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United States Department of the Interior
OFFICE OF THE SECRETARY
WASHINGTON, D.C. 20240
SEP 1 0 1980
Honorable Morris K. Udall
Chairman, Committee on Interior and
Insular Affairs
U.S. House of Representatives
Washington, D.C. 20515
Dear Mr. Chairman:
This supplements our report of August 25, 1980, on H.R. 7919, a bill to
settle Indian land claims in the State of Maine. In our earlier report
we enclosed a proposed amendment to H.R. 7919 in the nature of a substitute.
The proposal was developed in the course of discussions with tribal and
State officials in an effort to achieve agreement on substitute language
which would clarify governmental responsibilities in implementing the land
claims settlement. Our proposed amendment reflected a large measure of
agreement, but at the time of its submission discussions had not been con~
eluded with respect to Section 6(b) of the bill. Those discussions have
now been concluded and this is to provide you with our recommended language
for that provision.
Section 6(b) of H.R. 7919 as introduced provides:
(b) The Passamaquoddy Tribe, the Penobscot Nation, their members,
and the land owned by or held for the benefit of the Passamaquoddy
Tribe, the Penobscot Nation, and their members, shall be subject
to the jurisdiction of the State of Maine to the extent and in the
manner provided in the Maine Implementing Act. The Maine Implemen~
ting Act is hereby approved, ratified and confirmed, and the provisions of the Maine Implementing Act which hereafter become effective
including any subsequent amendments pursuant to subsection (d), are
incorporated by reference as fully as if set forth herein. The
Maine Implementing Act shall not be subject to the provisions of
Section 1919 of Title 25 of the United States Code.
As we mentioned in the course of our testimony at the Committeel'is August 25
hearings on the bill, one of our principal concerns with the settlement
proposal is the language of Section 6211(2) and (4) of the Maine Implementing
Act which would allow the State to reduce funding to the Passamaquoddy Tribe,
the Penobscot Nation, and their members in circumstances where the Tribes or
individual members are recipients of Federal funds 11 Within substantially the
same period for which state funds are provided, for a program or purpose
substantially similar to that funded by the State •••• 11 Section 6(b) of
H.R. 7919 would approve, ratify, and confirm the provisions of the Maine
Implementing Act, including Section 6211.
�R cpr.oilucetl nt the
ntionnl Archh•ru;
U.S. HOI!ISE OF REPRESENTATIVES
COMMITTEE ON INTERIOR AND INSULAR AFFAIRS
OFFICE OF THE CHAIRMAN
EXECUTIVE COMMUNICATION,
PETITION, MEMORIAL AND
REPORT
S upple.~eM..taf ROUTING SH~p. .
1
If you recommend this matter be called to I~ attention
artment of the Interior
THE SECRETARY
fON, D.C. 20240
sp
1 0 19 80
of the Chairman, please so indicate by a check mark, and
in any event, please initial and date this sheet to record
your having seen it.
Initial
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BOYD
McELVAIN
SCOVILLE
CONKLIN
Date
Chairman
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CHAIRMAN
Jst 25, 1980, on H.R. 7919, a bill to
cate of Maine. In our earlier report
~ H.R. 7919 in the nature of a substitute.
~ ourse of discussions with tribal and
~ ieve agreement on substitute language
esponsibi1 ities in implementing the 1and
nendment reflected a large measure of
submission discussions had not been con~
) of the bill. Those discussions have
provide you with our recommended language
Copy sent to:
Minority
v
Subcmte on
F,))__r
duced provides:
c;.;;:;J. ~.
COMMENTS:
TO BE FILED IN 1324 LONGWORTH HOB
ExecComm No. _ _ _ _ _ _ _ __
the Penobscot Nation, their members,
for the benefit of the Passamaquoddy
and their members, shall be subject
ate of Maine to the extent and in the
[mp1ementing Act. The Maine Implemen~
ratified and confirmed, and the provi~
ng Act which hereafter become effective
dments pursuant to subsection (d), are
fully as if set forth herein. The
not be subject to the provisions of
he United States Code.
ur testimony at the Committeel';s August 25
rincipal concerns with the settlement
Bill No. -L...!--If~£L.-7 l..-L _ _
..L__,9I_,_r;
n 6211(2) and (4) of the Maine Implementing
reduce funding to the Passamaquoddy Tribe,
~ bers in circumstances where the Tribes or
1ndividuar members are rec1p1ents of Federal funds "within substantially the
same period for which state funds are provided, for a program or purpose
substantially similar to that funded by the State •••• " Section 6(b) of
H.R. 7919 would approve, ratify, and confirm the provisions of the Maine
Implementing Act, including Section 6211.
Petition/Memorial No. _ _ _ _ _ __
·
GPO
63-tiGO-b
�2
Because we feared that ratification of these provisions in the State Act
could result in the abuse of Federal financial assistance by allowing the
State to use Federal funds to supplant State funding of programs which
benefit its Indian citizens, and would therefore set a potentially dangerous
precedent for the use of Federal funds nationwide, we asked State officials
to provide a letter clarifying the meaning and intent of Section 6211(2)
and (4) of the Maine Implementing Act.
Maine Attorney General Richard S. Cohen had sent to the Senate Select Committee
o~ Indian Affairs a letter dated August 22, 1980, which assists in the inter~
pretation of those provisions of the State law. · However· this letter, while
,
helpful · did not completely allay our concern· as expressed at the August 25,
,
,
1980 hearings, that Congressional ratification of the M
aine Implementing Act
pursuant to Section 6(b) of H.R. 7919 may be viewed as sanctioning, even if
only in limited circumstances, the practice of supplanting each dollar of State
aid to the tribes with a dollar of Federal aid.
After a careful study of the programs which might be affected by this provision
in the Maine Imp 1ement i ng Act· we have arrived at the fo 11 owing 1anguage as a
,
proposed amendment to Section 6(b):
(b) (1) 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 Implementing Act: Provided, however, that nothing
in this section shall . be construed as subjecting lands held by
the United States in trust to taxation; encumbrance, or alienation.
The Maine Implementing Act is hereby approved, ratified and confirmed
to the extent that it is not inconsistent with the provisions of
this Act. The Maine Implementing Act is not an agreement within
the meaning of Section 109 of the Indian Child Welfare Act of 1978.
{2) Funds appropriated for the benefit of Indian people or for
the administration of Indian affairs may be utilized, consistent
with the purposes for which they are appropriated~ by the Passamaquoddy
Tribe and the Pe·nobscot Nation to pro vi de part or a11 of any 1oca1
share required by Maine State law. 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.
(3) Nothing in this Act 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.
�3
Paragraph 6{b)(l) of our proposed amendment is substantially similar to the
provision in H.R. 7919. The proviso is intended to clarify the understanding of the parties that lands acquired by the United States in trust
shall not be subject to taxation and are subject to the restrictions against
alienation of section 5{f)(2) of our proposed amendment (section 5(e)(2)
of H.R. 7919). To the language ratifying the Maine Implementing Act we have
added the phrase, ~·to the extent that it is not inconsistent with the
provisions of this Act~~. While we have no intention of altering the substance
of the jursidictional agreement between the State of Maine and the Passamaquoddy
Tribe and Penobscot Nation, to the extent that anyone in the future perceives
a discrepancy between the federal and state legislation we feel it is important
to recognize that the federal legislation should control.
Paragraph 6{b)(2) is a reflection of our examination of the interplay of federal
and state funding of Indian programs under this new arrangement. Because lands
in Passamaquoddy and Penobscot Indian territory will be tax~exempt, those
Tribes may wish to rely on federal funds to match state funds available to them
as municipalities. As provided in Section 6211(1) of the Maine Implementing
Act, 11 [t]o the extent that any ••• program requires municipal financial
participation as a condition of state funding~ the share for either the
Passamaquoddy Tribe or the Penobscot Nation may be raised through any source
of revenue available... (emphasis added). For example, consistent with the
Maine Implementing Act and our proposed amendment, funds received by the Tribes
under a contract authorized by the Johnson~O t~J Malley Act {25 U.S.C. Section 452
et seg.) may be used as the local share to match state educational assistance if
that use is otherwise consistent with the provisions of the Johnson7"0 ! ~ Ma 11 ey Act.
Thus, regardl ess of whether or not certain funding sources may be prohibited
by federal law or regulation from supplanting state funds under Section 6211(2)
or (4) of the Maine Implementing Act, such funds may be used to provide the
local share for matching purposes.
1
Paragraph (3) of our proposed section 6(b) would make it clear that nothing in
the Settlement Act, including the ratification of the Maine Implementing Act,
should be read to supersede any federal laws or regulations governing the pro~
vision or funding of services or benefits to any person or entity in the
State of Maine, unless expressly provided by that Act.
The Maine Attorney General is amending his August 22 letter to provide further
explanation of Section 6211 of the Maine Implementing Act. It is our
understanding that the State~ s interpretation is that Section 6211 (2) and (4)
will not authorize the supplanting of Federal funds where such supplanting is
prohibited by either Federal law or regulation.
·
�4
It is the Department ~ s intention to structure our funding programs in such a
manner that no funds will be supplanted by the operation of Section 6211
of the Maine Implementing Act. This structuring may include the amendment
of our regulations to prevent supplanting of funds by states. However, such
regulations, if promulgated, will have effect on a national basis and will
in no way treat the State of Maine differently from any other state in such
funding matters.
We have also been requested to consider the addition of the word ~~ reasonabl e11
to the language of Section 5(b)(l) of our proposed amendment. That sentence
would then read as follows:
Each portion of the Settlement Fund shall be administered
by the Secretary in accordance with reasonable terms
established by the Passamaquoddy Tribe or the Penobscot
Nation, respectively, and agreed to by the Secretary.
We have no objection to the inclusion of this word so long as the standard
of conduct applicable to those charged with investment responsibility is
consistent with Section 6 of the Uniform Management of Institutional Funds
Act. That Section requires the governing board to exercise ordinary business
care and prudence under the facts and circumstances prevailing at the time of
the action or decision. Those charged with investment management of the funds
would be obligated to act in the utmost good faith and to exercise ordinary
business care and prudence in all matters affecting its administration.
The Office of Management and Budget has advised that there is no objection to
the presentation of this report from the standpoint of the Administration ~; s
program.
Sincerely,
~~~·.~~SECRETARY
�
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National Archives and Records Administration
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NARA002
Title
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Letter to Representative Morris K. Udall from Department of Interior, Supplementing the Department's Previous Report on H.R. 7919 as well as the Department's Previously Submitted Amendment in the Nature of a Substitute (09/10/1980)
Date
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9/10/1980
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Committee on Interior & Insular Affairs, Legislative Files: House Bills, HR 7919, Box 138; 96th Congress; Records of the U.S. House of Representatives, RG 233; National Archives, Washington, DC.
Language
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English
Description
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Supplement to Department of Interior report made on 8/25/1980, which included an Amendment to H.R. 7919 in the Nature of a Substitute. This letter suggests adding that the Maine Implementing Act (MIA) is confirmed ". . . to the extent that it is not inconsistent with the provisions of this Act". This language is not ultimately used in the final version of the Maine Indian Claims Settlement Act.
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
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Cecil Andrus
Jurisdiction
Representative Morris K. Udall