Maine’s Indians on the lawpath

Press, 5 October 1977, Page 12

Maine’s Indians on the lawpath

By

JOHN WILSON,

, of “The Press”

The Indians of the Penobscot and Passamaquoddy tribes, who live on small reservations in northern Maine, number only about 3500. But these tribes have brought the claims of the American Indians for redress, after hundreds of years of wrongs and neglect, into the headlines in the United States for the first time since the Wounded Knee uprising in 1973. The Indians of Maine have caught the headlines not by violent demonstrations, but by pushing a legal claim to about half the area of the state of Maine. The case typifies the new direction many American Indians are taking in asserting their rights. Other Eastern tribes are pursuing similar, although smaller, land claims in the courts. In the West, Indians are attempting to use the law to recover lost rights to water. Of the 266 tribes recognised by the Federal Government, more than half are involved in law suits; more than 1000 Indian claims which may result in legal action being taken are under investigation by the Department of the Interior.

The basis of the claims of the Penobscot and Passamaquoddy Indians is that their land was taken from them in the 1790 s and early 1800 s by the state of Massachusetts (of which Maine was part until 1820) in violation of the Indian Non-lntercourse Act passed by Congress in 1790. This act, which is still on the statute book, declares that no purchase, seizure or grant of land from Indians is valid unless the land is acquired by treaty or convention entered into pursuant to the Constitution — that is, with the approval of the United States Congress. The Indians are arguing that their land in Maine was taken from them, particularly under a treaty made in 1794, without such approval being secured, that the land has, therefore, legally been theirs all along, and that the present owners or occupiers are trespassers and liable to be ejected and to pay damages for illegal occupation. The Indians originally claimed about 12 million acres of land and $25 billion

in damages. The 12 million acres includes much uninhabited forest land owned by the state of Maine and by large pulp and paper companies. But more than 350,000 people live and work in the area. The claim threatens to disrupt the economy of Maine and the lives of these people. The case has been about 20 years in gestation. It mushroomed from a minor claim to a few thousand acres lost from the 23,000 acres of land reserved to the tribes under the 1794 treaty (which had been lost, but was rediscovered in the 1950 s in the trunk of an old Passamaquoddy woman). The case has been pushed with increasing determination since the early 1970 s by a young lawyer, Mr Thomas Tureen, who became involved with the Indian case in 1967. The nature of the case changed dramatically with Mr Tureen's realisation that die 1794 treaty might itself be invalid under the 1790 Non-lntercourse Act. The major legal stumbling block was to establish whether the 1790 act applied to the Indians of Maine who lived in the area of one of the

original 13 states of the United States. Mr Tureen won his major victory for the Indians in 1975 when he secured a ruling that the trust relationship between the Indians and the Federal Government established in the 1790 act and defined in the 1820 s and 1830 s by Chief Justice Marshall applied in the cases of the Passamaquoddy and Penobscot Indians. The Federal Government was therefore, required to investigate and take appropriate action on the Indian claims that their tribal rights had been violated. The Indians now have the Interior and Justice Departments working on their behalf. The Justice Department finally agreed to pursue scaled-down Indian claims through the courts in March 1977. The lawsuits pending are cases laid against the landowners of the area claimed by the Federal Government acting on behalf of the Indians. Belatedly, the landowners and the state of Maine are attempting to rebut the legal arguments on which the Indian case is based. They are suggesting that the Indians had been displaced by conquest since

they W’ere on the losing side in the French and Indian Wars; they continue to assert that the 1790 act was meant to apply only to the western territories and not to the 13 original states; and advancing common law defences — that the Indian title has been so long in abeyance and so long ignored by state law and public policy that it no longer has any legal force. These last, common law, defences appear not to apply against a claim based on statutory law. In particular, a court decision in Rhode Island earlier this year undermined many of the arguments advanced to rebut the Indian case. But Maine and the landowners are still resisting a negotiated settlement. Maine’s AttorneyGeneral, Mr Joseph E. Brennan, is so convinced that the Indian claim is invalid that he wants the lawsuits to proceed so that the claim can be finally disproved. If the case is not settled by negotiation it could be 10 years, allowing for appeals to reach the Supreme Court, before it is settled by litigation. All that time Maine will remain under the

economic cloud which has affected property transactions, the raising of mortgages and the ability of towns to raise loans. These economic uncertainties have strained local relations between Indians and whites.

Many people are, therefore, anxious to see a negotiated settlement between the tribes and the state. In March, President Carter appointed a retired judge from Georgia, Mr W. B. Gunter, to promote an out-of-court settlement. In July, Mr Gunter proposed that the Indians receive 100,000 acres of state land and $25 million in Federal funds, a proposal which President Carter described promptly as "fair, very judicious and wise.” The Indians have declared their willingness to accept a negotiated settlement (they appear, to some extent, to be using the legal process only to oblige the Federal and state Governments to heed their claims at all), but it is net yet clear whether Mr Gunter’s proposals will seem fair and judicious to them.

What a fair, negotiated settlement would do is balance two conflicting moral

arguments. The Indians’ case has touched a sense of national guilt in the United States, a feeling that something should be done to make up for the thefts and swindles by which Indians were parted from their lands, and for the years of neglect and deprivation which many Indians have suffered while confined to tiny, poor reservations. (Unemployment on the Penobscot and Passamaquoddy reservation ranges, seasonally, between 30 and 50 per cent). This feeling makes it unlikely that Congress will simply extinguish the Indian title to the land, although this has been proposed as one solution. But there is a feeling, too, that when the ancient wrongs done the Indians are being redressed, it is unfair to ask the present owners of the lands involved, who are not personally responsible for the wrongs and who have bought and farmed or developed the land in good faith, to pay the entire cost.

A precedent for a settlement which shifts most of the burden from the shoulders of the present landowners (although the state of Maine and possibly some of the large corporate landowners may have to surrender some of their land) on to the shoulders of the Federal Government was set in 1971 with the Alaska Native Claims Settlement Act. This act granted land and money to the Indians, Aleuts and Eskimos of Alaska in return for their abandoning all other land claims.

Mr Brennan has declared that “we cannot create a system of perfect historical and moral accounting that would provide reparation for ancient wrongs.” His belief is that this sensible proposition justifies throwing the Indians’ case out. Others refuse to accept that the impossibility of reaching a perfect settlement with the Indians justifies making no efforts to set “ancient wrongs” right. With a strong legal case behind them, the Indians of Maine appear to be in a good position to ensure that arguments that “perfect historical and moral accounting” is impossible do not prevail against arguments that something should be done to make up for their continuing deprivation.