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Digitized from Box 4 of the Bradley H. Patterson Files at the Gerald R. Ford Presidential Library
THE WHITE HOUSE
WASHINGTON
Passamaquoddy Issue
1. Interior finish up work on its
Litigation Report to Justice.
2. In this process, invite State and
Indians' input. (State has asked for
this; so have Indians).
3. Interior send final Litigation Report
to Justice.
4. Justice release this to the interested
parties.
5. White House send letters to the parties
inviting written input to a "settlement
concept option paper.
6. White House host one or more informal
conferences of the parties to compare
the inputs and clarify the issues and
gather the pieces of such an option
paper.
7. White House, together with Justice,
Interior and Indians and in consultation
with State, Congressional Delegation etc
draw up option paper for President Carter.
8. Justice report the completion of this
staff work to Judge Gignoux on his
deadline of January 15, 1977, and then,
and in the light of this, request a 30-day
extension of the Judge's deadline SO that
PPresident Carter can make uo his mind.
FORD
MOTE
RLD
9. Outcome of the option paper might be the
draft of legislation which Carter could
promptly send to Congress -- so that
early Congressional action can minimize
economic disruption in Maine.
I
INTRODUCTION
The following is a summary of research relative to the
Penobscot Tribe.
II
TRIBAL EXISTENCE
The Penobscot Nation is part of the Abenaki linguistic
group, a collection of tribes which once occupied land as far
west as Vermont. Because of their geographic location, the
Penobscots were drawn into contact with non-Indians at an early
date, and the record evidence of the tribal existence of the
Penobscots is extensive. The tribe entered into treaties with
the Colony of Massachusetts in 1693, 1699, 1713, 1717,
Ernest S. Dodge, "Ethnology of Northern New England and the
Maritime Provinces," Massachusetts Archaeological Society,
Bulletin, CVIII (1957), 68.
Truce between Indian and English, July 21, 1693, The Baxter FORM
Manuscripts: The Documentary History of the State of Maine
[hereafter Bax. Mss.] (24 vols.; Portland: Maine Historical
Society, 1869-1916), XXIII, 4-5. The Submission and Agree-
ments of the Eastern Indians, Aug. 11, 1693, ibid., X, 9-11.
Indian Treaty, Jan. 7, 1698/99, ibid., XXIII, 19-21.
Treaty of Eastern Indians, July 11--, 1713, ibid., 37-50.
Calendar of State Papers, Colonial Series, 1574-1733 [CSP]
(40 vols.; NCR Microcard Editions, 1965), XXVII, 225.
5/
Indian Treaties in Maine Historical Society, Collections,
1st Ser. (Portland: The Society, 1853), III, 373-74.
1
7/
10/
1725, 1726, 1727, 1749, and 1752.
John Allan, the Sup-
erintendent of the federal Eastern Indian Agency during the
Revolution dealt with the Penobscots as a tribe, 11/ as did
the
The Submission and Agreement of the Delegates of the Eastern
Indians, Dec. 15, 1725, in Peter Cummings and Neil Mickenberg,
eds., Native Rights in Canada, 2nd ed. (Toronto: General Pub-
lishing Company, 1972), 300.
7/
Conference with the Eastern Indians, Maine Historical Society,
Collections, 1st ser., III, 392-93.
Conference with the Eastern Indians at the Further Ratifica-
tion of the Peace, Held at Falmouth in Casco-Bay, in July, 1727,
ibid., 407-47; and Traite de Paix Entre les Anglois et les
Abenakis, Aoust, 1727, Collection de Manuscripts contenant
lettres, Memoires, et autre documents historiques relatif a la
Nouvelle France (4 vols.; Quebec: Legislature de Quebec, 1883-
85), III, 407-47.
Treaty with the Eastern Indians at Falmouth, 1749, Maine
Historical Society, Collections, 1st ser., IV, 145-67; and
Nathaniel Boulton, ed., New Hampshire Provincial Papers
(7 vols.; Concord: George E. Jenks, 1867-73), V, 131-33.
10/
Treaty with the Eastern Indians at St. Georges Fort, 1752,
Maine Historical Society, Collections, 1st ser., IV, 168-84.
For colonial treaties see Henry F. Depuy, comp., A Bibliog-
raphy of the English Colonial Treaties with the American Ind-
ians (New York, 1917).
11/
See Allan's Commissions and Instructions from the Continental
Congress and the Government of Massachusetts, Papers of the Con-
tinental Congress [PCC] (Jan. 15, 1777), Roll' 8, Vol. 7, 65-68;
May 24, 1783, PCC, Roll 163, Vol. 149, II, 561-62; June 3, 1783,
PCC, Roll 26, Vol. 19, 53; Baxter Bax. Mss., XV, 212, 215-16.
For additional evidence of Allan's federal relationship with the
tribe see: Return of Indians and their Familys that are and have
Been in the Service of the United States by order of Colo Allen,
Superintendt and Commandr in Chief of Indians, Eastern Depart-
ment, at Machias, July 28, 1780, Frederic Kidder, Military Oper-
ations in Eastern Maine and Nova Scotia during the Revolution
Chiefly Compiled from the Journals and Letters of Colonel John
Allan, with Notes and a Memoir of Col. John Allan (Albany: Joel
Munsell, 1867), 52-54.
2
Commonwealth of Massachusetts which concluded treaties with the
12/
tribe in 1796 and 1818. Since its separation from Massachu-
setts in 1820, the State of Maine has continuously treated the
13/
Penobscots as a tribe of Indians, and the Penobscots have
continuously occupied the lands which they reserved in their
treaties.
The history of the governmental structure of the Penob-
scot Nation is roughly similar to that of the Passamaquoddy
Tribe. Until the nineteenth century the tribe was governed by
14/
Sagamores who were selected for life. These Sagamores were
responsible for allocation of the family hunting territories,
and hence became increasingly more important as the fur trade
15/
rose in importance.
The Sagamores also played a critical role
12/
The 1796 treaty is recorded in the Hancock County Registry
of Deeds, Ellsworth, Maine, at Book 27, Page 6; for 1818 Treaty,
see Mary F. Farnham, ed., Documentary History of the State of
Maine, Vol. III (Lefavor-Tower Company, Portland: 1902), 127.
13/
The State of Maine has enacted a comprehensive set of statutes
which purport to regulate many facets of Penobscot tribal life.
See generally 22 M.R.S.A. § 4761 et seq.
14/
Alfred Goldsworthy Baily, The Conflict of European and Eastern
Algonkian Cultures, 1504-1700 (Toronto: University of Toronto
Press, 1969), 91-92, and Morrison, The People of the Dawn, (Un-
pub. Ph!d. Diss. Orono: University of Maine, 1975), p. 25, 38-
40.
15/
FORD
Dean R. Snow, Wabenaki "Family Hunting Territories, " American
Anthropologist, 70 (1968), 1143-51.
3
in the Penobscots' rather extensive diplomatic encounters with
16
other governmental entities, both Indian and non-Indian.
In the early part of the nineteenth century a political
split developed within the Penobscot Nation, and the Sachems, who
17/
had traditionally been chosen for life, became elective.
Two
political parties were formed, and leaders were chosen alternately
18/
every two years from each party.
This situation persisted until
the present century, when the party system became less evident.
Today the governing body of the Tribe consists of a Governor and
Lieutenant Governor who are elected every two years, and a 12 mem-
ber tribal council consisting of members elected for two year
19
staggered terms.
16
Frank G. Speck, The Eastern Algonkian Wabanaki Confederacy,
American Anthropologist, XVII (1915), 492-508, outlined the
eighteenth-century alliance system which united the Abenaki
peoples. A few short biographies of Penobscot and Maliseet
leaders are also suggestive about these developments. See
Frank T. Siebert, "Wenemouett," in George W.Brown, et al., eds. 1
Dictionary of Canadian Biography (Toronto: University of Toronto
Press, 1966--), II, 664-66; Kenneth M. Morrison, "Loron Saugua-
aram, ibid. III, 584-85 for Penobscot biographies and Richard
I. Hunt, "Ambrose St. Auban," and "Pierre Tomah," ibid., IV,
for Maliseet leaders.
17
Eugene Vetromile, The Abenakis and their History: or Historical
Notices of the Aborigenes of Acadia (New York: James B. Kirker,
1866),
18
Ibid.
19/
22 M.R.S.A. $ 4793.
4
III
ABORIGINAL TERRITORY
A. Nature of Use.
Penobscot aboriginal territory probably reached its
20/
maximum extent by the middle of the eighteenth century.
Pen-
obscot land usage patterns were similar to those of the Passa-
21/
maquoddy. Both tribes were riverine in orientation, and both
hunted inland areas during the fall and winter, and spent the
summer by the sea shore. Frank G. Speck, who has conducted
extensive anthropological research among the Penobscots, de-
scribes the pattern as follows:
Within this stretch of country the Penobscot
used to divide their time somewhat regularly,
spending the summer months (June, July, August)
in the lower coast or salt-water region, then
ascending the river to the family hunting terr-
itories for the fall hunting (October, November,
December), and finally returning to the tribal
rendezvous at the main headquarters at Oldtown
for the dead of winter (January, February, March).
20/
See discussion of the corresponding summary of the Passama-
quoddy claim.
21/
The Jesuit Relations, June 20, 1677, Vol. 60, 263-64, refers
to the riverine orientation of the Penobscots. On the nature
of Penobscot aboriginal title within their own sense of law
see: Lt Governor Dunbar to Mr. Popple, Nov. 17, 1730, CSP,
XXXVII, 345-46. The secondary literature is extensive. See:
James Phinney Baxter, "The Abnakis and their Ethnic Relations, "
Maine Historical Society, Collections, 2nd ser., III, 13-40;
Fannie H. Eckstorm, "The Indians of Maine," in L.C. Hatch, ed.,
Maine: A History (New York: The American Historical Society,
1919), I, 43-64; Dodge, "Ethnology of Northern New England and
the Maritime Provinces," 68-71; Frank G. Speck, Penobscot Man:
The Life History of a Forest Tribe in Maine (Philadelphia: Uni-
versity of Pennsylvania, 1940), 7ff.; and Dean R. Snow, "Waban-
aki 'Family Hunting Territories, American Anthropologist, 70
(1968), 1143-51.
5
The early spring months (April, May) were spent
drifting down toward the ocean and hunting through
the neighboring streams and in the main river for
eels. This, it should be understood, is only a
general outline of the movements of the people;
many of them would spend longer periods in the in-
terior, while some "lazy" families would remain
most of the time at salt water, gaining 227 an easy
though monotonous living from the sea.
Dr. Speck also notes that the Penobscots hunted seals during
23/
the summer from the islands adjacent to their territory,
and
24/
that the members of the tribe were strict conservationists.
The Tribe's conservation practices were described in 1764 as
follows:
They said it was their custom to divide the hunt-
ing grounds and streams among the different Indian
families; that they hunted every third year and
killed two-thirds of the beaver, leaving the other
third to breed; beavers were to them what cattle
were to the Englishmen, but the English were kill-
ing off the beavers without 25 any regard for the
owners of the lands.
B. Evidence of territorial location and extent.
Much of the extent of the aboriginal territory of
the Penobscot Nation is indicated in the many negotiations which
22/
Frank G. Speck, Penobscot Man, 26.
FORD
23/
Ibid., 35.
24,
Ibid., 207.
25/
Joseph Chadwick, "An Account of a Journey from Fort Pownal --
Now Fort Point -- Up the Penobscot River to Quebec, in 1764,"
Bangor Historical Magazine, IV (1889), 143.
6
accompanied the various treaties and agreements by which the bulk
of the Tribe's territory was ceded. Since these negotiations will
be discussed in some detail in the following section, those
events will not be separately discussed here. This section,
rather, will highlight the anthropological research which has
been completed on Penobscot aboriginal hunting territories.
As was indicated above, the Penobscot Nation, like the
other tribes in the area, was riverine in orientation, and div-
ided its overall territory into smaller family hunting terri-
tories. The Tribe's aboriginal territory consisted primarily
26/
of the drainage basin of the river which bears its name.
The
principal villages of the tribe were all located on the Penob-
scot River. The following villages were occupied until well
into the present century: Indian Island, opposite Old Town,
Maine; Olemon, some twelve miles up-river; Long Island, opposite
Lincoln, Maine. Other large camps, possibly towns, were situated
on the Penobscot River at the Mattawamkeag River and the Passa-
dumkeag River, and at Castine on the eastern shore of Penobscot
27/
Bay.
These villages served as staging grounds from which the
family hunting groups would move to their respective territories
28/
in the fall.
26/
Frank G. Speck, Penobscot Man, 7.
27/
Ibid., 25-26.
28/
Ibid., 22.
7
Practically the entire Penobscot watershed, an area
encompassing 5,303,511 acres, was divided into family hunting
territories. Several Penobscot family hunting territories cov-
29
/
ered the area above the Penobscot watershed.
The northern-
most of these, which Speck describes as "perhaps the largest
and most active family of hunters in the tribe," occupied land
in the St. John watershed reaching to Maine's northern border
30
/
with Canada.
IV
LOSS OF ABORIGINAL TERRITORY
The Penobscots' aboriginal lands were protected in the
Tribe's colonial treaties. The Treaty of Portsmouth in 1713,
for example, guaranteed the Penobscot "their own Grounds" and
31,
defined that territory as lands held as of 1693.
In all her
dealings with the Abenaki peoples in general, and with the
Penobscots in particular, Massachusetts held to the practice
32/
of purchase or cession to establish English title.
Indeed,
29/
For map see ibid., p. 6.
30/
Ibid., 229.
31,
Frederic Kidder, ed., "The Abenaki Indians; their Treaties
of 1713 and 1717," Maine Historical Society, Collections, 1st
ser., VI, 251 and 260.
32/
An Act to Prevent and make void clandestine and illegal pur-
chase of lands from the Indians, June 26, 1702, Acts and Re-
solves, Public and Private of the Province of the Massachusetts
Bay (21 vols.; Boston: Wright and Potter, 1869-1922), I, Chap.
11. See also text of the Treaty of 1717, ibid., 260, as ex-
amples.
8
throughout the early colonial period, land conflicts between
the Penobscots and Massachusetts revolved only around the
issue of the legality of several seventeenth-century land
deeds covering but a tiny fraction of the Tribe's aboriginal
territory.
Land conflicts between Massachusetts and the Kennebecs,
on the other hand, were more severe and resulted in war in
1722. Though the Penobscots abandoned the Kennebecs' cause
in 1725, they realized that peace was impossible without some
basic agreement about land. In a preliminary meeting in 1725,
the Penobscot negotiator, Loron Sauguaaram, urged the English
to abandon their forts at St. Georges River (in Penobscot
territory) and at Richmond on the Kennebec River. (outside
Penobscot territory). Massachusetts replied: "We shall neither
build or settle any where but within our own Bounds so settled,
33/
without your Consent. A year later Sauguaaram insisted that
the two forts be removed. As before, the English defended the
34/
validity of their original deeds from the Indians.
On July
18, 1726, the Committee on Lands presented twenty-nine deeds
to the Penobscots for their inspection. Only two concerned
33
At a conference with the Delegates of the Indian Tribes, Nov.
15--Dec. 1, 1725, Baxter, Bax. Mss., XXIII, 189.
34/
Conference with the Eastern Indians, Maine Historical Society,
Collections, 1st ser., III, 389.
9
Penobscot land; both were signed by Penobscot sachem Madocka-
wando in 1694 and conveyed land on Penobscot Bay at Muscongus
north of Pemaquid point and on both sides of the St. Georges
35
River.
Realizing that Massachusetts would not compromise,
36/
the Penobscots signed a treaty in 1726. A year later the
Kennebecs and several Canadian Indians joined the Penobscots
37
/
in ratifying this treaty, which is known as Dummer's Treaty
and which defined legal relations between the Penobscots and
Massachusetts until 1755. Dummer's Treaty confirmed Massachu-
setts' "Rights of Lands and former Settlements." At the same
time, however, the treaty reserved to the Penobscots " all
their lands, Liberties and Properties, not by them conveyed or
Sold to or Possessed by any of the English subjects as afore-
said, as also the Privilege of Fishing, Hunting, and Fowling
38/
as formerly. "
During the post-war years the Penobscots held Massachu-
setts to these terms, and Governor Johnathan Belcher repeatedly
1
assured the Nation of Crown protection. The Penobscots opposed,
35/
FORD
At Falmouth in Casco Bay, July 18, 1726, Baxter, Bax. Mss.,
XXIII, 204-08.
36/
Conference with the Eastern Indians, Maine Historical Society,
(July, August-1726), Collections, 1st ser. III, 377-405.
37/
These negotiations are discussed in Morrison, "The People of
the Dawn, " 388.
38/
Maine Historical Society, Collections, 1st ser., III, 418.
10
and halted, the eastward expansion of the Crown settlement call-
39/
ed Georgia on Pemaquid peninsula, and they asserted that Samuel
40/
Waldo illegally took their lands on the St. Georges River.
Governor Belcher assured them that the Crown protected their
title. In February, 1735, he declared that he would treat them
"with Reason and Justice and in the same Manner with the rest
41/
of King George's Subjects. When the Penobscots complained,
he promised that the land article of Dummer's Treaty would be
"punctually observ'd on the part of this Government, who will
not push on the settlement of those Lands, 'till they are sat-
isfy'd, that those, who at present pretend to be the Proprietors,
42/
have obtain'd the native right from the true Owners. "
It is not necessary to detail the precise nature of these
conflicting claims, for the Penobscots and Massachusetts reached
a compromise. The Penobscots accepted the de facto legality of
the 1694 Madockawando deed and, in 1736, ran a boundary northeast
of St. Georges between their own and English lands. Further set-
43/
1
tlements, the Indians declared, would not be tolerated.
In Feb-
39,
Penobscots to Dunbar, Nov. 14, 1729, Baxter, Bax. Mss., X,
44546 and CSP, XXXVI, 574; Dunbar to Gov. Phillips, Sept. 16,
1730, ibid., XXXVII, 369, Dunbar to Lt. Gov. Tailor, Nov. 12,
1730, ibid., 348.
40/
Mass. Council, May 17, 1736; Indian Conference, June 25, 1736,
Baxter, Bax. Mss., XXIII, 23641.
41,
J. Belcher to J. Gyles, Feb. 28, 1734/35 Belcher Letterbooks,
Mass. Historical Society, Film IV, 50506.
42/
J. Belcher to J. Gyles, Apr. 14, 1735, ibid., Film 4, 565.
43/
Conference with the Penobscot & Norridgewalk Indians in July,
1738, Baxter, Bax. Mss., XXIII, 252.
11
ruary, 1737, Belcher ordered his agent, John Gyles, to encour-
age new settlement provided that the settlers conformed to this
44/
agreement.
The land article of Dummer's Treaty was reinacted in the
1749 treaty which ended King George's War. Land was not an
issue in that conflict and was not discussed during the con-
45/
ference.
Although land was discussed during the 1752 treaty
46,
negotiations, the 1749 treaty was ratified unaltered.
Wish-
ing to prevent a Penobscot - French alliance, Massachusetts
carefully recognized Penobscot title. In the early 1750's,
for example, the Penobscots complained about, and Massachusetts
44/
J. Belcher to J. Gyles, Feb. 25, 1736/37, Belcher Letterbooks,
Film V, 157-58.
45/
Treaty with the Eastern Indians at Falmouth, 1749, Maine
Historical Society, Collections, 1st ser., IV, 162.
46,
Louis, a Penobscot speaking on behalf of his own tribe and
the Norridgewocks and Maliseets said: " we are for proceeding
upon Governour Dummer's Treaty, by which it was concluded, that
FORD
the English should inhabit the lands as far as the salt water
flowed, and no further; and that the Indians should possess the
rest. " These boundaries are not at all clear. Perhaps Louis
referred to the Kennebec River, and it is likely that he was det
scribing the agreed upon boundary at St. Georges. It is certain
that he was not referring to the Penobscot, as English settlement
was far from that river in 1752. The English assured the Abenaki
that their lands would be protected: "Upon the third article in
the aforesaid Treaty, the Commissioners said, if there be any
encroachments made upon your lands by the English, let us know
it; we will inform the Government of it, so that justice may be
done you. " See Treaty with the Eastern Indians at St. George's
Fort, 1752, ibid., quotes at 174 and 177.
12
ordered removed, an English trespasser on Matinicus, an island
47/
south of Penobscot Bay.
Before the outbreak of the Seven Years' War between France
and Great Britain, the Penobscots worked carefully to preserve
peace with Massachusetts. When Massachusetts declared war
against the Abenaki tribes on June 10, 1755, the Penobscots
were excepted on condition that they join the English against
48
hostile Abenaki as Dummer's Treaty required.
The Penobscots
accepted this condition but refused to move their families near
the English settlements for the duration of the war as Governor
49/
William Shirley requested. Massachusetts persisted in the de-
47/
In Aug. 1751 Governor Phips appointed Commissioners to confer
with the Abenaki. He instructed them to "Avoid controversy
about Lands.' See Instructions in re Treaty with Indians, Aug.
15, 1751, Baxter, Bax. Mss., XXIII, 412. During the meeting
Loron Sauguaaram, the Penobscot negotiator, complained about a
squatter on Matinicus. The commissioners replied: "Our Govern-
our knows nothing of this matter, but we will inform him of it.
Govr Dummer's Treaty shall be complyed with." Report of Con-
ference, August, 1751, ibid., 416. After repeated complaints
from the Penobscots, Massachusetts ordered the Matinicus squat-
1
ters removed. In Council, June 12, 1753, Baxter, Bax. Mss.
XXIII, 448-49; S. Phips to Jabez Bradbury, ibid., 449.
48/
Declaration of war, June 10, 1755, Baxter, Bax. Mss., XII,
408-11; also ibid., XXIV, 30-32.
49/
Reply of Penobscot Indians, June 27, 1755, ibid., XXIV, 34.
13
50/
mand that the Penobscots settle among the English and, after
claiming without evidence that the Penobscots participated in
an attack on Fort St. Georges, declared war against them on Nov-
51/
ember 3, 1755. The war involved no real military engagements
with the Penobscots, and the Penobscots occupied the same land
after the war as they had before.
After the war, Governor Bernard saw the need for a treaty
with the Penobscots, but was thwarted in his efforts to obtain
one. In September, 1762, the Massachusetts House and Council
opposed Bernard's proposal to travel to Maine to conclude a
peace on the grounds that the Indians had not formally asked
52/
for a treaty.
On July 23, 1763, Bernard instructed Captain
Sanders to invite the Penobscots to send two or three of their
chiefs to Boston to discuss scheduling for a treaty confer-
53/
ence.
Three Penobscots arrived a month later and discussed
50/
Action of House, August 8, 1755, ibid., 46-47; In Council,
August 8, 1755, ibid., XII, 454; Final Vote, August 14-15,
ibid., XXIV, 48-49; Governor to Penobscots, August 18, 1755,
ibid., 51-53.
51/
In Council, Oct. 3, 1755, ibid., 58; Phips to Bradbury, Oct.
3, 1755, ibid., 59; Bradbury to Phips, Oct. 24, 1755, ibid., 61;
Proclamation S. Phips, Nov. 3, 1755, ibid., 62-64.
52/
Message, Sept. 14, 1762, ibid., XIII, 294.
53/
Instructions to Capt. Sanders, July 23, 1763, Baxter, Bax.
Mss., XXIV, 116.
14
renewing the Tribe's former treaties with Massachusetts; how-
ever, no agreement was reached, and no date for a conference
54/
was set.
In a message delivered on June 5, 1764, Bernard
stressed the strength of the Penobscots and again urged that
55/
a treaty be concluded with the Tribe.
Still no action was
taken.
This, then, was the state of affairs in the closing years
of the colonial era. The Indians continued to occupy their
principal hunting grounds. Governor Bernard continually agi-
tated for a treaty with the Tribe. At a conference held in
1769, three delegates from the Tribe sought to retain aborig-
inal title to their hunting grounds and to have fee title to
a tract for planting:
We should be glad of a sufficiency at present
for our hunting but as hunting is daily de-
creasing we would be glad of a tract of land
assigned us for a Township settled upon us
and our posterity for the purposes of husbandry.
56
Although no townships were ever set off to the Tribe in fee, in-
deed no further colonial treaties were concluded with the Tribe,
54/
Indian Conference, August 22, 1763, ibid., 116-23. In his
reply to the Indians the following day, Bernard said that he
would not permit the soldiers at Fort Pownall to hunt beaver or
other furs, and that he would only permit them to hunt deer or
moose in the vicinity of the fort. Id., 121-122.
55/
Message, June 5, 1764, ibid., XIII, 341-45.
56/
Ibid., 157-158.
15
the townships which were proposed by Bernard at the conference
were to be on either side of the Penobscot village of Old Town,
57/
just above the head of the tide.
At the opening of the American Revolution, the Massachu-
setts Provincial Congress quickly recognized the military import-
ance of the Penobscots. On June 21, 1775, a delegation of Penob-
scots (who had been brought to Watertown for the purpose) address-
ed the Provincial Congress. Land problems were clearly the Ind-
ians' primary concern. Their comments, as reported by the Com-
mittee which was appointed to confer with the Tribe, were as
follows:
They have a large Tract of Land, which they
have a right to call their own, and have poss-
ess'd accordingly for many Years.
These Lands have been encroached upon by the
English, who have for Miles on end cut much of
their good Timber.
They ask that the English would interpose,
and prevent such Encroachments for the future;
and they will assist us with all their Power
in the common defense of our Country; and they
hope if the Almighty be on our side the Enemy
will not be able to deprive us of our Lands. 58/
57/
Ibid., 158.
58/
L. Kinvin Wroth, Province in Rebellion: A Documentary History
of the Founding of the Commonwealth of Massachusetts 1773-1775
(Harvard Univ. Press, 1975), 2294.
16
Thus, as of the time of the Revolution, the Penobscots still oc-
cupied and claimed their lands. More importantly, the Provincial
Congress recognized their claims also. On the same day that the
above report was read, the Provincial Congress passed a resolution
which:
strictly forbid any person or persons what-
soever from trespassing or making waste upon
any of the lands and territories or possessions
beginning at the head of the tide on Penobscot
River, extending six miles on each side of said
river now claimed by our brethren the Indians
of the Penobscot tribe, as they would avoid the
highest displeasure of this Congress.
The records of the Provincial Congress do not explain why
the resolution was limited to the head of the tide. Nor is the
reason for the six-mile corridor clear. The riverine orienta-
tion of the Penobscots clearly did not limit them to an arbi-
trary European measure such as the mile. Their territory was
delineated by the heights of land which defined their hunting
streams. The Provincial Congress obviously recognized that the
Tribe claimed land on both sides of the Penobscot River. Not
knowing the precise outer limits of the claim, the Congress may
have adopted the twelve-mile wide corridor simply as a matter of
convenience. In all events, it is important to note that in
adopting its resolution the Provincial Congress did not say that
the Penobscots did not own any land outside of the twelve-mile
corridor; it only forbade trespass within the corridor.
FORD
59/
Kidder, Military Operations, 53.
LIBRAR
17
60,
It was not until after the War that Massachusetts again
set its sights on Penobscot land. Following the lead of the
Provincial Congress, the Massachusetts "Committee on Lands"
operated on the assumption that the Penobscots had title to
land above the head of the tide on the Penobscot River. On July
7, 1784, for example, the Committee recommended the establish-
ment of three additional townships "between the lands claimed
61
/
by the Indians & the uppermost of the twelve townships
"
To facilitate settlement beyond the three townships, Massachu-
setts appointed Commissioners to ascertain the limits of the
Penobscot territory and investigate the possibility of a cession
62/
by the tribe of some of the land which it was found to own.
The Commissioners presented their case to the Penobscots
on September 4, 1784. They learned, they said, that the Penob-
09
The Penobscots aided the Americans in the Revolution, and
were under the care of John Allan, the Superintendent of the
federal Eastern Indian Department. See Kidder, Military Oper-
ations, 126.
61
July 7, 1784, Report of Committee on Lands in the County of
Lincoln, Baxter, Bax. Mss. XX, 354.
62,
This committee was aware of the twelve-mile corridor in the
Watertown Resolve but apparently took the position that the
corridor was not intended to limit the Tribe's territory since
it recommended appointment of suitable persons to ascertain the
boundaries of the lands claimed by the Tribe. June 30, 1784
Report of Committee Appointed by Resolve of Oct. 20, 1783, filed
with 1784 Res. C. 57, Mass. Arch.
18
scots possessed, "more lands than were necessary for their pur-
pose
" and that they had sold "considerable tracts for tri-
fling considerations." The Commissioners noted that these sales
were void without approval from the Commonwealth. The Commiss-
ioners then stated, however, that if the tribe "
really poss-
essed more Lands than were necessary or were desirous to change
their present bounds for others so that all their land should
be on one side of the River or on both Sides higher up, a due
63
consideration should be allowed them therefore.
"
The Penobscots rejected the suggestion that they wanted to
sell or trade any part of their territory. They asserted their
right of ownership on the basis of immemorial possession and
referring to the Watertown Resolve (without mentioning a twelve-
mile corridor), maintained that the General Court had fixed their
bounds from the head of the "tides up to the head of the River. "
64
/
They also denied that they had sold any land.
On the other
hand, the Tribe welcomed the opportunity to establish a mutually
recognized boundary. "All that we desire," they declared, "is
65
that you will fix the bounds, that we may know what we possess. "
63
Sept. 4, 1784, the Substance of the Commissioners' speech
in Papers filed with 1796 Jan. Sess. Res. C. 86, Mass. Arch.
64
Ibid.
65
Sept. 4, 1784, The Answer of the Indian Chiefs to the Commiss-
ioners ibid.
19
According to the Commissioners, the most that the Tribe would
consider was a new boundary four miles above the head of the
tide. When the Commissioners suggested instead "that the Ind-
ians should occupy the Lands on both sides of the River, half
the distance from the Canada lines to the head of the Tide,"
the Penobscots became insulted and "the Principal of them very
66,
abruptly left the Conference. "
In August, 1786, the State sent new commissioners (Benj-
amin Lincoln, Thomas Rice and Rufus Putnam) "to treat with the
Penobscot Tribe of Indians respecting their claims to Lands on
67/
Penobscot River
"
The Rev. Daniel Little, an observer at
the conference, described the Commissioners' purpose as being
"to purchase the Indians' Lands on Penobscot River, or settle.
68
more certain & advantageous boundaries
"
During the con-
ference the Penobscots maintained their claims to their lands.
The Commissioners acknowledged, according to Rev. Little, that
the Watertown Resolve confirmed Penobscot title to six miles
69
on each side of the river from the head of the tide.
66/
Oct. 25, 1784, The Report of the Commissioners appointed to
confer with the Indians of the Penobscot Tribe, ibid.
67
/
A resolve of March 18, 1785, appointed Commissioners "to treat
with the Penobscot Tribe of Indians, respecting their claims to
lands on Penobscot River " but a meeting never took place.
See July 4, 1786 letter, Benjamin Lincoln Papers, Mass. His. Soc.,
Reel 7, 471-474.
68/
Reverend Daniel Little, Journal, 109, Manuscript Copy, Maine
Historical Society, Portland, Maine.
69,
Ibid.
20
This concession, however, was not enough for the Penobscots.
The statement about their lands "much hurt and disappointed"
them as " they supposed before they had the whole width of
land as far as the waters of this river extended East and
70/
West.
"
The Commissioners also added that the Watertown Re-
solve did not give the Penobscots much advantage, since the
Tribe would be prevented from hunting as soon as Massachusetts
71/
settled the area beyond the six miles.
The Commissioners offered the Penobscots the following
set of terms. The Penobscots would cede
all their claims & Interest to all the lands
on the west side of Penobscot river, from the
head of the tide up to the River Pisquataquiss
being about Forty three miles, And all their
claims & Interest on the east side of the river
from the head of the tide aforesaid up to the
river Mantanomkeektook being about 85 Miles
The Tribe, for its part, would reserve to itself
the Island on which the Old Town stands,
About 10 Miles above the head of the tide, and
those Islands on which they now have actual
Improvements in the said river, lying from
Sunkhaze river, about 3 Miles above the said
old town to Passadunkee Island, inclusively,
on which Island their new Town so called, now
stands, and
70/
Aug. 30, 1786, Letter of Committee to Governor in re Indians.
Bax. Mss. XXI, 248.
71/
Ibid.
21
fee title to two islands in Penobscot Bay, known
as Black Island and White Island near Naskeeg
point.
Perhaps most significantly of all, the proposed treaty also
contained the following pledge:
And we further agreed that the lands on the
west side of the river Penobscot, to the head
of all the waters thereof, above the said river,
Pisquataquiss & the lands on the east side of
the river to the head of all the waters thereof,
above the said river Mantanomkeektook, should
ly as hunting ground for the Indians and should
not be laid out or settled by the state or en-
grossed by Individuals thereof
727
After deliberation, the Penobscots proposed a boundary
at Passadumkeag but the Commissioners refused to consider that
compromise. The Penobscots responded that the land Massachu-
setts desired could be theirs but "they expected to be paid
for it." A few moments more of negotiations passed and the Com-
missioners promised "350 Blankets, 200 lbs Powder, & Shot &
Flints in proportion, at the time when you sign the papers for
R.FORD
73/
the ratification of this agreement. "
The verbal agreement between the Penobscots and the Com-
missioners rested on shaky ground at best. The Commissioners
advised the Governor and Council that they "discovered a total
aversion in the Indians to surrender all their claims," as Mass-
achusetts wished. "The Indians were so far from doing this,
72/
Ibid. 241. The details of the proposed treaty were set forth
in a subsequent draft document. See footnote 93, infra.
73/
Little, Journal, 110.
22
that when they were urged to relinquish as far North on the
west side of the river as on the east side they absolutely
refused 74 on any terms whatsoever, to comply with the proposi-
tion.
"
Happy with even a partial cession, on October 4, 1786,
Governor Hancock recommended that the Commission's promises
of goods be granted to the Penobscots in return for "a proper
75/
deed of the ceded lands. " Accordingly, the legislature
74/
August 30, 1786, Report of Committee on Penobscot Indians,
Baxter, Bax. Mss., XXI, 241.
75,
October 11, 1786, Act Confirming Treaty with Penobscot
Tribe, ibid., VIII, 80-82.
23
passed an act confirming the Commissioners' verbal agreement
with the Penobscots. The act empowered the Governor to appoint
a person "to carry into execution the said agreement" by re-
ceiving from the Penobscots "a deed of relinquishment in due
form." It further provided that "when the said deed of relin-
quishment shall be executed as aforesaid, this act shall be
considered as a compleat and full confirmation of the agreement
76/
before recited
"
Both the Commissioners and the Legislature
understood, then, that the verbal agreement of August, 1786,
required the signature of a formal deed and the delivery and
acceptance of the goods provided in payment.
Early in November, 1786, Benjamin Lincoln, on behalf
of Governor Bowdoin, traveled to the Penobscot to complete the
verbal agreement of August. He met Chief Orono who informed
him " the Tribe was in general out on their winters' hunt,
& that they would not be collected untill the Spring." On the
chance that the Penobscots might return "sooner than was expect- 1
ed," Lincoln placed the treaty goods and the unsigned deed in
77/
the care of John Lee of Majorbagaduce [Castine].
Lee also
76/
Nov. 9, 1786, Benjamin Lincoln to Gov. J. Bowdoin, Benjamin
Lincoln Papers, Mass. His. Soc. Reel 7, 547-48. And see also
Nov. 6, 1786, B. Lincoln to John Lee, and Nov. 10, 1786, B.
Lincoln to Gov. Bowdoin, both letters filed with 1796 Jan.
Sess., Res. C. 86, in Mass. Arch.
77/
Dec. 5, 1786, John Lee to Benjamin Lincoln, Benjamin Lincoln
Papers, Mass. His. Soc., Reel 7, 564.
24
78,
soon concluded an agreement would not be reached until spring.
A full year passed in futile efforts to induce the Penob--
scots to accept the goods and to formally cede their lands.
John Lee repeatedly conversed with the Penobscot chiefs. He
learned "a Majority of the tribe wish to be off from their
engagements.' He warned the Penobscots that if they refused
to ratify the agreement "that the Governor would chastize them
severely. " Lee added:
that their refusing to sign the Deed & re-
ceive the Blanketts &c would by no means pre-
vent Government from surveying, Disposing of
& settling the Lands upon Penobscot River.
/
Governor Hancock, however, favored continued negotiations:
for though perhaps a small force may sub-
due or extirpate the Tribe of Native if
they should commence hostilities, yet the
effecting it would be more expensive &
troublesome than the compleating 80 a Treaty
respecting their Lands can be.
On May 29, 1788, Governor Hancock appointed Reverend
78
December 28, 1787, John Lee to Gov. Hancock, filed with 1796
Jan. Sess., Res., C. 86 in Mass. Arch.
79/
Ibid.
80/
March 17, 1788, Governor Hancock's Message, Baxter, Bax. Mss.,
XXI, 462-63.
25
81/
Daniel Little to settle the issue. Little did not intend
to negotiate a new treaty with the Penobscots, but simply "to
bring forward & complete the Treaty made at Conduskeag by Gen-
82
/
eral Lincoln &c, 26 Aug. 1786. Despite Little's reitera-
tion of all the arguments of the past few years, the Penobscots
refused to sign any document divesting them of their lands.
Orsong Neptune argued the Penobscots'
right to the soil from the general peace among
French Indians, Americans & King George from
the gift of God, who put them here to serve him
from the promise of Gen1 Washington & the Gen1
Court from the long possession of five hundred
years, from their being of the Religion of the
King of France & meaning to remain SO. 83
Daniel Little responded " You may expect Govt. will abide by
84
it & expect the same for you. "
Despite Little's bluff, Massachusetts continued to recog-
nize Penobscot title. In 1791 Henry Jackson, agent for Henry
Knox who was seeking to purchase 2,000,000 acres of Maine land,
told his principal that the committee charged with the sale of
Maine land " will not permit us to come within six miles of
81
May 29, 1788, Govr's Message respecting a conference with the
Penobscot Indians, Baxter, Bax. Mss., XXII, 30-31.
82/
Little, Journal, 126.
83/
June 23, 1788, Witnesses Deposition, filed with 1796 Jan.
Sess. Res. C. 86 in Mass. Arch.
84/
Little, Journal, 128. And see June 25, 1788, Little to
Hancock, filed with 1796 Jan. Sess. Res. C. 86 in Mass. Arch.
26
Penobscot River.' " Indeed, the land committee informed Jackson
that "the six miles on the east side of Penobscot is the prop-
85
erty of the Indians.
The 1786 treaty was never ratified, and the question of
Penobscot lands was not raised again until 1796 when the State
again appointed commissioners who this time were successful in
obtaining a treaty. The 1796 treaty was similar to the 1786
treaty, except the ceded territory extended only thirty miles
up stream from the head of the tide on each side of the river,
86
and the consideration was larger.
The treaty called for
the delivery of
"
one hundred and forty nine and a half yards
of blue cloth for blankets, four hundred pounds of shot, one
hundred pounds of Powder, thirty six hats, thirteen bushels of
Salt being one large Hogshead, one barrel of New England Rum,
and one hundred bushels of Corn
"
,
upon signing the treaty.
The treaty also called for an "annual annuity consisting
of three hundred Bushels of good Indian Corn, fifty pounds of
powder, two hundred pounds of shot, and seventy five yards of
85
June 19, 1791, Henry Jackson to Henry Knox, Knox Papers,
Mass. His. Soc.
86
The deed which encompasses the terms of the treaty was re-
corded in the Hancock County Registry of Deeds, Ellsworth,
Maine on May 3, 1809, at Book 27, Page 6. See affidavit of
Jacob Kuhn, March 8, 1809, and Order of Council dated March
20, 1809 filed with Papers relating to Massachusetts Resolves
of 1796, Jan. Sess., C. 86, Massachusetts Archives, Boston,
Mass., for explanation of the late registration.
27
good blue cloth for Blankets " In return, the Penobscot Tribe
was to cede all its "right, Interest and claim to all the lands
on both sides of the River Penobscot, beginning near Colonol
Jonathan Eddy's dwelling house, at Nichel's rick, so called,
and extending up the said River Thirty miles on a direct line,
according to the General Course of said River, on each side
thereof
"
Excepted from the transaction and reserved to'
the Tribe were
"
all the Island in said River, above old
town, including said Old-town Island, within the limits of
the said thirty miles." A deed encompassing the terms of the
87
treaty was signed by the Penobscot Nation on August 8, 1796.
Neither the proposed 1786 treaty nor the actual
1796 treaty made mention of a twelve-mile corridor. The
proposed 1786 treaty specifically reserved to the Tribe
as a hunting ground all of the lands above the ceded area
on both side of the Penobscot River "to the head of all
88/
the waters" thereof. While the 1796 treaty did not
specifically reserve a hunting territory, it did not pur-
port to extinguish title to anything other than the thirty-
mile tract. Indeed at the end of negotiations in which they
indicated their willingness to enter the treaty, the Penob-
scots said, "Further-
87/
Ibid.
88/
Little, Journal, 110.
28
more Brothers - as we have come to a settlement about the Lands,
what we now say is exactly Right - Now all the land above thirty
89
/
miles above Colo Eddys, we do not sell.
In 1818 the Penobscots, who had fallen on hard times, sent
word to the State that they wished to sell an additional ten
90/
townships.
The Commonwealth responded by appointing three
commissioners to treat with the Tribe for the release of all
91/
its remaining lands. The result was a treaty in which the
Tribe relinquished its claim to "all the lands they claim, oc-
cupy and possess by any means whatever on both sides of the
Penobscot river, and the branches thereof, above the tract of
thirty miles in length on both sides of said river, which said
tribe conveyed and released to said commonwealth by their deed
of the eighth of August, one thousand seven hundred and ninety
92
six.
"
The Tribe reserved from the said conveyance four town-
ships near the point where the east and west branches of the
Penobscot River converge. The Tribe also reserved the islands
in the river which had previously been reserved. Massachusetts
89
Answer of Indians, August 6, 1796, filed with Massachusetts
Resolves of 1796, Jan. Sess. C. 86, Massachusetts Archives,
Boston, Mass.
90
Williamson, History of the State of Maine, II, 669.
91
Ibid.
92/
Mary Frances Farnham, ed., The Farnham Papers: Documentary
History of the State of Maine (Portland: Lefavor - Tower Company:
1902) vol. VIII, 127-132.
29
promised to purchase two acres of land in the town of Brewer
for the use of the Tribe, and to provide them with a man who
could instruct them in agriculture. Four hundred dollars and
certain specified goods were to be delivered immediately, while
other supplies were to be delivered annually thereafter.
The four townships which were reserved by the Penobscot
Nation in the 1818 treaty were purchased by the State of Maine
93/
in an agreement concluded on June 10, 1833. The Indians
were to be paid $50,000, the principal amount of which was to
be placed in the state treasury, with the interest paid to them
annually if the state thought they needed it. Unappropriated
interest was to be added to the principal.
Today the Penobscot Tribe has only the islands in the
Penobscot River between Old Town and Mattawamkeag. In fact,
the Tribe doesn't even have all of the islands, since the land
area of the islands has been reduced by flooding caused by
94/
hydro-electric dams.
Fard
93
Ibid., 303.
94,
See Taylor v. Bangor Hydro-Electric Company, Civil No. 1970
(D. Me., Filed July 17, 1972).
30
CONCLUSION
This research has been conducted by experts who are
prepared to testify as expert witnesses. that the Penobscot
Nation constitutes (and has constituted since time immem-
orial) a tribe of Indians, that the Penobscot Nation used
and occupied an aboriginal territory which included the en-
tire Penobscot watershed in the present State of Maine, to-
gether with a major portion of the St. John watershed in the
present State of Maine, and that the Penobscot Nation ceded
the vast bulk of these aboriginal lands in treaties with the
Commonwealth of Massachusetts in 1796 and 1818, and in a
purchase by the State of Maine in 1833, none of which has
ever been approved by the United States.
31
THE WHITE HOUSE
WASHINGTON
Octoner 18, 1976
NOTE TO RON NESSEN
Subject: Possible Sensitive Press Subject:
the Passamaquoddy Case in Maine
You may have notieed in the papers
a word or two about the Indian claims case on
behalf of the Passamaquoddy Tribe of Indians in
Maine. A dogged young lawyer has won a court vistory
where the Federal courts (District, and Court of
Appeals) have said that a 1790 Non-Intercourse
Act may have been violated and 2/3 of the State
of Maine (when it belonged to Massachusetts) may
be found to be still in Indian ownership. The next
step is that the Federal Government must file
a suit in the Court which will help the Court
determine just how much of the State is in fact
still in Indian ownership.
This filing will not have to be made
until after November 2.
Bond lawyers however have told the State
that the case erects a cloud over the bonds, so
they can'tbe sold and Maine has practically spent
THE WHITE HOUSE
WASHINGTON
the affected bond money, so the "overnor is
hopping mad The Congressional delegation there
apparent ly, according to Interior, is silent so
far.
It is important that if the isue should
come up in the White House vicinity, that no one
here answer without checking arefully first with
me or with Interior. The Government must, as a duty,
defend Indian trust rights and both Indians and
non-Indians are watching us on this one.
(In the far future, no one may have to leave
his property; but we might have to ask Congress to
endat a " Maine "ati ve Claims Settlement Act" to clear
up the whole matter.)
I'll be in Salt Lake City this week, back
next Tuesday; if the question should arise in the
interim, check with Hugh Garner, Deputy Solicitor
of Interior (343-6115).
Brad
Bradley H. Patterson, Jr.
FORDS & LIBRE
<< Baroady
11/10- Kilberg
THE WHITE HOUSE
WASHINGTON
October 28
NOTE TO MRS. KILBERG
Peter Taft called me yesterday and
today about Passamaduoddy.
The litigation report he has received from
Justice recommends, he says, actions aimed at
the land. He agrees with my informal opinion
that very possibly a policial, i.e. Congressional
settlementmay be the proper approach, asper the
Alaska Native Claims Act. Peter feels he may
need our help in mediating this little controversy
if
and would appreciate it you and I would call a
FORD
session here at the end of next week. I said of
course we would.
Today Peter called to say that the deadline
of November 15 or whatever had been changed yester-
day by the Court to January 15; the Statute of
Limitations on our actions runs aut next July and by
that final date we would have to sue all the
individual land-owners, if that is what we intended
to do. The US representative mentioned yesterday
in Court that a Congressional settlement was a
Sand
possible option.
THE WHITE HOUSE
WASHINGTON
October 29, 1976
NOTE TO GREG AUSTIN
Would you and an appropriate
member of your staff please join Mrs.
Kilberg and me on Thursday at 10 AM here
to discuss with Peter Taft the matter of
where we are headed in the Passamaquoddy
case?
An unrelated matter: would you
respond to Mr. Boundy's telegram about
Squaxin Island? I will acknowledge by
FORD
phone. Kindly send me a copy of your
response.
Austur
Brod
THE WHITE HOUSE
WASHINGTON
November 12, 1976
MEMORANDUM FOR THE PRESIDENT
THROUGH:
JAMES M. CANNON
FROM:
BRADLEY H. PATTERSON, JR.
GEORGE W. HUMPHREYS
SUBJECT:
Governor Longley's Inquiry re the
Passamaquoddy/Penobscot Case
Governor Longley of Maine met with you recently and asked you
to look into this matter; you told him you would do so.
The Passamaquoddy Indian Tribal Council won a Federal Court
decision from Judge Gignoux at the beginning of 1975 declaring
that the United States has a trust responsibility to the Tribe
and declaring that the Tribe is in fact covered by the terms
of the 1790 Nonintercourse Act (25 USC 177) which forbids the
conveyance of Indian land without the consent of the United
States. This decision was affirmed by the First Circuit Court
of Appeals on December 23, 1975.
The chain of effects from that decision is:
The land conveyances in the treaties of 1794
and 1818 between Maine (then Massachusetts)
and the Passamaquoddy and Penobscot Indians
BERALD ? FULL
respectively, wherein the Indians gave up
some 2,000,000 and 10,000,000 acres respectively
of their aboriginal lands may well be void,
since the United States was not a party to
these treaties nor were they ever ratified
by the Senate.
This in turn puts a cloud over the ownerships
and titles in those 12,000,000 acres -- which
amounts to 60% of the State of Maine.
- 2 -
- -Because of this cloud, bond attorneys have
advised clients not to buy State of Maine
construction bonds, and a $27 million sale
of same has been held up.
- Tax anticipation bonds (from real estate taxes)
for the operating expenses of Maine towns and
counties will probably suffer the same fate
as of next January. This will hurt some of
those communities.
- - The Federal Government, now as Trustee for the
Indians, has in the Circuit Court's words
"the duty to investigate and take such action
as may be warranted in the circumstances."
This may well mean pursuing or expanding (to
other property-owning defendants) two protective
lawsuits filed some time ago against Maine on
behalf of the tribes by Justice at the insistence
of the Court.
- Judge Gignoux has set back a November 15 deadline
to January 15, 1977 for the Federal Government
to come into his court and tell him what they are
going to do to discharge their trusteeship
obligation. Much research must be done to put
any expanded suits in final form before a July,
1977 expiration of the Statute of Limitations
for all Indian claims for trespass damages.
GERALD FORD LIBRARY
The State Attorney General continues to call the Indians'
claim "preposterous," "frivolous" and "without merit"; the
Maine Congressional delegation introduced a bill to repeal the
Nonintercourse Act and has more recently washed its hands of
the matter claiming that it is a problem for the Courts.
The Indians have long been ready to talk about a comprehensive
settlement package but the State has shown little interest.
Actions Now Being Taken:
Solicitor Austin of Interior is sending a letter to the Maine
Deputy Attorney General, transmitting documents showing the
strength of the case and inviting his input and comment.
- 3 -
Secretary Kleppe is responding to a letter he has received
from Governor Longley, will refer to Mr. Austin's invitation
to the State Deputy Attorney General, and will also refer to
the Governor's visit with you -- by saying that "The President
has asked me to look into this matter. " We and Mr. Buchen
believe that this discharges your obligation to Governor
Longley and keeps the matter at the proper arm's length from
the White House.
The Future:
After receiving input from both the Indians and the State,
Interior will send its Litigation Report to Justice -- i.e.,
the formal request for definitive or expanded lawsuits.
The Litigation Report will then be made available to the
Indians and the State and further comments will be invited.
These comments may point to a possible overall settlement,
such as a "Maine Native Claims Settlement Act" by the Congress
(as an alternative to months if not years of claims litigation.)
Justice will inform Judge Gignoux of the steps taken so far.
Mr. Carter, then as President, will have to make the final
judgment about what kind of lawsuits or a legislative package
to support.
FORD
LIBRARY
THE WHITE HOUSE
WASHINGTON
November 23
TO:
BRAD PATTERSON
FROM: GEORGE W. HUMPHREYS
Memo went to the
President on 11/15.
COPY FOR BRAD
PATTERSON
THE WHITE HOUSE
WASHINGTON
November 12, 1976
is
FORD
MEMORANDUM FOR THE PRESIDENT
GERALD
THROUGH:
JAMES M. CANNON
FROM:
BRADLEY H. PATTERSON, JR.
GEORGE W. HUMPHREYS
SUBJECT:
Governor Longley's Inquiry re the
Passamaquoddy/Penobscot Case
Governor Longley of Maine met with you recently and asked you
to look into this matter; you told him you would do so.
The Passamaquoddy Indian Tribal Council won a Federal Court
decision from Judge Gignoux at the beginning of 1975 declaring
that the United States has a trust responsibility to the Tribe
and declaring that the Tribe is in fact covered by the terms
of the 1790 Nonintercourse Act (25 USC 177) which forbids the
conveyance of Indian land without the consent of the United
States. This decision was affirmed by the First Circuit Court
of Appeals on December 23, 1975.
The chain of effects from that decision is:
The land conveyances in the treaties of 1794
and 1818 between Maine (then Massachusetts)
and the Passamaquoddy and Penobscot Indians
respectively, wherein the Indians gave up
some 2,000,000 and 10,000,000 acres respectively
of their aboriginal lands may well be void,
since the United States was not a party to
these treaties nor were they ever ratified
by the Senate.
This in turn puts a cloud over the ownerships
and titles in those 12,000,000 acres -- which
amounts to 60% of the State of Maine.
- 2 -
- --Because of this cloud, bond attorneys have
advised clients not to buy State of Maine
construction bonds, and a $27 million sale
of same has been held up.
- - Tax anticipation bonds (from real estate taxes)
for the operating expenses of Maine towns and
counties will probably suffer the same fate
as of next January. This will hurt some of
those communities.
FORD
- The Federal Government, now as Trustee for the
Indians, has in the Circuit Court's words
"the. duty to investigate and take such action
as may be warranted in the circumstances."
This may well mean pursuing or expanding (to
other property-owning defendants) two protective
lawsuits filed some time ago against Maine on
behalf of the tribes by Justice at the insistence
of the Court.
- Judge Gignoux has set back a November 15 deadline
to January 15, 1977 for the Federal Government
to come into his court and tell him what they are
going to do to discharge their trusteeship
obligation. Much research must be done to put
any expanded suits in final form before a July,
1977 expiration of the Statute of Limitations
for all Indian claims for trespass damages.
The State Attorney General continues to call the Indians'
claim "preposterous," "frivolous" and "without merit"; the
Maine Congressional delegation introduced a bill to repeal the
Nonintercourse Act and has more recently washed its hands of
the matter claiming that it is a problem for the Courts.
The Indians have long been ready to talk about a comprehensive
settlement package but the State has shown little interest.
Actions Now Being Taken:
Solicitor Austin of Interior is sending a letter to the Maine
Deputy Attorney General, transmitting documents showing the
strength of the case and inviting his input and comment.
- 3 -
Secretary Kleppe is responding to a letter he has received
from Governor Longley, will refer to Mr. Austin's invitation
to the State Deputy Attorney General, and will also refer to
the Governor's visit with you -- by saying that "The President
has asked me to look into this matter." We and Mr. Buchen
believe that this discharges your obligation to Governor
Longley and keeps the matter at the proper arm's length from
the White House.
The Future:
After receiving input from both the Indians and the State,
Interior will send its Litigation Report to Justice - - i.e.,
the formal request for definitive or expanded lawsuits.
The Litigation Report will then be made available to the
Indians and the State and further comments will be invited.
These comments may point to a possible overall settlement,
such as a "Maine Native Claims Settlement Act" by the Congress
(as an alternative to months if not years of claims litigation.)
Justice will inform Judge Gignoux of the steps taken so far.
Mr. Carter, then as President, will have to make the final
judgment about what kind of lawsuits or a legislative package
to support.
FORD
THE WHITE HOUSE
WASHINGTON
INFORMATION
November 15, 1976
MEMORANDUM FOR THE PRESIDENT
THROUGH:
JAMES M. CANNON
Pred
Palterson
FROM:
BRADLEY H. PATTERSON,
GEORGE W. HUMPHREYS
SUBJECT:
Governor Longley's Inquiry re the
Passamaquoddy/Penobscot Case
Governor Longley of Maine met with you recently and asked
you to look into this matter; you told him you would do SO.
The Passamaquoddy Indian Tribal Council won a Federal
Court decision from Judge Gignoux at the beginning of
1975 declaring that the United States has a trust
responsibility to the Tribe and declaring that the Tribe
is in fact covered by the terms of the 1790 Nonintercourse
Act (25 USC 177) which forbids the conveyance of Indian
land without the consent of the United States. This
decision was affirmed by the First Circuit Court of Appeals
on December 23, 1975.
FORD
The chain of effects from that decision is:
-- The land conveyances in the treaties of 1794
and 1818 between Maine (then Massachusetts)
and the Passamaquoddy and Penobscot Indians
respectively, wherein the Indians gave up some
2,000,000 and 10,000,000 acres respectively of
their aboriginal lands may well be void, since
the United States was not a party to these
treaties nor were they ever ratified by the
Senate.
-- This in turn puts a cloud over the ownerships
and titles in those 12,000,000 acres -- which
amounts to 60% of the State of Maine.
- 2 -
- - -Because of this cloud, bond attorneys have
advised clients not to buy State of Maine
construction bonds, and a $27 million sale
of same has been held up.
- - Tax anticipation bonds (from real estate taxes)
for the operating expenses of Maine towns and
counties will probably suffer the same fate
as of next January. This will hurt some of
those communities.
- The Federal Government, now as Trustee for the
Indians, has in the Circuit Court's words
"the duty to investigate and take such action
as may be warranted in the circumstances.'
This may well mean pursuing or expanding (to
other property-owning defendants) two protective
lawsuits filed some time ago against Maine on
behalf of the tribes by Justice at the insistence
of the Court.
- Judge Gignoux has set back a November 15 deadline
to January 15, 1977 for the Federal Government
to come into his court and tell him what they are
going to do to discharge their trusteeship
obligation. Much research must be done to put
any expanded suits in final form before a July,
1977 expiration of the Statute of Limitations
for all Indian claims for trespass damages.
The State Attorney General continues to call the Indians'
claim "preposterous," "frivolous" and "without merit"; the
Maine Congressional delegation introduced a bill to repeal the
Nonintercourse Act and has more recently washed its hands of
the matter claiming that it is a problem for the Courts.
The Indians have long been ready to talk about a comprehensive
settlement package but the State has shown little interest.
Actions Now Being Taken:
Solicitor Austin of Interior is sending a letter to the Maine
Deputy Attorney General, transmitting documents showing the
strength of the case and inviting his input and comment.
- 3 -
Secretary Kleppe is responding to a letter he has received
from Governor Longley, will refer to Mr. Austin's invitation
to the State Deputy Attorney General, and will also refer to
the Governor's visit with you -- by saying that "The President
has asked me to look into this matter." We and Mr. Buchen
believe that this discharges your obligation to Governor
Longley and keeps the matter at the proper arm's length from
the White House.
The Future:
After receiving input from both the Indians and the State,
Interior will send its Litigation Report to Justice -- i.e.,
the formal request for definitive or expanded lawsuits.
The Litigation Report will then be made available to the
Indians and the State and further comments will be invited.
These comments may point to a possible overall settlement,
such as a "Maine Native Claims Settlement Act" by the Congress
(as an alternative to months if not years of claims litigation.)
Justice will inform Judge Gignoux of the steps taken so far.
Mr. Carter, then as President, will have to make the final
judgment about what kind of lawsuits or a legislative package
to support.
FORDS is 070830 LIBRARY
-
THE WHITE HOUSE
WASHINGTON
11/19
Peter Taft's intentions:
Receive litigation feport from Interior
in about a month.
Make it available to the parties.
Tell the Jugge on NEVEMBERZ January 15
that we intend to sue the major parties: the
State and the big companies -- just 5 or 6
defendants perhaps (with resources to pay
competent counsel) -- and also that we will
recommend that the Congress extend the Statute of
Limitations for another 3 years so that later
we can identify and sue the smaller landholders
if necessary.
Let JC determine a settlement option
package and propese it.
FORD i LIBRARY GERALD
PASSAMAQUODDY/PENOBSCOI CASE
OPTIONAL COURSES OF ACTION
I. LITIGATE THE CASE THROUGH
CERALE R. FORD
Indians are quite willing and ready to do this.
Interior and Justice would have to come along with it; the
Court has told them to behave like trustees and they would.
As for litigating strategy, there are no current differences
between Indians, Interior and Justice -- they are doing just what
the Court said and are behaving like trustees.
But there are some 200,000 individual defendants.
It is most unlikely that Justice would file a class-action type
suit; the law is very unclear here, but most class-action cases are
plaintiff suits; there is very little legal precedent for defendant
type class-action suits. Also very little precedent for class-action
type suits in property cases such as this.
In our Pyramid Lake case, the Supreme Couft refused to take
original jurisdiction and left us with the only other alternative:
filing against 13,000 defendants in Navada, which we did.
In any case, the litigation option would take perhaps 15 years
when all the defendants and all the appeals are totalled up; maybe
longer.
Indians are very likely to win all these cases.
But for all the 15 years or more, there wouldb e a cloud ofer
all the land titles -- a "lis pendens" notation made on every
deed registered. This is also likely to affect thez not only the
public debt offerings of the State and counties, etc, but also the
private debt offerings of all the companies in Maine; Indians would
and to stockholders' meetings
probably go to the SEC and insist on full disclosure in every company's
Annual Report --which would put a crimp in any debt offerings.
Also: a big burden onthe courts.
II. CONGRESS RATIFY THE TREATY AND ESTINGUISH THE LAND CLAIM
Congress could certainly extinguish the land claim in this
way, but it is very doubtful whehher this measure would also extinguish
the freapass claim for the years of trespass between the time of the
signing of the treaty and its ratification.
Such pre-ratification treapass claims are, arguably, protected
by the Fifth Amendment and a Congressional action purporting to
extinguish these claims would be attacked as unconstitutional.
Indians under this option would file for the trespass claims
which they allege, and in so doing would attach all the property of
all the individual defendants -- tying all property actions up for
the B years or so that it would take to resolve the question of
whether the treapass claims were oonstitutionally extinguished by
the ratification action.
It would be alleged that the government and especially the
Congress was taking unilateral action, changing the rules of the game--
playing baseball by moxing the bases well into the middle of the game.
These arguments would make ratificati n doubtful of
Congressional passage.
III. CONGRESS EMPOWER THE INDIAN CLAIMS COMMISSION OR CREATE A SPECIAL
NEW COMMISSION TO HEAR AND DECIDE THE CASE
If the Congress, in so doing, ordained rules or settlement
criteria for the Commission which would dimimish the Indians' Fifth-
Amendment-protected rights (e.g. the trespass claims), this would
arguably by unconstitutional.
The Indians would probably ignore the new Commission, and
would proceed with Option I -- i.e. to litigate the case against
every defendant.
It would take perhaps 3 years for the issue to be litigated
about the Commission's jurisdiction -- on the Fifth A mendment
rights issue-- and during that time the cloud would stay on all the
titles and property actions.
Even if tyexz the Commission's jurisdiction were eventually
established, it would take many more years for the entire case to
be heard and settled (look at the record of the Indian Claims
Commission on same of iss complicated cases...) Such delays would not
solve the State's problem.
If a Commission were finally found to have jurisdiction, the
Government would then be put into an impossible bind: being a
claims case, the Government would be the defendant, but aàso being
trustee, the Government would have to be the plaintiff, arguing for
the Indians.
Indians woudd regard the creation of a Commission as also
a changing of the rules halfway in the game, a unilateral move
by the government and/or Congress.
CERALD LIBRARY CERALD R. FORD
IV. WE COULD TRY THE MODEL ESTABLISHED IN THE ALASKA NATIVE CLAIMS
SETTLEMENT ACT: ENGAGE IN CONSULTATION WITH INDIANS AND STATE
AND THEN PRESENT A BILL TO THE CONGRESS WHICH WOULD ITSELF BE
A FINAL SETTLEMENT PACKAGE.
Sub-Option A: Of course we (i.e. the Carter Executive Branch)
could send up a bill without any consultation -- as we did
in Alaska Claims in 1969 -- but this would break faith with
the promise to consult the Indians, and the State would feel
likewise.
Sub-Option B: We would engage in careful consultation, but send
up a bill which we think is right without necessarily having the
complete asent of all the parties. (This is what we did in
the Alaska Native bill Nixon sent up in May of 1971).
Sub-Option C: We would try to get ak completed agreed bill -- or
try to get the parties together to reach an agreement among
themselves.
GERALI FORD
Indians have said:
a) They will enter into negotiations n a comprehensive
settlement
b) They are not seeking to possess the home of any
individual homeowner if a comprehenkisve settlement
package is worked out. (This promise does not apply
if the litigation route has to e chosen.)
c) Indians will insist on some symbolic treat ment of
the ownership of Baxter State Park and Mt. Katahdin.
d) Indians will insist on a substantial land settlement
plus a reasonable cash award for the extinguishment of
the rest of their land and treapass claims.
Indians don't care where the land comes from for them;
it would be in part State land (the State has some 500,000
acres in "Public Lots" plus Baxter Park of 200,000 acres),
or the State or the Federal Government could compensate
the paper companies for land which the companies would then
turn over to the Indians. (That land is worth about
$110-$125 per acre now). Some of those "Public lots" may
not be the best settlement option; the State is tryin. to
secure them for public recreational areas.
e) Indians consider that the "at fault" parties are the
State and the feds -- and most of the money for cash or
for the land or both will probably have to come from the
federal government. The companies take the position that
they will not give up anything for nothing; they must be
compensated for any land they give up. (But they have been
very silent on the whole case; they did not intervene in
the case in its earlier stages; they are following it
closely; they have not put any pressure on the State,
however.
f) No out-of-court settlement will, of course, be possible
which gives the Indians less than they pre-Treaty lands
without the consent of Congress; the Non-Intercourse Act
is still on the books
Methods of Handling Sub-Options B or C
1. White House mightcall a meeting of, first, the Indians
and the State and the feds. Companies would come to a later
meeting. Such a first meeting would give the State the
option of gracefully movin g off its present unwise position
2. PFesident Ford and President-elect Carter might jointly
ask former Gov. Kenneth Curtiss to be a Spe cial Intermediaby.
V. CONGRESS COULD ORDAIN A PER CAPITAX SETTLEMENT IN SETTLEMENT
FOR
ALL INDIAN CLAIMS
As a matter of settling the land claims, Congress could
probably do this, but it could not settle the trespass
claims that way, since these are Fifth-Amendmanteprotected rights.
Furthermore, any such settlement, to meet the trespass
claims, would be exhorbitant.
The Indians would sue to protect their Fifth-Amendment rights
and the untangling of these lawsuits would take a long time.
LIBRA
THE WHITE HOUSE
WASHINGTON
December 3, 1976
MEMORANDUM TO:
PHIL BUCHEN
BRADLEY PATTERSON
FROM:
JIM CANNON
SUBJECT:
Passamacuondy Jun and Penobscot
Land Claims
The President would like an option paper for his review
on the Maine Indian land claims problem.
I have asked George Humphreys to work with you, or your
designate, to present a full discussion of possible
Presidential action that may be advisable in order to
effect an early settlement. George will be calling you
shortly for your advice and guidance.
As a starter, I am attaching five legislative options
that have been suggested to us. You may want to review
this list for any good ideas it may suggest.
adm-
JC. IT West new gueen back auswer to wind an us$ A
was after pepupored be
public
LISSA GERALD ? FORD
PASSAMAQUODDY SETTLEMENT LEGISLATION OPTIONS
Option 1: The President could recommend that the Congress
ratify the 1794 Treaty conveyance nunc pro tunc, thus
probably extinguishing any claim which the tribes may have
to the land in question or compensation therefor.
Option 2: The President could recommend to the Congress
the enactment of a Maine Native Claims Settlement Act
(MNCSA) which would provide that the Indian Claims
Commission, or a specially constituted commission, would
determine the scope of the aboriginal lands of the tribes
as of 1794, and determine the value of the aboriginal lands
which were conveyed by the tribes under the 1794 Treaty,
and then award to the tribes the 1794 value of the aboriginal
lands which were conveyed, which would probably amount to
something less than $15 million. In addition, the Indians
could be awarded interest on the value of the lands conveyed.
At 5% per annum simple interest, this would increase the award
by a factor of approximately 10, to a total of something less
than $150 million. At 5% per annum compound interest, the
increase would be by a factor of approximately 700, to a
total of something less than $105 billion.
Option 3: The President could recommend a MNCSA which
would provide that the Indian Claims Commission, or a
similarly constituted commission, would evaluate the legal
claim now being advanced by the Indians, and award to the
tribes the present value of any land the title to which the
tribes were found to have a valid claim. This award would
amount to the present value of up to 16 million acres of
Maine land including approximately 100,000 private homes
and buildings.
Option 4: The President could recommend a MNCSA which would
simply set an arbitrary sum to be paid to the tribes in full
settlement of any legal claims they might have by reason of
the 1794 Treaty. Such a settlement might amount to a pay-
ment of cash in the amount of $1,000 to $100,000 for each
of the approximately 3,000 members of the tribes.
Option 5: The President could recommend a MNCSA along the
lines described in options 2 through 4 and, in addition,
recommend that the MNCSA contain provisions requiring that
the State of Maine, as its contribution to the settlement,
deed certain state-owned lands to the tribes.
GERALD
2
DISCUSSION
Option 1: The Congress has legal authority to extinguish
Indian land claims, such as are involved in these cases,
by statute without compensation. It can be argued that
the Maine Indians have no equitable or moral argument in
support of their claim, and that any compensation paid to
them would amount to a windfall. The tribes have not
argued that they were dealt with unjustly, but rather based
their entire claim solely upon technical non-compliance with
the Nonintercourse Act.
Option 2: Historically, Congress has not taken a hard line
on extinguishment of aboriginal title. Under the Indian
Claims Act, Congress has *provided that tribes who have lost
their aboriginal lands unfairly under Federal treaties may
sue for the value of the land at the time of loss. Although
the Indian Claims Act generally provides for compensation
when there is a presence of fraud, unconscionable considera-
tion, etc., an analogy could be made between such situations
and the extinguishment of a valid claim under the Nonintercourse
Act. No interest is allowed under the Indian Claims Act but
if simple reimbursement for the 1794 value of the land
(probably less than $1 per acre) appears unreasonably low,
simple interest might be added for these purposes.
Option 3: As a matter of Indian advocacy, this option must
be considered. This option would give to the Indians the
monetary equivalent of the value of the tribes' Nonintercourse
Act Claim. To give the tribes anything less is, arguably,
to take from the tribes something granted by act of Congress.
Option 4: This option could be supportable on grounds that,
in light of the availability of option 1, only token compen-
sation is justifiable. It would have the further advantages
of being fast, simple and predictable in cost.
Option 5: Since fault, if any, lies with the State of Maine
(or its predecessor, the State of Massachusetts), and since
the entire burden of the Indian claim will fall on the
residents of the State of Maine in the absence of congressional
action, there is good justification for requiring a contribution
from the State of Maine to the settlement. The State of Maine
does own undeveloped lands which could be made available to
the tribes. Since the tribes claim close attachment to the
land, providing land as a part of the compensation might make
a settlement more palatable to the tribes.
ACTION
JMC REQUEST
THE WHITE HOUSE
WASHINGTON
December 3, 1976
MEMORANDUM TO:
JIM CANNON
FROM:
GEORGE W. HUMPHREYS Guilt
SUBJECT:
Passamaquoddy and Penobscot
Indian Land Claims
Attached are two memos drafted for your signature:
1. A status report from you to the President
2. A memo from you to Buchen and Patterson
(Baroddy's guy for Indians) asking their
help in preparing an option paper for the
President.
LIBRARY GERALD 10/3
THE WHITE HOUSE
WASHINGTON
December 3, 1976
MEMORANDUM TO:
THE PRESIDENT
FROM:
JAMES M. CANNON
SUBJECT:
Passamaquoddy and Penobscot
Indian Land Claims
You asked for a report on the status of the land
claims of the Maine Indian Tribes.
On October 27, 1976 U.S. District Judge Edward T.
Gignoux ordered the counsel for the United States to
advise the court by January 15, 1977 as to whether the
Government intends to continue prosecution of the two
pending protective actions filed on behalf of the Maine
Tribes. He also ordered that the actions be assigned
for a preliminary pretrial conference as soon thereafter
as practicable. In so ruling, the judge amended his
October 6 order which had given the Government only
until November 15, 1976 to respond.
Meanwhile, since last spring, Interior's Office of the
Solicitor has been engaged in investigating the Tribes'
land claims and preparing litigation reports to the Justice
Department. On November 11, 1976 detailed summaries of
the factual bases for the claims were sent to Maine's
Deputy Attorney General. He has indicated that his office
intends to submit to Interior by December 7, 1976, a
memorandum attempting to rebut the Tribes' claims. Interior's
litigation reports must be finalized as shortly thereafter as
possible in order to permit the Justice Department to
evaluate them in advance of the January court date.
It is intended to make those litigation reports available
to the attorneys for both the State and the Tribes so that
the legal and factual bases for the Indian claims may be
evaluated by the real parties in interest prior to the
FORD
LIBRARY
-2-
initiation of any settlement negotiations. The State
Attorney General has continued to characterize the claims
in public as "frivolous," thus thwarting any talk of
settlement for the time being. The Tribes' attorneys
have indicated a willingness to discuss settlement. Of
course, any negotiated settlement would ultimately have
to be ratified by Congress.
OTHER KNOWN CLAIMS
Interior is also pursuing the Nonintercourse Act claims
of the Oneida, Cayuga, and St. Regis Mohawk Tribes in
New York State, and will soon begin to evaluate a similar
claim of the Catawba Tribe in South Carolina.
Nonintercourse Act suits have also been filed by the
Narragansett Tribe in Rhode Island, the Mashpee Wampanoag
and Gay Head Wampanoag Tribes in Massachusetts, and the
Schaghticoke Tribe in Connecticut. Their claims range
from 1,300 to 17,000 acres. The Federal Government is
not, as yet, a party to the Rhode Island, Massachusetts
or Connecticut litigation.
ALTERNATIVES
I have asked Phil Buchen and Bradley Patterson to review
a range of alternative actions suggested by George Humphreys
of the Domestic Council Staff. I expect to submit to you
a full discussion of these options by December 10.
FORD is LIBRARY 038870
THE WHITE HOUSE
WASHINGTON
December 3, 1976
MEMORANDUM TO:
PHIL BUCHEN
BRADLEY PATTERSON
FROM:
JIM CANNON
SUBJECT:
Passamaquoddy and Penobscot
Land Claims
The President would like an option paper for his review
on the Maine Indian land claims problem.
I have asked George Humphreys to work with you, or your
designate, to present a full discussion of possible
Presidential action that may be advisable in order to
effect an early settlement. George will be calling you
shortly for your advice and guidance.
As a starter, I am attaching five legislative options
that have been suggested to us. You may want to review
this list for any good ideas it may suggest.
R.PORD
THE WHITE HOUSE
WASHINGTON
November 29, 1976
NOTE FOR
Phil Buchen
George Humphreys
Attached for your information
are copies of the two letters which Interior
has sent to Maine officials, i.e. Governor
Longley and Deputy Attorney General Paterson
respectively.
As agreed, the letter to the
Governor mentions the President's interest
in this matter.
Interior will send me a copy of
the material received from Mr. Paterson
when it arrives.
Bad
FORD is LIBRARY 078830
DEPARTMENT OF
United States Department of the Interior
RIOR
OFFICE OF THE SECRETARY
March
3
1849
WASHINGTON, D.C. 20240
Honorable James B. Longley
State of Maine
Office of the Governor
NOV 22 1976
Augusta, Maine 04333
Dear Governor Longley:
Thank you for your letters of October 8 and October 26,
1976, regarding the land claims of the Maine Indian Tribes.
As I indicated to you when we met some weeks ago, I
understand and appreciate the very real concerns of the
people of your State. The President has also expressed
interest in this matter, and has asked me to give it my
personal attention.
As you know, shortly after our meeting Mr. Brennan, your
Attorney General, met with Mr. Austin, my chief legal
officer. Subsequent to that meeting, attorneys in the
Solicitor's Office, including Mr. Austin himself, under-
took a very careful analysis of a proposed litigation
report to the Justice Department with regard to the claims
of the Passamaquoddy Tribe. A similar report on the claims
of the Penobscot Nation is in the preliminary stages.
That analysis is not yet completed. It involves, among
many other things, a complete historical and legal review
of over 200 years of transactions. It is not proper to
suggest that our ultimate decision in this matter is
controlled by a threat of a suit by the Tribe. This
Department was sued by one of the tribes and this Depart-
ment defended that suit jointly with the State of Maine.
The Court has now rendered its decision and we are
required to comply with that judgment.
I am understandably concerned with the implications
contained in your stated desire that you receive "fair
treatment or fairer treatment" than you perceive you
have received to date. I was unaware of any unevenness
of treatment in this respect but I will restate the
position I enunciated at the time of our conversation
REVOLUTION
AMERICAN
BICENTENNIAL
FORD & CERALD LIBRARY
1776-1976
-2-
in my office: the posture of the Government today vis-a-vis
the State of Maine is different from the relationship that
existed when the Government and the State defended the suit
of the tribe in the Joint Tribal Council of the Passamaquoddy
Tribe V. Morton.
Nothing in the foregoing is to be taken as meaning that we
are not keenly aware of the ramifications of the situation.
You were particularly effective in bringing home to me the
seriousness of the State's position and the distress some
persons in your State have already experienced. We are not
unconcerned.
For example, Mr. Austin has indicated to me that he appreciates
your Deputy Attorney General's letter of October 21, 1976
in which he offers to submit a memorandum on his view of
the Indian claims. Mr. Austin also informs me that he is
amenable to the idea of sharing with your Attorney General
certain of the materials which support the Passamaquoddy
and Penobscot land claims so that the Department's litigation
reports will reflect a thoroughly considered decision in
these matters. This is but one indication of our desire
to try to assist the State all we can subject to the legal
limitations placed on us by our trust relationship with
the Tribes.
Please be assured that we are giving high priority to the
evaluation of the tribal claims and that that evaluation
will be the result of very careful study.
Sincerely yours,
D. Gregory autin
Acting Secretary of the Interior
GERALD FORD
OF
United States Department of the Interior
1
3
OFFICE OF THE SOLICITOR
WASHINGTON, D.C. 20240
NOV 11 1976
John M. R. Paterson, Esquire
Deputy Attorney General
Department of the Attorney General
State of Maine
Augusta, Maine 04333
Dear Mr. Paterson:
This will acknowledge your letter of October 21, 1976, with
respect to United States V. Maine, in which you stated your
understanding of the status of the preparation of our
litigation report to the Department of Justice, requested
that the United States make available to you certain factual
and historical materials which we now have in hand, and
described your reservations concerning the disclosure to the
United States of factual and legal aspects of the position
of the State of Maine in opposition to the anticipated
claims of the Passamaquoddy and Penobscot Tribes.
While your description of our present posture is accurate,
the matter is of sufficient importance that I would like
to restate one point in order to avoid even a remote
possibility of misunderstanding.
The draft litigation report submitted by us to the Department
of Justice does take the form of a firm recommendation;
however, you are correct in stating that we have not yet
made a firm recommendation to the Department, since our
report is still in draft form.
We are thoroughly sympathetic with the concerns expressed
by you with respect to revealing, at this time, the factual
or legal basis of your position in opposition to the
anticipated claims of the Passamaquoddy and Penobscot Tribes.
I would like to repeat that we have neither requested nor
urged that the State make such a disclosure to us. However,
I did state that we are still in the process of formulating
the position which this Department will take on behalf of
GERALD
-2-
the Tribes, and that any factual or legal information
supplied to us by the State of Maine might be helpful to
us in establishing our position and deciding upon the
course which we will pursue on behalf of the Indian
Tribes.
In response to your request that we make factual and
historical materials available to you, we are submit-
ting herewith summaries of the factual bases for the
Passamaguoddy and Penobscot land claims. If you wish
to attempt to rebut any or all of the conclusions found
therein, please do so in the memorandum which you intend
to prepare for us. Again, however, please understand
that you are not obliged to do so.
I think we agree that it is in everyone's interest to
resolve the questions posed by the Tribes' claims as
soon as possible. Therefore, if you expect to offer
your arguments to us, please submit them no later than
November 30, 1976. As you know, the Justice Department
is now required to inform the court of the government's
final decision by January 15, 1977.
Sincerely yours,
Solicitor H. Gregory Austin
*
Entended to Dec.7 at Patersois's request.
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"ocrText": "The original documents are located in Box 4, folder \"Passamaquoddy / Penobscot Land\nClaims\" of the Bradley H. Patterson Files at the Gerald R. Ford Presidential Library.\nCopyright Notice\nThe copyright law of the United States (Title 17, United States Code) governs the making of\nphotocopies or other reproductions of copyrighted material. Gerald Ford donated to the United\nStates of America his copyrights in all of his unpublished writings in National Archives collections.\nWorks prepared by U.S. Government employees as part of their official duties are in the public\ndomain. The copyrights to materials written by other individuals or organizations are presumed to\nremain with them. If you think any of the information displayed in the PDF is subject to a valid\ncopyright claim, please contact the Gerald R. Ford Presidential Library.\nDigitized from Box 4 of the Bradley H. Patterson Files at the Gerald R. Ford Presidential Library\nTHE WHITE HOUSE\nWASHINGTON\nPassamaquoddy Issue\n1. Interior finish up work on its\nLitigation Report to Justice.\n2. In this process, invite State and\nIndians' input. (State has asked for\nthis; so have Indians).\n3. Interior send final Litigation Report\nto Justice.\n4. Justice release this to the interested\nparties.\n5. White House send letters to the parties\ninviting written input to a \"settlement\nconcept option paper.\n6. White House host one or more informal\nconferences of the parties to compare\nthe inputs and clarify the issues and\ngather the pieces of such an option\npaper.\n7. White House, together with Justice,\nInterior and Indians and in consultation\nwith State, Congressional Delegation etc\ndraw up option paper for President Carter.\n8. Justice report the completion of this\nstaff work to Judge Gignoux on his\ndeadline of January 15, 1977, and then,\nand in the light of this, request a 30-day\nextension of the Judge's deadline SO that\nPPresident Carter can make uo his mind.\nFORD\nMOTE\nRLD\n9. Outcome of the option paper might be the\ndraft of legislation which Carter could\npromptly send to Congress -- so that\nearly Congressional action can minimize\neconomic disruption in Maine.\nI\nINTRODUCTION\nThe following is a summary of research relative to the\nPenobscot Tribe.\nII\nTRIBAL EXISTENCE\nThe Penobscot Nation is part of the Abenaki linguistic\ngroup, a collection of tribes which once occupied land as far\nwest as Vermont. Because of their geographic location, the\nPenobscots were drawn into contact with non-Indians at an early\ndate, and the record evidence of the tribal existence of the\nPenobscots is extensive. The tribe entered into treaties with\nthe Colony of Massachusetts in 1693, 1699, 1713, 1717,\nErnest S. Dodge, \"Ethnology of Northern New England and the\nMaritime Provinces,\" Massachusetts Archaeological Society,\nBulletin, CVIII (1957), 68.\nTruce between Indian and English, July 21, 1693, The Baxter FORM\nManuscripts: The Documentary History of the State of Maine\n[hereafter Bax. Mss.] (24 vols.; Portland: Maine Historical\nSociety, 1869-1916), XXIII, 4-5. The Submission and Agree-\nments of the Eastern Indians, Aug. 11, 1693, ibid., X, 9-11.\nIndian Treaty, Jan. 7, 1698/99, ibid., XXIII, 19-21.\nTreaty of Eastern Indians, July 11--, 1713, ibid., 37-50.\nCalendar of State Papers, Colonial Series, 1574-1733 [CSP]\n(40 vols.; NCR Microcard Editions, 1965), XXVII, 225.\n5/\nIndian Treaties in Maine Historical Society, Collections,\n1st Ser. (Portland: The Society, 1853), III, 373-74.\n1\n7/\n10/\n1725, 1726, 1727, 1749, and 1752.\nJohn Allan, the Sup-\nerintendent of the federal Eastern Indian Agency during the\nRevolution dealt with the Penobscots as a tribe, 11/ as did\nthe\nThe Submission and Agreement of the Delegates of the Eastern\nIndians, Dec. 15, 1725, in Peter Cummings and Neil Mickenberg,\neds., Native Rights in Canada, 2nd ed. (Toronto: General Pub-\nlishing Company, 1972), 300.\n7/\nConference with the Eastern Indians, Maine Historical Society,\nCollections, 1st ser., III, 392-93.\nConference with the Eastern Indians at the Further Ratifica-\ntion of the Peace, Held at Falmouth in Casco-Bay, in July, 1727,\nibid., 407-47; and Traite de Paix Entre les Anglois et les\nAbenakis, Aoust, 1727, Collection de Manuscripts contenant\nlettres, Memoires, et autre documents historiques relatif a la\nNouvelle France (4 vols.; Quebec: Legislature de Quebec, 1883-\n85), III, 407-47.\nTreaty with the Eastern Indians at Falmouth, 1749, Maine\nHistorical Society, Collections, 1st ser., IV, 145-67; and\nNathaniel Boulton, ed., New Hampshire Provincial Papers\n(7 vols.; Concord: George E. Jenks, 1867-73), V, 131-33.\n10/\nTreaty with the Eastern Indians at St. Georges Fort, 1752,\nMaine Historical Society, Collections, 1st ser., IV, 168-84.\nFor colonial treaties see Henry F. Depuy, comp., A Bibliog-\nraphy of the English Colonial Treaties with the American Ind-\nians (New York, 1917).\n11/\nSee Allan's Commissions and Instructions from the Continental\nCongress and the Government of Massachusetts, Papers of the Con-\ntinental Congress [PCC] (Jan. 15, 1777), Roll' 8, Vol. 7, 65-68;\nMay 24, 1783, PCC, Roll 163, Vol. 149, II, 561-62; June 3, 1783,\nPCC, Roll 26, Vol. 19, 53; Baxter Bax. Mss., XV, 212, 215-16.\nFor additional evidence of Allan's federal relationship with the\ntribe see: Return of Indians and their Familys that are and have\nBeen in the Service of the United States by order of Colo Allen,\nSuperintendt and Commandr in Chief of Indians, Eastern Depart-\nment, at Machias, July 28, 1780, Frederic Kidder, Military Oper-\nations in Eastern Maine and Nova Scotia during the Revolution\nChiefly Compiled from the Journals and Letters of Colonel John\nAllan, with Notes and a Memoir of Col. John Allan (Albany: Joel\nMunsell, 1867), 52-54.\n2\nCommonwealth of Massachusetts which concluded treaties with the\n12/\ntribe in 1796 and 1818. Since its separation from Massachu-\nsetts in 1820, the State of Maine has continuously treated the\n13/\nPenobscots as a tribe of Indians, and the Penobscots have\ncontinuously occupied the lands which they reserved in their\ntreaties.\nThe history of the governmental structure of the Penob-\nscot Nation is roughly similar to that of the Passamaquoddy\nTribe. Until the nineteenth century the tribe was governed by\n14/\nSagamores who were selected for life. These Sagamores were\nresponsible for allocation of the family hunting territories,\nand hence became increasingly more important as the fur trade\n15/\nrose in importance.\nThe Sagamores also played a critical role\n12/\nThe 1796 treaty is recorded in the Hancock County Registry\nof Deeds, Ellsworth, Maine, at Book 27, Page 6; for 1818 Treaty,\nsee Mary F. Farnham, ed., Documentary History of the State of\nMaine, Vol. III (Lefavor-Tower Company, Portland: 1902), 127.\n13/\nThe State of Maine has enacted a comprehensive set of statutes\nwhich purport to regulate many facets of Penobscot tribal life.\nSee generally 22 M.R.S.A. § 4761 et seq.\n14/\nAlfred Goldsworthy Baily, The Conflict of European and Eastern\nAlgonkian Cultures, 1504-1700 (Toronto: University of Toronto\nPress, 1969), 91-92, and Morrison, The People of the Dawn, (Un-\npub. Ph!d. Diss. Orono: University of Maine, 1975), p. 25, 38-\n40.\n15/\nFORD\nDean R. Snow, Wabenaki \"Family Hunting Territories, \" American\nAnthropologist, 70 (1968), 1143-51.\n3\nin the Penobscots' rather extensive diplomatic encounters with\n16\nother governmental entities, both Indian and non-Indian.\nIn the early part of the nineteenth century a political\nsplit developed within the Penobscot Nation, and the Sachems, who\n17/\nhad traditionally been chosen for life, became elective.\nTwo\npolitical parties were formed, and leaders were chosen alternately\n18/\nevery two years from each party.\nThis situation persisted until\nthe present century, when the party system became less evident.\nToday the governing body of the Tribe consists of a Governor and\nLieutenant Governor who are elected every two years, and a 12 mem-\nber tribal council consisting of members elected for two year\n19\nstaggered terms.\n16\nFrank G. Speck, The Eastern Algonkian Wabanaki Confederacy,\nAmerican Anthropologist, XVII (1915), 492-508, outlined the\neighteenth-century alliance system which united the Abenaki\npeoples. A few short biographies of Penobscot and Maliseet\nleaders are also suggestive about these developments. See\nFrank T. Siebert, \"Wenemouett,\" in George W.Brown, et al., eds. 1\nDictionary of Canadian Biography (Toronto: University of Toronto\nPress, 1966--), II, 664-66; Kenneth M. Morrison, \"Loron Saugua-\naram, ibid. III, 584-85 for Penobscot biographies and Richard\nI. Hunt, \"Ambrose St. Auban,\" and \"Pierre Tomah,\" ibid., IV,\nfor Maliseet leaders.\n17\nEugene Vetromile, The Abenakis and their History: or Historical\nNotices of the Aborigenes of Acadia (New York: James B. Kirker,\n1866),\n18\nIbid.\n19/\n22 M.R.S.A. $ 4793.\n4\nIII\nABORIGINAL TERRITORY\nA. Nature of Use.\nPenobscot aboriginal territory probably reached its\n20/\nmaximum extent by the middle of the eighteenth century.\nPen-\nobscot land usage patterns were similar to those of the Passa-\n21/\nmaquoddy. Both tribes were riverine in orientation, and both\nhunted inland areas during the fall and winter, and spent the\nsummer by the sea shore. Frank G. Speck, who has conducted\nextensive anthropological research among the Penobscots, de-\nscribes the pattern as follows:\nWithin this stretch of country the Penobscot\nused to divide their time somewhat regularly,\nspending the summer months (June, July, August)\nin the lower coast or salt-water region, then\nascending the river to the family hunting terr-\nitories for the fall hunting (October, November,\nDecember), and finally returning to the tribal\nrendezvous at the main headquarters at Oldtown\nfor the dead of winter (January, February, March).\n20/\nSee discussion of the corresponding summary of the Passama-\nquoddy claim.\n21/\nThe Jesuit Relations, June 20, 1677, Vol. 60, 263-64, refers\nto the riverine orientation of the Penobscots. On the nature\nof Penobscot aboriginal title within their own sense of law\nsee: Lt Governor Dunbar to Mr. Popple, Nov. 17, 1730, CSP,\nXXXVII, 345-46. The secondary literature is extensive. See:\nJames Phinney Baxter, \"The Abnakis and their Ethnic Relations, \"\nMaine Historical Society, Collections, 2nd ser., III, 13-40;\nFannie H. Eckstorm, \"The Indians of Maine,\" in L.C. Hatch, ed.,\nMaine: A History (New York: The American Historical Society,\n1919), I, 43-64; Dodge, \"Ethnology of Northern New England and\nthe Maritime Provinces,\" 68-71; Frank G. Speck, Penobscot Man:\nThe Life History of a Forest Tribe in Maine (Philadelphia: Uni-\nversity of Pennsylvania, 1940), 7ff.; and Dean R. Snow, \"Waban-\naki 'Family Hunting Territories, American Anthropologist, 70\n(1968), 1143-51.\n5\nThe early spring months (April, May) were spent\ndrifting down toward the ocean and hunting through\nthe neighboring streams and in the main river for\neels. This, it should be understood, is only a\ngeneral outline of the movements of the people;\nmany of them would spend longer periods in the in-\nterior, while some \"lazy\" families would remain\nmost of the time at salt water, gaining 227 an easy\nthough monotonous living from the sea.\nDr. Speck also notes that the Penobscots hunted seals during\n23/\nthe summer from the islands adjacent to their territory,\nand\n24/\nthat the members of the tribe were strict conservationists.\nThe Tribe's conservation practices were described in 1764 as\nfollows:\nThey said it was their custom to divide the hunt-\ning grounds and streams among the different Indian\nfamilies; that they hunted every third year and\nkilled two-thirds of the beaver, leaving the other\nthird to breed; beavers were to them what cattle\nwere to the Englishmen, but the English were kill-\ning off the beavers without 25 any regard for the\nowners of the lands.\nB. Evidence of territorial location and extent.\nMuch of the extent of the aboriginal territory of\nthe Penobscot Nation is indicated in the many negotiations which\n22/\nFrank G. Speck, Penobscot Man, 26.\nFORD\n23/\nIbid., 35.\n24,\nIbid., 207.\n25/\nJoseph Chadwick, \"An Account of a Journey from Fort Pownal --\nNow Fort Point -- Up the Penobscot River to Quebec, in 1764,\"\nBangor Historical Magazine, IV (1889), 143.\n6\naccompanied the various treaties and agreements by which the bulk\nof the Tribe's territory was ceded. Since these negotiations will\nbe discussed in some detail in the following section, those\nevents will not be separately discussed here. This section,\nrather, will highlight the anthropological research which has\nbeen completed on Penobscot aboriginal hunting territories.\nAs was indicated above, the Penobscot Nation, like the\nother tribes in the area, was riverine in orientation, and div-\nided its overall territory into smaller family hunting terri-\ntories. The Tribe's aboriginal territory consisted primarily\n26/\nof the drainage basin of the river which bears its name.\nThe\nprincipal villages of the tribe were all located on the Penob-\nscot River. The following villages were occupied until well\ninto the present century: Indian Island, opposite Old Town,\nMaine; Olemon, some twelve miles up-river; Long Island, opposite\nLincoln, Maine. Other large camps, possibly towns, were situated\non the Penobscot River at the Mattawamkeag River and the Passa-\ndumkeag River, and at Castine on the eastern shore of Penobscot\n27/\nBay.\nThese villages served as staging grounds from which the\nfamily hunting groups would move to their respective territories\n28/\nin the fall.\n26/\nFrank G. Speck, Penobscot Man, 7.\n27/\nIbid., 25-26.\n28/\nIbid., 22.\n7\nPractically the entire Penobscot watershed, an area\nencompassing 5,303,511 acres, was divided into family hunting\nterritories. Several Penobscot family hunting territories cov-\n29\n/\nered the area above the Penobscot watershed.\nThe northern-\nmost of these, which Speck describes as \"perhaps the largest\nand most active family of hunters in the tribe,\" occupied land\nin the St. John watershed reaching to Maine's northern border\n30\n/\nwith Canada.\nIV\nLOSS OF ABORIGINAL TERRITORY\nThe Penobscots' aboriginal lands were protected in the\nTribe's colonial treaties. The Treaty of Portsmouth in 1713,\nfor example, guaranteed the Penobscot \"their own Grounds\" and\n31,\ndefined that territory as lands held as of 1693.\nIn all her\ndealings with the Abenaki peoples in general, and with the\nPenobscots in particular, Massachusetts held to the practice\n32/\nof purchase or cession to establish English title.\nIndeed,\n29/\nFor map see ibid., p. 6.\n30/\nIbid., 229.\n31,\nFrederic Kidder, ed., \"The Abenaki Indians; their Treaties\nof 1713 and 1717,\" Maine Historical Society, Collections, 1st\nser., VI, 251 and 260.\n32/\nAn Act to Prevent and make void clandestine and illegal pur-\nchase of lands from the Indians, June 26, 1702, Acts and Re-\nsolves, Public and Private of the Province of the Massachusetts\nBay (21 vols.; Boston: Wright and Potter, 1869-1922), I, Chap.\n11. See also text of the Treaty of 1717, ibid., 260, as ex-\namples.\n8\nthroughout the early colonial period, land conflicts between\nthe Penobscots and Massachusetts revolved only around the\nissue of the legality of several seventeenth-century land\ndeeds covering but a tiny fraction of the Tribe's aboriginal\nterritory.\nLand conflicts between Massachusetts and the Kennebecs,\non the other hand, were more severe and resulted in war in\n1722. Though the Penobscots abandoned the Kennebecs' cause\nin 1725, they realized that peace was impossible without some\nbasic agreement about land. In a preliminary meeting in 1725,\nthe Penobscot negotiator, Loron Sauguaaram, urged the English\nto abandon their forts at St. Georges River (in Penobscot\nterritory) and at Richmond on the Kennebec River. (outside\nPenobscot territory). Massachusetts replied: \"We shall neither\nbuild or settle any where but within our own Bounds so settled,\n33/\nwithout your Consent. A year later Sauguaaram insisted that\nthe two forts be removed. As before, the English defended the\n34/\nvalidity of their original deeds from the Indians.\nOn July\n18, 1726, the Committee on Lands presented twenty-nine deeds\nto the Penobscots for their inspection. Only two concerned\n33\nAt a conference with the Delegates of the Indian Tribes, Nov.\n15--Dec. 1, 1725, Baxter, Bax. Mss., XXIII, 189.\n34/\nConference with the Eastern Indians, Maine Historical Society,\nCollections, 1st ser., III, 389.\n9\nPenobscot land; both were signed by Penobscot sachem Madocka-\nwando in 1694 and conveyed land on Penobscot Bay at Muscongus\nnorth of Pemaquid point and on both sides of the St. Georges\n35\nRiver.\nRealizing that Massachusetts would not compromise,\n36/\nthe Penobscots signed a treaty in 1726. A year later the\nKennebecs and several Canadian Indians joined the Penobscots\n37\n/\nin ratifying this treaty, which is known as Dummer's Treaty\nand which defined legal relations between the Penobscots and\nMassachusetts until 1755. Dummer's Treaty confirmed Massachu-\nsetts' \"Rights of Lands and former Settlements.\" At the same\ntime, however, the treaty reserved to the Penobscots \" all\ntheir lands, Liberties and Properties, not by them conveyed or\nSold to or Possessed by any of the English subjects as afore-\nsaid, as also the Privilege of Fishing, Hunting, and Fowling\n38/\nas formerly. \"\nDuring the post-war years the Penobscots held Massachu-\nsetts to these terms, and Governor Johnathan Belcher repeatedly\n1\nassured the Nation of Crown protection. The Penobscots opposed,\n35/\nFORD\nAt Falmouth in Casco Bay, July 18, 1726, Baxter, Bax. Mss.,\nXXIII, 204-08.\n36/\nConference with the Eastern Indians, Maine Historical Society,\n(July, August-1726), Collections, 1st ser. III, 377-405.\n37/\nThese negotiations are discussed in Morrison, \"The People of\nthe Dawn, \" 388.\n38/\nMaine Historical Society, Collections, 1st ser., III, 418.\n10\nand halted, the eastward expansion of the Crown settlement call-\n39/\ned Georgia on Pemaquid peninsula, and they asserted that Samuel\n40/\nWaldo illegally took their lands on the St. Georges River.\nGovernor Belcher assured them that the Crown protected their\ntitle. In February, 1735, he declared that he would treat them\n\"with Reason and Justice and in the same Manner with the rest\n41/\nof King George's Subjects. When the Penobscots complained,\nhe promised that the land article of Dummer's Treaty would be\n\"punctually observ'd on the part of this Government, who will\nnot push on the settlement of those Lands, 'till they are sat-\nisfy'd, that those, who at present pretend to be the Proprietors,\n42/\nhave obtain'd the native right from the true Owners. \"\nIt is not necessary to detail the precise nature of these\nconflicting claims, for the Penobscots and Massachusetts reached\na compromise. The Penobscots accepted the de facto legality of\nthe 1694 Madockawando deed and, in 1736, ran a boundary northeast\nof St. Georges between their own and English lands. Further set-\n43/\n1\ntlements, the Indians declared, would not be tolerated.\nIn Feb-\n39,\nPenobscots to Dunbar, Nov. 14, 1729, Baxter, Bax. Mss., X,\n44546 and CSP, XXXVI, 574; Dunbar to Gov. Phillips, Sept. 16,\n1730, ibid., XXXVII, 369, Dunbar to Lt. Gov. Tailor, Nov. 12,\n1730, ibid., 348.\n40/\nMass. Council, May 17, 1736; Indian Conference, June 25, 1736,\nBaxter, Bax. Mss., XXIII, 23641.\n41,\nJ. Belcher to J. Gyles, Feb. 28, 1734/35 Belcher Letterbooks,\nMass. Historical Society, Film IV, 50506.\n42/\nJ. Belcher to J. Gyles, Apr. 14, 1735, ibid., Film 4, 565.\n43/\nConference with the Penobscot & Norridgewalk Indians in July,\n1738, Baxter, Bax. Mss., XXIII, 252.\n11\nruary, 1737, Belcher ordered his agent, John Gyles, to encour-\nage new settlement provided that the settlers conformed to this\n44/\nagreement.\nThe land article of Dummer's Treaty was reinacted in the\n1749 treaty which ended King George's War. Land was not an\nissue in that conflict and was not discussed during the con-\n45/\nference.\nAlthough land was discussed during the 1752 treaty\n46,\nnegotiations, the 1749 treaty was ratified unaltered.\nWish-\ning to prevent a Penobscot - French alliance, Massachusetts\ncarefully recognized Penobscot title. In the early 1750's,\nfor example, the Penobscots complained about, and Massachusetts\n44/\nJ. Belcher to J. Gyles, Feb. 25, 1736/37, Belcher Letterbooks,\nFilm V, 157-58.\n45/\nTreaty with the Eastern Indians at Falmouth, 1749, Maine\nHistorical Society, Collections, 1st ser., IV, 162.\n46,\nLouis, a Penobscot speaking on behalf of his own tribe and\nthe Norridgewocks and Maliseets said: \" we are for proceeding\nupon Governour Dummer's Treaty, by which it was concluded, that\nFORD\nthe English should inhabit the lands as far as the salt water\nflowed, and no further; and that the Indians should possess the\nrest. \" These boundaries are not at all clear. Perhaps Louis\nreferred to the Kennebec River, and it is likely that he was det\nscribing the agreed upon boundary at St. Georges. It is certain\nthat he was not referring to the Penobscot, as English settlement\nwas far from that river in 1752. The English assured the Abenaki\nthat their lands would be protected: \"Upon the third article in\nthe aforesaid Treaty, the Commissioners said, if there be any\nencroachments made upon your lands by the English, let us know\nit; we will inform the Government of it, so that justice may be\ndone you. \" See Treaty with the Eastern Indians at St. George's\nFort, 1752, ibid., quotes at 174 and 177.\n12\nordered removed, an English trespasser on Matinicus, an island\n47/\nsouth of Penobscot Bay.\nBefore the outbreak of the Seven Years' War between France\nand Great Britain, the Penobscots worked carefully to preserve\npeace with Massachusetts. When Massachusetts declared war\nagainst the Abenaki tribes on June 10, 1755, the Penobscots\nwere excepted on condition that they join the English against\n48\nhostile Abenaki as Dummer's Treaty required.\nThe Penobscots\naccepted this condition but refused to move their families near\nthe English settlements for the duration of the war as Governor\n49/\nWilliam Shirley requested. Massachusetts persisted in the de-\n47/\nIn Aug. 1751 Governor Phips appointed Commissioners to confer\nwith the Abenaki. He instructed them to \"Avoid controversy\nabout Lands.' See Instructions in re Treaty with Indians, Aug.\n15, 1751, Baxter, Bax. Mss., XXIII, 412. During the meeting\nLoron Sauguaaram, the Penobscot negotiator, complained about a\nsquatter on Matinicus. The commissioners replied: \"Our Govern-\nour knows nothing of this matter, but we will inform him of it.\nGovr Dummer's Treaty shall be complyed with.\" Report of Con-\nference, August, 1751, ibid., 416. After repeated complaints\nfrom the Penobscots, Massachusetts ordered the Matinicus squat-\n1\nters removed. In Council, June 12, 1753, Baxter, Bax. Mss.\nXXIII, 448-49; S. Phips to Jabez Bradbury, ibid., 449.\n48/\nDeclaration of war, June 10, 1755, Baxter, Bax. Mss., XII,\n408-11; also ibid., XXIV, 30-32.\n49/\nReply of Penobscot Indians, June 27, 1755, ibid., XXIV, 34.\n13\n50/\nmand that the Penobscots settle among the English and, after\nclaiming without evidence that the Penobscots participated in\nan attack on Fort St. Georges, declared war against them on Nov-\n51/\nember 3, 1755. The war involved no real military engagements\nwith the Penobscots, and the Penobscots occupied the same land\nafter the war as they had before.\nAfter the war, Governor Bernard saw the need for a treaty\nwith the Penobscots, but was thwarted in his efforts to obtain\none. In September, 1762, the Massachusetts House and Council\nopposed Bernard's proposal to travel to Maine to conclude a\npeace on the grounds that the Indians had not formally asked\n52/\nfor a treaty.\nOn July 23, 1763, Bernard instructed Captain\nSanders to invite the Penobscots to send two or three of their\nchiefs to Boston to discuss scheduling for a treaty confer-\n53/\nence.\nThree Penobscots arrived a month later and discussed\n50/\nAction of House, August 8, 1755, ibid., 46-47; In Council,\nAugust 8, 1755, ibid., XII, 454; Final Vote, August 14-15,\nibid., XXIV, 48-49; Governor to Penobscots, August 18, 1755,\nibid., 51-53.\n51/\nIn Council, Oct. 3, 1755, ibid., 58; Phips to Bradbury, Oct.\n3, 1755, ibid., 59; Bradbury to Phips, Oct. 24, 1755, ibid., 61;\nProclamation S. Phips, Nov. 3, 1755, ibid., 62-64.\n52/\nMessage, Sept. 14, 1762, ibid., XIII, 294.\n53/\nInstructions to Capt. Sanders, July 23, 1763, Baxter, Bax.\nMss., XXIV, 116.\n14\nrenewing the Tribe's former treaties with Massachusetts; how-\never, no agreement was reached, and no date for a conference\n54/\nwas set.\nIn a message delivered on June 5, 1764, Bernard\nstressed the strength of the Penobscots and again urged that\n55/\na treaty be concluded with the Tribe.\nStill no action was\ntaken.\nThis, then, was the state of affairs in the closing years\nof the colonial era. The Indians continued to occupy their\nprincipal hunting grounds. Governor Bernard continually agi-\ntated for a treaty with the Tribe. At a conference held in\n1769, three delegates from the Tribe sought to retain aborig-\ninal title to their hunting grounds and to have fee title to\na tract for planting:\nWe should be glad of a sufficiency at present\nfor our hunting but as hunting is daily de-\ncreasing we would be glad of a tract of land\nassigned us for a Township settled upon us\nand our posterity for the purposes of husbandry.\n56\nAlthough no townships were ever set off to the Tribe in fee, in-\ndeed no further colonial treaties were concluded with the Tribe,\n54/\nIndian Conference, August 22, 1763, ibid., 116-23. In his\nreply to the Indians the following day, Bernard said that he\nwould not permit the soldiers at Fort Pownall to hunt beaver or\nother furs, and that he would only permit them to hunt deer or\nmoose in the vicinity of the fort. Id., 121-122.\n55/\nMessage, June 5, 1764, ibid., XIII, 341-45.\n56/\nIbid., 157-158.\n15\nthe townships which were proposed by Bernard at the conference\nwere to be on either side of the Penobscot village of Old Town,\n57/\njust above the head of the tide.\nAt the opening of the American Revolution, the Massachu-\nsetts Provincial Congress quickly recognized the military import-\nance of the Penobscots. On June 21, 1775, a delegation of Penob-\nscots (who had been brought to Watertown for the purpose) address-\ned the Provincial Congress. Land problems were clearly the Ind-\nians' primary concern. Their comments, as reported by the Com-\nmittee which was appointed to confer with the Tribe, were as\nfollows:\nThey have a large Tract of Land, which they\nhave a right to call their own, and have poss-\ness'd accordingly for many Years.\nThese Lands have been encroached upon by the\nEnglish, who have for Miles on end cut much of\ntheir good Timber.\nThey ask that the English would interpose,\nand prevent such Encroachments for the future;\nand they will assist us with all their Power\nin the common defense of our Country; and they\nhope if the Almighty be on our side the Enemy\nwill not be able to deprive us of our Lands. 58/\n57/\nIbid., 158.\n58/\nL. Kinvin Wroth, Province in Rebellion: A Documentary History\nof the Founding of the Commonwealth of Massachusetts 1773-1775\n(Harvard Univ. Press, 1975), 2294.\n16\nThus, as of the time of the Revolution, the Penobscots still oc-\ncupied and claimed their lands. More importantly, the Provincial\nCongress recognized their claims also. On the same day that the\nabove report was read, the Provincial Congress passed a resolution\nwhich:\nstrictly forbid any person or persons what-\nsoever from trespassing or making waste upon\nany of the lands and territories or possessions\nbeginning at the head of the tide on Penobscot\nRiver, extending six miles on each side of said\nriver now claimed by our brethren the Indians\nof the Penobscot tribe, as they would avoid the\nhighest displeasure of this Congress.\nThe records of the Provincial Congress do not explain why\nthe resolution was limited to the head of the tide. Nor is the\nreason for the six-mile corridor clear. The riverine orienta-\ntion of the Penobscots clearly did not limit them to an arbi-\ntrary European measure such as the mile. Their territory was\ndelineated by the heights of land which defined their hunting\nstreams. The Provincial Congress obviously recognized that the\nTribe claimed land on both sides of the Penobscot River. Not\nknowing the precise outer limits of the claim, the Congress may\nhave adopted the twelve-mile wide corridor simply as a matter of\nconvenience. In all events, it is important to note that in\nadopting its resolution the Provincial Congress did not say that\nthe Penobscots did not own any land outside of the twelve-mile\ncorridor; it only forbade trespass within the corridor.\nFORD\n59/\nKidder, Military Operations, 53.\nLIBRAR\n17\n60,\nIt was not until after the War that Massachusetts again\nset its sights on Penobscot land. Following the lead of the\nProvincial Congress, the Massachusetts \"Committee on Lands\"\noperated on the assumption that the Penobscots had title to\nland above the head of the tide on the Penobscot River. On July\n7, 1784, for example, the Committee recommended the establish-\nment of three additional townships \"between the lands claimed\n61\n/\nby the Indians & the uppermost of the twelve townships\n\"\nTo facilitate settlement beyond the three townships, Massachu-\nsetts appointed Commissioners to ascertain the limits of the\nPenobscot territory and investigate the possibility of a cession\n62/\nby the tribe of some of the land which it was found to own.\nThe Commissioners presented their case to the Penobscots\non September 4, 1784. They learned, they said, that the Penob-\n09\nThe Penobscots aided the Americans in the Revolution, and\nwere under the care of John Allan, the Superintendent of the\nfederal Eastern Indian Department. See Kidder, Military Oper-\nations, 126.\n61\nJuly 7, 1784, Report of Committee on Lands in the County of\nLincoln, Baxter, Bax. Mss. XX, 354.\n62,\nThis committee was aware of the twelve-mile corridor in the\nWatertown Resolve but apparently took the position that the\ncorridor was not intended to limit the Tribe's territory since\nit recommended appointment of suitable persons to ascertain the\nboundaries of the lands claimed by the Tribe. June 30, 1784\nReport of Committee Appointed by Resolve of Oct. 20, 1783, filed\nwith 1784 Res. C. 57, Mass. Arch.\n18\nscots possessed, \"more lands than were necessary for their pur-\npose\n\" and that they had sold \"considerable tracts for tri-\nfling considerations.\" The Commissioners noted that these sales\nwere void without approval from the Commonwealth. The Commiss-\nioners then stated, however, that if the tribe \"\nreally poss-\nessed more Lands than were necessary or were desirous to change\ntheir present bounds for others so that all their land should\nbe on one side of the River or on both Sides higher up, a due\n63\nconsideration should be allowed them therefore.\n\"\nThe Penobscots rejected the suggestion that they wanted to\nsell or trade any part of their territory. They asserted their\nright of ownership on the basis of immemorial possession and\nreferring to the Watertown Resolve (without mentioning a twelve-\nmile corridor), maintained that the General Court had fixed their\nbounds from the head of the \"tides up to the head of the River. \"\n64\n/\nThey also denied that they had sold any land.\nOn the other\nhand, the Tribe welcomed the opportunity to establish a mutually\nrecognized boundary. \"All that we desire,\" they declared, \"is\n65\nthat you will fix the bounds, that we may know what we possess. \"\n63\nSept. 4, 1784, the Substance of the Commissioners' speech\nin Papers filed with 1796 Jan. Sess. Res. C. 86, Mass. Arch.\n64\nIbid.\n65\nSept. 4, 1784, The Answer of the Indian Chiefs to the Commiss-\nioners ibid.\n19\nAccording to the Commissioners, the most that the Tribe would\nconsider was a new boundary four miles above the head of the\ntide. When the Commissioners suggested instead \"that the Ind-\nians should occupy the Lands on both sides of the River, half\nthe distance from the Canada lines to the head of the Tide,\"\nthe Penobscots became insulted and \"the Principal of them very\n66,\nabruptly left the Conference. \"\nIn August, 1786, the State sent new commissioners (Benj-\namin Lincoln, Thomas Rice and Rufus Putnam) \"to treat with the\nPenobscot Tribe of Indians respecting their claims to Lands on\n67/\nPenobscot River\n\"\nThe Rev. Daniel Little, an observer at\nthe conference, described the Commissioners' purpose as being\n\"to purchase the Indians' Lands on Penobscot River, or settle.\n68\nmore certain & advantageous boundaries\n\"\nDuring the con-\nference the Penobscots maintained their claims to their lands.\nThe Commissioners acknowledged, according to Rev. Little, that\nthe Watertown Resolve confirmed Penobscot title to six miles\n69\non each side of the river from the head of the tide.\n66/\nOct. 25, 1784, The Report of the Commissioners appointed to\nconfer with the Indians of the Penobscot Tribe, ibid.\n67\n/\nA resolve of March 18, 1785, appointed Commissioners \"to treat\nwith the Penobscot Tribe of Indians, respecting their claims to\nlands on Penobscot River \" but a meeting never took place.\nSee July 4, 1786 letter, Benjamin Lincoln Papers, Mass. His. Soc.,\nReel 7, 471-474.\n68/\nReverend Daniel Little, Journal, 109, Manuscript Copy, Maine\nHistorical Society, Portland, Maine.\n69,\nIbid.\n20\nThis concession, however, was not enough for the Penobscots.\nThe statement about their lands \"much hurt and disappointed\"\nthem as \" they supposed before they had the whole width of\nland as far as the waters of this river extended East and\n70/\nWest.\n\"\nThe Commissioners also added that the Watertown Re-\nsolve did not give the Penobscots much advantage, since the\nTribe would be prevented from hunting as soon as Massachusetts\n71/\nsettled the area beyond the six miles.\nThe Commissioners offered the Penobscots the following\nset of terms. The Penobscots would cede\nall their claims & Interest to all the lands\non the west side of Penobscot river, from the\nhead of the tide up to the River Pisquataquiss\nbeing about Forty three miles, And all their\nclaims & Interest on the east side of the river\nfrom the head of the tide aforesaid up to the\nriver Mantanomkeektook being about 85 Miles\nThe Tribe, for its part, would reserve to itself\nthe Island on which the Old Town stands,\nAbout 10 Miles above the head of the tide, and\nthose Islands on which they now have actual\nImprovements in the said river, lying from\nSunkhaze river, about 3 Miles above the said\nold town to Passadunkee Island, inclusively,\non which Island their new Town so called, now\nstands, and\n70/\nAug. 30, 1786, Letter of Committee to Governor in re Indians.\nBax. Mss. XXI, 248.\n71/\nIbid.\n21\nfee title to two islands in Penobscot Bay, known\nas Black Island and White Island near Naskeeg\npoint.\nPerhaps most significantly of all, the proposed treaty also\ncontained the following pledge:\nAnd we further agreed that the lands on the\nwest side of the river Penobscot, to the head\nof all the waters thereof, above the said river,\nPisquataquiss & the lands on the east side of\nthe river to the head of all the waters thereof,\nabove the said river Mantanomkeektook, should\nly as hunting ground for the Indians and should\nnot be laid out or settled by the state or en-\ngrossed by Individuals thereof\n727\nAfter deliberation, the Penobscots proposed a boundary\nat Passadumkeag but the Commissioners refused to consider that\ncompromise. The Penobscots responded that the land Massachu-\nsetts desired could be theirs but \"they expected to be paid\nfor it.\" A few moments more of negotiations passed and the Com-\nmissioners promised \"350 Blankets, 200 lbs Powder, & Shot &\nFlints in proportion, at the time when you sign the papers for\nR.FORD\n73/\nthe ratification of this agreement. \"\nThe verbal agreement between the Penobscots and the Com-\nmissioners rested on shaky ground at best. The Commissioners\nadvised the Governor and Council that they \"discovered a total\naversion in the Indians to surrender all their claims,\" as Mass-\nachusetts wished. \"The Indians were so far from doing this,\n72/\nIbid. 241. The details of the proposed treaty were set forth\nin a subsequent draft document. See footnote 93, infra.\n73/\nLittle, Journal, 110.\n22\nthat when they were urged to relinquish as far North on the\nwest side of the river as on the east side they absolutely\nrefused 74 on any terms whatsoever, to comply with the proposi-\ntion.\n\"\nHappy with even a partial cession, on October 4, 1786,\nGovernor Hancock recommended that the Commission's promises\nof goods be granted to the Penobscots in return for \"a proper\n75/\ndeed of the ceded lands. \" Accordingly, the legislature\n74/\nAugust 30, 1786, Report of Committee on Penobscot Indians,\nBaxter, Bax. Mss., XXI, 241.\n75,\nOctober 11, 1786, Act Confirming Treaty with Penobscot\nTribe, ibid., VIII, 80-82.\n23\npassed an act confirming the Commissioners' verbal agreement\nwith the Penobscots. The act empowered the Governor to appoint\na person \"to carry into execution the said agreement\" by re-\nceiving from the Penobscots \"a deed of relinquishment in due\nform.\" It further provided that \"when the said deed of relin-\nquishment shall be executed as aforesaid, this act shall be\nconsidered as a compleat and full confirmation of the agreement\n76/\nbefore recited\n\"\nBoth the Commissioners and the Legislature\nunderstood, then, that the verbal agreement of August, 1786,\nrequired the signature of a formal deed and the delivery and\nacceptance of the goods provided in payment.\nEarly in November, 1786, Benjamin Lincoln, on behalf\nof Governor Bowdoin, traveled to the Penobscot to complete the\nverbal agreement of August. He met Chief Orono who informed\nhim \" the Tribe was in general out on their winters' hunt,\n& that they would not be collected untill the Spring.\" On the\nchance that the Penobscots might return \"sooner than was expect- 1\ned,\" Lincoln placed the treaty goods and the unsigned deed in\n77/\nthe care of John Lee of Majorbagaduce [Castine].\nLee also\n76/\nNov. 9, 1786, Benjamin Lincoln to Gov. J. Bowdoin, Benjamin\nLincoln Papers, Mass. His. Soc. Reel 7, 547-48. And see also\nNov. 6, 1786, B. Lincoln to John Lee, and Nov. 10, 1786, B.\nLincoln to Gov. Bowdoin, both letters filed with 1796 Jan.\nSess., Res. C. 86, in Mass. Arch.\n77/\nDec. 5, 1786, John Lee to Benjamin Lincoln, Benjamin Lincoln\nPapers, Mass. His. Soc., Reel 7, 564.\n24\n78,\nsoon concluded an agreement would not be reached until spring.\nA full year passed in futile efforts to induce the Penob--\nscots to accept the goods and to formally cede their lands.\nJohn Lee repeatedly conversed with the Penobscot chiefs. He\nlearned \"a Majority of the tribe wish to be off from their\nengagements.' He warned the Penobscots that if they refused\nto ratify the agreement \"that the Governor would chastize them\nseverely. \" Lee added:\nthat their refusing to sign the Deed & re-\nceive the Blanketts &c would by no means pre-\nvent Government from surveying, Disposing of\n& settling the Lands upon Penobscot River.\n/\nGovernor Hancock, however, favored continued negotiations:\nfor though perhaps a small force may sub-\ndue or extirpate the Tribe of Native if\nthey should commence hostilities, yet the\neffecting it would be more expensive &\ntroublesome than the compleating 80 a Treaty\nrespecting their Lands can be.\nOn May 29, 1788, Governor Hancock appointed Reverend\n78\nDecember 28, 1787, John Lee to Gov. Hancock, filed with 1796\nJan. Sess., Res., C. 86 in Mass. Arch.\n79/\nIbid.\n80/\nMarch 17, 1788, Governor Hancock's Message, Baxter, Bax. Mss.,\nXXI, 462-63.\n25\n81/\nDaniel Little to settle the issue. Little did not intend\nto negotiate a new treaty with the Penobscots, but simply \"to\nbring forward & complete the Treaty made at Conduskeag by Gen-\n82\n/\neral Lincoln &c, 26 Aug. 1786. Despite Little's reitera-\ntion of all the arguments of the past few years, the Penobscots\nrefused to sign any document divesting them of their lands.\nOrsong Neptune argued the Penobscots'\nright to the soil from the general peace among\nFrench Indians, Americans & King George from\nthe gift of God, who put them here to serve him\nfrom the promise of Gen1 Washington & the Gen1\nCourt from the long possession of five hundred\nyears, from their being of the Religion of the\nKing of France & meaning to remain SO. 83\nDaniel Little responded \" You may expect Govt. will abide by\n84\nit & expect the same for you. \"\nDespite Little's bluff, Massachusetts continued to recog-\nnize Penobscot title. In 1791 Henry Jackson, agent for Henry\nKnox who was seeking to purchase 2,000,000 acres of Maine land,\ntold his principal that the committee charged with the sale of\nMaine land \" will not permit us to come within six miles of\n81\nMay 29, 1788, Govr's Message respecting a conference with the\nPenobscot Indians, Baxter, Bax. Mss., XXII, 30-31.\n82/\nLittle, Journal, 126.\n83/\nJune 23, 1788, Witnesses Deposition, filed with 1796 Jan.\nSess. Res. C. 86 in Mass. Arch.\n84/\nLittle, Journal, 128. And see June 25, 1788, Little to\nHancock, filed with 1796 Jan. Sess. Res. C. 86 in Mass. Arch.\n26\nPenobscot River.' \" Indeed, the land committee informed Jackson\nthat \"the six miles on the east side of Penobscot is the prop-\n85\nerty of the Indians.\nThe 1786 treaty was never ratified, and the question of\nPenobscot lands was not raised again until 1796 when the State\nagain appointed commissioners who this time were successful in\nobtaining a treaty. The 1796 treaty was similar to the 1786\ntreaty, except the ceded territory extended only thirty miles\nup stream from the head of the tide on each side of the river,\n86\nand the consideration was larger.\nThe treaty called for\nthe delivery of\n\"\none hundred and forty nine and a half yards\nof blue cloth for blankets, four hundred pounds of shot, one\nhundred pounds of Powder, thirty six hats, thirteen bushels of\nSalt being one large Hogshead, one barrel of New England Rum,\nand one hundred bushels of Corn\n\"\n,\nupon signing the treaty.\nThe treaty also called for an \"annual annuity consisting\nof three hundred Bushels of good Indian Corn, fifty pounds of\npowder, two hundred pounds of shot, and seventy five yards of\n85\nJune 19, 1791, Henry Jackson to Henry Knox, Knox Papers,\nMass. His. Soc.\n86\nThe deed which encompasses the terms of the treaty was re-\ncorded in the Hancock County Registry of Deeds, Ellsworth,\nMaine on May 3, 1809, at Book 27, Page 6. See affidavit of\nJacob Kuhn, March 8, 1809, and Order of Council dated March\n20, 1809 filed with Papers relating to Massachusetts Resolves\nof 1796, Jan. Sess., C. 86, Massachusetts Archives, Boston,\nMass., for explanation of the late registration.\n27\ngood blue cloth for Blankets \" In return, the Penobscot Tribe\nwas to cede all its \"right, Interest and claim to all the lands\non both sides of the River Penobscot, beginning near Colonol\nJonathan Eddy's dwelling house, at Nichel's rick, so called,\nand extending up the said River Thirty miles on a direct line,\naccording to the General Course of said River, on each side\nthereof\n\"\nExcepted from the transaction and reserved to'\nthe Tribe were\n\"\nall the Island in said River, above old\ntown, including said Old-town Island, within the limits of\nthe said thirty miles.\" A deed encompassing the terms of the\n87\ntreaty was signed by the Penobscot Nation on August 8, 1796.\nNeither the proposed 1786 treaty nor the actual\n1796 treaty made mention of a twelve-mile corridor. The\nproposed 1786 treaty specifically reserved to the Tribe\nas a hunting ground all of the lands above the ceded area\non both side of the Penobscot River \"to the head of all\n88/\nthe waters\" thereof. While the 1796 treaty did not\nspecifically reserve a hunting territory, it did not pur-\nport to extinguish title to anything other than the thirty-\nmile tract. Indeed at the end of negotiations in which they\nindicated their willingness to enter the treaty, the Penob-\nscots said, \"Further-\n87/\nIbid.\n88/\nLittle, Journal, 110.\n28\nmore Brothers - as we have come to a settlement about the Lands,\nwhat we now say is exactly Right - Now all the land above thirty\n89\n/\nmiles above Colo Eddys, we do not sell.\nIn 1818 the Penobscots, who had fallen on hard times, sent\nword to the State that they wished to sell an additional ten\n90/\ntownships.\nThe Commonwealth responded by appointing three\ncommissioners to treat with the Tribe for the release of all\n91/\nits remaining lands. The result was a treaty in which the\nTribe relinquished its claim to \"all the lands they claim, oc-\ncupy and possess by any means whatever on both sides of the\nPenobscot river, and the branches thereof, above the tract of\nthirty miles in length on both sides of said river, which said\ntribe conveyed and released to said commonwealth by their deed\nof the eighth of August, one thousand seven hundred and ninety\n92\nsix.\n\"\nThe Tribe reserved from the said conveyance four town-\nships near the point where the east and west branches of the\nPenobscot River converge. The Tribe also reserved the islands\nin the river which had previously been reserved. Massachusetts\n89\nAnswer of Indians, August 6, 1796, filed with Massachusetts\nResolves of 1796, Jan. Sess. C. 86, Massachusetts Archives,\nBoston, Mass.\n90\nWilliamson, History of the State of Maine, II, 669.\n91\nIbid.\n92/\nMary Frances Farnham, ed., The Farnham Papers: Documentary\nHistory of the State of Maine (Portland: Lefavor - Tower Company:\n1902) vol. VIII, 127-132.\n29\npromised to purchase two acres of land in the town of Brewer\nfor the use of the Tribe, and to provide them with a man who\ncould instruct them in agriculture. Four hundred dollars and\ncertain specified goods were to be delivered immediately, while\nother supplies were to be delivered annually thereafter.\nThe four townships which were reserved by the Penobscot\nNation in the 1818 treaty were purchased by the State of Maine\n93/\nin an agreement concluded on June 10, 1833. The Indians\nwere to be paid $50,000, the principal amount of which was to\nbe placed in the state treasury, with the interest paid to them\nannually if the state thought they needed it. Unappropriated\ninterest was to be added to the principal.\nToday the Penobscot Tribe has only the islands in the\nPenobscot River between Old Town and Mattawamkeag. In fact,\nthe Tribe doesn't even have all of the islands, since the land\narea of the islands has been reduced by flooding caused by\n94/\nhydro-electric dams.\nFard\n93\nIbid., 303.\n94,\nSee Taylor v. Bangor Hydro-Electric Company, Civil No. 1970\n(D. Me., Filed July 17, 1972).\n30\nCONCLUSION\nThis research has been conducted by experts who are\nprepared to testify as expert witnesses. that the Penobscot\nNation constitutes (and has constituted since time immem-\norial) a tribe of Indians, that the Penobscot Nation used\nand occupied an aboriginal territory which included the en-\ntire Penobscot watershed in the present State of Maine, to-\ngether with a major portion of the St. John watershed in the\npresent State of Maine, and that the Penobscot Nation ceded\nthe vast bulk of these aboriginal lands in treaties with the\nCommonwealth of Massachusetts in 1796 and 1818, and in a\npurchase by the State of Maine in 1833, none of which has\never been approved by the United States.\n31\nTHE WHITE HOUSE\nWASHINGTON\nOctoner 18, 1976\nNOTE TO RON NESSEN\nSubject: Possible Sensitive Press Subject:\nthe Passamaquoddy Case in Maine\nYou may have notieed in the papers\na word or two about the Indian claims case on\nbehalf of the Passamaquoddy Tribe of Indians in\nMaine. A dogged young lawyer has won a court vistory\nwhere the Federal courts (District, and Court of\nAppeals) have said that a 1790 Non-Intercourse\nAct may have been violated and 2/3 of the State\nof Maine (when it belonged to Massachusetts) may\nbe found to be still in Indian ownership. The next\nstep is that the Federal Government must file\na suit in the Court which will help the Court\ndetermine just how much of the State is in fact\nstill in Indian ownership.\nThis filing will not have to be made\nuntil after November 2.\nBond lawyers however have told the State\nthat the case erects a cloud over the bonds, so\nthey can'tbe sold and Maine has practically spent\nTHE WHITE HOUSE\nWASHINGTON\nthe affected bond money, so the \"overnor is\nhopping mad The Congressional delegation there\napparent ly, according to Interior, is silent so\nfar.\nIt is important that if the isue should\ncome up in the White House vicinity, that no one\nhere answer without checking arefully first with\nme or with Interior. The Government must, as a duty,\ndefend Indian trust rights and both Indians and\nnon-Indians are watching us on this one.\n(In the far future, no one may have to leave\nhis property; but we might have to ask Congress to\nendat a \" Maine \"ati ve Claims Settlement Act\" to clear\nup the whole matter.)\nI'll be in Salt Lake City this week, back\nnext Tuesday; if the question should arise in the\ninterim, check with Hugh Garner, Deputy Solicitor\nof Interior (343-6115).\nBrad\nBradley H. Patterson, Jr.\nFORDS & LIBRE\n<< Baroady\n11/10- Kilberg\nTHE WHITE HOUSE\nWASHINGTON\nOctober 28\nNOTE TO MRS. KILBERG\nPeter Taft called me yesterday and\ntoday about Passamaduoddy.\nThe litigation report he has received from\nJustice recommends, he says, actions aimed at\nthe land. He agrees with my informal opinion\nthat very possibly a policial, i.e. Congressional\nsettlementmay be the proper approach, asper the\nAlaska Native Claims Act. Peter feels he may\nneed our help in mediating this little controversy\nif\nand would appreciate it you and I would call a\nFORD\nsession here at the end of next week. I said of\ncourse we would.\nToday Peter called to say that the deadline\nof November 15 or whatever had been changed yester-\nday by the Court to January 15; the Statute of\nLimitations on our actions runs aut next July and by\nthat final date we would have to sue all the\nindividual land-owners, if that is what we intended\nto do. The US representative mentioned yesterday\nin Court that a Congressional settlement was a\nSand\npossible option.\nTHE WHITE HOUSE\nWASHINGTON\nOctober 29, 1976\nNOTE TO GREG AUSTIN\nWould you and an appropriate\nmember of your staff please join Mrs.\nKilberg and me on Thursday at 10 AM here\nto discuss with Peter Taft the matter of\nwhere we are headed in the Passamaquoddy\ncase?\nAn unrelated matter: would you\nrespond to Mr. Boundy's telegram about\nSquaxin Island? I will acknowledge by\nFORD\nphone. Kindly send me a copy of your\nresponse.\nAustur\nBrod\nTHE WHITE HOUSE\nWASHINGTON\nNovember 12, 1976\nMEMORANDUM FOR THE PRESIDENT\nTHROUGH:\nJAMES M. CANNON\nFROM:\nBRADLEY H. PATTERSON, JR.\nGEORGE W. HUMPHREYS\nSUBJECT:\nGovernor Longley's Inquiry re the\nPassamaquoddy/Penobscot Case\nGovernor Longley of Maine met with you recently and asked you\nto look into this matter; you told him you would do so.\nThe Passamaquoddy Indian Tribal Council won a Federal Court\ndecision from Judge Gignoux at the beginning of 1975 declaring\nthat the United States has a trust responsibility to the Tribe\nand declaring that the Tribe is in fact covered by the terms\nof the 1790 Nonintercourse Act (25 USC 177) which forbids the\nconveyance of Indian land without the consent of the United\nStates. This decision was affirmed by the First Circuit Court\nof Appeals on December 23, 1975.\nThe chain of effects from that decision is:\nThe land conveyances in the treaties of 1794\nand 1818 between Maine (then Massachusetts)\nand the Passamaquoddy and Penobscot Indians\nBERALD ? FULL\nrespectively, wherein the Indians gave up\nsome 2,000,000 and 10,000,000 acres respectively\nof their aboriginal lands may well be void,\nsince the United States was not a party to\nthese treaties nor were they ever ratified\nby the Senate.\nThis in turn puts a cloud over the ownerships\nand titles in those 12,000,000 acres -- which\namounts to 60% of the State of Maine.\n- 2 -\n- -Because of this cloud, bond attorneys have\nadvised clients not to buy State of Maine\nconstruction bonds, and a $27 million sale\nof same has been held up.\n- Tax anticipation bonds (from real estate taxes)\nfor the operating expenses of Maine towns and\ncounties will probably suffer the same fate\nas of next January. This will hurt some of\nthose communities.\n- - The Federal Government, now as Trustee for the\nIndians, has in the Circuit Court's words\n\"the duty to investigate and take such action\nas may be warranted in the circumstances.\"\nThis may well mean pursuing or expanding (to\nother property-owning defendants) two protective\nlawsuits filed some time ago against Maine on\nbehalf of the tribes by Justice at the insistence\nof the Court.\n- Judge Gignoux has set back a November 15 deadline\nto January 15, 1977 for the Federal Government\nto come into his court and tell him what they are\ngoing to do to discharge their trusteeship\nobligation. Much research must be done to put\nany expanded suits in final form before a July,\n1977 expiration of the Statute of Limitations\nfor all Indian claims for trespass damages.\nGERALD FORD LIBRARY\nThe State Attorney General continues to call the Indians'\nclaim \"preposterous,\" \"frivolous\" and \"without merit\"; the\nMaine Congressional delegation introduced a bill to repeal the\nNonintercourse Act and has more recently washed its hands of\nthe matter claiming that it is a problem for the Courts.\nThe Indians have long been ready to talk about a comprehensive\nsettlement package but the State has shown little interest.\nActions Now Being Taken:\nSolicitor Austin of Interior is sending a letter to the Maine\nDeputy Attorney General, transmitting documents showing the\nstrength of the case and inviting his input and comment.\n- 3 -\nSecretary Kleppe is responding to a letter he has received\nfrom Governor Longley, will refer to Mr. Austin's invitation\nto the State Deputy Attorney General, and will also refer to\nthe Governor's visit with you -- by saying that \"The President\nhas asked me to look into this matter. \" We and Mr. Buchen\nbelieve that this discharges your obligation to Governor\nLongley and keeps the matter at the proper arm's length from\nthe White House.\nThe Future:\nAfter receiving input from both the Indians and the State,\nInterior will send its Litigation Report to Justice -- i.e.,\nthe formal request for definitive or expanded lawsuits.\nThe Litigation Report will then be made available to the\nIndians and the State and further comments will be invited.\nThese comments may point to a possible overall settlement,\nsuch as a \"Maine Native Claims Settlement Act\" by the Congress\n(as an alternative to months if not years of claims litigation.)\nJustice will inform Judge Gignoux of the steps taken so far.\nMr. Carter, then as President, will have to make the final\njudgment about what kind of lawsuits or a legislative package\nto support.\nFORD\nLIBRARY\nTHE WHITE HOUSE\nWASHINGTON\nNovember 23\nTO:\nBRAD PATTERSON\nFROM: GEORGE W. HUMPHREYS\nMemo went to the\nPresident on 11/15.\nCOPY FOR BRAD\nPATTERSON\nTHE WHITE HOUSE\nWASHINGTON\nNovember 12, 1976\nis\nFORD\nMEMORANDUM FOR THE PRESIDENT\nGERALD\nTHROUGH:\nJAMES M. CANNON\nFROM:\nBRADLEY H. PATTERSON, JR.\nGEORGE W. HUMPHREYS\nSUBJECT:\nGovernor Longley's Inquiry re the\nPassamaquoddy/Penobscot Case\nGovernor Longley of Maine met with you recently and asked you\nto look into this matter; you told him you would do so.\nThe Passamaquoddy Indian Tribal Council won a Federal Court\ndecision from Judge Gignoux at the beginning of 1975 declaring\nthat the United States has a trust responsibility to the Tribe\nand declaring that the Tribe is in fact covered by the terms\nof the 1790 Nonintercourse Act (25 USC 177) which forbids the\nconveyance of Indian land without the consent of the United\nStates. This decision was affirmed by the First Circuit Court\nof Appeals on December 23, 1975.\nThe chain of effects from that decision is:\nThe land conveyances in the treaties of 1794\nand 1818 between Maine (then Massachusetts)\nand the Passamaquoddy and Penobscot Indians\nrespectively, wherein the Indians gave up\nsome 2,000,000 and 10,000,000 acres respectively\nof their aboriginal lands may well be void,\nsince the United States was not a party to\nthese treaties nor were they ever ratified\nby the Senate.\nThis in turn puts a cloud over the ownerships\nand titles in those 12,000,000 acres -- which\namounts to 60% of the State of Maine.\n- 2 -\n- --Because of this cloud, bond attorneys have\nadvised clients not to buy State of Maine\nconstruction bonds, and a $27 million sale\nof same has been held up.\n- - Tax anticipation bonds (from real estate taxes)\nfor the operating expenses of Maine towns and\ncounties will probably suffer the same fate\nas of next January. This will hurt some of\nthose communities.\nFORD\n- The Federal Government, now as Trustee for the\nIndians, has in the Circuit Court's words\n\"the. duty to investigate and take such action\nas may be warranted in the circumstances.\"\nThis may well mean pursuing or expanding (to\nother property-owning defendants) two protective\nlawsuits filed some time ago against Maine on\nbehalf of the tribes by Justice at the insistence\nof the Court.\n- Judge Gignoux has set back a November 15 deadline\nto January 15, 1977 for the Federal Government\nto come into his court and tell him what they are\ngoing to do to discharge their trusteeship\nobligation. Much research must be done to put\nany expanded suits in final form before a July,\n1977 expiration of the Statute of Limitations\nfor all Indian claims for trespass damages.\nThe State Attorney General continues to call the Indians'\nclaim \"preposterous,\" \"frivolous\" and \"without merit\"; the\nMaine Congressional delegation introduced a bill to repeal the\nNonintercourse Act and has more recently washed its hands of\nthe matter claiming that it is a problem for the Courts.\nThe Indians have long been ready to talk about a comprehensive\nsettlement package but the State has shown little interest.\nActions Now Being Taken:\nSolicitor Austin of Interior is sending a letter to the Maine\nDeputy Attorney General, transmitting documents showing the\nstrength of the case and inviting his input and comment.\n- 3 -\nSecretary Kleppe is responding to a letter he has received\nfrom Governor Longley, will refer to Mr. Austin's invitation\nto the State Deputy Attorney General, and will also refer to\nthe Governor's visit with you -- by saying that \"The President\nhas asked me to look into this matter.\" We and Mr. Buchen\nbelieve that this discharges your obligation to Governor\nLongley and keeps the matter at the proper arm's length from\nthe White House.\nThe Future:\nAfter receiving input from both the Indians and the State,\nInterior will send its Litigation Report to Justice - - i.e.,\nthe formal request for definitive or expanded lawsuits.\nThe Litigation Report will then be made available to the\nIndians and the State and further comments will be invited.\nThese comments may point to a possible overall settlement,\nsuch as a \"Maine Native Claims Settlement Act\" by the Congress\n(as an alternative to months if not years of claims litigation.)\nJustice will inform Judge Gignoux of the steps taken so far.\nMr. Carter, then as President, will have to make the final\njudgment about what kind of lawsuits or a legislative package\nto support.\nFORD\nTHE WHITE HOUSE\nWASHINGTON\nINFORMATION\nNovember 15, 1976\nMEMORANDUM FOR THE PRESIDENT\nTHROUGH:\nJAMES M. CANNON\nPred\nPalterson\nFROM:\nBRADLEY H. PATTERSON,\nGEORGE W. HUMPHREYS\nSUBJECT:\nGovernor Longley's Inquiry re the\nPassamaquoddy/Penobscot Case\nGovernor Longley of Maine met with you recently and asked\nyou to look into this matter; you told him you would do SO.\nThe Passamaquoddy Indian Tribal Council won a Federal\nCourt decision from Judge Gignoux at the beginning of\n1975 declaring that the United States has a trust\nresponsibility to the Tribe and declaring that the Tribe\nis in fact covered by the terms of the 1790 Nonintercourse\nAct (25 USC 177) which forbids the conveyance of Indian\nland without the consent of the United States. This\ndecision was affirmed by the First Circuit Court of Appeals\non December 23, 1975.\nFORD\nThe chain of effects from that decision is:\n-- The land conveyances in the treaties of 1794\nand 1818 between Maine (then Massachusetts)\nand the Passamaquoddy and Penobscot Indians\nrespectively, wherein the Indians gave up some\n2,000,000 and 10,000,000 acres respectively of\ntheir aboriginal lands may well be void, since\nthe United States was not a party to these\ntreaties nor were they ever ratified by the\nSenate.\n-- This in turn puts a cloud over the ownerships\nand titles in those 12,000,000 acres -- which\namounts to 60% of the State of Maine.\n- 2 -\n- - -Because of this cloud, bond attorneys have\nadvised clients not to buy State of Maine\nconstruction bonds, and a $27 million sale\nof same has been held up.\n- - Tax anticipation bonds (from real estate taxes)\nfor the operating expenses of Maine towns and\ncounties will probably suffer the same fate\nas of next January. This will hurt some of\nthose communities.\n- The Federal Government, now as Trustee for the\nIndians, has in the Circuit Court's words\n\"the duty to investigate and take such action\nas may be warranted in the circumstances.'\nThis may well mean pursuing or expanding (to\nother property-owning defendants) two protective\nlawsuits filed some time ago against Maine on\nbehalf of the tribes by Justice at the insistence\nof the Court.\n- Judge Gignoux has set back a November 15 deadline\nto January 15, 1977 for the Federal Government\nto come into his court and tell him what they are\ngoing to do to discharge their trusteeship\nobligation. Much research must be done to put\nany expanded suits in final form before a July,\n1977 expiration of the Statute of Limitations\nfor all Indian claims for trespass damages.\nThe State Attorney General continues to call the Indians'\nclaim \"preposterous,\" \"frivolous\" and \"without merit\"; the\nMaine Congressional delegation introduced a bill to repeal the\nNonintercourse Act and has more recently washed its hands of\nthe matter claiming that it is a problem for the Courts.\nThe Indians have long been ready to talk about a comprehensive\nsettlement package but the State has shown little interest.\nActions Now Being Taken:\nSolicitor Austin of Interior is sending a letter to the Maine\nDeputy Attorney General, transmitting documents showing the\nstrength of the case and inviting his input and comment.\n- 3 -\nSecretary Kleppe is responding to a letter he has received\nfrom Governor Longley, will refer to Mr. Austin's invitation\nto the State Deputy Attorney General, and will also refer to\nthe Governor's visit with you -- by saying that \"The President\nhas asked me to look into this matter.\" We and Mr. Buchen\nbelieve that this discharges your obligation to Governor\nLongley and keeps the matter at the proper arm's length from\nthe White House.\nThe Future:\nAfter receiving input from both the Indians and the State,\nInterior will send its Litigation Report to Justice -- i.e.,\nthe formal request for definitive or expanded lawsuits.\nThe Litigation Report will then be made available to the\nIndians and the State and further comments will be invited.\nThese comments may point to a possible overall settlement,\nsuch as a \"Maine Native Claims Settlement Act\" by the Congress\n(as an alternative to months if not years of claims litigation.)\nJustice will inform Judge Gignoux of the steps taken so far.\nMr. Carter, then as President, will have to make the final\njudgment about what kind of lawsuits or a legislative package\nto support.\nFORDS is 070830 LIBRARY\n-\nTHE WHITE HOUSE\nWASHINGTON\n11/19\nPeter Taft's intentions:\nReceive litigation feport from Interior\nin about a month.\nMake it available to the parties.\nTell the Jugge on NEVEMBERZ January 15\nthat we intend to sue the major parties: the\nState and the big companies -- just 5 or 6\ndefendants perhaps (with resources to pay\ncompetent counsel) -- and also that we will\nrecommend that the Congress extend the Statute of\nLimitations for another 3 years so that later\nwe can identify and sue the smaller landholders\nif necessary.\nLet JC determine a settlement option\npackage and propese it.\nFORD i LIBRARY GERALD\nPASSAMAQUODDY/PENOBSCOI CASE\nOPTIONAL COURSES OF ACTION\nI. LITIGATE THE CASE THROUGH\nCERALE R. FORD\nIndians are quite willing and ready to do this.\nInterior and Justice would have to come along with it; the\nCourt has told them to behave like trustees and they would.\nAs for litigating strategy, there are no current differences\nbetween Indians, Interior and Justice -- they are doing just what\nthe Court said and are behaving like trustees.\nBut there are some 200,000 individual defendants.\nIt is most unlikely that Justice would file a class-action type\nsuit; the law is very unclear here, but most class-action cases are\nplaintiff suits; there is very little legal precedent for defendant\ntype class-action suits. Also very little precedent for class-action\ntype suits in property cases such as this.\nIn our Pyramid Lake case, the Supreme Couft refused to take\noriginal jurisdiction and left us with the only other alternative:\nfiling against 13,000 defendants in Navada, which we did.\nIn any case, the litigation option would take perhaps 15 years\nwhen all the defendants and all the appeals are totalled up; maybe\nlonger.\nIndians are very likely to win all these cases.\nBut for all the 15 years or more, there wouldb e a cloud ofer\nall the land titles -- a \"lis pendens\" notation made on every\ndeed registered. This is also likely to affect thez not only the\npublic debt offerings of the State and counties, etc, but also the\nprivate debt offerings of all the companies in Maine; Indians would\nand to stockholders' meetings\nprobably go to the SEC and insist on full disclosure in every company's\nAnnual Report --which would put a crimp in any debt offerings.\nAlso: a big burden onthe courts.\nII. CONGRESS RATIFY THE TREATY AND ESTINGUISH THE LAND CLAIM\nCongress could certainly extinguish the land claim in this\nway, but it is very doubtful whehher this measure would also extinguish\nthe freapass claim for the years of trespass between the time of the\nsigning of the treaty and its ratification.\nSuch pre-ratification treapass claims are, arguably, protected\nby the Fifth Amendment and a Congressional action purporting to\nextinguish these claims would be attacked as unconstitutional.\nIndians under this option would file for the trespass claims\nwhich they allege, and in so doing would attach all the property of\nall the individual defendants -- tying all property actions up for\nthe B years or so that it would take to resolve the question of\nwhether the treapass claims were oonstitutionally extinguished by\nthe ratification action.\nIt would be alleged that the government and especially the\nCongress was taking unilateral action, changing the rules of the game--\nplaying baseball by moxing the bases well into the middle of the game.\nThese arguments would make ratificati n doubtful of\nCongressional passage.\nIII. CONGRESS EMPOWER THE INDIAN CLAIMS COMMISSION OR CREATE A SPECIAL\nNEW COMMISSION TO HEAR AND DECIDE THE CASE\nIf the Congress, in so doing, ordained rules or settlement\ncriteria for the Commission which would dimimish the Indians' Fifth-\nAmendment-protected rights (e.g. the trespass claims), this would\narguably by unconstitutional.\nThe Indians would probably ignore the new Commission, and\nwould proceed with Option I -- i.e. to litigate the case against\nevery defendant.\nIt would take perhaps 3 years for the issue to be litigated\nabout the Commission's jurisdiction -- on the Fifth A mendment\nrights issue-- and during that time the cloud would stay on all the\ntitles and property actions.\nEven if tyexz the Commission's jurisdiction were eventually\nestablished, it would take many more years for the entire case to\nbe heard and settled (look at the record of the Indian Claims\nCommission on same of iss complicated cases...) Such delays would not\nsolve the State's problem.\nIf a Commission were finally found to have jurisdiction, the\nGovernment would then be put into an impossible bind: being a\nclaims case, the Government would be the defendant, but aàso being\ntrustee, the Government would have to be the plaintiff, arguing for\nthe Indians.\nIndians woudd regard the creation of a Commission as also\na changing of the rules halfway in the game, a unilateral move\nby the government and/or Congress.\nCERALD LIBRARY CERALD R. FORD\nIV. WE COULD TRY THE MODEL ESTABLISHED IN THE ALASKA NATIVE CLAIMS\nSETTLEMENT ACT: ENGAGE IN CONSULTATION WITH INDIANS AND STATE\nAND THEN PRESENT A BILL TO THE CONGRESS WHICH WOULD ITSELF BE\nA FINAL SETTLEMENT PACKAGE.\nSub-Option A: Of course we (i.e. the Carter Executive Branch)\ncould send up a bill without any consultation -- as we did\nin Alaska Claims in 1969 -- but this would break faith with\nthe promise to consult the Indians, and the State would feel\nlikewise.\nSub-Option B: We would engage in careful consultation, but send\nup a bill which we think is right without necessarily having the\ncomplete asent of all the parties. (This is what we did in\nthe Alaska Native bill Nixon sent up in May of 1971).\nSub-Option C: We would try to get ak completed agreed bill -- or\ntry to get the parties together to reach an agreement among\nthemselves.\nGERALI FORD\nIndians have said:\na) They will enter into negotiations n a comprehensive\nsettlement\nb) They are not seeking to possess the home of any\nindividual homeowner if a comprehenkisve settlement\npackage is worked out. (This promise does not apply\nif the litigation route has to e chosen.)\nc) Indians will insist on some symbolic treat ment of\nthe ownership of Baxter State Park and Mt. Katahdin.\nd) Indians will insist on a substantial land settlement\nplus a reasonable cash award for the extinguishment of\nthe rest of their land and treapass claims.\nIndians don't care where the land comes from for them;\nit would be in part State land (the State has some 500,000\nacres in \"Public Lots\" plus Baxter Park of 200,000 acres),\nor the State or the Federal Government could compensate\nthe paper companies for land which the companies would then\nturn over to the Indians. (That land is worth about\n$110-$125 per acre now). Some of those \"Public lots\" may\nnot be the best settlement option; the State is tryin. to\nsecure them for public recreational areas.\ne) Indians consider that the \"at fault\" parties are the\nState and the feds -- and most of the money for cash or\nfor the land or both will probably have to come from the\nfederal government. The companies take the position that\nthey will not give up anything for nothing; they must be\ncompensated for any land they give up. (But they have been\nvery silent on the whole case; they did not intervene in\nthe case in its earlier stages; they are following it\nclosely; they have not put any pressure on the State,\nhowever.\nf) No out-of-court settlement will, of course, be possible\nwhich gives the Indians less than they pre-Treaty lands\nwithout the consent of Congress; the Non-Intercourse Act\nis still on the books\nMethods of Handling Sub-Options B or C\n1. White House mightcall a meeting of, first, the Indians\nand the State and the feds. Companies would come to a later\nmeeting. Such a first meeting would give the State the\noption of gracefully movin g off its present unwise position\n2. PFesident Ford and President-elect Carter might jointly\nask former Gov. Kenneth Curtiss to be a Spe cial Intermediaby.\nV. CONGRESS COULD ORDAIN A PER CAPITAX SETTLEMENT IN SETTLEMENT\nFOR\nALL INDIAN CLAIMS\nAs a matter of settling the land claims, Congress could\nprobably do this, but it could not settle the trespass\nclaims that way, since these are Fifth-Amendmanteprotected rights.\nFurthermore, any such settlement, to meet the trespass\nclaims, would be exhorbitant.\nThe Indians would sue to protect their Fifth-Amendment rights\nand the untangling of these lawsuits would take a long time.\nLIBRA\nTHE WHITE HOUSE\nWASHINGTON\nDecember 3, 1976\nMEMORANDUM TO:\nPHIL BUCHEN\nBRADLEY PATTERSON\nFROM:\nJIM CANNON\nSUBJECT:\nPassamacuondy Jun and Penobscot\nLand Claims\nThe President would like an option paper for his review\non the Maine Indian land claims problem.\nI have asked George Humphreys to work with you, or your\ndesignate, to present a full discussion of possible\nPresidential action that may be advisable in order to\neffect an early settlement. George will be calling you\nshortly for your advice and guidance.\nAs a starter, I am attaching five legislative options\nthat have been suggested to us. You may want to review\nthis list for any good ideas it may suggest.\nadm-\nJC. IT West new gueen back auswer to wind an us$ A\nwas after pepupored be\npublic\nLISSA GERALD ? FORD\nPASSAMAQUODDY SETTLEMENT LEGISLATION OPTIONS\nOption 1: The President could recommend that the Congress\nratify the 1794 Treaty conveyance nunc pro tunc, thus\nprobably extinguishing any claim which the tribes may have\nto the land in question or compensation therefor.\nOption 2: The President could recommend to the Congress\nthe enactment of a Maine Native Claims Settlement Act\n(MNCSA) which would provide that the Indian Claims\nCommission, or a specially constituted commission, would\ndetermine the scope of the aboriginal lands of the tribes\nas of 1794, and determine the value of the aboriginal lands\nwhich were conveyed by the tribes under the 1794 Treaty,\nand then award to the tribes the 1794 value of the aboriginal\nlands which were conveyed, which would probably amount to\nsomething less than $15 million. In addition, the Indians\ncould be awarded interest on the value of the lands conveyed.\nAt 5% per annum simple interest, this would increase the award\nby a factor of approximately 10, to a total of something less\nthan $150 million. At 5% per annum compound interest, the\nincrease would be by a factor of approximately 700, to a\ntotal of something less than $105 billion.\nOption 3: The President could recommend a MNCSA which\nwould provide that the Indian Claims Commission, or a\nsimilarly constituted commission, would evaluate the legal\nclaim now being advanced by the Indians, and award to the\ntribes the present value of any land the title to which the\ntribes were found to have a valid claim. This award would\namount to the present value of up to 16 million acres of\nMaine land including approximately 100,000 private homes\nand buildings.\nOption 4: The President could recommend a MNCSA which would\nsimply set an arbitrary sum to be paid to the tribes in full\nsettlement of any legal claims they might have by reason of\nthe 1794 Treaty. Such a settlement might amount to a pay-\nment of cash in the amount of $1,000 to $100,000 for each\nof the approximately 3,000 members of the tribes.\nOption 5: The President could recommend a MNCSA along the\nlines described in options 2 through 4 and, in addition,\nrecommend that the MNCSA contain provisions requiring that\nthe State of Maine, as its contribution to the settlement,\ndeed certain state-owned lands to the tribes.\nGERALD\n2\nDISCUSSION\nOption 1: The Congress has legal authority to extinguish\nIndian land claims, such as are involved in these cases,\nby statute without compensation. It can be argued that\nthe Maine Indians have no equitable or moral argument in\nsupport of their claim, and that any compensation paid to\nthem would amount to a windfall. The tribes have not\nargued that they were dealt with unjustly, but rather based\ntheir entire claim solely upon technical non-compliance with\nthe Nonintercourse Act.\nOption 2: Historically, Congress has not taken a hard line\non extinguishment of aboriginal title. Under the Indian\nClaims Act, Congress has *provided that tribes who have lost\ntheir aboriginal lands unfairly under Federal treaties may\nsue for the value of the land at the time of loss. Although\nthe Indian Claims Act generally provides for compensation\nwhen there is a presence of fraud, unconscionable considera-\ntion, etc., an analogy could be made between such situations\nand the extinguishment of a valid claim under the Nonintercourse\nAct. No interest is allowed under the Indian Claims Act but\nif simple reimbursement for the 1794 value of the land\n(probably less than $1 per acre) appears unreasonably low,\nsimple interest might be added for these purposes.\nOption 3: As a matter of Indian advocacy, this option must\nbe considered. This option would give to the Indians the\nmonetary equivalent of the value of the tribes' Nonintercourse\nAct Claim. To give the tribes anything less is, arguably,\nto take from the tribes something granted by act of Congress.\nOption 4: This option could be supportable on grounds that,\nin light of the availability of option 1, only token compen-\nsation is justifiable. It would have the further advantages\nof being fast, simple and predictable in cost.\nOption 5: Since fault, if any, lies with the State of Maine\n(or its predecessor, the State of Massachusetts), and since\nthe entire burden of the Indian claim will fall on the\nresidents of the State of Maine in the absence of congressional\naction, there is good justification for requiring a contribution\nfrom the State of Maine to the settlement. The State of Maine\ndoes own undeveloped lands which could be made available to\nthe tribes. Since the tribes claim close attachment to the\nland, providing land as a part of the compensation might make\na settlement more palatable to the tribes.\nACTION\nJMC REQUEST\nTHE WHITE HOUSE\nWASHINGTON\nDecember 3, 1976\nMEMORANDUM TO:\nJIM CANNON\nFROM:\nGEORGE W. HUMPHREYS Guilt\nSUBJECT:\nPassamaquoddy and Penobscot\nIndian Land Claims\nAttached are two memos drafted for your signature:\n1. A status report from you to the President\n2. A memo from you to Buchen and Patterson\n(Baroddy's guy for Indians) asking their\nhelp in preparing an option paper for the\nPresident.\nLIBRARY GERALD 10/3\nTHE WHITE HOUSE\nWASHINGTON\nDecember 3, 1976\nMEMORANDUM TO:\nTHE PRESIDENT\nFROM:\nJAMES M. CANNON\nSUBJECT:\nPassamaquoddy and Penobscot\nIndian Land Claims\nYou asked for a report on the status of the land\nclaims of the Maine Indian Tribes.\nOn October 27, 1976 U.S. District Judge Edward T.\nGignoux ordered the counsel for the United States to\nadvise the court by January 15, 1977 as to whether the\nGovernment intends to continue prosecution of the two\npending protective actions filed on behalf of the Maine\nTribes. He also ordered that the actions be assigned\nfor a preliminary pretrial conference as soon thereafter\nas practicable. In so ruling, the judge amended his\nOctober 6 order which had given the Government only\nuntil November 15, 1976 to respond.\nMeanwhile, since last spring, Interior's Office of the\nSolicitor has been engaged in investigating the Tribes'\nland claims and preparing litigation reports to the Justice\nDepartment. On November 11, 1976 detailed summaries of\nthe factual bases for the claims were sent to Maine's\nDeputy Attorney General. He has indicated that his office\nintends to submit to Interior by December 7, 1976, a\nmemorandum attempting to rebut the Tribes' claims. Interior's\nlitigation reports must be finalized as shortly thereafter as\npossible in order to permit the Justice Department to\nevaluate them in advance of the January court date.\nIt is intended to make those litigation reports available\nto the attorneys for both the State and the Tribes so that\nthe legal and factual bases for the Indian claims may be\nevaluated by the real parties in interest prior to the\nFORD\nLIBRARY\n-2-\ninitiation of any settlement negotiations. The State\nAttorney General has continued to characterize the claims\nin public as \"frivolous,\" thus thwarting any talk of\nsettlement for the time being. The Tribes' attorneys\nhave indicated a willingness to discuss settlement. Of\ncourse, any negotiated settlement would ultimately have\nto be ratified by Congress.\nOTHER KNOWN CLAIMS\nInterior is also pursuing the Nonintercourse Act claims\nof the Oneida, Cayuga, and St. Regis Mohawk Tribes in\nNew York State, and will soon begin to evaluate a similar\nclaim of the Catawba Tribe in South Carolina.\nNonintercourse Act suits have also been filed by the\nNarragansett Tribe in Rhode Island, the Mashpee Wampanoag\nand Gay Head Wampanoag Tribes in Massachusetts, and the\nSchaghticoke Tribe in Connecticut. Their claims range\nfrom 1,300 to 17,000 acres. The Federal Government is\nnot, as yet, a party to the Rhode Island, Massachusetts\nor Connecticut litigation.\nALTERNATIVES\nI have asked Phil Buchen and Bradley Patterson to review\na range of alternative actions suggested by George Humphreys\nof the Domestic Council Staff. I expect to submit to you\na full discussion of these options by December 10.\nFORD is LIBRARY 038870\nTHE WHITE HOUSE\nWASHINGTON\nDecember 3, 1976\nMEMORANDUM TO:\nPHIL BUCHEN\nBRADLEY PATTERSON\nFROM:\nJIM CANNON\nSUBJECT:\nPassamaquoddy and Penobscot\nLand Claims\nThe President would like an option paper for his review\non the Maine Indian land claims problem.\nI have asked George Humphreys to work with you, or your\ndesignate, to present a full discussion of possible\nPresidential action that may be advisable in order to\neffect an early settlement. George will be calling you\nshortly for your advice and guidance.\nAs a starter, I am attaching five legislative options\nthat have been suggested to us. You may want to review\nthis list for any good ideas it may suggest.\nR.PORD\nTHE WHITE HOUSE\nWASHINGTON\nNovember 29, 1976\nNOTE FOR\nPhil Buchen\nGeorge Humphreys\nAttached for your information\nare copies of the two letters which Interior\nhas sent to Maine officials, i.e. Governor\nLongley and Deputy Attorney General Paterson\nrespectively.\nAs agreed, the letter to the\nGovernor mentions the President's interest\nin this matter.\nInterior will send me a copy of\nthe material received from Mr. Paterson\nwhen it arrives.\nBad\nFORD is LIBRARY 078830\nDEPARTMENT OF\nUnited States Department of the Interior\nRIOR\nOFFICE OF THE SECRETARY\nMarch\n3\n1849\nWASHINGTON, D.C. 20240\nHonorable James B. Longley\nState of Maine\nOffice of the Governor\nNOV 22 1976\nAugusta, Maine 04333\nDear Governor Longley:\nThank you for your letters of October 8 and October 26,\n1976, regarding the land claims of the Maine Indian Tribes.\nAs I indicated to you when we met some weeks ago, I\nunderstand and appreciate the very real concerns of the\npeople of your State. The President has also expressed\ninterest in this matter, and has asked me to give it my\npersonal attention.\nAs you know, shortly after our meeting Mr. Brennan, your\nAttorney General, met with Mr. Austin, my chief legal\nofficer. Subsequent to that meeting, attorneys in the\nSolicitor's Office, including Mr. Austin himself, under-\ntook a very careful analysis of a proposed litigation\nreport to the Justice Department with regard to the claims\nof the Passamaquoddy Tribe. A similar report on the claims\nof the Penobscot Nation is in the preliminary stages.\nThat analysis is not yet completed. It involves, among\nmany other things, a complete historical and legal review\nof over 200 years of transactions. It is not proper to\nsuggest that our ultimate decision in this matter is\ncontrolled by a threat of a suit by the Tribe. This\nDepartment was sued by one of the tribes and this Depart-\nment defended that suit jointly with the State of Maine.\nThe Court has now rendered its decision and we are\nrequired to comply with that judgment.\nI am understandably concerned with the implications\ncontained in your stated desire that you receive \"fair\ntreatment or fairer treatment\" than you perceive you\nhave received to date. I was unaware of any unevenness\nof treatment in this respect but I will restate the\nposition I enunciated at the time of our conversation\nREVOLUTION\nAMERICAN\nBICENTENNIAL\nFORD & CERALD LIBRARY\n1776-1976\n-2-\nin my office: the posture of the Government today vis-a-vis\nthe State of Maine is different from the relationship that\nexisted when the Government and the State defended the suit\nof the tribe in the Joint Tribal Council of the Passamaquoddy\nTribe V. Morton.\nNothing in the foregoing is to be taken as meaning that we\nare not keenly aware of the ramifications of the situation.\nYou were particularly effective in bringing home to me the\nseriousness of the State's position and the distress some\npersons in your State have already experienced. We are not\nunconcerned.\nFor example, Mr. Austin has indicated to me that he appreciates\nyour Deputy Attorney General's letter of October 21, 1976\nin which he offers to submit a memorandum on his view of\nthe Indian claims. Mr. Austin also informs me that he is\namenable to the idea of sharing with your Attorney General\ncertain of the materials which support the Passamaquoddy\nand Penobscot land claims so that the Department's litigation\nreports will reflect a thoroughly considered decision in\nthese matters. This is but one indication of our desire\nto try to assist the State all we can subject to the legal\nlimitations placed on us by our trust relationship with\nthe Tribes.\nPlease be assured that we are giving high priority to the\nevaluation of the tribal claims and that that evaluation\nwill be the result of very careful study.\nSincerely yours,\nD. Gregory autin\nActing Secretary of the Interior\nGERALD FORD\nOF\nUnited States Department of the Interior\n1\n3\nOFFICE OF THE SOLICITOR\nWASHINGTON, D.C. 20240\nNOV 11 1976\nJohn M. R. Paterson, Esquire\nDeputy Attorney General\nDepartment of the Attorney General\nState of Maine\nAugusta, Maine 04333\nDear Mr. Paterson:\nThis will acknowledge your letter of October 21, 1976, with\nrespect to United States V. Maine, in which you stated your\nunderstanding of the status of the preparation of our\nlitigation report to the Department of Justice, requested\nthat the United States make available to you certain factual\nand historical materials which we now have in hand, and\ndescribed your reservations concerning the disclosure to the\nUnited States of factual and legal aspects of the position\nof the State of Maine in opposition to the anticipated\nclaims of the Passamaquoddy and Penobscot Tribes.\nWhile your description of our present posture is accurate,\nthe matter is of sufficient importance that I would like\nto restate one point in order to avoid even a remote\npossibility of misunderstanding.\nThe draft litigation report submitted by us to the Department\nof Justice does take the form of a firm recommendation;\nhowever, you are correct in stating that we have not yet\nmade a firm recommendation to the Department, since our\nreport is still in draft form.\nWe are thoroughly sympathetic with the concerns expressed\nby you with respect to revealing, at this time, the factual\nor legal basis of your position in opposition to the\nanticipated claims of the Passamaquoddy and Penobscot Tribes.\nI would like to repeat that we have neither requested nor\nurged that the State make such a disclosure to us. However,\nI did state that we are still in the process of formulating\nthe position which this Department will take on behalf of\nGERALD\n-2-\nthe Tribes, and that any factual or legal information\nsupplied to us by the State of Maine might be helpful to\nus in establishing our position and deciding upon the\ncourse which we will pursue on behalf of the Indian\nTribes.\nIn response to your request that we make factual and\nhistorical materials available to you, we are submit-\nting herewith summaries of the factual bases for the\nPassamaguoddy and Penobscot land claims. If you wish\nto attempt to rebut any or all of the conclusions found\ntherein, please do so in the memorandum which you intend\nto prepare for us. Again, however, please understand\nthat you are not obliged to do so.\nI think we agree that it is in everyone's interest to\nresolve the questions posed by the Tribes' claims as\nsoon as possible. Therefore, if you expect to offer\nyour arguments to us, please submit them no later than\nNovember 30, 1976. As you know, the Justice Department\nis now required to inform the court of the government's\nfinal decision by January 15, 1977.\nSincerely yours,\nSolicitor H. Gregory Austin\n*\nEntended to Dec.7 at Patersois's request."
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