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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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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.
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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
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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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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
Peter S. Taylor
Senator William S. Cohen
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e62302d65577ff9fcf9060391df7e859
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STEPHEN
RicHARD S. CoHEN
L. DIAMOND
JoHN S. GLEASON
ATTORNEY GENERAL
JOHN M.R.PKrERSON
RoBERT J. STOLT. ·
DEPUTY AT "ORNEYS GENERAL
STATE OF MAINE
DEPARTMENT OF THE ATTORNEY GENERAL
AUGUSTA. MAINE 04333
July 21, 1980
The Honorable Cecil D. Andrus
Secretary of Interior
United States Department of Interior
Washington, D. C. 20240
Re:
Maine Indian Land Claims
Settlement Act., S. 2829.
Dear Secretary Andrus:
Since the hearings before the Senate Select Committee
on Indian Affairs concerning S. 2829, the various parties
affected by S. 2829 have met to discuss in detail the concerns you mentioned in your testimony. Representatives of
the Department of Interior ("Interior") and Department of
Justice ("Justice") have proposed clarifying language to address those concerns. The State of Maine ("State") in turn
has evaluated those proposals and has responded in writing
to them. The purpose of this letter is to confirm the State's
position on each of the various issues and proposals that have
been discussed with representatives of Interior and Justice.
The revisions proposed by or agreed upon by the State
are intended only to be a clarification of the original mutual
intent of the State and the Passamaquoddy Tribe and Penobscot
Nation. We believe that substantive changes to S. 2829 are
inappropriate because the substanpe of S. 2829 represents the
results of extensive arms-length negotiations between the State
and the Passamaquoddy Tribe and Penobscot Nation. Any substantive alteration in S. 2829 by the United States could upset the
balance of interests that the parties established through negotiations and upon which the Legislature of the State relied in
enacting the Maine Implementing Act.
�The Honorable Cecil D. Andrus
July 21, 1980
Page Two
Congressional Findings - Section 2
The State agrees with the Interior's proposal that
Section 2(a)(2) be redrafted to read:
"(2) Indians, Indian nations and tribes
and bands of Indians, other than the Passamaquoddy Tribe, Penobscot Nation and Houlton Band
of Maliseet Indians, that once may have held
aboriginal title to lands within the State of
Maine long ago abandoned their aboriginal holdings."
The State proposes that Section 2(a)(8) be deleted
since the "Settlement Agreement" referred to in that section was never executed by the parties.
The State also proposes that Section 2(a)(9) be amended
to delete the reference to the Houlton Band of Maliseet
Indians.
Definitions - Section 3
The State agrees with Interior's proposal that subsections (a) (h) and (k) be redrafted to provide:
"(a) 'Houlton Band of Maliseet Indians' means
the sole successor to the Maliseet Tribe of Indians
as constituted in aboriginal times in what is now
the State of Maine, and all its predecessors and
successors in interest. The Houlton Band of Maliseet
Indians is represented, as of the date of enactment
of this Act, as to lands within the United States,
by the Houlton Band Council of the Houlton Band of
Maliseet Indians.
"(h) 'Passamaquoddy Tribe' means the Passamaquoddy Indian Tribe as constituted in aboriginal
�The Honorable Cecil D. Andrus
July 21, 1980
Page Three
times, and all its predecessors and successors in
interest. The Passamaquoddy Tribe is represented,
as of the date of the enactment of this Act, by the
Joint Tribal Council of the Passamaquoddy Tribe,
with separate councils at the Indian Township and
Pleasant Point Reservations.
"(k) 'Penobscot Nation' means the Penobscot
Indian Nation as constituted in aboriginal times,
and all its predecessors and successors in interest.
The Penobscot Nation is represented, as of the date
of the enactment of this Act, by the Penobscot Nation
Governor and Council."
The State agrees that the term "lands or other natural
resources" in Section 3(b) should be redrafted to read "land
or natural resources". The use of this term throughout S.
2829 should be similarly amended.
Subsection (e) should be redrafted to provide:
"(e) 'Maine Implementing Act' means Section
1 of the 'Act to Implement the Maine Indian
Claims Settlemen~ enacted by the State of
Maine in Chapter 732 of the Public Laws of
1979."
The remaining definitional changes proposed by Interior
are neither necessary nor appropriate. In particular the
terms Passamaquoddy Indian Territory, Passamaquoddy Indian
Reservation, Penobscot Indian Territory and Penobscot Indian
Reservation should be defined by reference to the Maine Implementing Act. This definition by reference is particularly
necessary because the Passamaquoddy Tribe and Penobscot
Nation and State could later vary the boundaries of these
areas by mutual agreement without further approval by the
United States.
The Maine Implementing Act defines the Passamaquoddy
and Penobscot Indian Territories as land in specified areas
�The Honorable Cecil D. Andrus
July 21, 1980
Page Four
to the extent acquired by the Secretary of Interior on or
before January 1, 1983. Because it is possible that the
contemplated Congressional appropriation for the purchase
of these lands may be delayed, Interior proposed that S.
2829 be redrafted to extend the date for acquisition of
land. This proposed extension cannot be accomplished without
amendment of the Maine Implementing Act and the Legislature
of the State would be unwilling to so amend the Maine Implementing Act at this time. Speaking for myself, however, if
the appropriation is in fact delayed so that land acquisition
for the Passamaquoddy and Penobscot Indian Territories cannot
be effected by 1983, I would be willing to recommend to the
Legislature of the State that it agree to amend the Maine
Implementing Act to extend the date for acquisition.
Extinguishment of Claims - Section 4
The State cannot agree with Interior's proposed amendment to Section 4(a)(l). The adoption of the proposed redraft of Section 4(a)(l) would result in a major substantive
change in the agreed upon settlement.
The State cannot agree with the request by the Passamaquoddy Tribe and the Penobscot Nation that extinguishment be
conditioned upon actual appropriation of monies. Any such
change would result in a major substantive change in the
agreed upon settlement. Moreover, we are confident that
Congress will honor its undertaking to appropriate the monies
authorized by S. 2829. We also think there is ample precedent
for the approach embodied in S. 2829 including the Alaska
Native Claims Settlement Act, and the recent Rhode Island
Indian Claims Settlement Act.
Similarly, the State cannot agree with Interior's proposal to condition extinguishment of claims upon the execution of releases by the Tribes. Conditioning extinguishment
of claims upon execution of releases would provide the
Passamaquoddy Tribe and Penobscot Nation an opportunity to
�The Honorable Cecil D. Andrus
July 21, 1980
Page Five
delay the extinguishment of claims agreed upon by the parties.
Although the present language of Sections 4(a)(2) and
4(a)(3) is sufficient, the State proposes the following to
the extent redrafting is essential:
"(2) The United States is barred from asserting
by or on behalf of any Indian, Indian nation or
tribe or band of Indians any claim under the laws
of the State arising from any transfer of land or
natural resources located anywhere within the State
of Maine, from, by or on behalf of any Indian
nation or tribe or band of Indians including but
without limitation any transfer pursuant to any
treaty or compact with or any statute of any state.
"(3) The United States is barred from asserting
by or on behalf of any individual Indian any
claim under the laws of the State arising from
· any transfer of land or natural resources located
\ anywhere within the State from, by, or on behalf
\ of any individual Indian, which occurred prior to
December 1, 1873, including but without limitation
any transfer pursuant to any treaty or compact
with or any statute of any state."
Settlement Fund and Land Acquisition Fund - Section 5
While the language in S. 2829 is sufficient and appropriate, we would agree to the following clarifications to
Sections (d), (e) and (g) if clarification is deemed essential:
"(d) The principal of the Land Acquisition Fund
shall be apportioned as follows:
(1)
-$900,000 to be held in trust for the
Houlton Band of Maliseet Indians;
�The Honorable Cecil D. Andrus
July 21, 1980
Page Six
(2)
(3)
~
$26,800,000 to be held in trust for
the Passamaquoddy Tribe; and
$26,800,000 to be held in trust for
the Penobscot Nation.
The secretary is authorized and directed to expend,
with the consent of the affected Tribe, Nation, or
Band, the principal and any income accruing to the
respective portions of the Land Acquisition Fund
for the purpose of acquiring at least 147,500 acres
of land for the Penobscot Nation, at least 147,500
acres of land for the Passamaquoddy Tribe, and at
least 5,000 acres of land for the Houlton Band of
Maliseet Indians. Land within Passamaquoddy and
Penobscot Indian Territories shall be held in trust
by the United States for the benefit of the respective Tribe or Nation. Land outside the boundaries
of Passamaquoddy and Penobscot Indian Territories
shall be held in fee simple by the respective Tribe,
Nation or Band, and the United States shall have no
further trust responsibility with respect thereto.
Except as provided in this section, or as otherwise
provided in the Maine Implementing Act, the United
States shall have no other authority to acquire lands
in trust for the benefit of Indians, Indian nationsor
tribffior banrnof Indians in the State of Maine. Notwithstanding the provisions of Section 257 of Title
40 of the United States Code, the Secretary may acquire land under this Act only if the Secretary and
the owner of record of the land have agreed upon the
identity and price of such land.
"(e)(2) Except as provided in paragraph (3) of this
subsection, any transfer of land or natural resources
within Passamaquoddy Indian Territory or Penobscot
Indian Territory, except (i) takings for public uses
pursuant to the Maine Implementing Act, (ii) takings
for public uses pursuant to the laws of the United
States, or (iii) transfers of individual Indian use
assignments from one member of the Passamaquoddy
�The Honorable Cecil D. Andrus
July 21, 1980
Page Seven
Tribe or Penobscot Nation, to another member of the
same Tribe or Nation, shall be void ab initio and
without any validity in law or equit~
"(3) Land or natural resources within Passamaquoddy Indian Territory or the Penobscot Indian
Territory, may be-(i) leased in accordance with the Act of
August 9, 1955 (69 Stat. 539), as amended,
(ii) leased in accordance with the Act of
May 11, 1938 (52 Stat. 347), as amended,
(iii) sold in accordance with section 7 of
the Act of June 25, 1910 (36 Stat. 857), as
amended,
(iv) subject to rights-of-way in accordance
with the Act of February 6, 1948 (62 Stat. 17),
(v) exchanged for other land or natural
resources of equal value, and
(vi) sold, only if the proceeds of the sale
are deposited in the Land Acquisition Fund established pursuant to subsection (c).
"(g) If land or natural resources within the Passamaquoddy Indian Territory or Penobscot Indian Territory
is taken for public purposes pursuant to the Maine
Implementing Act or the laws of the United States,
the proceeds paid in compensation for such taking
shall be deposited in the Land Acquisition Fund established by subsection (c)."
Tribal Government - Section Y.
Although the proposed Section Y is not necessary, the
�The Honorable Cecil D. Andrus
July 21, 1980
Page Eight
State does not object to the following language to the extent clarification is deemed essential:
"Sec. Y.
(a) The Passamaquoddy Tribe and
the Penobscot Nation shall each organize for their
common welfare, and adopt an appropriate instrument in writing to govern the affairs of the Tribe
or Nation, when each is acting in its governmental
capacity. Such instrument and any amendments
thereto, must be consistent with the terms of
this Act and the Maine Implementing Act, and must
be approved by a majority of the adult members of
the Tribe or Nation participating in an election
conducted by the Secretary.
"(b) Any business corporation created by the
Passamaquoddy Tribe or Penobscot Nation with the .
approval of a majority of the adult members of such
Tribe or Nation participating in an election conducted by the Secretary shall not constitute for
, purposes of federal taxation a corporation within
· the meaning of section 11 of the . Internal Revenue
; Code of 1954, as amended, provided, however, that
any business corporation created by the Passamaquoddy Tribe, Penobscot Nation or any member of
either Tribe or Nation shall be subject to all the
laws of the State."
Application of State Laws - Section 6
Although the language of S. 2829 is sufficient and
appropriate, the State would agree to the following to
the extent clarification is necessary:
Redraft Section 6(c) by adding to the end of the first
sentence the following clause:
�The Honorable Cecil D. Andrus
July 21, 1980
Page Nine
"; and 28 U.S.C. § 1362 shall be applicable
to civil actions brought by the Passamaquoddy
Tribe and Penobscot Nation."
Redraft Section 6(c) by adding in the second sentence
the word "valid" before "money judgment".
Redraft Section 6(d) to provide:
"(d) The consent of the United States is
hereby given to the State of Maine to amend the
Maine Implementing Act with respect to either
the Passamaquoddy Tribe or Penobscot Nation, provided that such amendment is made with the agreement of the affected Tribe or Nation, and that such
amendment relates to (1) the enforcement or application of civil, criminal or regulatory laws of thePassamaquoddy Tribe, the Penobscot Nation and the
State within their respective jurisdictions; (2)
allocation or determination of governmental responsibility of the State and the Tribe or Nation over
· specified subject matters or specified geographical
\ areas, or both, including provision for concurrent
jurisdiction between the State and the Tribe or
Nation, or (3) the allocation of jurisdiction between tribal courts and State courts."
Redraft Section 6(f) to provide:
"(f) The Passamaquoddy Tribe, Penobscot Nation
and the State of Maine shall give full faith and
credit to the judicial proceedings of each other."
The State would have no objection to a provision in S. 2829
to the effect that the United States and other states shall
honor judgments of the Passamaquoddy and Penobscot tribal
courts.
Redraft Section 6(g) to provide:
�The Honorable Cecil D. Andrus
July 21, 1980
Page Ten
"(g) No law or regulation of the United
States (i) which accords or relates to a special
status or right of or to any Indian, Indian
nation, tribe or band of Indians, Indian lands,
Indian reservations, Indian country, Indian territory or land held in trust for Indians and (ii)
which affects or preempts the civil, criminal or
regulatory jurisdiction of the State of Main~ including but without limitation the Act of June 25,
1948, c. 645, 62 Stat. 757, as amended, and the
Act of July 12, 1960, 74 Stat. 469 as amended,
shall apply within the State of Maine, provided,
however, that the Passamaquoddy Tribe, the Penobscot
Nation, and the Houlton Band of Maliseet Indians and
State shall be eligible to receive all the financial
benefits which the United States provides to Indians,
Indian nations and tribes or bands of Indians or
States to the same extent and subject to the same
eligibility criteria generally applicable to other
Indians, Indian nations or tribes or bands of
, Indians or states and for the purposes of deter\ mining eligibility for such financial benefits, the
respective Tribe, Nation and Band shall be deemed to
be federally recognized Indian tribes; and provided,
further, that the Passamaquoddy Tribe, the Penobscot
Nation and the Houlton Band of Maliseet Indians shall
be considered federally recognized Indian tribes for
the purposes of federal taxation and any lands owned
by or held in trust for the respective Tribe, Nation
or Band shall be considered federal Indian reservations for purposes of federal taxation."
It has been proposed that S. 2829 be amended to authorize
that land acquired for the Houlton Band of Maliseet Indians
under Section 5 be held in trust subject to restraints on
alienation and be exempt from taxation. Any proposal that
would exempt the Houlton Band of Maliseet Indians from the
laws of the State in any respect would constitute a serious
�Tne Honorable Cecil D. Andrus
July 21, 1980
Page Eleven
departure from the agreed upon settlement and would be a
major substantive amendment to which the State cannot agree.
The State believes, however, that there is ample provision
in the bill as drafted to permit the Passamaquoddy Tribe or
Penobscot Nation to agree to allow the Houlton Band of
Maliseet Indians to occupy up to 5,000 acres of land in either
the Passamaquoddy or Penobscot Indian Territory. If specific
authorization language is necessary, the State would agree to
clarification of S. 2829. This issue, however, is of paramount
importance; accordingly, it is essential that the State examine
specific language and insure that it is consistent with other
provisions of S. 2829 and the Maine Implementing Act.
In addition, the State would be willing to clarify that
the State and Houlton Band of Maliseet Indians can negotiate
jurisdictional agreements in the future and to that end proposes the following new subsection:
"(h) Notwithstanding the provisions of subsection 6(a), the State of Maine and the Houlton
, Band of Maliseet Indians are authorized to execute
· agreements regarding the jurisdiction of the State
' of Maine over lands owned by or held in trust for
the Band or its members. Unless and until such agreement i~ made, the Houlton Band of Maliseet Indians,
its members and any land owned by the Houlton Band
of Maliseet Indians or any of its members shall be
subject to the laws of the State of Maine to the
extent provided in subsection 6(a)."
The other amendments to this section proposed by
Interior are unnecessary and inconsistent with the agreement
of the parties.
Indian Child Welfare Act - Section 7
The amendment proposed by Interior is unnecessary and
inconsistent with the Indian Child Welfare Act.
�The Honorable Cecil D. Andrus
July 21, 1980
Page Twelve
Although Interior has made no proposal concerning the
application of the Indian Child Welfare Act to the Houlton
Band of Maliseet Indian~ in response to the legitimate concerns of the Houlton Band, the State agrees that S. 2829
may be clarified by the addition of a new Section 7(f) to
provide:
"(f) Except as may otherwise be subsequently
agreed to by the Houlton Band of Maliseet Indians
and the State of Maine pursuant to Section 6(h),
Section 1912 of Title 25 of the United States Code
shall apply to the Houlton Band of Maliseet Indians
to the same extent that that section applies to
Indian tribes as defined in Section 1903 of Title
25 of the United States Code."
State and Federal Funding to the Tribes - Section 8
Although the State
is necessary, the State
that used in the second
extent clarification is
believes no redrafting of Section 8
would agree to language similar to
sentence of 25 U.S.C. §459e, to the
essential.
Interior expressed concern over the interplay between
the provisions of Section 8 of S. 2829 andSections 6211(2)
and (4) of the Maine Timplementing Act. In particular,
Interior expressed concern that Sections 6211(2) and (4)
of the Maine Implementing Act might be inconsistent with
the policy underlying many federal laws. To that end, Interior
initially requested amendment of the Maine Implementing Act or
specific language in S. 2829. After much discussion, we believe the parties have eliminated much of Interior's understandable concern. Rather than amending S. 2829 to state
the parties' mutual understanding, however, it would be
preferable to embody this understanding in the Committee Report. Accordingly, the State proposes the following language
for inclusion in the Committee Report:
�The Honorable Cecil D. Andrus
July 22, 1980
Page Thirteen
"The Committee was advised by the Secretary
of his concern that the set-off provisions in
§ 6211(2) and (4) of the Maine Implementing Act
may work to defeat the intent of federal financial assistance to Indian tribes, since it would
appear on its face to permit the State to use
federal monies to supplant State monies. However,
after further inquiry, the Committee believes the
Implementing Act is not inconsistent with general
federal policy. Specifically, the Committee understands the Maine Implementing Act to work in the
following manner:
"To the extent the United States provides funds
for a program which are intended to be supplemental to a State program, then the set-off provisions of 6211(2) and (4) do not apply. The term
'substantially similar purpose' as used in the Implementing Act was not intended to include federal
funds intended to enhance, enrich or supplement
programs provided for under State law. Thus, for
example, where the BIA funds a remedial reading
program for the Tribes, such program would not be
'substantially similar' to a basic State educational
grant and would not supplant State funding."
This proposed language is stated in general terms rather
than by reference to either specific State or federal programs, because a detailed review of myriad State and federal
statutes and regulations would unduly delay the parties' goal
of prompt enactment of S. 2829.
State Held Tribal Trust Funds - Section 10
Section 10 is essential and any change would work a
major substantive alteration of the negotiated agreement.
Section 10 is particularly necessary because there are now
claims of mismanagement of tribal trust funds pending against
the State by the United States. Because these tribal trust
�'
I
The Honorable Cecil D. Andrus
July 22, 1980
Page Fourteen
funds were created out of proceeds of the land transactions
in dispute, final resolution of claims arising from State
management of these funds is essential. In recognition of
Interior's concern, however, the State proposes substituting
the term "shall constitute" for "shall be accepted" in the
first sentence of Section 10. Any other change cannot be
agreed to.
General Discharge of State Treaty Obligations - Section ll
For the reasons stated above, any change in Section ll
would constitute a major substantive alteration. It would
not be inconsistent with the intent of the parties, however,
to delete the words "any Indian" in the first sentence of
Section 11.
Limitations of Actions - Section 12
The State believes Interior's proposed subsection, (b)
may be unconstitutional.
We look forward to discussing these matters further with
your representatives in the hope that we can promptly resolve
all the remaining issues.
Sincerely,
RICHARD S. COHEN
Attorney General
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Tim Vollman
Barbara N. Coen
Peter s. Taylor
Tim Woodcock
Thomas N. Tureen
Reid P. Chambers
Donald Perkins
James Case
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James D. St. Clair
William F. Lee
Special Counsel to
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Dublin Core
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National Congress of American Indians Records
Description
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Documents from the National Congress of American Indians Records have been provided by t by the National Museum of the American Indian Archive Center. Additional information about the collection can be accessed on their <a href="http://www.nmai.si.edu/explore/collections/archive/" target="_blank">web page</a>.
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NMAI005
Title
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Letter from Maine Attorney General Richard Cohen to Cecil Andrus, Secretary of Interior, after the hearings before the Senate Select Committee on Indian Affairs (Re: Bill S. 2829) (07/21/1980)
Date
A point or period of time associated with an event in the lifecycle of the resource
7/21/1980
Source
A related resource from which the described resource is derived
National Congress of American Indians Records
National Congress of American Indians records, Box 532, Misc. Rec. of S. Harjo, Eastern Land Claims, Folder Titled “Maine Land Settlement Legislation [2 of 2]”; National Museum of the American Indian Archive Center, Smithsonian Institution
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
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Copyright is retained by the creators of items in this collection, or their descendants, as stipulated by United States copyright law. This item is made available for research and educational purposes by the National Museum of the American Indian Archive Center. Prior permission is required for any commercial use.
Attorney General Richard Cohen
Barbara N. Coen
Cecil Andrus
Donald Perkins
James D. St. Clair
Peter S. Taylor
Reid Peyton Chambers
Thomas Tureen
Tim Vollmann
Timothy Woodcock
William F. Lee