tribes
w1ll hold their lands.
Last month, this Committee held hearings on
s.
2829 during
which reservations were expressed about the possible effect of
•
some of the provisions in the settlement legislation.
At that
time, the parties to the settlement pledged to work to rectify
�Page -5-
•
those provisions of the bill which held troublesome implications
for Congress and the Adminisration.
For example, the apprehension
voiced by the Secretary of the Interior that the bill as then
drafted would leave the Interior Department susceptible to
undue liability as trustee of the trust fund established ·.for the
Penobscot and Passamaquoddy tribes
has ~
been adequately addressed
in section S(b) (1) and (3) which now contain express limitations
on its liability.
Likewise, a potentially burdensome procedure
by which the Secretary would satisfy judgment creditors has been
simplified by the process embodied in section 6(d) (2) of the
Act.
Section 6(e) (1) now authorizes the State of
~
~ine
and the
Indian tribes to enter into agreements covering certain areas
of concern rather than calling for a prospective Congressional
ratification of any and all amendments to the Maine Act.
Additionally, language in the definition section, section 3,
has been improved to make absolutely certain of the identity of
the Indian tribes which are participating in this legislation.
Finally, before closing, I would like to note that the most
troublesome provision, section 6211(2) and (4) of the Maine
Implementing Act has been addressed in this bill.
In his
testimony, Secretary Andrus expressed his concern that this
provision might be susceptible to an interpretation which would,
if the provision were enacted throughout the country, cost the
federal government $300 million in Indian Health Service expendi-
~
tures alone.
This problem has been addressed by section 6(b) of
the federal bill and will addressed still further in the Report of
this Committee on
s.
2829 so that no doubt about the effect of this
�Page -6-
•
provision remains.
I would like to thank the Committee for affording me the
opportunity to speak to this bill and I yield to the Chairman .
•
•
�
Dublin Core
The Dublin Core metadata element set is common to all Omeka records, including items, files, and collections. For more information see, http://dublincore.org/documents/dces/.
Title
A name given to the resource
William S. Cohen Papers
Description
An account of the resource
Documents from the William S. Cohen Papers have been provided by the Raymond H. Fogler Library, University of Maine. Additional information about the collection can be accessed on their <a href="https://library.umaine.edu/cohen/" target="_blank">web page</a>.
Text
A resource consisting primarily of words for reading. Examples include books, letters, dissertations, poems, newspapers, articles, archives of mailing lists. Note that facsimiles or images of texts are still of the genre Text.
Dublin Core
The Dublin Core metadata element set is common to all Omeka records, including items, files, and collections. For more information see, http://dublincore.org/documents/dces/.
Identifier
An unambiguous reference to the resource within a given context
UMAINE030
Title
A name given to the resource
Statement prepared by Senator William S. Cohen for Mark-up Session of Bill S. 2829, scheduled for 08/26/1980
Date
A point or period of time associated with an event in the lifecycle of the resource
8/26/1980
Source
A related resource from which the described resource is derived
William S. Cohen Papers
William S. Cohen Papers (MS 106), Special Collections, Raymond H. Fogler Library, University of Maine, Orono, Maine, 3.3.13.2 Box 5, folder 11
Language
A language of the resource
English
Type
The nature or genre of the resource
Text
Documents
Format
The file format, physical medium, or dimensions of the resource
PDF
Subject
The topic of the resource
Indians of North America--Maine--Land tenure
Indians of North America--Maine--Claims
Indians of North America--Legal Status, Laws, etc.
Indians of North America--Government Relations
Indians of North America--Politics and Government
Rights
Information about rights held in and over the resource
Copyright is retained by the creators of items in this collection, or their descendants, as stipulated by United States copyright law. This item is made available for research and educational purposes courtesy of Special Collections, Raymond H. Fogler Library, University of Maine, Orono, Maine. Prior permission is required for any commercial use.
1725(h)
Application of State Law
Jurisdiction
Senator William S. Cohen
-
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\
.
Subsection 6(b) (1) provides that the Passamaquoddy Tribe,
the Penobscot Nation, ~JII'i'rr¥>e~s_L an~1:~~F lands qnc1/natura1A
\lk
57\..fU~-,'/lM..+i'T
1
~/ e'LC•·Iut&A.~~
f._,
I
resources which ~re heJdA~y them subjec to a restriction against
.J.t~l ~ ~4JtL ~
alienl'or 8y &:Re Y~.ue@ g4!,a.tes i.la 1sr~O'r43lF heJ.W in fee by the
Tribe or Nation or their members shall be subject to the jurisdiction of the State to the
tjh§..l-!aine Implementing Act.
~,
~
Uf\tA 14~ .~e)"
'['»- () -
exten~ the~anner
The..
provided in
C'=~Jll.:i.c:Q..the
State
exerciseVCiver the trust lands or n~a~GrK~urces of the Tribe
or Nation is limited by Section S(d) (4)rGf thls Act.
N
.
The appli-
.
.
CA3:3: not Jeopar d'/ or lillpalr t_e c ear~l
.
.
·~
'tl e
cat1on o f Ma1ne 1 aw~1
1ze
of 1 the
nited St<;}:es to the trust
land~elri_'1
~ M. $.-}o..pq~~
pardize ~impair inter@fots oft
property.
~
~
.A~-
~~.
b hal:f ot_ t e tribes
.•N<VL ~~
tribes in their restricted
of(.~~
[;>-)
~S~ ~pecificp~~
Section 6208 of the Maine Implementing
~I~...
/
exempts all real or personal prope~~~f the tri~uding restricted and trust lands of
the~i~~~'
from taxation.
11;
Provision is made for payments by the tribes in lieu of taxes
~~-~'
and Section 6(d} (~~~~a means for Ptymenqrrrom
~
-
___
t_r_ust
inco~tfie
event of default.
Section S(g} (2} of this
Ac~:eci~~-cally prohibits alienation of tribal trust or restricted
lands except as provided
i~
Section S(g) (3).
This restriction is
comparable to 25 U.S.C. § 177 which it replaces.
Section S(g) (2)
specifically states that any transfer - of lands or natural resources outside the terms of this Act "shall be void ab initio".
This effectively exempts these trust or restricted lands from any
financial encumbrance which could cloud title and bring about
forced sales, or alienation, including, for example, tax or com-
Laws of the State such as
t
�adverse possession or creditors liens are not applicable to these
trust or restricted lands or natural resources.
On the other hand, state law, including but not limited to
laws regulating land use or management, conservation and environmental
protection are fully applicable as provided in this Section and
Section 6204 of the Maine Implementing Act.
[he fac~that regu-
latiop of land or natural resources may diminish or
benefit of Indian people or for the administration of Indian affairs
may be utilized by the Passamaquoddy Tribe and the Penobscot Nation
to match state funds which laws of the State require to be raised
by local or municipal governments as a condition to receiving State
financial assistance.
Utilization of these funds and restrictions
on the amount of the State contribution are governed by Section 6211
of the Maine Implement~ Act.
The impact of Section 6211 on
provision of Federal funding was the subject of intense scrutiny by
this Committee.
Act
~ill_~pply
The exact manner in which this section of the State
is set forth in this report in the section entitled
"Analysis of the Maine Implementing Act".
law is concerned, it is the intent of
Insofar as general Federal
this~ction
of this Act that
Federal funds used by the Tribe or Nation as local matching funds
shall be considered as local funds for purposes of any maintenance
of effort requirements imposed by Federal law or regulation.
Subsection 6(b) (3) is a savings clause to make clear that
the provisions of this Act shall not be construed as superseding
any Federal statutes or regulations governing the provision or
funding of services or benefits to any person or entity in the
�once such judgements are final and the time for taking on appeal
has expired.
Subsection 6{e) (1) permits the State of Maine and the
Penobscot Nation and the Passamaquoddy Tribe to enter into agreements amending the Maine Implementing Act.
A proviso in this
subsection limits the subject matter of those agreements to three
specific areas.
Subsection 6(e) (2) extends the authority to enter
into agreements with the State of Maine to the Houlton Band of
Maliseet Indians over jurisdictional issues, including the governmental status of the Band under laws of the State.
Until any such
an agreement is made with the Houlton Band, it and its members are
subject to all the laws of the State of Maine, except those from
which they will necessarily be except under Section S(d) (4).
Subsection 6(f) recognizes the jurisdictional authority
of the Penobscot Nation and Passamaquoddy Tribe as embodied in
the Maine Implementing Act.
Subsection 6(g} provides that the courts of the State of
Maine and the courts of the Penobscot Nation ~d Passamaquoddy Tribe
shall accord full faith and credit to the judgements of the
court~
Df each other.
Subsection 6(h) provides that, unless otherwise provided
in this Act or the Maine Implementing Act, the general body of
Penobs~A/~
~i~~~1ne, ~~
federal Indian law applies to the Passamaquoddy Tribe,
Nation and Houlton Band of MaliSeets
1
except to the extent such law preempts or affects the laws of the
State of Maine.
(-...1./)
�@Subsection 6(i) also provides that the Penobscot Nation,
th~assamaquoddy
Tribe, and
th~Houlton
Band of Maliseet Indians
are federally recognized tribes and that, as suchtthey are eligible
to receive all Federal benefits which the United States provides
to other
Feder~~ecognized
tribes to the same extent and sub-
ject to same ~eligibility criteria as other Federally recognized
tribes.
Subsection 6(i) provides further that
federal taxation
(j)
the~oulton
~r
purposes of
Band of Maliseets, the Penobscot Nation,
and the Passamaquoddy Tribe shall be treated as other federally
recognized tribes and that their lands which are held in trust
or subject to
l'restrictio~against
alienation shall be considered
reservatio~or federal tax purposes.
However, any exemption
from federal tax laws does not entitle the Tribes to exemption from
s.t':::
- ~':~ .o\..
,.V:
~ ~ LJ ~6'l.. tJc,c.....?( ~ I
~M-- ~~ ~ - 1)
Section 7.
Tribal Organization.
Subsection 7(a) empowerstbut does not require 1 the Penobscot
Nation,~e
Passamaquoddy Tribe, and
th~oulton
Band of Maliseets
to adopt an appropriate instrument to govern affairs of the
tribe~
. ~ubsection
J(bl -limits participation. in the Maine Indian
•
Claims Settlement Act by the Houlton Band of Maliseet Indians to
those Maliseet Indians who are citizens of the United States or
who, as of the date of this Act, are enrolled members of the Band.
The limitation also applies to benefits available from the United
States by virtue of federal recognition of the Band.
The Band is
empowered to redefine its membership rolls with the approval of
the Secretary.
�~phsection
8~ovides
that, should there be an interim
~which the Passamaquoddy Tribe or the Penobscot
Nation~not assumeJ jurisdiction~ian child custody proceedperiod
ings, jurisdiction· will lie with the courts of the State of Maine.
rJ\\ \
The Committee notes that the Penobscot Nation currently
~~~
\~
operates a tribal court, that the Department of the Interior has
established a Court of Indian Offenses for the Passamaquoddy
T
n
'b)J
d
r~ an_ t
h
~~
~g j)llj.~j
1
..
.
at !!He- c::urts~nt w;;r;,;~sy.~c~n
over child welfare rnattkrs.
.;rt
~
is
ftet:<F:nre~t
Section
.
~
~
~ affect the validity of any saeA orders which ~re is~~ ~~~
u~~
~ourts ~or
i;;@Hifiilild
ctt~-t9s'C(Jpzpvu
to the .3/!':~t of this ,biLlIt'
Nort is
r~
:!.ft.=-
~-~~
+II.P.,l.~
~t4section 8 (b)~-el'le .,.,..interrup~ ~
cor:__tinu~ -~-::l!:ereise ef, jurisdiction over child welfare:;;t:;_):__
(ffi~er~t~rts. . ~tion 8(b) was included in anticipation
oit
..
of the possibility that e1the~ ~Pass. aguodd
Penobscot Nation
child
a$€
migh~
~e lf are ~t::l.
st1
11
.I(
·
or ~~CVA~
u
: 'Ju 1 ::Be
::e
exerc, SlaF19 ;1ur1s
d:.
.
Mtn
lGt,o~ver
cn==w
t..¥te L-±me---eflezoaoof!jeJ;.t 1 ement heeeFRes effee ti \1C,
1of:J&V r
aAS.
tJ;~e
are htdlte£8
a~
the Commi'l!l!ee expeol!s
Effect of Payments to Passamaquoddy Tribe, Penobscot
Nation, and Houlton Band of Maliseet Indians.
Section 9 has three subsections.
Subsectig p 9fal provides that the receipt of income by the
Passamaquoddy Tribe, the Penobscot Nation, and the Houlton Band
of Maliseet Indians shall not be considered by any agency of the
federal government in determining the eligibility of the State of
Maine for federal financial assistance.
.
Nali&n
afieei!itre i:-fie Gii!Pt..e....that :t:Re seftlemenL4:Je~ a£feastit~
Section 9.
•
__
�Subsection 9(b) provides that, the receipt of payments
from the State of Maine or the simple eligibility for payments
by the State of Maine by the Passamaquoddy Tribe and the Penobscot
Nation shall not be computed by the federal government in determining the eligibility of the Penobscot Nation and Passamaquoddy
Tribe or any of their members for federal assistance.
A proviso
to this subsection permits the federal agency to consider the
actual need of the applicant if the financial assistance is dependent on a showing of ne~d.
SpbsecJ;; ion 9
~
(c)~hich
•
are forthcoming to the tribes
and their members under the terms of this Act are not to be used
to deny or reduce benefits to any Indian household or member of
that household under any federally assisted housing program.
Funds available to thetribes under this Act are also not to be
used to deny or reduce federal assistance or benefits to either
Tribe.
Section 10.
Deferral of Capital Gains.
~
_
Sectjqn 10 permits landowners who ~re - ~as~~i~
;
l" v~~ ~
. _
thefr la-nd under this Act to treat the sales as eocnw -oeearring-
~; (_;
�conflict between the provisions of this Act and the Maine
Implementing Act, the provisions of this Act shall govern.
Subsectionl~(b}
provides that federal acts enacted sub-
'
sequent to this Act that intend to modify the application of
State law under the provisions of this Act or the Maine Implementing Act must contain an express provision making them applicable within the State of Maine or they shall not be applicable.
This provision would not require such an express application
provision in subsequently enacted statutes which make the Tribes
or their members eligible to receive financial benefits or does
not affect or preempt the laws of the State.
Such provisions
would apply under Sec. 6(h) of this Act, even if they were included
in a later enacted Act.
�
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William S. Cohen Papers
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UMAINE029
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Draft of a Portion of the Senate Report for the Maine Indian Claims Settlement Act: Analysis of § 6 (what ultimately became 25 U.S.C. 1725) to be included in section of report titled "Section-by-Section Analysis" (Undated)
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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 2
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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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1725(h)
Application of State Law
Jurisdiction
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35bf70157a956418c12828ec88bfcd28
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•
STEPHEN
Rrc~ S.GoHEN
L. DLU-IO~""D
JOHNS. GL~ON
ATTORNEY GENERAL
JoHN
M.R. PATERSON
RoBERTJ. SToLT
DEPUTY ATTORNEYS GENERAL
STATE OF 1'-iAINE
DEP.A.RTHENT OF' THE ..t\TTOR...~EY GEXERAL
AUGUSTA, ~LAINE 04333
August 19, 1980
Honorable John Melcher
Chairman, Select CoiTmittee on Indian Affairs
United States Senate
'~dashington, D.C.
Ro·
S. 2829 liThe Haine Indian Claims Settlement Act."
Dear Chairman Melcher:
•
I received late last week from the Secretary of Interior a copy
of his letter to you dated August 8, 1980, forwarding a proposed
r2draft of this bill and offerin9 certain comments to the Cornrnittee
on its effect. As the letter of the Secretary reflects, the proposed
redraft was prepared a~ter discussion with the State of Maine and
the Tribal ·r epresentatives and represents the Administration's effort
to clarify the Federal responsibility in the settlement and the longterm relationship of the State and Tribes. We are gratified by the
work of the Secretary and his staff and believe that in large measure
the proposed redraft is consistent with the original intent of the
parties. However, since the redraft does depart in some respects
from that original inte~t, I think it necessary to bring to the
attention of the Corru-ni ttee a fe;;.-: brief comments of the State. ':ehese
comments have been revie\·Jed by the Governor and leadership of the
Joint Select Cornmittee on the Indian Land Claims and they concur
with them.
The statement of Congressional intent in Section 2(b) (3) states
as one of the purposes of the bill that it ~atifies the Maine
Implementing Act "except to the extent that it is inconsistent with
the provisions of this Act." By its terms, however, the Haine
Implementing Act takes effect only if ratified by Co~gress "1.vithout
amendment." ~'lhile we do not think that t~is bill effects any amendments to the Maine Implementing Act, the exception in§ 2(b) (3)
·
unnecessarily raises the question of inconsistency between this bill
and the Maine Act.
Therefore, we urge that this exception be deleted.
�Honorable John Melcher
August 19, 1980
Page 2
•
Section 4 of the bill is designed to effect the extinguishment
of the claim and the proposed redraft to clarify language is
acceptable to the State. In his covering letter the Secretary
indicates that the Tribes have requested an amendment to the original
bill to _
condition extinguishment on Congressional appropriation of
$81.5 million. As the Secretary also correctly notes, the State
opposes such modification. I think it is important to reiterate
the State's position on this issue. The proposal in the original
bill was specifically discussed and agreed to by the parties and
its implications clearly understood by both sides. This provision
is one of the most important sections in the bill and was critical
to the State's agreement to the settlereent. Alteration of the bill
at this stage at the unilateral request of the Tribes would work a
substantive change inconsistent with the original understanding of
the agreement by myself, the Governor and the Maine Legislature, and
would compel reconsideration of the State's support of this bill.
To the extent that the Committee might have concern with the provision,
there is recent Congressional precedent for this approach, including
the Alaska Native Claims Settlement Act and the Rhode Island Land
Claim Settlement .. As you are aware, in the Alaska Settlement, the
claim was extinguished immediately and final payment to the Tribes
required subsequent appropriations over ten years. We are confident
that Congress would similarly honor its obligation to appropriate
;_
the funds a~thorized by. this Act.
The Secr~tary's letter states
the Administration's intention to seek the necessary appropriation
in FY 1981 and we are fully prepared to support that request for
appropriation. We think, therefore, that the Tribes' request is
unnecessary and that Section 4 should be adopted as proposed by
the Sec.r etary. Should, however, the Committee ·believe that some
additional language is necessary to protect the Tribal interests,
a possible alternative would be to provide the Tribes with a remedy
against the United States in the U.S. Court of Claims. Such an
approach would give the Tribe a claim for damages should the
anticipated Congressional appropriation not be provided within a
time certain.
Section S(d) (3) of the bill authorizes the Secretary to acquire
land in trust for the Houlton Band of Maliseet Indians provided
that such acquisition does not occur without the prior concurrence
of "authorized officials of the State of Maine." He have no objection
to the substance of that provision, but we are concerned that the
quoted phrase may be ambiguous and create problems in the future
regarding the identity of such nauthorized officials." Accordingly,
and consistent with the procedure employed in adopting the Maine
Implementing Act, we suggest that the proviso be rephrased as follows:
•
�Honorable John Melcher
August 19, 1980
Page 3
"Provided, that no land or natural resources
shall be so acquired without the prior enactment
of appropriate legislation by the State of Maine
approving such acquisition."
•
The sentence following this proviso and the reference to the
Houlton Band of Maliseet Indians in subsections S(f), S(h} and S(i)
are also of concern to us and we believe they may be the source of
future confusion. Since matters such as payments for governmental
services by the Houlton Band and the status of any lands to be
acquired for them will have to be negotiated in detail with the
State before any future land acquisition for them, the referenced
provisions are unnecessary and confusing. Moreover, the notion
embodied in § S(d) (3) that the Houlton Band would contract for
services is inconsistent with the entire concept of the Maine
Implementing Act. Under that Act the Passamaquoddy Tribe and
Penobscot Nation will pay fees in lieu of taxes, such fees determined
by using usual taxing formulas.
The concept of the Maine Implementing
Act is that the Tribes and their members are ordinary citizens of
Maine eligible for all services without the necessity for contracts,
and accordingly must bear their fair share of the cost of such services .
Section 6 (e) (2) of the redraft authorizes the Sta·te and Houlton
Band to negotiate and adopt agreements on the status of their lands
in the future, and this subsection is more than sufficient to authorize ·
the Houlton Band to negotiate on subjects such as this with the State
when they have located land for proposed acquis~tion. Specific
provisions regarding the status of such lands in sections S(f), S(h)
and S(i) may inhibit the search for creative approaches to the
State/Band jurisdictional relationship in the future. Therefore,
we strongly urge that the sentence immediately following the first
proviso in § S(d) (3) and reference to the Houlton Band in subsections
S(f), S(h) and S(i) be deleted.
Section S(h) of the redraft is an elaborate provision restating
in large measure provisions already contained in the Maine Implementing Act which Act will itself be ratified by Congress. To the extent
the Cornrni ttee or Administration thinks that specific restatement ofthe State's authority to exercise eminent domain in Indian Territory
is required in this bill, we think that end could have been accomplished
more simply by a sentence authorizing the exercise of eminent domain
as provided in the Maine Implementing Act. Nevertheless, we do not
object to the contents of paragraphs S(.h) (l) or S(h) (.2) as proposed.
�Honorable John Melcher
August 19, 1980
Page 4
However, paragraph 5(h) (3) is of concern to us and unfortunately
was not previously discussed with the parties before it was included
in the Administration's redraft. This new paragraph requires that
eminent domain under the Maine Implementing Act occur in the U.S.
District ~ Court and that the Federal government be a party to such
proceedihgs. The eminent domain provisions of the Maine Implementing
Act, §§ 6205(3) and 6205(4), were, like other sections, ·negotiated at
great length, drafted with care and agreed to by both sides. Among
other things it was the clear contemplation of the parties that all
eminent domain proceedings involving Indian Territory would involve
State statutory procedures in State forums~ A proposal to conduct
such proceedings in Federal Court was specifically discussed and
rejected by the parties. The new proposal in§ S(h) (3) is inconsistent with the parties• agreement. We do not see any need for the
provision and respectfully suggest that no sufficient justification
for it is found in the Secretary's letter of August 8, 1980. We
urge that paragraph. 5(h) (3) be deleted.
•
Section 6(a) contains · a proviso not in the original bill and
which could, as phrased, be the source 6f future confusion. That
proviso limits the exercise of State jurisdiction by, in effect,
prohibiting the taxation, encumbrance or alienation of Indian trust~
lands in Maine. While the proviso is largely a restatement of
limitations otherwise appearing in this bill and the Maine Implementing Act, and to that extent we have no objection to it, ~1e think that
it raises the possibility that the fees assessed under § 6208(2) of
the Implementing Act might be prohibited. We think, therefore, that
the clarity of the bill would be greatly enhanced if the Committee
report confirmed that the proviso was not intended to be inconsistent
with~§ 6208(2) and (3) of the Maine Implementing Act.
Thus, the
fees in lieu of taxation on land within Indian Territory could not
later be argued to be inconsistent with the proviso.
Section 6(h) contains several provisos,. the se~6nd of which ·
relates to the status of the Tribes and Tribal· lands for Federal
tax purposes. This same proviso appears in the original bi~l
negotiated by the parties in Section 6(g). At the time of negotiation of the original bill, it was the clear understanding of the
parties that this proviso would result in the Passamaquoddy Tribe,
Penobscot Nation and Houlton Band being exempt from payment of
Federal income taxes (see Revenue Ruling 67-284, C.B. 1967-2, pp.
55-58) and might result in them being exempt from other Federal
taxes. However, the parties also contemplated that by virtue of
§ 6208(3) of the Maine Implementing Act, all Indians, Indian Tribes,
Nations or Bands of Indians would be required to pay all Maine taxes
like any other person or entity in Maine. WhentheMaine Legislature
�Honorable John Melcher
August 19, 1980
Page 5
enacted the Maine Implementing Act they were clearly lead to
believe that, whatever the Federal tax status, the Passamaquoddy
Tribe, Penobscot Nation or Houlton Band would be required to pay
Maine income taxes and would not be exempt from such Maine taxes
by virtue of any exemption from Federal taxes. During the course
of discussions with the parties, the Administration proposed the
addition of a new section which now appears in the redraft as
Section 7. The new Section 7 as first proposed to the parties
would have included a subsection (b) which would have provided,
in part, that any Tribal corporations would be subject to Maine
tax laws regardless of any exemption from Federal taxes. That
proposed subsection was deleted in the redraft submitted to the
Committee for reasons unknown to us.
In order to avoid future
misunderstandings, and because the Governor of Maine and the
Legislative leadership are particularly concerned that their earlier
understanding be reflected in this bill, I think it is essential
that the State's understanding of the obligation of the Tribe,
Nation and Band to pay State taxes as stated herein either appear
in this proviso or the accompanying Congressional report. We
suggest that the provision be amended by the addition of a sentence
to read:
"This provision shall not affect taxation of such
Tribe, . Nation or Band under the laws of the State
of .Haine or the Maine Inplementing Act."
With these limited comments we think the redraft of the Secretary
is consistent with out original intent. We have tried to keep our
comments to a minimum and have avoided commenting on every detail of
the redraft even if we felt its language could be improved. It
should be understood, however, that we consider these changes to
be essential in order that the final bill be con~istent with the
-understanding that the Governor and Legislature had with respect
to the original bill and the representations ma~e by all concerned
regarding the effect of the settlement .
.
.
assistance.
Please feel.free to contacr
Attorney General
RSC:mfe
cc:
Honorable Cecil D. Andrus
Honorable William S. Cohen
Honorable George J. Mitchell
Thomas N. Tureen
Reid P. Chambers
�
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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William S. Cohen Papers
Description
An account of the resource
Documents from the William S. Cohen Papers have been provided by the Raymond H. Fogler Library, University of Maine. Additional information about the collection can be accessed on their <a href="https://library.umaine.edu/cohen/" target="_blank">web page</a>.
Text
A resource consisting primarily of words for reading. Examples include books, letters, dissertations, poems, newspapers, articles, archives of mailing lists. Note that facsimiles or images of texts are still of the genre Text.
Dublin Core
The Dublin Core metadata element set is common to all Omeka records, including items, files, and collections. For more information see, http://dublincore.org/documents/dces/.
Identifier
An unambiguous reference to the resource within a given context
UMAINE014
Title
A name given to the resource
Letter to Senator John Melcher from Maine Attorney General Richard Cohen (08/19/1980)
Date
A point or period of time associated with an event in the lifecycle of the resource
8/19/1980
Source
A related resource from which the described resource is derived
William S. Cohen Papers
William S. Cohen Papers (MS 106), Special Collections, Raymond H. Fogler Library, University of Maine, Orono, Maine, 3.3.13.1 Box 9, Folder 12
Language
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English
Type
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Text
Documents
Format
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PDF
Subject
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Indians of North America--Maine--Land tenure
Indians of North America--Maine--Claims
Indians of North America--Legal Status, Laws, etc.
Indians of North America--Government Relations
Indians of North America--Politics and Government
Rights
Information about rights held in and over the resource
Copyright is retained by the creators of items in this collection, or their descendants, as stipulated by United States copyright law. This item is made available for research and educational purposes courtesy of Special Collections, Raymond H. Fogler Library, University of Maine, Orono, Maine. Prior permission is required for any commercial use.
1723
1725(h)
Application of State Law
Extinguishment of Claims
Jurisdiction
-
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4b28ec0f25cedef973f4fb34f1a7e4d5
PDF Text
Text
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Proposed Changes 7/14/80
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New 4 (d)
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[to remedy State's concern · ~ th£ federal legislation does
not ratify transactions under state law.]
The United States, as truste~, will not have authority to
institute an action on behalf of the Passamaquoddy Tribe,
Penobscot Nation, or Houlton Band of Maliseet Indians, or their
members, for claims against the State of Maine under §6213 of
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the Maine Implementing Act.
New §5 (between (f) and (g), to clarify that the State has auth6rity
to condemn lands held in trust by the U.S., and to clarify that
the U.S. has control of the proceedsJ
In accordance with the required fact finding prior to the
taking of land pursuant to §6205(3) of the Maine Implementing
Act, the State of Maine is authorized to take land held by the
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United States in trust for the Tribe or Nation within the
Passamaquoddy Reservation or the Penobscot Indian Reservation.
The public entity or public utility making the taking shall, at
the election of the affected tribe or nation and the · United States,
acquire by purchase or otherwise for the respective tribe or
nation, a parcel or parcels of land equal in value to that taken;
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---contiguous to the affected Indian reservation; and as nearly
adjacent to the parcel taken as practicable, to be held in
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trust by the United States.
The land so acquired ~hall_, upon
written certification to the Secretary of State of Maine by
the public entity or public utility acquiring such land
describing the location and boundaries thereof, be included
within the Indian Reservation of the affected tribe of nation
without further approval of the State.
For purposes of this
section, land along and adjacent to the Penobscot River shall
be deemed to be contiguous to the Penobscot Indian Reservation.
The.acquisition of land to be held in trust for the Passamaquoddy
Tribe or the Penobscot Nation under this subsection shall be
full compensation for any such taking.
nati6n , with the consent
of ~
If the affected tribe or
the United States, elect not to have
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a substitute parcel acquired in accordance with this subsection,
the moneys received for such taking shall be reinvested in land
to be held in trust for the respective tribe or nation.
Land held by the United States in trust for the Passamaquoddy
Tribe, Penobscot Nation or Houlton Band
of
Maliseet Indians
within Indian Territory, but not within the Passamaquoddy
Indian Reservation or Penobscot India.n Reservation, may be
taken by the State ·for public uses in accordance with the laws of the State.
deposit~d
Any moneys received for said land shall be
in the Land Acquisition Fund and reinvested by the
United States in land of the same acreage_in unorganized or
unincorporated areas of the State, to be held in trust for the
respective Tribe, Nation, or Band, which shall ·be included within
the respective Indian Territory.
To the extent that any moneys
received are reinvested in land in unorganized or
areas of the State of an area greater than
land taken, the
respec~ive
un~~corporated
the area of the
tribe, nation or band shall designate,
with the approval of the United States,and within 30 days of
such reinvestment, that portion of the land acquired by suchrein:
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11vestment, not to exceed the area taken,which shall be included
within Indian Territory.
That land which exceeds the acerage
taken and not in Indian territory will
·respective tribe, nation, or band.
writing, to the State of Maine
~e
held in fee by the
The Secretary shall certify, in
Secretary of State the location
and boundaries of the land acquired.
(~Revise
~,
~
§6(a) to delete the reference to lands "owned by orn held in trust
Add a proviso at the end of the paragraph-:
Provided, however, that nothing in this section shall be construed
as subjecting lands held by the United States in trust to taxation,
encumbrance, or alienation.
~S~evi
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2§6(b) to include the same proviso as recommended for 6(a), after
the first sentence of 6(b).
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a new section between 6(b) and · 6(c):
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The United States shall not have any criminal jurisdiction in
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the State of Maine under the Act of June 25,1948, . C.645,
62 Stat.757, as amended, and Act of July 12,1960, 74 Stat.
469, as amended.
[This covers 18 USC 1151 et seq. and
18 usc 1164,1165]
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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
A name given to the resource
William S. Cohen Papers
Description
An account of the resource
Documents from the William S. Cohen Papers have been provided by the Raymond H. Fogler Library, University of Maine. Additional information about the collection can be accessed on their <a href="https://library.umaine.edu/cohen/" target="_blank">web page</a>.
Text
A resource consisting primarily of words for reading. Examples include books, letters, dissertations, poems, newspapers, articles, archives of mailing lists. Note that facsimiles or images of texts are still of the genre Text.
Dublin Core
The Dublin Core metadata element set is common to all Omeka records, including items, files, and collections. For more information see, http://dublincore.org/documents/dces/.
Identifier
An unambiguous reference to the resource within a given context
UMAINE013
Title
A name given to the resource
Proposed Changes to §§ 4, 5, 6 of Bill S. 2829 (what ultimately became 25 U.S.C. 1723, 1724 and 1725) (07/14/1980)
Date
A point or period of time associated with an event in the lifecycle of the resource
7/14/1980
Source
A related resource from which the described resource is derived
William S. Cohen Papers
William S. Cohen Papers (MS 106), Special Collections, Raymond H. Fogler Library, University of Maine, Orono, Maine, 3.3.13.1 Box 9, Folder 9
Language
A language of the resource
English
Type
The nature or genre of the resource
Text
Documents
Format
The file format, physical medium, or dimensions of the resource
PDF
Subject
The topic of the resource
Indians of North America--Maine--Land tenure
Indians of North America--Maine--Claims
Indians of North America--Legal Status, Laws, etc.
Indians of North America--Government Relations
Indians of North America--Politics and Government
Rights
Information about rights held in and over the resource
Copyright is retained by the creators of items in this collection, or their descendants, as stipulated by United States copyright law. This item is made available for research and educational purposes courtesy of Special Collections, Raymond H. Fogler Library, University of Maine, Orono, Maine. Prior permission is required for any commercial use.
1723
1725(h)
Application of State Law
Extinguishment of Claims
Jurisdiction