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RICHARD
STEPliEN
S. GOIIEN
L. DIAMOND
JOHNS. GLEASON
ATTORNEY GENERAL
JouN
M . H. PATERSON
J. STOLT
HOBERT
DEPUTY ATTORNEYS GENERAL
STATE OF l\1AINE
DEPARTMENT OF THE .L\TTOHNEY GENEHAI•
.L\.UGUST.A, MAINE 04:3:33
August 12, 1980
Senator John Melcher
Select Committee on Indian Affairs
U.S. Senate
Washington, D.C.
Re:
S. 2829, The Maine Indian Claims Settlement Act
Dear Sir:
•
During the Committee's hearing on this bill on July 1
and 2, 1980, the Committee requested that Governor Brennan,
Senator Collins, Representative Post and me to respond in
writing to certain questions posed by the Bangor Daily News
and former Governor James B. Longley concerning the bill and
the State Implementing legislation. This letter constitutes
a joint response to that request.
It is important to note that many of the questions posed
by both the Bangor Daily News and former Governor Longley
contain inaccurate assumptions about this bill and the State
legislation which should be corrected to assure a clear understanding of the issues.
The following are questions from ~angor Daily News
editorial of March 28, 1980, with our joint response:
1.
"~'lhat are the implications for Maine if the State
legislature ratifies the proposal and the U.S. Congress refuses
to go along with the revised and extravagent price tag?"
This question is premised on the initial assumption that
the appropriation provided for in the S. 2829 is excessive.
Much of the testimony before the Senate Committee addresses
this point and there is no need to repeat those points in this
letter.
t
�Page 2
However, several items are worthy of restatement. As
, my written testimony noted, the payment to the .r-1aine Tribes
under S. 2829 is proportionally less than that provided for
in the Rhode Island Settlement enacted by Congress in 1978
and is far less than the total cost of the Alaska Settlement.
Moreover, the size of the trust fund and the land base provided in S. 2829 first appeared in settlement prcposals made
several years ago by the Administration. For all these
reasons, I have recommended a settlement at the figures contained in S. 2829.
The position of Governor Brennan and the
Maine Legislative leadership appears in their testimony in
the record.
Of course, it is ultimately and appropriately
the responsibility of Congress to determine the amount of
money that should be spent to extinguish these claims.
•
The possible implications of Congressional failure to enact
S. 2829 were presented· in detail by several persons who
testified before the Committee.
That testimony, which details
the likely social and economic hardship if the case went to
trial, does not need repetition here.
If the settlement failed
because of the defeat of S. 2829, the fact that the State has
enacted the State Implementing Act would have no effect, either
legally or otherwise, on the State's position in possible future
litigation.
The fact that the State and Indian Tribes had
attempted to reach a negotiated settlement could not be used
as evidence in any future litigation.
If any further litigation results from failure to enactS. 2829, the State would
have made no concessions and would not have impaired its
litigation position by enacting the State Implementing Act.
In addition, if S. 2829 were defeated, the State Implementing
Act, by its own terms, would not take effect, and current
Maine and federal law would remain in place.
2.
"Why did the state attorney general agree to let the
attorney for the timberland owners and the··Indians establish
the price tag for the settlement without his participat1on as
spokesman for the state?"
This issue was discussed in my testimony to the Committee.
Briefly restated, it was my view, consistent with earlier statements of former Governor Longley, that any land acquired by the
Tribes under any settlement should come from willing sellers
at fair market value. Since State participation in those sales
negotiations could be perceived as pressuring parties to sell,
the State officials responsible for negotiations thought it
inappropriate to participate in that aspect of the settlement
discussions .
•
�Page 3
3.
"If one of the major landsellers, Dead River Co., is
prepared to sell much of its timber acreage to the Indians,
isn't that highly sugges·tive of a goVernment giveaway?"
Apparently the assumption here is that the only reason
one seller is willing to sell most of its land is that the
price is greater than its worth and cannot be refused. Thus,
the questions suggest that at least this seller, and perhaps
others, would be unfairly enriched. To state the assumption
seems sufficient to refute it. However, the Committee also
received testimony that explained why the Dead River Co. had
decided to sell off most of its timber acreage. Those reasons
do not reflect any suggestion of taking advantage of a ''government giveaway."
Perhaps the intent of this question was to raise the issue
of land values under the settlement. As the Committee heard,
the experts retained by various parties agreed that the prices
for the acreage involved were fair and in line with current
market values for similar acreage in Maine. The Department of
Interior's experts also independently reviewed the acreage and
prices and agreed that they reflected fair market value.
•
4.
"There are reportedly 9,500 Indian cases yet to be
resolved by Congress. When the state Legislature ratifies
this settlement offer, it is unwittingly establishing a
precedent for ·t he entire countrY2_"
When the Maine Legislature considered the State Implementing
Act, it believed that it was following precedent rather than
establishing it, in that it was seeking to resolve the claims
by negotiated settlement rather than by litigation. The concept
of settlement as a precedent was established by the Rhode Island
and Alaskan settlements and has consistently been encouraged
by the federal government.
Apart from that consideration, the question assumes that
all 9,500 Indian claims are the same and that this settlement
would be model applicable to all.
In fact this is not so. Only
a handful of all claims identified thus far are similar in
concept to Maine's and none is so large. Most of the western
claims have nothing in common with this case other than the fact
that the claimants are Indian.
It is a mistake, therefore, to
assume that this settlement will be a pattern for resolution of
all others.
�Page 4
It is in the nature of negotiated settlements that particular
provisions meet the requirements of the interested parties. Each
settlement must have unique characteristics that reflect the
nature and implications of the underlying claim, the relative
risks to the parties, traditions of the area involved and the
desires of the parties. In this sense, the settlement provisions in the Maine Act and S. 2829 are not precedents. Every
future settlement will have to reflect the unique considerations
in each case tc meet the partiesr requirements.
5.
language
Does the
upon the
disputes
•
"Have all of the intricacies of the jurisdictional
been examined by an expert without vested interest?
jurisdictional language bestow a preferential treatment
tribes which will foster an unrelenting chain of legal
in the years ahead?"
This question incorrectly assumes that the Governor and
Attorney General, and their staffs, in accepting the settlement
agreement and the Maine Implementing Act, have not carefully
reviewed the jurisdictional language in that Act. The question
further suggests that the Governor,. 7\ttorncy General and members
of the Maine Legislature somehow had a "vested interest" or
personal stake in the matter and were not acting out of concern
for the general welfare of Maine citizens. This suggestion is
false.
Not only did we carefully review the language of the bill,
we brought in outside counsel to do so as well and have encouraged any other experts to review and make corrective
suggestions. At the time of enactment of the Maine Implementing
Act the intricacies of the State and Indian jurisdictional
relationship had been carefully scrutinized by several independent
experts, by the Legislature and by many public speakers.
It
has been knowledgeably and thoroughly assessed and accepted.
The second part of the question contains the assumption
that the Indians receive "preferential" treatment. Under the
State Implementing Act, the Penobscot Nation and Passamaquoddy
Tribe are given certain rights and authority within the 300,000
acres of "Indian Territory." To the extent that these rights
and authority exceed that given any Maine municipality, they
do so only to a limited extent and in recognition of traditional
Indian activities.
(The Houlton Band of Maliseets are not granted
this 11 municipal" status). The most significant aspect of this
limited expansion of authority is in the area of hunting and
trapping and, to a limited extent, fishing in Inoian Territory.
Even in this area, the Indian Tribes must treat Indians and nonIndians alike, except for subsistence provisions, and Tribal
authority can be overriden by the State if it begins to affect
�Page 5
hunting, trapping or fishing outside the Indian Territory.
Generally the Act does not provide Indians with preferential
treatment.
To the contrary, we believe the Implementing Act
establishes a measure of equality between Indian and nonIndian citizens normally not existing in other States.
Indeed,
the Act recovers back for the State almost all of the jurisdiction over existing reservations that had been lost as a
result of recent Court decisions.
Obviously no one can guarantee that there will be no
litigation in the future over the meaning of certain provisions
in the Maine Implementing Act or 8 .. 2829. However, the
provisions of S. 2829 and the Implementing Act have been
carefully drafted and reviewed to eliminate insofar as possible
any future legal disputes.
Particular care was taken to insure
that S. 2829 is adequate to finally extinguish the land claims,
and as to those provisions we are satisfied that they have been
drafted as carefully as possible. Nevertheless, litigation
over this and other provisions is always possible and we cannot
prevent the filing of future suits. Any contract, agreement or
legislation always contains unanticipated ambiguities that
sometimes can only be resolved through the courts.
In our
judgment, however, should questions arise in the future over
the legal status of Indians and Indian lands in Maine, those
questions can be answered in the context of the Maine Implementing
Act and S. 2829 rather than using general principles of
Indian law.
6.
"If the Indians get their money and land in Maine,
will the Native American Rights Fund and other foundations
that have bankrolled the Indians in their legal quest dispatch
an army of well-financed lawyers to Maine to chase down other
historlc lnjustlces heaped upon the Native Americans by our
forefathers?"
Though we cannot say what the plan·s of the Native American
Rights Fund or similar organization~ may be, the Maine Implementing Act and S. 2829 clearly and absolutely extinguish all Indian
land claims in Maine.
These two Acts will finally and completely
settle those issues and remove any legal ground for attempting
to resurrect the historical incidents that gave rise to the
present claims. As to any other disputes that may arise in
the future, we assume the Tribes will use available legal
resources and rights just as any other citizen would .
•
�Page 6
11
7.
What about the so-called "Tribal Commission," which
constitutes the critical intermedlary body in potential
~risdictional disputes between Indians and non-Indians?
Is
itsmembership makeup realistic or evan workable?"
The Tribal Commission's functions are to regulate fishing
in Great Ponds and rivers ln Indian Territory and to make
recommendations on the "social, economic and legal relationship"
between the State and tribes. Its balanced composition, with a
retired State or Federal Judge as chairman, seems appropriate
for its tasks. We believe the composition of the Commission is
reasonable and workable and had we not we would not have agreed
to its inclusion in the settlement.
8.
"In view of the congressional mood to balance the
budget, how can Maine's Congressional delegation possibly get
behind a settlement proposal whose ~rice tag is two and a half
times what was originally agreed to?"
•
First, the question incorrectly refers to an earlier, less
costly settlement as having been "agreed to." While the State
did agree in 1978 to a $37 million settlement proposal, the
Tribes did not. We know of no settlement proposal that was
agreed to by all parties and that involved less money than that
called for inS. 2829.
In addition, and as my prepared testimony reflects, the
total value to the Tribes of S. 2829 is roughly similar to
several earlier settlement proposals sponsored by the Federal
government and is less than the value of the proposal of the
White House in February, 1978. To the extent that there has
been any increase in the estimate of settlement costs, it is
largely because of the changing value of land and the fact that
land values were understated in earlier proposals. In any
event, we would not presume to speak for Maine's Congressional
Delegation, the members of the Delegation can adequately respond
for themselves. As indicated in our answer to question 1,
Congress will have to decide on the appropriateness of the
legislation and proposed appropriation, after considering all
the factors addressed in testimony given the Committee.
9.
"Are Maine citizens prepared to submit, to embrace
the expedient lifting of the lawsuit cloud and render to history
an irrevocable record of a citizenry intimidated by specters
bereft of principle and conviction?"
This is a polemical statement in the form of a question
and does nothing to advance reasoned debate of these issues.
�.
Page 7
I
The question would have been more fairly phrased if it
asked:
"Does the Settlement reasonably reflect a fair
assessment of risks involved in litigation and is the
negotiated jurisdictional arrangement a fairly balanced
distribution of governmental authority over tribal lands?"
We think that the answer to the question thus phrased is
"yes."
The Governor, Attorney General and members of the Joint
Select Committee of Maine Legislature have examined the basis
for the claim 1 the risks of litigation and implications of
this settlement in detail. All agreed that the settlement now
pending was a principled and prudent way to bring this complex
legal and social problem to a fair and final conclusion. This
is a resolution consistent with our belief that all Maine people
ought to be treated equally and fairly and that we should not
expose the people of Maine to unnecessary legal and economic
risks resulting from a lawsuit if it can be avoided. We
believe that the majority of Maine citizens share the view
that the settlement represents a reasonable and rational
alternative to lengthy, costly and divisive litigation.
•
The following questions were posed by former Governor
Longley in his statement of March 23, 1980 .
1.
"Why would $81 million dollars plus special tax breaks
be negotiated by pulp and paper companies and private landowners,
with Indian Legal Counsel, without any state involvement?"
The answer to this question is essentially the same as that
in response to Question #2 of the Bangor Daily News.
In
addition, I would note again that former Governor Longley,
when in office, repeatedly stated his belief that the State
should not participate in those land negotiations.
2.
"Why has the price of land been substantially increased
from the time I was Governor, when private landowners quoted
££ices ranging from $100 to $112 per acre, vis a vis the present
price quoted under this settlement agreement of $181 per acre.
This is a difference of over $20 million dollars. Who is to
receive this money?"
The price of $100-$112 per acre to which Governor Longley
refers was a value per acre proposed by the White House in 1978.
Inquiries by the State and statements of landowners at the time
revealed that figure to be unrealistically low even then.
It
is therefore inappropriate to use it as the basis for criticizing
�Page
8
the values now proposed.
In addition, the price of land,
like other things, has risen in the two and one-half years
since the value cited by Governor Longley was used by the
Administration. Moreover/ the value of $181 per acre is an
average and includes parcels, some of which are valued at
far less and some at more. The identity of the selling,
private landowners has already been made public.
3.
"To the extent both federal and state taxes are
involved, why shouldn't cit~zens and the news medla of Maine
have an actual list of:
(a)
{b)
••
Land to be purchased and where and from whom?
The price to be paid per acre to individual
landowners?"
That information in response to part (a) was presented to
the public .and the Joint Select Committee of the Maine Legislature at the public hearing on the Maine Implementing Act. It
is part of the public record. Values of particular parcels
have, we understand, been provided to the Department of Interior
in order that it might evaluate the proposed prices. Additional
information relative to part (b) has been solicited by this
Committee from the landowners involved .
We support full public disclosure of all the details of
the transactions between the tribes, the U.S. Department of
the Interior and the private landowners as a part of the ongoing
public discussion of this issue.
4.
"Why wouldn't it be appropriate for the Legislature
to ask the Indian Tribes to submit this claim to the United
States Court of Claims without any economic sanctions during
the trial, if the Indians refuse whatever Congress recommends?"
This proposal is one that was repeatedly suggested by former
Governor Longley, but which the Tribe and the Federal government
consistently rejected. Asking the Indians to voluntarily
abandon their claim to land, as the question suggests, was
futile.
Continued pursuit of this proposal would have been
fruitless .
••
�Page 9
The basic premise of any settlement is that both parties
voluntarily agree to it.
The Maine Legislature has no power
to erase the Indians' Claims without their consent, and in
recent years Congress has indicated that it will not act to
resolve Indian claims without Tribal consent. The Indians have
continually asserted that they will not settle the claim without
some land as well as money. Moreover, in 1976 legislation was
introduced in Congress at Governor Longley's request which would
have largely accomplished the suggestion contained in this
question. The proposal was rejected by Congressional leadership
as inconsistent with longstanding Congressional Indian policy.
5.
"
is it fair to say there is not going to be
additional tax imposed on the taxpayers of Maine (as they also
pay federal taxes)?"
Presumably the federal appropriation will be paid out of
present federal revenues.
Thus, it seems fair to say that
there will be no additional taxes -imposed.
•
6.
"I feel that unless each Maine lawmaker thinks $81
million dollars is fair, th~y should search their conscience
as to whether it is fair to pass the buck to the Maine Delegation
and the United States Congress."
The Maine Legislature did not "pass the buck" to anyone.
It studied the provisions of the Maine Implementing Act and the
proposed federal bill, S. 2829.
The Maine Legislature carried
out its responsibilities of reviewing and designating the
300,000 acres of Indian Territory and resolving the jurisdictional
relationship between the State and the Indian Tribes. The
Legislature did not have the responsibility or authority to
appropriate the federal money.
Thus, it could not make a
decision on the appropriateness or fairness of that figure.
7.
"Should the federal government or ·the Indian Tribes
reimburse the State of Maine from any settlement thoy might
receive for the m1llions of dollars the taxpayers of Maine have
paid our Indian citizens due to the fact the federal government
1n the past refused to recognize our Maine Indians as eligible
for federal assistance while still pouring millions of dollars
into the Western Indian reservations(?)"
This suggestion, like many other options, was in fact
considered by the State but rejected by us.
In our judgment
it would have been futile to ask Congress to reimburse the State
•
�Page 10
for its past expenditures as well as asking Congress to pay
the Tribes for extinguishment of the claim. The State has,
however, taken the position that the millions of dollars that
it has spent on Maine Indians is its contribution to the
settlement agreement.
It is for this reason that we expect
the Federal Government to meet the expense of purchasing land
and creating a trust fund.
To ask the Indians or federal
government to reimburse the State would only increase the
federal cost of the settlement, thus making it more difficult
to have the settlement implemented by Congress. Thus, the
State has simply proposed that Cong~ess consider the State's
past payments as its share of the settlement.
8.
"Does the Maine Implementing Act establish 'separate
and preferential laws for Indian Citizens,' or has it thus
r e ndere.d favored treatment to one class of citizen, or in
effect, endorsed the concept of a second class of citizen
at the expense of the rest of- the citizens of Maine?
11
The implication in the term "preferential treatment" for
Indians has already been discussed in the response to the Bangor
Daily News question # 5.
I
There are certain provisions in the Maine Implementing Act
that permit in Indian Territory different laws than apply elsewhere in the State. These provisions embody a recognition of
traditional Indian ways. They are minor changes and are far
less intrusive on general state jurisdiction than the generally
applicable laws that govern federal "Indian Country" generally.
As was stated in testimony, the Maine Tribes now have
certain rights on their reservations that other citizens do not~
The State is now powerless to change that fact.
Should the
Tribes be successful in recovering land in a lawsuit they would
enjoy these same additional rights on these other lands also.
Under current general law, their rights are far more extensive
than those accorded under either the Maine Implementing Act or
S. 2829ft As we stated above, we think the Maine Implementing
Act restores equality of treatment of Indians and non-Indians
which was lost under recent Court decisions. Rather than creating and continuing "preferential treatment" the Implementing
Act and S. 2829 insure equality of treatment. To the extent
there are some minor distinctions in the application of State
law in Indian Territory and elsewhere in Maine, those differences
are in our judgment minor and represent a fair compromise and
balancing of Tribal, State and Federal interests .
•
�Page 11
We wish to thank the State Committee for the opportunity
to respond for the record on the series of questions raised
by the Bangor Daily News and former Governor Longley. We
believe that the record of your hearings on S. 2829 and the
Maine Implementing Act clearly show that these questions have
been adequately answered.
We hope that the Committee will shortly act favorably
on this bill.
ei~
~ARD ·C~
S.
Attorney General
RSC:mfe
cc:
•
Cohen~
Honorable WilliamS.
Honorable George J. Mitchell
�
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William S. Cohen Papers
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Letter from Maine Attorney General Richard Cohen (also on behalf of Maine Governor Joseph Brennan) to Senator John Melcher (dated 08/12/1980) responding to questions posed by Bangor Daily News and former Gov. Longley at the Select Committee on Indian Affairs Hearing on July 1-2, 1980
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8/12/1980
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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, 3.3.13.2 Box 6, Folder 1
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Letter from Richard Cohen (Maine Attorney General) (also on behalf of Governor Joseph Brennan) to Sen. John Melcher responding to questions posed by Bangor Daily News and former Gov. Longley at the Select Committee on Indian Affairs Hearing on July 1-2, 1980.
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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.
Extinguishment of Claims
Governor James B. Longley
Governor Joseph Brennan
Jurisdiction
Senator John Melcher
Senator William S. Cohen