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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
�
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William S. Cohen Papers
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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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UMAINE014
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Letter to Senator John Melcher from Maine Attorney General Richard Cohen (08/19/1980)
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8/19/1980
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William S. Cohen Papers
William S. Cohen Papers (MS 106), Special Collections, Raymond H. Fogler Library, University of Maine, Orono, Maine, 3.3.13.1 Box 9, Folder 12
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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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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