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,July 11, 1978
Kay Oberly
Special Assistant
Land and l~atural Resources Division
P..aine Leqislation.
'.P~r.. Eliot Cutler
r·~. Doug Huron
:Mr. Ed Kn~edler
Hr. TL-n Vollnann /
l'\ttached is a new version of the M:aine
legislati~n reflecting changes drafted by Tqm Tureen.
Tom's cha~ges are underlined.
I think we need a
meeting to discuss Section 4{e)--the indemnification
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provision. m•
.d1.e resl- o.t:: _n-: ..... f s cni-;:.. nges are no t
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particularly significan~although I would prefer to
delete his Section 2(a) (4).
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At taclu"!lent
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�A
B I L L
To provide for the settlement of land claims of Indian
tribes in the State of Maine, including the Passamaquoddy
Tribe and the Penobscot Nation, and for other purposes.
Be it enacted by the Senate and House of
Representatives of the United States of Ame~ica in Congress
assembled, that this Act may be cited as "The Maine
Indian Claims Settlement Act of 1978."
CONGRESSIONAL FINDINGS AND DECLARATION OF POLICY
Sec. 2(a)
Congress hereby finds and declares
that -(1)
The Passamaquoddy Tribe and the
Penobscot Nation are asserting claims for damages.and
for possession of large areas of land ih the State of Maine,
on the ground that the original transfers of the lands
by the tribes to the States of Massachusetts and Maine
were made in violation of the Trade and Intercourse Act
of 1790, or subsequent versions thereof.
(2)
Congress recognizes that substantial
economic and social hardship to a large number of landowners
in the St~te of Maine, and therefore to the economy of the
State as a whole, will result if parts of the tribes' claims
are not resolved immediately.
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(3)
2
At the same time, it is the desire
of c6ngress to preserve the tribes' claims to at least
a portion of the areas to which they assert rights.
(4)
The Passamaquoddy Tribe and the
Penobscot Nation have entered into a Memorandum of Under~_tanding with ~~-p~~-~_e_nt~-~~ves __ of the President wherein th_§ __
Passa~aquoddy Tribe and the Penobscot Nation agree to a
eartial settlement of their claims.
(b)
Therefore, it is the purpose of this
Act --
(1) to remove the cloud on the titles
to millions of acres of land in the State of Maine re~ulting
from the tribes' claims, while at the same time preserving
the tribes' opportunity to assert their claims with respect
to certain lands held by the State of Maine and tracts
held by private landowners in excess of a minimum acreage; and
(2)
to provide for a timely resolution
of all other similar Indian claims to land or natural
resources in the State of Maine.
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Sec! 3
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For the purposes of this Act, the term -(a) "Claims )Area" means that portion of th_e_
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DEFINITIONS
·. -· ·; State of Maine which lies ec:i.st and north of the Penobscot River
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:"atershed, 1r1c.~ llc.Hr.?," tr!-:: -P0:1-~:+_'•sco L
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~xclucling thzit part of the St. John's River watershr_:cl wt1ich
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lies east of a line from the Northeast
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St. Francis to the Northeast corner of Twp. 5, Range 9, WELS.
(b)
"Land or natural resources" means.any
real property or natural resources, or any interest in or
right involving any real property · or natural resources,
including but not limited to mineral rights, timber rights,
water and water rights, and rights to hunt and fish;
( c)
"Passanaquoddy and Penobscot Indian
Reservations" means that portion of the Passamaquoddy Indian
Reservation and the Penobscot . Indian Reservation in the
possession of the Passamaquoddy Tribe or the Penobscot
Nation or their members as of February 10, 1978;
( d)
"Residua 1 Claims Area" means those
areas of the State of Maine generally defined as:
(1)
that portion of the Penobscot
River watershed in the State of Maine above Eddington Bend;
---
(2)
that portion of the St. Croix
Rivei watersh~d in the State of Maine above Ba~ing Plantation;
and
(3)
that portion of the Kennebec
River watershed east of the eastern shore of Moosehead Lake;
(e)
"Secretary" means the Secretary of
( f)
"Titleholder" means the United States or
the Interior.
any department, agency 6r instrumentality thereof;
a county
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or municipality; or a private individual, corporation, trust)
partnership, or other entity, not including the State· of Maine,
that holds an interst in fee simple title to land or water ·in the
State of Maine.
A titleholding subsidiary and its titleholding
parent, or two or more titleholding subsidiaries of the same
parent, or two or more titleholders under substantially
common ownership or control shall be regarded as a single
titleholder for purposes of this Act.
For purposes of
section 4(d) of this Act, a tenant in· common!. joint tenant,
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or any other person who holds an undivided ·~·~ nterest in a
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tract of real property shall be deemed to be a titleholder to
the . entire unpartitioned t r a c t ~ ~ ~
(g)
"Transfers" includes but is not
nec~ssarily limited to any sale, grant, lease, allotment,
partition, or conveyance, any transaction the purpose of
which was to effect a sale, grant, lease, allotment,
partition, or conveyance, and any event or events that
resulted in a change in possession or control of land or
natural resources.
APPROVAL OF PRIOR TRANSFERS AND EXTINGUISHMENT
OF INDIAN TITLE AND CLAIMS OF PASSAMAQUODDY
TRIBE AND PENOBSCOT NATION
Sec. 4(a)
Except as provided in subsection (o),
any transfer of land or natural resources located anywhere
within the United States, other than . in the Passamaquoddy
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and Penobscot Indian Reser~ations, from, by or on behalf of
the Passamaquoddy Tribe or Penobsc?t Nation, or any
other entity presently or at any time in the past known
as the Passamaquoddy Tribe or Penobscot Nation, or
any predecessor or successor in interest, or any member
thereof, and any transfer of land or natural resources located
anywhere within the Claims Area by, from or on behalf
of anr Indian, Indian nation, or tribe of Indians, including
but not limited to a transfer pursuant to any ·statute
of any state, shall be deemed.to have been made in accordance
with the Constitution and all laws of the United States
that are specifically applicable to transfers of land
or natural resources from, by or on behalf of any Indian,
Indian nation, or tribe of Indians (including but not limited
to the Trade and Intercourse Act of 1790, Act of August 4, 1970,
ch. 33, §4, 1 Stat. 138, and all amendments thereto and all
subsequent versions thereof), and Congress does hereby approve
any such transfer effective as of the date of said transfer.
(b)
To the extent that any transfer of land
or natural resources described in subsection (a) may involve
land or natural resources to which the Passamaquoddy Tribe
or Penobscot Nation or any other entity presently or at
any time in past known in the Passamaquoddy Tribe or
Penobscot Nation, or any predecessor or successor in
interest, or any member· thereof, or any other Indian,
Indian nation or tribe of Indians, had aboriginal title,
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subsection (a) shall be regarded as an extinguishment
of such aboriginal title as of the date of said transfer.
(c)
By virtue of the approval of a
transfer of land or natural resources effected by
this section, or an extinguishment ~f aboriginal title
effected thereby, all claims against the United States,
any state or sub~ivision thereof, or any other person or
entity, by the Passamaquoddy Tribe or Penobscot Nation
or any other entity presently or at any time in the
past known as the Passamaquoddy Tribe or Penobscot
Nation, or any predecessor or successor in interest, or
any individual member thereof, o~ any other Indian nation or
tribe of Indians, arising subsequent to the transfer and
based on any interest in or right involving such land
or natural resources (including but _ not limited to claims
for trespass damages or claims for use and occupancy),
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shall be regarded as extingui~hed as of the date of the
transfer.
(d)
Within the Residual Claims Area, this
section shall not apply to
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(1) parcels o~ land or water, and all
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rights and interests incident thereto,
held in fee simple title by . the State of
Maine as of February 10, 1978; and
(2) ~arcels of land or water, and
all rights and interests incident thereto,
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other than parcels of land or water
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/~ approved p~rsuant to section 5 of
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.., th(~--- Act, held in fee simple as of February
1978, by any titleholder who holds or has
an undivided interest in fee simple
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title to more than 50,000 acres of land
or water in the Residual Claims Area.
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( e)
Within one hundred eighty days after the
date of enactment of this Act, any Indian, Indian nation or
tribe of Indians (other than the Passamaquoddy Tribe or
Penobscot Nation or any other entity presently or at
anytime in the past known as the Passamaquoddy Tribe
or Penobscot Nation, or any predecessor or successor
in interest, or member thereof) whose transfers of
land pr natural resources are approved by this section
or whose aboriginal title or claims are extinguished_ by
this -sect ion may bring an action against the Fund established
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pursuant to section 6 of this Act · in lieu of an action against
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would have existed in the absence of this section.
The
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amount to be paid in any such action shall be determined
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by dividing the amount of transferr~d land or natural
resources which any such Indian, Ind~a~ion or tribe
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any other person or entity against whom a cause of action
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section by the a~ount oE iand or natural resources in the
.·., Claims Arca ancl multiplying the result by $25,000,000.
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ADMINISTRATIVE IMPLEMENTATION
Sec. S(a)
Within thirty days after the date
of enactment of this Act, the Secretary shall cause ~o
be published in the Federal Register a list of all titleholdE
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who held title to more than
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may amend the list to correct errors at any time prior
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acres of land in the
Residual Claims Area as of February 1 O, 19 7 8. The Secr·e tary
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to final approval 'of designations pursuant to subsection (d).
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(b)
Any titleholder identified in the
originql or amended list published by the Secretary pursuant
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to subsection (a), or any successor in interest thereto, may,
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within sixty days of publication of the list specified
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in subsection (a) or any subsequent amendment of the list
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pertaining to such titleholder, file an application with
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the Secretary designating up to 50,000 acres of the titlehold
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total holdings that the titleholder requests to have covered
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(b} and (c} of this Act.
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When a parcel held in tenancy in common,
joint tenancy, tenancy by the entirety, or otherwise in
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common ownership is designated pursuant to this section
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a portion of the total acreage of the parcel shall be charged
against each titleholder's 50,000 acre exemption in the same
proportion as his interest bears to the total of all
of the parcel.
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After notice and opportunity for
hearing, the Secretary shall approve the applications filed
under subsection (b) if he finds that they conform to.the
extent possible with the following general criteria:
(1)
tracts should be selected in such a
way as to minimize checkerboard patterns of ownership;
(2)
the most densely populated areas
of a titleholder's total holdings should be included within
the 50,000 acre exemption, at least insofar as the titleholde
requests such inclusion;
(3)
ongoing business operations,
including but not limited to rnillsites, should be included
within each 50,000 acre exemption, at least insofar as
the titleholder requests such inclusion;
(4)
any timber lands included within
each 50,000 acre exemption should be representative of the
titleholder's overall holdings; and
(5)
parcels of land or water held in
in common, joint tenancy, tenancy by the entirety, or
otherwise by two or more titleholders should be included in
the exe~ptior.s, if one or more titleholders of such parcel
requests such inclusion.
If the Secretary concludes that any application
does not satisfy the foregoing general criteria, he may modif
the titleholder's proposed designation to the extent necessar
to achieve substantial conforrntty with those criteria.
The
Secretary shall then approve the designation as modified.
�- 10 (e)
Any person aggrieved by the Secretary's
approvals or modified designations may seek judicial review
by filing a petition for review in the United States Court
of Appeals for the First Circuit not later than sixty·
days after publication of the Secretary's approvals or
modified designations.
The Secretary's determinations shall
not be set aside unless they are found to be arbitrary,
capricious or an abuse of discretion.
ESTABLISHMENT OF FUND AND INDEMNIFICATION
Sec. 6(a)
The Secretary of the Treasury shall
establish an account in the Treasury of the United States to
be known as the Maine Indian Claims Settlement Fund and shall
transfer $25,000,000 from the general funds of the Treasury
into such account following the appropriation authorized
by section 9 of this Act.
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{b) One half of the principal of the Fund
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rema1n1ng after allocation to petitioner~ shall be held
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in trust by- the Secretary for the benefit of the
Passamaquoddy Tribe and the other half of the remainder
shall be held in trust for tbe benefit of the Penobscot
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Each portion of the Fund shall be administered in
accordance with terms established by the Secretary and agreed
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the pr1nc1pal of the Fund shall be distributed among the
members of eithi2r tribe on a per capita basis.
The Secretary
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shall make available to each tribe, without liability to or
on the part of the United States, any income derived from
its allocated portion of the Fund,.the use of which shall
be free from regulation by the Secretary.
APPROVAL OF PRIOR TRANSFERS AND EXTINGUISHMENT
OF CLAIMS AND INDIAN TITLE TO AREAS IN MAINE
OUTSIDE THE INDEMNIFICATION AREA
Sec. 7(a)
Except as provided in subsection (b)
(1)
Any transfer of land or natural resources
located within the State of Maine from, by or on behalf of
any Indian, Indian nation or tribe of Indians (ot0er than
transfers covered by section 4 of this Act), i~cluding
but not limited to a transfer pursuant to any statute of any
state, shall be deemed to have been made in accordance with
the Constitution and all laws of the United States that are
specifically applicable to transfers of land or natural
~esources from, by or on behalf of any Indian, Indian nation
or tribe of Indians {including but not limited to the Trade
---
and Intercourse Act of 1790, Act of August 4, 1790, ch. 33,
§ 4, l Stat. 138, and all amendments thereto and all subsequent
versions thereof), and Congress does hereby approve any such
transfer effective as of the d~te of said transfer.
(2)
To the extent that any transfer
of land or natural resources described in subsection (a)
may involve land or natural resources to which such Indian,
Indian nation or tribe of Indians had aboriginal title,
�- 12 subsection (a) shall be regarded as an extinguishment of such
aboriginal title as of the date of said transfer.
{3)
By virtue of the approval of a transfer
of land or natural resources effected by this section or an
extinguishment of aboriginal title effected th~reby, all
claims against the United States, any state or subdivision
thereof, or any other _person or entity, by any such Indian,
Indian nation or tribe of Indians, arising subsequent to the
transfer and based upon any interest in or right involving
such land or natural resources (including but not limited to
claims for trespass damages or claims for use and occupancy),
shall be regarded as extinguished as of the date of the transfer.
(b)
This section shall not apply to any claim,
right or title of any Indian, Indian nation or tribe of
Indians that is asserted in an action commenced in a court of
competent jurisdiction within one hundred eighty days of
the date of enactment of this Act; Provided, that the plaintiff
in any such action shall cause notice of the action to be
served upon the Secretary.
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LIM I TAT ION OF ACTION.S
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Notwithstanding any other provision of law,
any action to contest the validity or constitutionality of this
Act shall be barred unless the complaint is filed within one
hundred eighty days of the date of enactment of this Act.
Exclusive jurisdiction over such actions is hereby vested in the
United States District Court for the ·District of Maine •
. ·---=--,:::;::;.
�- 13 AUTHORIZATION
Sec. 9
There is hereby authorized to be
appropriated $25,000,000 to carry out the purposes of this
Act.
INSEPARABILITY
Sec. 10
In the event that any provision of Section·
4 of this Act is held invalid, it is the intent of Congress
that the en~ire Act be invalidated.
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Dublin Core
The Dublin Core metadata element set is common to all Omeka records, including items, files, and collections. For more information see, http://dublincore.org/documents/dces/.
Title
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National Congress of American Indians Records
Description
An account of the resource
Documents from the National Congress of American Indians Records have been provided by t by the National Museum of the American Indian Archive Center. Additional information about the collection can be accessed on their <a href="http://www.nmai.si.edu/explore/collections/archive/" target="_blank">web page</a>.
Text
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Identifier
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NMAI025
Title
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Memo to Eliot Cutler (White House, OMB), Douglas Huron (Associate Counsel to the President), Edwin Kneedler (Department of Justice) and Tim Vollmann (Department of Interior) from Kay Oberly (Department of Justice, Land and Natural Resources Division), with draft of Maine Indian Claims Settlement legislation attached. This draft reflects changes drafted by Tom Tureen (NARF Attorney for the Passamaquoddy Tribe and the Penobscot Nation). (07/11/1978)
Date
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7/11/1978
Source
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National Congress of American Indians Records
National Congress of American Indians records, Box 532, Misc. Rec. of S. Harjo, Eastern Land Claims, Folder Titled “[Maine Indian Land Claims - General V]”; National Museum of the American Indian Archive Center, Smithsonian Institution
Language
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English
Description
An account of the resource
Sections 4 and 7 of this draft deal with Extinguishment of Claims (what is now found in 25 U.S.C. 1723). What we know today as 25 U.S.C. 1725 (Application of State Law) is not included. The provision in the 07/07/1977 draft that affirms that the Tribes will be entitled to federal services and assistance has been deleted. What we know today as 25 U.S.C. 1735(b) is not yet included either.
Type
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Text
Documents
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PDF
Subject
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Indians of North America--Maine--Land tenure
Indians of North America--Maine--Claims
Indians of North America--Legal Status, Laws, etc.
Indians of North America--Government Relations
Indians of North America--Politics and Government
Rights
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Copyright is retained by the creators of items in this collection, or their descendants, as stipulated by United States copyright law. This item is made available for research and educational purposes by the National Museum of the American Indian Archive Center. Prior permission is required for any commercial use.
1723
Douglas Huron
Draft Bill
Edwin Kneedler
Eliot Cutler
Extinguishment of Claims
Kay Oberly
Thomas Tureen
Tim Vollmann