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H.cpr·oduccd n ~ I he Nnlionnl Ar·chi \'cs
Statement of Wayne P. Libhart, Esquire, of Ellsworth, Maine and
James S. Erwin, Esquire, of York, Maine,
c'?
.,
on the subject of Chapter 732 of the Public
Laws of Maine entitled The Maine Indian Claims Settlement:
This statement assun1es that this Committee has as a part of its
pe~manent record and has read the followi~g:
(a) "Summary of Massachusetts/Penobscot Rela·tions-UPDATE,"
20, 1977 by the late Professor Roncild F. Banks of the
U ~ iversity of Maine at Orono, Maine.
Au~ust
(b)
"State Power and the Passamaquoddy Tribe: A Gross
J. O'Toule and Thomas N. Tureen,
Noveinber 1, 19 71.
:~rational Hypocrisy," Francis
~: · i. ne Law Review, Volume 2 3,
(c)
~o:u~e,
Symposium on Indian Land-Eastern Land Claims-The Entire
Volume 31, November 1, 1979.
~~e differing viewpoints of the issues here involved are thoroughly
d:.scus sed in those Hri tinr;s, and the a~Jl1l icable. history and docu:!"1.:...:-~ -::s are presented therein.
We will not attempt to summarize ·the
~~lient points in these writings excep~ to comment on what we perc...·.;;iv.z to be er'rors.
If any member of this Committee has a basic
f~~ilia~ity with the issues involved, it will be because he has
c.._r·efully read these above-listed wr'i·tings.
There are, of course,
r:.z....:.y others, but we feel that these stated above cover both sides
0f the issue quite well.
Our position on the passage of this Act
0..:- -~he Maine Legislature is basically outlined as follows:
(a)
The Congress of the United States has the power to
all Maine Indians to Maine lands.
(To
scholar contests this.)
8~ · ~inguish the claims of
c,~r knowledge no serious
(b)
Because the claims of Maine Indians now pending in the
~ :.:. · ced States District Court for Maine pose a serious threat to
~n~ocent Maine property owners, those claims should be extinguished
(~8e, for example, American Land Title Association Memorandum,
~:c.. :r·ch, 1978).
(c) If, in fact, Maine Indians have had lands they owned
(ownership in this context meaning, we believe, to be title as
opposed to possession or presence on the land) taken from them without adequate compensation, or if they have been cheated out of
·:;
�- 5·r_::·;l e Passamaqu.oddies were seafaring Indians arld never ven·tured far
from the sea.
They were also Micmacs and Malacites mostly, but
thGre wex'e many intermarriages with the Indians from Old Town.
Old Town, by the way, has been a n Indian village for some 5,000
Y· ars and was originally inhabited by Indians called "the Red
2
Po. int People."
It may be that the stipulation of tribal status in the Passamaq~oddy Trive v. Morton takes that issue away as well as the use
of a trust relationship, but the extent of the Passamaquoddy
claims remains open. We feel that the issues of tribes and of
damage are still open, however, because the Supreme Court may yet
rule onthese issues; the First Circuit Court of the United Sta·ces
l(;ft unanswered the ultimate questions upon which the pending
su.: ts will de p end if the cases reacl-1 tr·i.o.:.
'I :.e:re is an additional, ve.ry important qu ~ s·t:ion -co be a:i1Swercd
a satisfactory solution to this problem can be reached.
The present claims by the tr•ibes or bands of In c:L~. ans in Maine are
fo r· a large pPoportion of the land mas s of th0 S·tate.
Whether or
~afore
n ::Jt these Indians were ·tribes in the legal sense becomes important
i n aetermining whether or not they ever l1eld aboriginal possession
c£ s uch a large portion of Maine.
If the claims ever do come to
·:: ::' ial, such issues r'emain for the cour·t to decide and also as to
·tr ~e matter of damages.
'...· ~-.c
sunuuary of Professor Banks listed a·t ·t:he ope ni:r1g par•t of this
is dated in August of 1977, an d i t provides documented
that the Congress has on prior occasions acknowledged, at
l Gast by implication if not directly, that the Indian claims to
M
&ine lands have been extinguished.
Certainly, Massachusetts,
.j ~ ring the time that t .he Province of Maine was part of Massachusetts,
b2lieved that the claims had been extinguished and that the Indians
~ ~emselves had admitted that they had been conquered and their
claims to their lands had been extinguished. We said at the beginning of this statement that the issues involved should not be determi ned in haste because of the thought ·that two thirds of the land
i~ Maine may be taken away from its present white ownership and
r e turned to the Indians.
If the Indian claims h a ve any merit at
&11, and if the merit can be established in court, then the Indians
s~ould be compensated as Indians in the past have been with money
d~mages; but, as a prerequisite to that, it should be incumbent upon
t.t.L~m to prove the merit of their claims in ·the proper courts.
c ~ atement
p~oof
w~
would like to comment on one other aspect of this entire problem
·c:::lat it appears othe1..,s have not addressed and which we believe can
become a s~rious problem for Maine's sportsmen if the act becomes
l~ll.
Presently Maine sportsmen have access to the great ponds and
can hunt game and wildfowl on Maine wildlands by vir·tue of common
:~w rights derived from the Colonial Ordinances of 1641-47.
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�-6.h.l-though the proponents of the l-1aine Indian Claims Settlement Act
rr:ay state to the contrary, we believe ·the gran·ts of authori·ty to
Haine Indians under the Maine Indian Claims Se ·ttlement Act will
~ b rogate those Ordinances on the lands which the Indians intend
to acquire. We think that r e sult would be regretted by the people
o f Maine forever:
If Congress approves the Maine Implementation
Act as written, it will be almost impossible to alter the Act in
f~ ture years and Maine sportsmen will lose what we consider a very
v a. l uable right in 300,000 acres of Maine land.
F in~ l ly,
as to the law, we would like to call to the attention of
t :n e Committee again the important case decided by the Supreme Court
of the United States just recently: Wilson v. Omaha Indian Tribe,
U. S •
, 61 L . Ed . 2 d 1 5 3 . In t ha ·t case ·the Court s aid "but
l n t erms of the purpose of ·the prov.isions-- -tha·t of preventing and
p r oviding remedies against non-Indian squatters on Indian lands-i t is doubtful ·that Congress anticipu. ted such threa·ts from the
s~ates themselves or intended to handicap the states so as to offs~ ~ the likelihood of unfair advant& g e.'' Indeed, this 1834 Act,
w~ ~ch included Section 22, the provi s ion identical to the present
~E: ction 194 was "intended to apply to the whole Indian country as
o e fined in the first section." HR Rep. No. 1+7lJ., 23d Cong., 1st Sess,.
iO (1834).
Section 1 defined Indian country as being 11 all that
p~ ~ t of the United States west of the Mississippi and not within the
s ·:ates of Hissouri and Louisiana, or the Territory of Arkansas, and,
~lso, that part of the United States east of the Mississippi River,
a~d not with i n any state to which the Indian title has not been
e::.:tinguished. . . . " Al tho\].gh this defini -tion was discarded in the
R0 vised Statutes, see R.S. 5596, it is apparent that in adopting
S 2ction 22, Congress had in mind only disputes arising in Indian
c0~ntry, disputes that would not arise in or involve any of the states.
: 12 are most distressed that the Maine Implementation Act, although a
l ong time being negotiated, was rushed through the Maine Legislature
time for close examination of all aspects of the issues.
'i'h is Committee, therefore, we submit, should do the work which the
select committee of the Maine Legislature failed to do. We feel
vr2 r 'Y sure that if this Committee does investigate the historic and
:~ g al background of this matter, it will agree that, whatever the
solution may be to the Maine Indian lands problem, the present
? ~oposed solution is not, in fact, the right one.
~ithout
~2 dressing directly the act of the Maine State Legislature
11
~\~ aine Indian Claims Settlement Chapter 7 3 2 Public Laws of
entitled
the State
o f Maine 1980," we wish to make the following comment:
1.
Notwithstanding the fact that in tl1e Mashpee Indian case ln
Massachusetts above-cited, the case of the Indian claims was
lost because of the plaintiff's failure to prove its existence
as a tribe, the Maine Indian Claims Settlement Act, !.in i its
definitions and in a fashion of "bootstrapping·,"
··
�-7-
finds and declares that the claimants aPe, in fact, tribes· all
of them, the Malaci tes, Passamaquod(~ ies, and Penobscots ar~
declared to be tribes as they were constituted on March 4, 1789,
thus ignoring the express historical data compiled by the late
Professor Ronald Banks in -the update sununary quoted at the
beginning of· this statement. The submitted work of .P rofessor
Banks (who was cruelly murdered in New Orleans before he was
able to finish his research on this matter) is required reading
for any intelligent understanding of the chronological and
factual events which negate the claims presently before this
Committee.
The Legislature of the State of Maine has, as did
-the A-ttorney General's Office in the above-stated case of the
Passamaquoddy Tribe v. Morton stipulated an essential element
of the Indians' claim.
The stipulation is unfounded in history
and amounts to a logically inexplicable acceptance of a major
portion of a claim adverse to the State of Maine.
2.
"-'
In creating 300,000 acres of new "Indian te1,ritory," the
advocates of acceptance of the Maine Indian Claims Settlement
deny that there is any possibility of creating a sovereign within a sovereign.
This would only be true if, in fact, the lands
enumerated in the Settlement Act were made available to the
Indians for purchase in fee simple and were held by Indians
either as individuals or by the tribe as some form of legal entity
with exactly the same rights, privileges and obligations that
all other landowners in the unoccupi e d territory of Maine possess
and are subject to.
Instead, t hes e new Indian territories are
conceived of as "municipalities," bu-t they are, in fact, special
municipalities that do not exist in exactly the same form anywhere else in Maine.
A reading of the provisions concerning law
enforcement within these Indian territories shows how the persons
who drafted the Settlement Act labored to define and explain the
relationship between the Indian tribes and the State of Maine.
The result is a hybrid of law enforcement relationships which
cannot help for years to come to create severe problems as to
where and when state jurisdiction obtains and as to what may
happen as the expectations and understandings of whites and
Indians within the Indian territories come into conflict, as
inevi-tably they will.
The prospec ·ts for peaceful and orderly law
enforcement in the area of fish and game regulations alone are
dubious, to say the least. Any attempt, in later years, in the
face of depleted fish and game stocks by the Commissioner to
change fish and game laws as to bag limits or species which may
be taken can only be regarded by Indians as another instance of
-::he white man taking away from them something which they considered to be theirs of right.
We respectfully request this
Committee to make a careful analysis o.f the law enforcement
responsibilities and the possible problems which could arise
as the matter is covered in the Settleme n t Act.
Note pdrticularly that under Section 6206 of Section l General Powers, the
?assamaquoddy T1,ibe and the Penobscot Nation shall designate
such officers and officials as are necessary to implement and
�-8-
administer those laws of the Sta·te of I·1 aine that ax'e applicable
to the Indian territories. And note, also, under Section 6207
that ·.b y Subsection l(a) the Passamaquoddy Tribe and the Penobscot
Nation shall have exclusive authority within their respective
Indian territories to promulgate and enact ordinances regulating
hunting, trapping, and other taking of wild life. Yet, note by
Subsection 6 of the same section in th~ Act, the Commissioner's
powers of supervision may well be in conflict with the tribes'
choice of ordin .:~ nces for hunting, fishing and trapping. This
a rea alone could easily become a nightmare and lead to considerable administrative difficulty and, perhaps, dangerous problems
for law enforcement.
Tf'te undersigned feel that calling attention to a few points as above
w ~i l indicate to this Corunittee that there are some very serious
J! _;_ • blems with respect to tribal and s ·ta·te rela-tionships which have
..J
b ee n unrealistically and perhaps ineffectively dealt with by the
Settlement Act.
Law enforcement is not an exercise which occurs in
a vacuum.
It is often and perhaps almost always fraught with
2~ n otion and some danger for the law e nforcement officers themselves.
In Xaine, at least, the rights to hunt and fish and trap are widely
cc'l!sidered ·to be inalienable rights by a large proportion of Maine
ci~izens.
Clearly, if Maine's Indians are give n special, exclusive
r'i .:;hts to hunt without limi·ta·tion for sustenance purposes and non::-~ d ians may not have the same righ·ts, conflic t s will b e gin to crop
~p.
We respectfully request this Committee to make its own in-depth
ev~l~ation of the Settlement Act of the Maine Legislature.
We think
~~ raises more questions than it answers.
~ he
undersigned--both of whom are active practitioners of law in
standing, are avid hunters anc
fishermen and, for what it is worth, former members of the Maine
S~ate Legislature--believ e th~t even though the so-called settlement
~ ~s negotiated for many years, the Legislature was given little or
n o opportunity for in-depth study or review of the negotiations and
th ~ ir decisions and the reasons for them.
We believe that most of
the legislators voted on the basis of statements made to them as
to the chaotic problems that would arise with respect to land titles,
fu·ture mortgage commitments by banks., and ·the near impossibility of
s~lling future municipal bonds.
We believe that such tactics while
~~esented perhaps by spokesmen who believe they were implicit in
cGntinued negotiations or the advent of active lawsuit, the state~~~nts themselves foreclosed the individual legislators from asking
:o~ the necessary time to think about th e proposition and to review
i-c a:t leisure.
1::-1e State of Maine of many years'
Fin~lly,
we do not believe the scare stories because we believe as
that there are court procedures to prevent such untoward
£r8ezing of land titles. As we stated above, the simplest way in
w~ich the matter could be handled to the satisfaction of nearly
8veryone except those members of the tribes who literally believe
l a ~yers
�-9-
-c:hctt they may have returned to them one half of tl!e land in the
Sta te of Maine, is for Congress forthwith to extinguish all claims
·to land of all Indians in the State of Naine and to i.1. uthorize suits
to be brought in the United States courts of proper jurisdiction
fo.c the proof of and the a\vard of money damages, if any be deemed
a ~propriate by the courts, which said damages would be paid by the
U:r.. ited States of America.
W earnestly submit these thoughts to your consideration, and we
e
ar•e grateful for the opportunity to be heard. We most earnestly
r e quest that you will read the documents list e d above, and we
feel very sure that if you do, you will become convinced as we
are that history and the law will make it impossible for the
~aine Indians to sustain these claims in any courts of this land.
Respectfully submitted,
LJ
r,
k,
1-\e
P. Libhart,
Way~e
Ellsworth, Maine
X. ~
ames S. Erwin, Esqulre
York, Maine
�
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National Archives and Records Administration
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NARA014
Title
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Statement of Attorneys Wayne Libhart and James Erwin of Maine, submitted to the House Committee on Interior and Insular Affairs and included as part of the hearing record for Bill H.R. 7919 (Maine Indian Claims Settlement Bill) (08/25/1980)
Date
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8/25/1980
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Committee on Interior & Insular Affairs, Legislative Files: House Bills, Box 139, Folder “Hearing on HR 7919 Full Committee”; 96th Congress; Records of the U.S. House of Representatives, RG 233; National Archives, Washington, DC.
Language
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English
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Of particular interest, this statement discusses extinguishment, jurisdiction issues, and concerns about hunting and fishing rights.
Type
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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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Public Domain
Extinguishment of Claims
Hunting and Fishing
James Erwin
Jurisdiction
Wayne Libhart