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Indians - Passamaquoddy Case
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Indians - Passamaquoddy Case
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Philip W. Buchen Files
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Indian claims
Indian treaties
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The original documents are located in Box 19, folder "Indians - Passamaquoddy Case" of
the Philip Buchen Files at the Gerald R. Ford Presidential Library.
Copyright Notice
The copyright law of the United States (Title 17, United States Code) governs the making of
photocopies or other reproductions of copyrighted material. Gerald R. Ford donated to the United
States of America his copyrights in all of his unpublished writings in National Archives collections.
Works prepared by U.S. Government employees as part of their official duties are in the public
domain. The copyrights to materials written by other individuals or organizations are presumed to
remain with them. If you think any of the information displayed in the PDF is subject to a valid
copyright claim, please contact the Gerald R. Ford Presidential Library.
Digitized from Box 19 of the Philip Buchen 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 up his mind.
GERALD FORD LIBRARY
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.
JOINT TRIBAL COUN. OF PASSAMAQUODDY TRIBE V. MORTON 649
Cite as 388 .Supp. 649 (1975)
orated
in
the
Other case in similar situation is nors against federal officials for a de-
soever?
of
the
Demsey & Associates Inc. V. SS Sea
claratory judgment as to the applicabili-
rate
and
pay-
Star, 321 F.Supp. 663 (S.D.N.Y.1970),
ty of the Indian Nonintercourse Act to
therein.'
where while each bill of lading was sub-
the Tribe. The State of Maine was per-
language
of
titled, To be used with Charter-Par-
mitted to intervene as a party defend-
by the spe-
ties" and contained the following addi-
ant. The District Court, Gignoux, J.,
aves
no
fair
tional language with regard to charter
held that although the Tribe was never
of
the
par-
parties,
"***
freight at the rate of
federally recognized" by a treaty be-
is
SO
plain
(say per
)
as per Charter-Party,
tween the United States and the Tribe,
arbitration
in
dated
the Nonintercourse Act was applicable
brought
over
"All the terms, conditions, liberties,
to the Tribe and established a trust rela-
nnecessary
to
and exceptions of the Charter-Party are
tionship between the United States and
this
instance
herewith incorporated".
the Tribe.
The Court held that this does not show
Judgment for plaintiffs.
party
are,
what, if any, charter party was intended
rporated
into
to be incorporated.
are
a
part
of
and
are
bind-
In view of the fact that there is no
1. Statutes 181(1), 189
for
plain or express incorporation of the
In construing statute duty of court
dam-
that
contract
charter party in the bill of lading and
is to give effect to intent of Congress,
the
dispute
also based on the decisions of Son Ship-
and in SQ doing the first reference is to
and
the
ping Co. Inc. V. De Fosse & Tanghe, su-
the literal meaning of words employed.
added).
pra; and Demsey and Associates Inc. V.
2. Statutes -212.6
SS Sea Star, supra, defendant's motion
Unless contrary appears, it is pre-
& Molasses
to stay proceedings pending arbitration
sumed that statutory words were used in
holson,
126
F.
is hereby denied.
their ordinary sense.
it
was
held
It is 80 ordered.
referred to a
3. Statutes 181(1), 184
blank
the
Primary consideration in construing
he
date
of
the
statute is the mischief to be corrected
bar)
was
in-
KEY NUMBER SYSTEM
and the end to be attained by enactment
terms
of
the
of the legislation; where possible terms
he
bill
of
lad-
of statute should be construed to give
effect to congressional intent.
ading
read
as
4. Statutes ©217.2, 223.1
JOINT TRIBAL COUNCIL OF the PAS-
SAMAQUODDY TRIBE et al.,
Extrinsic aids such as legislative
under
and
Plaintiffs,
history of statute and the accepted in-
the
charter
terpretation of similar language in relat-
V.
between
ed legislation are helpful in interpreting
Rogers C. B. MORTON, Secretary, De-
as
charterer,
ambiguous statutory language.
partment of the Interior, et al.,
soever
of
the
Defendants,
5. Statutes 219(1)
and
pay-
and
Administrative interpretations by
therein
ap-
State of Maine, Intervenor.
agency entrusted with enforcement of
rights
of
the
Civ. No. 1960.
statute are persuasive but the power to
is
shipment."
United States District Court,
issue regulations is not the power to
form
bill
of
D. Maine, N.D.
change the law and it is for the courts
those
which
Jan. 20, 1975.
to determine whether or not administra-
the
incorpo-
tive interpretations are consistent with
As Amended Feb. 11, 1975.
intent of Congress and words of statute.
or
no
incorpo-
6. Indians -6
charter
party
Action was brought by the Joint
Indian Nonintercourse Act,
whose
Tribal Council of the Passamaquoddy
literal language used in the ordinary
AUTHORI
Indian Tribe and the Tribe's two gover-
sense clearly encompasses all tribes of
388
650
388 FEDERAL SUPPLEMENT
Indians, is applicable to the Passama-
United States to protect land owned by
quoddies, although Federal Government
Tribe. 25 U.S.C.A. § 177.
had never entered into a treaty with the
12. Indians 15(1)
Tribe, Congress had never enacted legis-
By virtue of duty imposed by the
lation which specifically mentioned the
Indian Nonintercourse Act, United
Tribe and the Commonwealth of Massa-
States has an obligation to do whatever
chusetts and the State of Maine had as-
is necessary to protect Indian land when
sumed almost exclusive responsibility
it becomes aware that Indian rights
for protection and welfare of the Passa-
have been violated, even though United
maquoddies. 25 U.S.C.A. § 177; 28 U.
States did not participate in the uncon-
S.C.A. § 1331.
scionable transaction. 25 U.S.C.A. §
7. Statutes 189
177.
Departure from plain meaning of
13. Indians =3
statutory language is only justified
Termination of Federal Govern-
where application of literal language
ment's responsibility for Indian tribe re-
would be at variance with legislative in-
quires plain and unambiguous action ev-
tent as revealed by statute as a whole
idencing a clear and unequivocal inten-
and its legislative history.
tion of Congress to terminate its rela-
8. Indians 15(2)
tionship with the tribe.
Purpose of Indian Nonintercourse
14. Indians =3
Act forbidding conveyance of Indian
Where Congress never expressly
land without consent of the United
terminated its relationship with the Pas-
States is to protect land of Indian tribes
samaquoddy Tribe, failure of Federal
in order to, prevent fraud and unfair-
Government to object to Maine's under-
ness. 25 U.S.C.A. § 177.
taking certain obligations for protection
9. Indians 15(2)
of Tribe did not evidence such a clear
Plain meaning interpretation of
congressional intent as would support
phrase "any
tribe
of
Indi-
a finding of a termination of Federal
ans" as used in Indian Nonintercourse
Government's obligation toward the Pas-
Act, forbidding conveyance of Indian
samaquoddies. 25 U.S.C.A. § 177.
lands without consent of United Statès,
is the only construction of Act which
15. Constitutional Law -68(1)
comports with basic policy of United
Political question doctrine did not
States as reflected in Act to protect In-
bar court from granting declaratory
dian right of occupancy of their aborigi-
judgment that the Indian Noninter-
nal lands. 25 U.S.C.A. § 177.
course Act did apply to the Passama-
quoddy Tribe since only issue before
10. Indians -6
court was whether Congress once having
Language used in statutes confer-
exercised its power to pass protective
ring benefits or protection on Indians
legislation on behalf of Indians meant to
must be construed in a nontechnical
include Tribe and this presented a ques-
sense as the Indians themselves would
tion of legislative intent for resolution
have understood it, and all ambiguities
by court rather than nonjusticiable
in such statutes are to be resolved in fa-
political question. 25 U.S.C.A. § 177;
vor of the Indiana
28 U.S.C.A. § 1331.
IL Indians 15(2)
16. Administrative Law and Procedure
Indian Nonintercourse Act, forbid-
704
ding conveyance of Indian land without
Where Attorney General of United
consent of United States, was applicable
States in his refusal to institute suit on
to the Passamaquoddy Tribe, although
behalf of Indian tribe relied exclusively
never "federally recognized," and im-
on _recommendation of Secretary of the
posed a trust er fiduciary obligation on
Interior and the actions of the Attorney
JOINT TRIBAL COUN. OF PASSAMAQUODDY TRIBE V. MORTON 651
Cite as 388 Supp. 649 (1975)
land owned by
General and the Secretary were but two Ross, Washington, D. C., Robert S. Pel-
stages of single administrative process,
cyger, and David H. Getches, Boulder,
their action was a final agency action
Colo., for plaintiffs.
imposed by the
reviewable under the Administrative
Peter Mills, U.S. Atty., Portland, Me.,
Act, United
Procedure Act. 5 U.S.C.A. §§ 701 et
Floyd L. France, Chf. Litigation Section
to do whatever
seq., 704; 25 U.S.C.A. § 177; 28 U.S.
and Anthony S. Borwick, Asst. Atty.
ndian land when
C.A. 1331, 2201.
Gen., Civil Div., Dept. of Justice, Land
Indian rights
& Natural Resources Div., Washington,
though United
17. Declaratory Judgment -304
Secretary of the Interior was prop-
D.C., for defendants.
te in the uncon-
25 U.S.C.A. §
er party to suit by Indian tribe for dec-
laration that the Indian Nonintercourse
OPINION AND ORDER OF THE
Act was applicable to it and established
COURT
a trust relationship between United
'ederal Govern-
GIGNOUX, District Judge.
States and tribe, since the Department
Indian tribe re-
of the Interior was a federal agency pri-
Plaintiffs in this action are the Joint
guous action ev-
marily responsible for protecting Indian
Tribal Council of the Passamaquoddy
equivocal inten-
land and administering government poli-
Indian Tribe and the Tribe's two gover-
minate its rela-
cy pursuant to statutes. 25 U.S.C.A. §
nors, who are suing in their individual
177; 28 U.S.C.A. § 1331.
and official capacities and as representa-
tives of all members of the Tribe. De-
18. Declaratory Judgment -203
fendants are the Secretary of the Interi-
expressly
Doctrine of action committed to
or, the Attorney General of the United
with the Pas-
agency discretion by law did not pre-
States, and the United States Attorney
lure of Federal
clude Indian tribe from bringing suit
for the District of Maine. The State of
Maine's under-
for declaratory judgment that the Indi-
Maine has been permitted to intervene
for protection
an Nonintercourse Act applied to it and
as a party defendant. Plaintiffs seek a
such clear
established a special trust relationship
declaratory judgment that the Indian
would support
between tribe and United States after
Nonintercourse Act, 1 Stat. 137 (1790),
of Federal
Attorney General declined to bring suit
now 25 U.S.C. § 177, forbidding the con-
toward the Pas-
on behalf of tribe, since suit did not
veyance of Indian land without the con-
177.
seek to require Attorney General to
sent of the United States, is applicable
(1)
bring suit on tribe's behalf and the doc-
to the Passamaquoddy Tribe and estab-
loctrine did not
trine of prosecutorial discretion could
lishes a trust relationship between the
declaratory
not shield legal error resulting from the
United States and the Tribe: This
Noninter-
erroneous legal conclusion of official
Court has jurisdiction under 28 U.S.C. §
the Passama-
that the Indian Nonintercourse Act did
1331, Oneida Indian Nation V. County of
lytissue before
not apply to tribe. 5 U.S.C.A. §
Oneida, 414 U.S. 661, 94 S.Ct. 772, 39
once having
701 (a) (2) 25 U.S.C.A. § 177; 28 U.S.
L.Ed.2d 73 (1974), and declaratory re-
pass protective
C.A. §§ 516, 519.
lief is sought pursuant to 28 U.S.C. §
ndians meant to
2201. Plaintiffs also invoke applicable
19. Declaratory Judgment -91
resented a ques-
provisions of the Administrative Proce-
Indian tribe was not barred from
for resolution
dure Act, 5 U.S.C. § 701 et seq. The
declaratory relief with respect to the ap-
nonjusticiable
case has been submitted upon a stipulat-
plicability of the Indian Nonintercourse
J.S.C.A. § 177;
ed record, briefs and oral argument.
Act to it merely because court might not
be able to fashion coercive relief to com-
The Historical Background
Procedure
pel Attorney General to bring suit on
behalf of tribe. 25 U.S.C.A. § 177.
The Joint Tribal Council of the Passa-
maquoddy Tribe is the official govern-
of United
ing body of the Passamaquoddy Tribe, a
institute suit on
tribe of Indians residing on two reserva-
exclusively
Thomas N. Tureen, David C. Crosby,
tions in the State of Maine. It is stipu-
ecretary of the
of the Attorney
Barry A. Margolin, Calais, Me., Rob-
lated that since at least 1776 the present
ert E. Mittel, Portland, Me., Stuart P.
members of the Tribe and their ances-
652
388 FEDERAL SUPPLEMENT
tors have constituted and continue to
tercourse Act, the Commonwealth of
constitute a tribe of Indians in the ra-
Massachusetts, Maine's predecessor in
cial and cultural sense.
interest², negotiated a treaty with the
Plaintiffs allege that until 1794 the
Passamaquoddies, by which the Tribe
Passamaquoddy Tribe occupied as its
ceded to Massachusetts practically all of
aboriginal territory all of what is now
its aboriginal territory. It is further al-
Washington County together with other
leged that out of the 23,000 acres which
land in the State of Maine. During the
the 1794 treaty reserved to the Tribe,
Maine and Massachusetts have sold,
Revolutionary War, the Tribe fought
with the American colonies against
leased for 999 years, given easements
Great Britain. In 1790, in recognition
on, or permitted flooding of approxi-
of the primary responsibility of the
mately 6,000 acres. The complaint as-
serts that the United States has not con-
newly-formed Federal Government to
sented to these transactions and there-
the Indians in the United States, Oneida
Indian Nation V. County of Oneida,
fore that they violated the express terms
of the Nonintercourse Act.
supra at 667, 94 S.Ct. 772; United
States V. Sante Fe Pacific R. Co., 314
Since the United States was organized
U.S. 339, 345, 347-348, 62 S.Ct. 248, 86
and the Constitution adopted in 1789,
L.Ed. 260 (1941), the First Congress
the Federal Government has never en-
adopted the Indian Nonintercourse Act,
tered into a treaty with the Passama-
which as presently codified, 25 U.S.C. §
quoddy Tribe, and the Congress has nev-
177, provides in pertinent part:
er enacted legislation which specifically
mentions the Passamaquoddies. Fur-
No purchase, grant, lease, or other
thermore, since 1789, the contacts be-
conveyance of lands, or of any title or
tween the Federal Government and the
claim thereto, from any Indian nation
Tribe have been sporadic and infre-
or tribe of Indians, shall be of any va-
quent. In contrast, the State of Maine
lidity in law or equity, unless the
has enacted comprehensive legislation
same be made by treaty or convention
which has had a pervasive effect upon
entered into pursuant to the Constitu-
all aspects of Passamaquoddy tribal life.
tion.¹
The stipulated record clearly shows that
Plaintiffs allege that in 1794, four
the Commonwealth of Massachusetts and
years after passage of the 1790 Nonin-
the State of Maine, rather than the Fed-
4. The first Nonintercourse Act passed in
Stat. 729, 730; and in Rev.Stat. § 2116,
1790, 1 Stat. 137, 138, provided that "no
now 25 U.S.C. § 177.
sale of lands made by any Indians, or any
2. Maine was formerly a District of Massa
nation or tribe of Indians within the United
chusetts. In 1819 Massachusetts passed leg-
States, shall be valid to any person or per
islation, commonly known as the Articles of
sons,
or
to
any
state
unless
the
Separation, which permitted, subject to the
same shall be made and duly executed
consent of Congress, the separation of the
some public treaty, held under the authority
District of Maine from Massachusetts, and
of the United States.' By the second Non-
the establishment of Maine as an indepen
intercourse Act passed in 1793, this lan-
dent state. Act of June 19, 1819, Mass.
guage was amended to read as follows: "No
Laws, ch. 61, p. 248. The Articles of Sepa-
purchase or grant of lands, or of any title
ration provided that Maine would "assume
or claim thereto, from any Indians or nation
and perform all the duties and obligations of
or tribe of Indians, within the bounds of the
this Commonwealth towards the Indians
United States, shall be of any validity in law
within said District of Maine, whether the
or equity, unless the same be made by a
same arise from treaties or otherwise;
treaty or convention entered into pursuant
Shortly thereafter, Congress ap-
to the Constitution." 1 Stat. 329, 330.
proved of Maine's admission to the Union.
This version was carried forward, without
Act of March 3, 1820, ch. 19, 3 Stat. 544.
major change, in the 1796 Act, 1 Stat. 469,
The Articles of Separation were incorporat-
472; the 1799 Act, 1 Stat. 743, 746; the
ed into the Maine Constitution as Article X,
1802 Act, 2 Stat. 139, 143; the 1834 Act, 4
Section 5.3 Const. art. 10, § 5.
JOINT TRIBAL COUN. OF PASSAMAQUODDY TRIBE V. MORTON 653
Cite as 388 F.Supp. 649 (1975)
nonwealth of
eral Government, have assumed almost the Court directed defendants, in the
redecessor
in
exclusive responsibility for the protec- event their decision was in the negative,
with the
tion and welfare of the Passamaquod-
to state their reasons for so deciding and
the Tribe
dies.³
to show cause on June 23, 1972 why they
actically all of
should not be ordered to bring suit. On
is
further
al-
The Present Action
June 20, 1972 the Acting Solicitor of the
acres
which
Department of the Interior advised the
to the Tribe,
On February 22, 1972 representatives
Assistant Attorney General, Land and
have
sold,
of the Passamaquoddy Tribe wrote to
Natural Resources Division, Department
easements
the Commissioner of the Bureau of Indi-
of Justice, by letter, that no request for
of approxi-
an Affairs, Department of the Interior,
litigation would be made. The reasons,
complaint
as-
and requested that the United States
as stated in the letter, were as follows:
has not con-
Government, on behalf of the Tribe, in-
stitute a suit against the State of Maine,
As you are ware, no treaty exists
and
there-
between the United States and the
express
terms
as a means of redressing the wrongs
which arose out of the alleged uncon-
Tribe and, except for isolated and
scionable land transactions in violation
inexplicable instances in the past, this
was
organized
of the Nonintercourse Act. The letter
Department, in its trust capacity, has
in 1789,
urged that the requested action be filed
had no dealings with the Tribe. On
has
never
en-
by July 18, 1972, the date as of which
the contrary, it is the States of Mas-
the
Passama-
sachusetts and Maine which have act-
such an action would be barred by 28
agress has nev-
U.S.C. $ 2415(b), a special statute of
ed as trustees for the tribal property
specifically
limitations for actions seeking damages
for almost 200 years. This relation-
uoddies. Fur-
resulting from trespass upon restricted
ship between the Tribe and the States
contacts be-
Indian lands. On March 24, 1972 the
has apparently never been questioned
nment and the
Commissioner recommended to the Solic-
by the Tribe until recently.
and infre-
itor of the Department of the Interior
State of Maine
that the litigation be instituted and ad-
In view of the Court's Order of
legislation
vised the Solicitor that 28 U.S.C. §
June 16, 1972, requesting it be ad-
effect upon
2415(b) might bar a suit after July 18,
vised of the Secretary's decision on
tribal life.
1972. Defendants, however, despite re-
the Tribe's request by June 22, 1972,
shows that
peated urgings by representatives of the
this Department has again reviewed its
ssachusetts
and
Tribe, failed to take any action upon
position and has again determined
than
the
Fed-
their request.
that no request for litigation should
Stat. $ 2116,
On June 2, 1972 plaintiffs filed the
be made.
present action seeking a declaratory
The Department does not reach its
District of Massa-
judgment that the Passamaquoddy Tribe
decision lightly. On the one hand, we
nusetts, passed leg-
is entitled to the protection of the Non-
are aware that the tribe may thus be
the
Articles
of
subject to the
intercourse Act and requesting a prelim-
foreclosed from pursuing its claims
separation of the
inary injunction ordering the defendants
against the State in the federal
fassachusetts,
and
to file a protective action on their behalf
courts. However, as there is no trust
as an indepen-
against the State of Maine before-July
relationship between the United
19, 1819, Mass.
18, 1972. Following a hearing on June
States and this tribe, we are led ines-
Articles of Sepa-
16, 1972 the Court ordered defendants to
capably to conclude that the Tribe's
would "assume
and obligations of
decide by June 22, 1972 whether they
proper legal remedy should be sought
the Indians
would voluntarily file the protective ac-
elsewhere.
(emphasis
sup-
whether the
tion sought by plaintiffs. In addition,
plied).
or otherwise;
Congress ap-
3. The contacts between the Federal Govern-
4. Congress has since extended the time for
to the Union.
19, 3 Stat. 544.
ment and the Passamaquoddies, and between
filing such an action to July 18, 1977. Act
Massachusetts and Maine and the Passama-
of October 13, 1972, P.L. 92-485, 86 Stat.
were incorporat-
Article
X,
quoddies, since 1776, as disclosed by the doc-
803.
as
5.
uments stipulated into the record in this
case, are set forth in detail in the Appendix
to this Opinion.
654
388 FEDERAL SUPPLEMENT
On June 22, 1972, by means of a written
action as a party defendant. On July
Notice filed with the Court, enclosing a
15, 1974, following the completion of dis-
copy of the June 20, 1972 letter from
covery, plaintiffs filed a second amended
the Department of the Interior to the
and supplemental complaint
Department of Justice, defendants noti-
The action is presently before the
fied the Court that they would not vol-
Court on the basis of plaintiffs' second
untarily file the requested action. The
amended and supplemental complaint,
Notice stated:
defendants' and intervenor's answers
You are hereby further notified
thereto, a stipulated record, briefs and
that consistent with the decision of
oral argument.
the Interior Department, the Assist-
ant Attorney General in charge of the
The Issues Presented by the
Land and Natural Resources Division,
Present Action
Department of Justice, acting under
and by delegation from the Attorney
In their second amended and supple-
General, has decided not to institute
mental. complaint, plaintiffs have
an action against the State of Maine
dropped their original request for in-
as requested by plaintiffs' counsel.
junctive relief and seek only a declarato-
(emphasis supplied)
ry judgment. Their basic position is
that the Nonintercourse Act applies to
At the conclusion of the show cause
all Indian tribes in the United States,
hearing held on June 23, 1972 the Court
including the Passamaquoddies, and that
ordered defendants to file the requested
the Act establishes a trust relationship
protective action against the State of
between the United States and the Indi-
Maine prior to July 1, 1972.5 On June
an tribes to which it applies, including
29, 1972 defendants complied with the
the Passamaquoddies. Therefore, they
Court's order by filing an action, United
say, defendants may not deny plaintiffs'
States y. Maine, Civil No. 1966 N.D., in
request for litigation on the sole ground
this Court."
that there is no trust relationship be-
On February 1, 1973 plaintiffs filed
tween the United States and the Tribe.⁷
an amended and supplemental complaint
In opposition, defendants and intervenor
in the present action, abandoning their
contend that only those Indian tribes
original request for injunctive relief and
which have been "recognized" by the
seeking only a declaratory judgment
Federal Government by treaty, statute
that the Passamaquoddies are entitled to
or a consistent course of conduct are en-
the protection of the Nonintercourse
titled to the protection of the Noninter-
Act. On June 17, 1973 the State of
course Act and, since the Passamaquod-
Maine was permitted to intervene in the
dies have not been "federally recog-
5. Defendants' appeal from the June 23, 1972
7. In their second amended and supplemental
order was dismissed by the United States
complaint, plaintiffs also seek a declaratory
Court of Appeals for the First Circuit on
judgment that the Tribe is entitled to the
motions filed by plaintiffs and defendants,
protection of U. S. Const. art. I, $ 8 ("The
after the Solicitor General had refused de-
Congress shall have power
[t]o
fendants permissión to proceed.
regulate Commerce
with the Indi-
an Tribes"), art. 10 ("[n]o State shall
6. On July 26, 1972, pursuant to stipulation,
enter into any Treaty
and
art.
the Court ordered that the protective action
II, q.2 ("[t]he President
shall
filed against the State of Maine by the Unit-
have power, by and with the Advice and
ed States on behalf of the Passamaquoddies
Consent of the Senate, to make Treaties
and a similar action filed by the United
"). Plaintiffs have not pressed their
States on behalf of the Penobscot Indian
initial request for this relief, and the appli-
Nation, United States V. Maine, Civil No.
cability to the Passamaquoddies of these
1969 N.D., be held in abeyance on the
Constitutional provisions is not presently in
Court's docket and that no action need be
issue.
taken by the parties in either suit pending
the outcome of the present action.
JOINT TRIBAL COUN. OF PASSAMAQUODDY TRIBE V. MORTON 655
Cite as 388 F.Supp. 649 (1975)
On
July
nized," the Act is not applicable to them.
end to be attained" by the enactment
of
dis-
Defendants and intervenor also deny
of the legislation; and, where possible,
amended
that the Nonintercourse Act creates any
its terms should be construed to give
trust relationship between the United
effect to the Congressional intent.
fore
the
States and the Indian tribes to which it
Extrinsic aids such as the legislative
second
applies.
history of the Act, and the accepted in-
omplaint,
In addition to denying that the Passa-
terpretation of similar language in re-
answers
maquoddies are protected by the Nonin-
lated legislation, are helpful in inter-
and
tercourse Act, defendants and intervenor
preting ambiguous statutory language.
raise. several affirmative defenses.
Finally, administrative interpretations
First, they say that defendants' refusal
by the agency entrusted with the en-
to institute suit on behalf of the Passa-
forcement of the statute are persua-
maquoddies is not subject to judicial re-
sive. However, the power to issue regu-
supple-
view under the provisions of the Admin-
lations is not the power to change the
have
istrative Procedure Act, 5 U.S.C. § 701
law, and it is for the courts, to which
for
in-
et seq., both because it is not "final
the task of statutory construction is
eclarato-
agency action," 5 U.S.C. § 704, and be-
ultimately entrusted, to determine
cause it constitutes "agency action
whether or not administrative inter-
is
pplies
to
committed to agency discretion
pretations are consistent with the in-
States,
by law," 5 U.S.C. § 701 (a) (2). Next,
tent of Congress and the words of the
and
that
intervenor asserts that the Court lacks
Act. 318 F.2d at 142-143. (citations
tionship
jurisdiction of the action because it
omitted).
the
Indi-
presents a nonjusticiable "political ques-
Applying these rules of construction, the
ncluding
tion." Finally, intervenor contends that
conclusion is inescapable that, as a mat-
they
the case is not one in which declaratory
ter of simple statutory interpretation,
aintiffs'
relief is proper. Plaintiffs respond that
the Nonintercourse Act applies to the
ground
these affirmative defenses are without
Passamaquoddies. The literal meaning
be-
merit.
of the words employed in the statute,
Tribe.⁷
The Court will deal separately with
used in their ordinary sense, clearly and
tervenor
each of the issues thus presented.
unambiguously encompasses all tribes of
tribes
Indians, including the Passamaquoddies;
by
the
The Applicability of the Nonintercourse
the plain language of the statute is con-
statute
Act to the Passamaquoddies
sistent with the Congressional intent;
are
en-
[1-6] The rules of statutory inter-
and there is no legislative history or ad-
oninter-
pretation by which this Court must be
ministrative interpretation which con-
maquod-
guided in determining the applicability
flicts with the words of the Act.
recog-
of the Nonintercourse Act to the Passa-
[7] The provisions of the Noninter-
maquoddies are summarized in United
plemental
course Act prohibiting dealings in Indi-
States V. New England Coal and Coke
eclaratory
an land without the consent of the Unit-
to
the
Co., 318 F.2d 138 (1st Cir. 1963), fol-
ed States have remained essentially un-
8
("The
lows:
changed since passage of the first Act
[t]o
"In matters of statutory construction
in 1790.8 The statute in effect in 1794,
the
Indi-
shall
the duty of this court is to give effect
when Massachusetts negotiated its
and
art.
to the intent of Congress, and in
treaty with the Passamaquoddies, ap-
shall
doing so our first reference is of
plied to land transactions with "any In-
dvice
and
course to the literal meaning of words
dians or nation or tribe of Indians,"
Treaties
their
employed." Unless the contrary ap-
within the United States. Act of March
the
appli-
pears, it is presumed that statutory
1, 1793, 1 Stat. 329, 330. Subsequent
of
these
words were used in their ordinary
versions of the statute, including the
esently
in
sense. A primary consideration is
present codification, have applied to land
'the mischief to be corrected and the
transactions with "any Indian nation or
8. See n. 1, supra.
656
388 FEDERAL SUPPLEMENT
tribe of Indians." The words employed
to the applicability of the Act to the
in the statute are clear and unambigu-
Passamaquoddies or any similarly situ-
ous; the prohibition against dealings in
ated Indian tribe. Every court, how-
Indian land without the consent of the
ever, which has considered the purposes
United States is applicable to "any
of the Act has agreed that the intent of
tribe of Indians." In the
Congress was to protect the lands of the
present case, it is stipulated that the
Indian tribes in order to prevent fraud
Passamaquoddies are a "tribe of Indi-
and unfairness. As the Supreme Court
ans." It may be conceded that the Tribe
noted in Federal Power Commission V.
has not been "federally recognized," but
Tuscarora Indian Nation, 362 U.S. 99,
there is no suggestion in the statute
119, 80 S.Ct. 543, 555, 4 L.Ed.2d 584
that, as defendants and intervenor con-
(1960)
tend, the Act is not applicable to a partic-
The obvious purpose of that [the
ular Indian tribe unless that tribe has
Nonintercourse] statute is to prevent
been recognized by the Federal Govern-
the unfair, improvident or improper
ment by a formal treaty, mention of the
disposition by Indians of lands owned
tribe in a statute, or a consistent course
or possessed by them to other parties,
of administrative conduct. A departure
except the United States, without the
from the plain meaning of statutory lan-
consent of Congress, and to enable the
guage is only justified where the appli-
Government, acting as parens patriae
cation of literal languge would be at
for the Indians, to vacate any disposi-
variance with legislative intent as re-
tion of their lands made without its
vealed by the statute as a whole and its
consent.
legislative history, Marks V. United
The decided cases are replete with simi-
States, 161 U.S. 297, 301, 16 S.Ct. 476,
lar statements of the Act's purpose. E.
40 L.Ed. 706 (1896) Otoe and Missour-
G., United States V. Candelaria, 271 U.S.
ia Tribe of Indians V. United States, 131
432, 441-442, 46 S.Ct. 561, 562, 70 L.Ed.
F.Supp. 265, 276, 131 Ct.Cl. 593, cert. de-
1023 (1926) (the intent of Congress was
nied, 350 U.S. 848, 76 S.Ct. 82, 100 L.
"to prevent the Government's Indian
Ed. 755 (1955).
wards from improvidently disposing of
[8] Neither defendants nor interve-
their lands and becoming homeless pub-
nor have suggested any reason why giv-
lic charges," and thereby to protect "a
ing the term "any
tribe of In-
simple, uninformed people, ill-prepared
dians" its literal meaning, thereby en-
to cope with the intelligence and greed
compassing the Passamaquoddies, would
of other races"); Tuscarora Nation of
lead to a result at variance with the stat-
Indians V. Power Authority, 257 F.2d
utory objectives of the Nonintercourse
885, 888 (2d Cir. 1958), vacated as moot
Act. To the contrary, it is eminently
sub nom. McMorran V. Tuscarora Nation
clear that the literal interpretation of
of Indians, 362 U.S. 608, 80 S.Ct. 960, 4
the statute is required to give effect to
L.Ed.2d 1009 (1960) (the statute was
the Congressional intent. The Court is
enacted "to prevent Indians from being
aware of no legislative history of the
victimized by artful scoundrels inclined
Nonintercourse Act, which might reveal
to make a sharp bargain"); Alonzo V.
whether the First Congress had in mind
United States, 249 F.2d 189, 196 (10th
the Passamaquoddies when it enacted
Cir. 1957), cert. denied, 355 U.S. 940, 78
the 1790 Act. Nor have defendants
S.Ct. 429, 2 L.Ed.2d 421 (1958) (the
been able to call to the Court's attention
purpose of such legislation is to protect
any administrative interpretation prior
the Indians "against the loss of-their
to the filing of the instant litigation as
lands by improvident disposition
9. Clearly, the administrative determination
than challenged is not authoritativé Davies
made in response to this Court's order of
June 16, 1972, cannot so qualify. An admin-
Warehouse Co. V. Bowles, 321 U.S. to 144, 156,
64 S.Ct. 474, 88 L.Ed. 635 (1944).
LIBRARY
istrative ruling which is no sooner made
JOINT TRIBAL COUN. OF PASSAMAQUODDY TRIBE V. MORTON 657
Cite as 388 F.Supp. 649 (1975)
through overreaching by members of
S.Ct. 772, decided last Term, the Su-
the Act to the
other races"). Seneca Nation of Indians
preme Court: reaffirmed these funda-
y similarly situ-
V. United States, 173 Ct.Cl., 917, 923
mental propositions stated in Santa Fe.
very court, how-
(1965) ("From the beginning, this legis-
In Oneida, the Supreme Court also again
red the purposes
lation has been interpreted as giving the
summarized the policy of the United
hat the intent of
Federal Government a supervisory role
States to protect the rights of Indian
t the lands of the
over conveyances by Indians to others,
tribes to their aboriginal lands:
to prevent fraud
in order to forestall fraud and unfair-
e Supreme Court
It very early became accepted doc-
ness.").
er Commission V.
trine in this Court that although fee
ion, 362 U.S. 99,
title to the lands occupied by Indians
[9] A plain meaning interpretation
4 L.Ed.2d 584
when the colonists arrived became
of the phrase "any
tribe of
vested in the sovereign-first the dis-
Indians" is also the only construction of
covering European nation and later
ose of that [the
the Nonintercourse Act which comports
the original States and the United
;ute is to prevent
with the basic policy of the United
States-a right of occupancy in the
dent or improper
States, as reflected in the Act, to protect
Indian tribes was nevertheless recog-
is of lands owned
the Indian right of occupancy of their
nized. That right, sometimes called
2 to other parties,
aboriginal lands Thus, in United
Indian title and good against all but
lates, without the
States V. Santa Fe Pacific R: Co., supra,
the sovereign, could be terminated
and to enable the
314 U.S. at 348, 62 S.Ct. at 252, the Su-
only by sovereign act. Once the Unit-
as parens patriae
preme Court cited the Act as embodying
ed States was organized and the Con-
acate any disposi-
the unquestioned general
stitution adopted, these tribal rights
made without its
policy of the Federal Government to
to Indian lands became the exclusive
recognize such right of occupancy.
province of the federal law. Indian
replete with simi
As stated by Chief Justice Marshall in
title, recognized to be only a right of
Act's purpose. E.
Worcester V. Georgia, supra, 6 Pet.
occupancy, was extinguishable only by
andelaria, 271 U.S.
[515,] at page 557, 8 L.Ed. 483, the
the United States. The Federal Gov-
561, 562, 70 L.Ed.
Indian trade and intercourse acts
ernment took early steps to deal with
it of Congress was
"manifestly consider the several Indi-
the Indians through treaty, the princi-
ernment's Indian
an nations as distinct political com-
pal purpose often being to recognize
ently disposing of
munities, having territorial bounda-
and guarantee the rights of Indians to
ing homeless pub
ries, within which their authority is
specified areas of land. This the
eby to protect "a
exclusive, and having a right to all the
United States did with respect to the
eople, prepared
lands within those boundaries, which
various New York Indian tribes, in-
ligence and greed
is not only acknowledged, but guaran-
cluding the Oneidas. The United
scarora Nation of
tied by the United States.
States also asserted the primacy of
thority, 257 F.2d
Santa Fe also established that "recogni-
federal law in the first Noninter-
), vacated as moot
tion" is not a prerequisite to Noninter-
course Act passed in 1790, 1 Stat. 137,
Tuscarora Nation
course Act protection:
138, which provided that "no sale of
08, 80 S.Ct. 960,
Nor is it true, as respondent urges,
lands made by any Indians
(the statute was
that a tribal claim to any particular
within the United States, shall be val-
ndians from being
lands must be based upon a treaty,
id to any person
or to any
scoundrels inclined
statute, or other formal government
state
unless the same shall
gain"); Alonzo V.
action. As stated in the Cramer case
be made and duly executed at some
2d 189, 196 (10th
[Cramer V. United States, 261 U.S.
public treaty, held under the authority
d, 355 U.S. 940, 78
219, 229, 43 S.Ct. 342, 67 L.Ed. 622
of the United States." This has re-
421 (1958) (the
(1923)], "The fact that such right of
mained the policy of the United States
lation is to protect
occupancy finds no recognition in any
to this day. See 25 U.S.C. § 177. 414
the loss of their
statute or other formal governmental
U.S. at 667-668, 94 S.Ct. at 777.
nt disposition or
action is not conclusive." 314 U.S. at
(footnote omitted).
authoritative. Davies
347, 62 S.Ct. at 252.
It is thus clear that the policy embod-
les, 321 U.S. 144, 156,
In Oneida Indian Nation V. County of
ied in the Nonintercourse Act is to pro-
35 (1944).
Oneida, supra, 414 U.S. at 667-668, 94
tect Indian tribes against loss of their
388 F.Supp.-42
658
388 FEDERAL SUPPLEMENT
aboriginal lands by improvident disposi-
rights, including that of voting and
tion to members of other races. The
holding office, and their absorption
Passamaquoddies, an Indian tribe, fall
into the general mass of the popula-
within the plain meaning of the statuto-
tion (except that they held their lands
ry language, and there is no reason why
in common), all forbid the idea that
they should be excluded from the protec-
they should be classed with the Indian
tion which the Act affords.
tribes for whom the intercourse acts
Defendants and intervenor rely on a
were made, or that in the intent of
trilogy of Supreme Court cases, all in-
the act of 1851 its provisions were ap-
volving the Pueblo Indians in New Mex-
plicable to them. The tribes for
ico, for the contention that, despite the
whom the act of 1834 was made were
all-inclusive language of the Noninter-
those semi-independent tribes whom
course Act, the Act applies only to Indi-
our government has always recognized
an tribes which have been "federally
as exempt from our laws, whether
recognized" by treaty, statute or a con-
within or without the limits of an
sistent course of conduct: United States
organized State or Territory, and, in
V. Joseph, 94 U.S. 614, 24 L.Ed. 295
regard to their domestic government,
(1876) United States V. Sandoval, 231
left to their own rules and traditions;
U.S. 28, 34 S.Ct. 1, 58 L.Ed. 107 (1913);
in whom we have recognized the ca-
United States Candelaria, supra.
pacity to make treaties, and with
Close analysis of these decisions, how-
whom the governments, state and na-
ever, leaves little doubt that the Act
tional, deal, with a few exceptions only,
means what it says and that the protec-
in their national or tribal character,
tion of the Act is not limited to "recog-
and not as individuals. 94 U.S. at 617.
nized" tribes.
It is unclear whether the Court held that
Congress had extended the 1834 Non-
the Pueblos were a tribe outside the
intercourse Act to the New Mexico and
scope of the Act, or simply not a tribe.
Utah territories in 1851. Act of Feb.
In either event, it is clear that, by the
27, 1851, ch. 14, $ 7, 9 Stat. 587. The
standards applied in Joseph, even if the
applicability of the Act to the Indians of
case is still good law,¹⁰ the Passama-
the Pueblo of Taos in New Mexico was
quoddies in 1794 were "uncivilized" In-
at issue in the Joseph case. The Court
dians to whom the Act would apply.
there held that the Act applied only to
More importantly, the Court's opinion
"uncivilized" Indians, and therefore did
plainly does not contain any suggestion
not protect Indians such as the Pueblos
that "federal recognition" is a precondi-
and the Senecas or Oneidas of New
tion to the Act's applicability.
York, who, unlike the "nomadic" Apach-
Defendants' reliance on the Sandoval
es, Comanches and Navajoes, had at-
case is equally misplaced. That case in-
tained a high degree of civilization:
volved not the Nonintercourse Act, but
The pueblo Indians, if, indeed, they
the Act of January 30, 1897 ch. 109, 29
can be called Indians, had nothing in
Stat. 506, a criminal statute prohibiting
common with this class. The degree
the introduction of intoxicating liquor
of civilization which they had attained
into "Indian country." Congress had
centuries before, their willing submis-
expressly made this statute applicable to
sion to all the laws of the Mexican
lands owned by the Pueblo Indians as a
government, the full recognition by
condition to the admission of New Mexi-
that government of all their civil
CO to statehood. Act of June 20, 1910,
10. As plaintiffs point out, the Court's state-
respect to all three tribes. United States V.
ment in Joseph that the Pueblos, the Sene-
Candelaria, supra; Oneida Indian Nation V.
cas and the Oneidas would be outside the
County of Oneida, supra; Seneca Nation of
scope of the Act because of their high de-
Indians V. Urited States, supra.
gree of civilization has been rejected with
JOINT TRIBAL COUN, OF PASSAMAQUODDY TRIBE V. MORTON 659
Cite as 388 .Supp. 649 (1975)
ch.
310,
§
2,
36
Stat.
557.
A
criminal
course Act, as extended to the New Mex-
of voting and
absorption
prosecution brought pursuant to the
ico territory in 1851. Candelaria was
1897 statute was dismissed by the Dis-
an action brought by the United States
of the popula-
their lands
trict Court on the ground that Congress
to quiet title to land of the Pueblo of
lacked authority to regulate the sale of
Laguna occupied by José Candelaria, a
the idea that
liquor in the State of New Mexico. The
non-Indian. The suit was brought on
the Indian
issue presented to the Supreme Court
the theory that the Pueblos were wards
tercourse acts
the
of
was not one of statutory construction, as
of the United States, which therefore
intent
Congress had made it clear in the 1910
had the authority and was under a duty
were ap-
for
Act that the 1897 statute applied to the
to protect them in the ownership of
tribes
Pueblo Indians. The only issue before
their lands. 271 U.S. at 437, 46 S.Ct.
made were
the Court was whether "the status of
561. The issue presented to the Su-
tribes whom
the Pueblo Indians and their lands is
preme Court was whether the guardian-
recognized
laws, whether
such that Congress competently can pro-
ward relationship between the United
hibit the introduction of intoxicating li-
States and the Pueblos was such that
limits of an
and, in
quor into those lands notwithstanding
the United States, as guardian of the
the admission of New Mexico into state-
Pueblos, was barred from bringing suit
government,
and
traditions;
hood," 231 U.S. at 38, 34 S.Ct. at 3, or
by a judgment involving title to the
whether the Pueblos instead were "be-
same land entered in a prior lawsuit in
gnized the ca-
and
yond the range of Congressional power
which the United States had not been
with
and
under the Constitution." Id. at 49, 34 S.
joined as a party. Id. at 438, 46 S.Ct.
state
na-
exceptions only,
Ct. at 7. On this question, the Court con-
561. In reaching the conclusion that the
cluded that since the Constitution ex-
Pueblos were wards of the United States
character,
pressly authorized Congress to regulate
whose lands could not be alienated with-
at
617.
commerce with the Indian tribes and pri-
out its consent, the Court had occasion
Court held that
or judicial decisions had. affirmed the
to construe the language "any tribe of
be outside the
power and duty of Congress to enact pro-
Indians" in the Nonintercourse Act:
not a tribe.
tective legislation on behalf of dependent
that, by the
While there is no express reference
Indian communities, United States
even if the
in the provision to Pueblo Indians, we
Kagama, 118 U.S. 375, 384, 6 S.Ct. 1109,
the
Passama-
think it must be taken as including
30 L.Ed. 228 (1886) Tiger V. Western
uncivilized" In-
them. They are plainly within its
Investment Co., 221 U.S. 286, 315, 31 S.
would
apply.
spirit and, in our opinion, fairly with-
Ct. 578, 55 L.Ed. 738 (1911), the law
Court's opinion
in its words, "any tribe of Indians."
banning the sale of liquor in Indian
any
suggestion
Although sedentary, industrious, and
country was a legitimate exercise of con-
is a precondi-
disposed to peace, they are Indians in
gress' power. United States V. Sandov-
race, customs and domestic govern-
al, supra, 231 U.S. at 45-46, 34 S.Ct. 1.
ment, always have lived in isolated
the Sandoval
The Court held that the determination
communities, and are a simple, unin-
That case in-
by Congress that the Pueblos were a de-
formed people, ill-prepared to cope
course Act, but
pendent Indian community entitled
with the intelligence and greed of oth-
ch. 109, 29
the benefits of protective legislation
er races. It therefore is difficult to
prohibiting
presented a political question," upon
believe that Congress in 1851 was not
oxicating liquor
which the Court was bound to uphold
intending to protect them, but only
Congress had
the judgment of Congress unless the
the nomadic and savage Indians then
applicable to
classification was so arbitrary as to con-
living in New Mexico. A more rea-
Indians as a
stitute a usurpation of power. Id. at 47,
sonable view is that the term "Indian
of New Mexi-
34 S.Ct. 1. See United States V. Holli-
tribe" was used in the acts of 1834
June 20, 1910,
day, 70 U.S. (3 Wall.) 407, 419, 18 L.Ed.
and 1851 in the sense of "a body of
182 (1865).
Indians of the same or a similar race,
United States V.
Indian Nation V.
In the Candelaria case, in 1926, the
united in a community under one lead-
Seneca Nation of
Supreme Court reexamined for the first
ership or government, and inhabiting
time since Joseph the applicability to the
a particular though sometimes ill-de-
Pueblo Indians of the 1834 Noninter-
fined territory." Montoya V. United
660
388 FEDERAL SUPPLEMENT
States, 180 U.S. 261, 266, 21 S.Ct. 358,
U.S. 564, 576, 28 S.Ct. 207, 53 L.Ed. 340
359 (45 L.Ed. 521). In that sense the
(1908) United States V. Payne, 264 U.
term easily includes Pueblo Indians.
S. 446, 448-449, 44 S.Ct. 352, 68 L.Ed.
Id. at 441-442, 46 S.Ct. at 563.
782 (1924); United States V. Celestine,
There is nothing in this language which
215 U.S. 278, 290, 30 S.Ct. 93, 54 L.Ed.
would indicate that the Nonintercourse
195 (1904).
Act applies only to "federally recog-
The Court holds that the Noninter-
nized" Indians. Rather, Candelaria ap-
course Act is to be construed as its plain
pears to erase any doubt Joseph may
meaning dictates and applies to the Pas-
have created as to whether the all-inclu-
samaquoddy Indian Tribe.
sive language in the statute should be
construed as its plain meaning dictates. 12
The Trust Relationship between the Unit-
ed States and the Passamaquoddies
[10] Finally, even if a latent ambi-
under the Nonintercourse Act
guity might be found in the statutory
language, two cardinal principles of stat-
[11] Defendants have rejected plain-
utory construction buttress plaintiffs'
tiffs' request for assistance on the
position that the Nonintercourse Act ap-
ground that no trust relationship exists
plies to all Indian tribes in the United
between the United States and the Pas-
States, including the Passamaquoddies.
samaquoddies. The Court disagrees. In
The Supreme Court has consistently held
the only decided cases to treat this issue,
that language used in statutes confer-
the Court of Claims has, in a series of
ring benefits or protection on Indians
decisions during the last ten years, de-
must be construed in a nontechnical
finitively held that the Nonintercourse
sense, as the Indians themselves would
Act imposes a trust or fiduciary¹ obli-
have understood it, and that all ambigui-
gation on the United States to protect
ties in such statutes are to be resolved
land owned by all Indian tribes covered
in favor of the Indians. ,See, e. Gog
by the statute: Seneca Nation of Indi-
Squire V. Capoeman, 351 U.S. 1, 6-8, 76
ans United States, supra; United
S.Ct. 611, 100 L.Ed. 883 (1956); Alaska
States Oneida Nation of New York,
Pacific Fisheries V. United States," 248
477 F.2d 939, 201 Ct.Cl. 546 (1973); Ft.
U.S. 78, 89, 39 S.Ct. 40, 63 L.Ed. 138
Sill Apache Tribe V. United States, 477
(1918); Winters V. United States, 207
F.2d 1360, 1366, 201 Ct.Cl. -630 (1973).
12. Defendants also refer to the recent case
primarily on Sandoval, ruled that since it did
of Morton A. Mancari, 417 U.S. 535, 94 S.Ct.
not have authority to recognize the plaintiffs
2474, 41 L.Ed.2d 290 (1974), and to an
as a tribe, the action should be dismissed.
unreported opinion letter of the District
It is unclear from the letter whether the
Court in Avalos V. Morton, Civil No. 9920
dismissal was based upon a fundamental mis-
(D.N.M., September 10, 1974), as supporting
reading of Sandoval or upon the failure of
their contention that general Indian statutes
the plaintiffs to establish that they were "in
only apply to "federally recognized" tribes.
fact an American Indian Tribe." (Letter of
Mancari involved no issue of statutory con-
court ,B) In the present case, it is
struction. Instead, involved a Fifth
stipulated that the Passamaquoddies are in
Amendment Due Process challenge to the
fact an Indian tribe.
Indian Preference in Employment Act, 25
13. The courts have used interchangeably the
U.S.C. § 472. The Supreme Court did no
terms 'trust," "fiduciary," and "guardian-
more than approve the constitutional validity
ward". to describe the relationship between
of the Indian preference as rationally related
the Federal Government and the Indian
"to the fulfillment of Congress' unique obli-
tribes." E. g. Seminole Nation V. United
gation toward the Indians." 417 U.S. at
States, 316 U.S. 286, 296-297, 62 S.Ct. 1049,
555, 94 S.Ct. at 2485. The Avalos letter re-
86 L.Ed. 1480 (1942) Cherokee Nation V.
sulted from the failure of counsel for the
Georgia. 5 Pet. (30 U.S.) 1, 17, 8 L.Ed. 25
Indian plaintiffs to offer any brief or other
(1831) United States V. Seminole Nation,
argument on the issues in that case. Plain-
173 F.Supp. 784, 790-791, 146 Ct.Cl. 171
tiffs were suing for benefits afforded mem-
(1959) Gila River Pima-Maricopa Indian
bers of Indian tribes under the Snyder Act,
Community V. United States, 140 F.Supp.
25 U.S.C. § 13. The District Court, relying
776, 780-781, 135 Ct.CL 180 (1956).
JOINT TRIBAL COUN. OF PASSAMAQUODDY TRIBE V. MORTON 661
Cite as 388 F.Supp. 619 (1975)
Ed.
340
These decisions are supported by a cen-
ed, but it will protect you in all your
264
U.
tury of federal Indian case law which
just rights.
But
your
great
L.Ed.
has recognized the existence of a fiduci-
object seems to be, the security of
lestine,
ary relationship between the Federal
your remaining lands; and have,
L.Ed.
Government and the Indian tribes.
therefore, upon this point, meant to be
The courts were first squarely
sufficiently strong and clear, that, in
oninter-
presented with the question of the na-
future, you cannot be defrauded of
plain
ture of the obligation, if any, imposed
your lands that you possess the right
he
Pas-
by the Nonintercourse Act in Seneca
to sell, and the right of refusing to
Nation of Indians V. United States, su
sell your lands; that, therefore, the
pra. In that case, the Senecas sued the
sale of your lands, in future, will de-
Unit-
United States under the Indian Claims
pend entirely upon yourselves. But
Commission Act, 5-U.S.C. § 70a, claim-
that, when you may find it for your
ing damages arising out of four sales of
interest to sell any part of your lands,
plain-
their New York lands at allegedly inade-
the United States must be present, by
the
quate prices, to private parties. They
their agent, and will be your security
exists
alleged that a representative of the
that you shall not be defrauded in the
Pas-
United States was present at each of the
bargain you may make. *
In
sales and that the United States
That, besides the before mentioned se-
issue,
breached a fiduciary duty owed the tribe
curity for your land, you will perceive,
of
by permitting the unconscionable trans-
by the law of Congress for regulating
actions. The Indian Claims Commission
trade and intercourse with the Indian
de-
dismissed the claims on the ground that
tribes, the fatherly care the United
rcourse
obli-
the Federal Government was not respon-
States intend to take of the Indians.
protect
sible for the transactions. The Court of
American State Papers (In-
covered
Claims agreed as to the first sale, which
dian Affairs, Vol. I, 1832), p. 142.
Indi-
took place in 1788 prior to the passage
Id at 923-24 (emphasis in original).
United
of the Nonintercourse Act, but reversed
This contemporary executive pronounce-
York,
as to the three later sales, which oc-
ment. the court observed "plainly
Ft.
curred subsequent to the adoption of the
show[s] the Federal Government as
477
Act in 1790. With respect to the Act,
thenceforth the guardian and preserver
(1973).
the court began by noting that:
of fairness to the Indians in their land
dispositions." Id. at 924. After review-
[T]he. requirement has always been
it
did
ing prior judicial construction of the
plaintiffs
for federal consent and participation
Act, the court concluded:
ismissed.
in any disposition of Indian real prop-
the
erty. From the beginning, this legis-
In the light of its language, contempo-
mis-
lation has been interpreted as giving
raneous construction, and history, we
of
"in
the Federal Government a supervisory
hold that the Trade and Intercourse
were
Letter
of
role over conveyances by Indians to
Act created a special relationship be-
it
is
others, in order to forestall fraud and
tween the Federal Government and
are
in
unfairness. Id. at 923.
those Indians covered by the legisla-
tion, with respect to the disposition of
the
The court then quoted at length from
their lands, and that the United States
guardian-
President Washington's speech to the
assumed a special responsibility to
between
Senecas in December 1790, shortly after
Indian
protect and guard against unfair
the passage of the Act:
United
treatment in such transactions. Cf.
1049,
Here, then, is the security for the
The Oneida Tribe of Indians V. United
Nation
V.
remainder of your lands. No State,
States, 165 Ct.Cl. 487 (1964), cert. de-
L.Ed.
25
no person, can purchase your lands,
nied, 379 U.S. 946. [85 S.Ct. 441, 13
Nation,
171
unless at some public treaty, held un-
L.Ed.2d 544] This responsibility was
Indian
der the authority of the United
not merely to be present at the nego-
F.Supp.
States. The General Government will
tiations or to prevent actual fraud, de-
FORD
never consent to your being defraud-
ception, or duress alone; improvid-
468917
662
388 FEDERAL SUPPLEMENT
ence, unfairness, the receipt of an un-
exercise a duty, and knowledge and
conscionable consideration would like-
the failure to exercise the same duty.
wise be of federal concern.
Id. 477 F.2d at 944 (emphasis in origi-
The concept is obviously one of
nal; footnotes omitted).
full fiduciary responsibility, not sole-
These Court of Claims decisions are
ly of traditional market-place morals.
When the Federal Government under-
consistent with an unbroken line of Su-
takes an "obligation of trust" toward
preme Court decisions which, from the
an Indian tribe or group, as it has in
beginning, have defined the fiduciary
the Intercourse Act, the obligation is
relationship between the Federal Gov-
"of the highest responsibility and
ernment and the Indian tribes as impos-
trust," not that of "a mere contract-
ing a distinctive obligation of trust upon
ing party" or better business bureau.
the Government in its dealings with the
Cf. Seminole Nation V. United States,
Indians. In the early case of Cherokee
316 U.S. 286, 296-97 [62 S.Ct. 1049,
Nation V. Georgia, supra, 5 Pet. (30 U.
86 L.Ed. 1480] (1942). Id. 925.
S.) at 17, 8 L.Ed. 25, Chief Justice Mar-
shall described the condition of the Indi-
[12] In Oneida Nation and Ft. Sill
ans as "in a state of pupilage. Their re-
Apache Tribe, the Court of Claims, in
lation to the United States resembles
unequivocal language, reaffirmed the
that of a ward to his guardian." The
holding of Seneca Nation 'that the
following year, in Worcester V. Geor-
Trade and Intercourse Act establishes a
gia, 6 Pet. (31 U.S.) 515, 556, 8 L.Ed.
fiduciary relationship between the Indi-
483 (1832), the same Chief Justice ob-
ans and the United States Government."
served that the laws enacted by Con-
United States Oneida Nation of New
gress for the protection of the Indians,
York, supra, 477 F.2d at 942-943; Ft.
and especially the Nonintercourse Act,
Sill Apache Tribe V., United States, su-
"manifestly consider the several Indian
pra, 477 F.2d at 1366. Moreover, in
nations as distinct political communities,
Oneida Nation, the court made clear
having territorial boundaries, within
that by virtue of the fiduciary duty im-
which their authority is exclusive, and
posed by the Nonintercourse Act, the
having a right to all the lands within
United States has an obligation to do
those boundaries, which is not only ac-
whatever is necessary to protect Indian
knowledged, but guarantied by the Unit-
land when it becomes aware that Indian
ed States." Fifty years later, in United
rights have been violated, even though
States V. Kagama, supra, 118 U.S. at
the United States did not participate in
383-384, 6 S.Ct. at 1114, the Court reaf-
the unconscionable transaction
firmed that "[t]hese Indian tribes are
The Government would argue that the the wards of the nation. They are com-
absence of participation in the re-
munities
dependent
on
the
United
maining twenty-three (23) treaties
States.
From their very
leases it from any fiduciary duty that
weakness and helplessness, so largely
might have existed. Although the
due to the course of dealing of the Fed-
Government did not actually partici-
eral Government with them and the
pate in the remaining treaties, we
treaties in which it has been promised,
hold the fiduciary relationship would
there arises the duty of protection, and
continue to exist if the Government
with it the power." (emphasis in origi-
had either actual or constructive
nal). Again, in Tiger V. Western In-
knowledge of the treaties. With such
vestment Co., supra, 221 U.S. at 310, 31
knowledge, if the Government subse-
S.Ct. at 584, the Court stated, "
quently failed to protect the rights of
the Congress of the United States has
the Indians, then there would be a
undertaken from the earliest history of
breach of the fiduciary relationship.
the Government to deal with the Indians
This court does not see any distinction
as dependent people and to legislate con-
between participation and failure to
cerning their property with a view to
JOINT TRIBAL COUN. OF PASSAMAQUODDY TRIBE V. MORTON 663
n
Cite as 388 F.Supp. 649 (1975)
nowledge and
their protection as such." More recent-
Congress to restrict the alienation of In
he same duty.
ly, in Seminole Nation V. United States,
dian land is justified only by the exis-
hasis in origi-
n.13 supra, 316 U.S. at 297, 62 S.Ct. at
tence of the guardian-ward relationship
1055, the Court recognized that the
between. the Federal Government and
United States has charged itself with
the Indian tribes E. g., Sunderland V.
decisions are
moral obligations of the highest respon-
United States, 266 U.S. 226, 233-234, 45
en line of Su-
sibility and trust. Its conduct, as dis-
S.Ct. 64, 69 L.Ed. 259 (1924) Brader
nich, from the
closed in the acts of those who represent
V. James, 246 U.S. 88, 98, 38 S.Ct. 285,
the fiduciary
it in dealings with the Indians, should
62 LEd. 591 (1918); Tiger V. Western
Federal Gov-
therefore be judged with the most exact-
Investment Co., supra, 221 U.S. at 316,
ribes as impos-
ing fiduciary standards. Finally, in
31 S.Ct. 578; Lone Wolf V. Hitchcock,
a of trust upon
Federal Power Commission V. Tuscarora
187 U.S. 553, 565, 23 S.Ct. 216, 47 L.Ed.
alings with the
Indian Nation, supra, 362 U.S. at 119,
299 (1903) Cherokee Nation V. Hitch-
se of Cherokee
80 S.Ct. at 555, the Supreme Court said
cock, 187 U.S. 294, 306-308, 23 S.Ct.
5 Pet. (30 U.
with specific reference to the Noninter-
115, 47 Ed. 183 (1902) United States
ef Justice Mar-
course Act:
Kagama, supra, 118 U.S. at 384,14 6
ion of the Indi-
The obvious purpose of that statute is
S.Ct. 1109.
lage. Their re-
to prevent unfair, improvident or im-
tates resembles
[13, 14] In view of the foregoing,
proper disposition by Indians of lands
uardian." The
the conclusion must be that the Nonin-
owned or possessed by them to other
tercourse Act establishes a trust rela-
cester V. Geor-
parties, except the United States,
5, 556, 8 L.Ed.
tionship between the United States and
without the consent of Congress, and
nief Justice ob-
the Indian tribes, including the
to enable the Government, acting as
nacted by Con-
Passamaquoddies,¹ to which it applies.
parens patriae for the Indians, to va-
The Court holds that defendants erred
of the Indians,
cate any disposition of their lands
ntercourse Act,
in denying plaintiffs' request for litiga-
made without its consent.
several Indian
tion on the sole ground that no trust re-
The Court of Claims decisions are also
cal communities,
lationship exists between the United
ndaries, within
supported by numerous Supreme Court
States and the Passamaquoddy Indian
5 exclusive, and
cases which have held that the power of
Tribe.
he lands within
14. The imposition of a legal incapacity com-
relationship with the tribe. United States V.
is not only ac-
bined with an undertaking to ensure fairness
Santa Fe Pacific R. Co., supra, 314 U.S. at
pied by the Unit-
in transactions involving the incapacitated
346, 62 S.Ct. 248 United States V. Nice,
later, in United
party's property constitutes the most literal
241 U.S. 591, 599, 36 S.Ct. 696, 60 L.Ed.
ra, 118 U.S. at
kind of guardianship.
1192 (1916). See also Menominee Tribe of
the Court reaf-
A guardian of the property of person
Indians V. United States, 391 U.S. 404, 412-
who is under an incapacity is a trustee in
413, 88 S.Ct. 1705, 20 L.Ed.2d 697. (1968).
ndian tribes are
the broad sense of the term. He is under
Congress has never expressly terminated its
They are com-
a duty to his ward to deal with the prop-
relationship with the Passamaquoddy Tribe,
on the United
erty for the latter's benefit. Like a trus-
and the mere fact that the Federal Govern-
om their very
tee a guardian is a fiduciary. He is not,
ment has not objected to Maine's under-
however, a trustee in the strict sense. He
taking certain obligations for the Protec-
ness, so largely
is entrusted with the possession and man-
tion of the Passamaquoddies does not evi-
aling of the Fed-
agement of his ward's property but he
dence such a clear and unequivocal Congres-
them and the
does not take titlexto it. Scott, Law of
sional intent as will support a finding of ter-
S been promised,
Trusts (3rd 1967) $7 at 71.
mination.
f protection, and
15. While apparently not denying that the
16. Whether the United States breached its
mphasis in origi-
Nonintercourse Act may have at one time
fiduciary duty to plaintiffs by refusing to
protected the Passamaquoddies, intervenor
V. Western In-
bring suit against the State of Maine for the
argues that the Federal Government has
redress of alleged violations of the Noninter-
1 U.S. at 310, 31
since terminated its obligations toward the
course Act is a question not presently before
stated,
"
Passamaquoddies by acquiescing in Maine's
the Court. In the present action plaintiffs
United States has
assumption of responsibility for the Tribe.
seek no more than a declaratory judgment
It is clear, however, that termination of the
arliest history of
that defendants erred in denying their re-
Federal Government's responsibility for an
with the Indians
quest solely on the erroneous legal ground
Indian tribe requires plain and unambigu-
that no trust relationship exists between the
d to legislate con-
ous" action evidencing a clear and unequivo-
United States and the Passamaquoddies.
with a view to
cal intention of Congress to terminate its
However, to the effect that the Govern-
664
388 FEDERAL SUPPLEMENT
The Affirmative Defenses
Power Commission V. Tuscarora Indian
Defendants and intervenor have raised
Nation supra; Sioux Indians V. United
a number of affirmative defenses, which
States, 277 U.S. 424, 48 S.Ct. 536, 72 L.
they assert preclude the Court from rul-
Ed. 939 (1928) Lone Wolf V. Hitch-
ing upon the substantive issues present-
cock, supra. There is no dispute in this
ed by the action. The Court finds these
case that Gongress has the power under
to be without merit.
the Commerce Clause to pass protective
legislation on behalf of the Passama-
[15] The Political Question Doc-
quoddy Tribe; nor is there any claim
trine. Intervenor contends that the
that application of the Nonintercourse
Court lacks jurisdiction of the action be-
Act to the Passamaquoddies would vio-
cause it presents a nonjusticiable "politi-
late any prior treaty commitment. The
cal question." Baker V. Carr, 369 U.S.
only issue before this Court is whether
186, 82 S.Ct. 691, 7 L.Ed.2d 663 (1961).
Congress, once having exercised its pow-
The position is that "the scope and na
er to pass protective legislation on behalf
ture of federal responsibility over Indi-
of the Indians, meant to include the Pas-
an tribes is not a matter for the courts
samaquoddies. This presents a question
to determine. The decisions cited as
of legislative intent, which has always
authority for this proposition, however,
been for resolution by the courts. See,
deal solely with the power of Congress
g., Morton V. Ruiz, 415 U.S. 199, 212-
to legislate with respect to Indians.
229, 94 S.Ct. 1055, 39 L.Ed.2d 270
They fall into two categories: (1) cases
(1974). It is clear that this case
in which the constitutional power of
presents no nonjusticiable political ques-
Congress to enact legislation respecting
tion
a particular group of Indians is chal-
lenged on the ground that the group is
[16, 17] The vailability of Review
not an 'Indian tribe" within the mean-
under the Administrative Procedure Act.
ing of the Commerce Clause Board of
The defendants and intervenor assert
Commissioners V. Seber, 318 U.S. 705,
that defendants' refusal to institute suit
63 S.Ct. 920, 87 L.Ed. 1094 (1943)
on behalf of the Passamaquoddies
United States V. McGowan, 302 U.S. 535,
against the State of Maine is not subject
58 S.Ct. 286, 82 L.Ed. 410 (1938);
to judicial review under the provisions
United States V. Ramsey, 271 U.S. 467,
of the Administrative Procedure Act, 5
46 S.Ct. 559, 70 L.Ed. 1039 (1926)
U.S.C. § 701 et seq. Their argument is
United States V Nice, 15 supra; Pep-
twofold. First, they contend that de-
rin V. United States, 232 U.S. 478, 34 S.
fendants' action is not "final agency ac-
Ct. 387, 58 L.Ed. 691 (1914) ; United
tion" reviewable. under 5 U.S.C. §-704.
States V Sandoval, supra; Tiger V.
While they concede that the decision of
Western Investment Co., supra, United
the Attorney General was final action,
States V. Rickert, 188 U.S. 432, 23 S.Ct.
they argue that the decision of the Sec-
478, 47 L.Ed. 532 (1903) United States
retary of the Interior not to recommend
V. Holliday, supra; see also Baker V.
litigation must be "treated separately"
Carr, supra, 369 U.S. at 282, 82 S.Ct.
and that, so regarded, the Secretary's
691 (Frankfurter, J., dissenting); and
determination is not judicíally-review-
(2) cases which hold that Congressional
able final action. The record before the
action involving the administration of
Court clearly establishes, however, that
Indian affairs is not subject to judicial
the Attorney General relied exclusively
challenge on the ground that it violates
on the recommendation of the Secretary
previous treaty commitments. Federal
in making his decision 17 and that the
ment's obligation may include the duty to lit-
17. The Court rejects as specious defendants'
igate, see Mason v. United States, 461 F.2d
argument that, because the Notice filed by
1364, 1372-1373, 198 Ct.CL 599 (1972),
the defendants with this Court on June 22,
rev'd on other grounds, 412 U.S. 391, 93 S.
1972 (p. 6 supra) stated that the Attorney
Ct. 2202, 37 L.Ed.2d 22 (1973).
General's decision not to bring suit was
GERALD
JOINT TRIBAL COUN. OF PASSAMAQUODDY TRIBE V. MORTON 665
Cite as 388 Supp. 649 (1975)
uscarora Indian
actions of the Attorney General and the 519, and that judicial review of his exer-
idians V. United
Secretary were but two stages of a sin- cise of that discretion is barred by the
S.Ct. 536, 72 L.
gle administrative process. In the in-
doctrine of prosecutorial discretion.
Wolf V. Hitch-
stant action, plaintiffs seek review of
United States V. Nixon, 417 U.S. 418,
dispute in this
the result of this combined administra-
683, 94 S.Ct. 3090, 41. L.Ed.2d 1039
the power under
tive determination. Furthermore, there
(1974) Newman V. United States, 127
pass protective
is concededly a final order before the
U.S.App.D.C. 263, 382 .2d 479, 480-481
the Passama-
Court, and the Administrative Procedure
(1967); Smith V. United States, 375 F.
there any claim
Act, 5 U.S.C. $ 704, expressly provides
2d 243, 246-247 (5th Cir. 1967) ; In-
Nonintercourse
that an "intermediate agency action or
mates of Attica Correctional Facility V.
ddies would vio-
ruling not directly reviewable is subject
Rockefeller, 477 F.2d 375, 379-382 (2d
mmitment The
to review on the review of the final
Cir. 1973); Weiss V. Morgenthau, 233
court is whether
agency action." The cases cited by de-
F.Supp. 307, 308 (S.D.N.Y.1964), aff'd
xercised its pow-
fendants, Chicago and Southern Air
per curiam, 344 F.2d 428 (2d Cir.
slation on behalf
Lines V. Waterman Steamship Corp., 333
1965) ; Application of James, 241 F.
include the Pas-
U.S. 103, 112-113, 68 S.Ct. 431, 92 L.Ed.
Supp. 858, 860 (S.D.N.Y.1965) ; Boyd V.
sents question
568 (1948), and Federal Power Gommis-
United States, 345 F.Supp. 790, 794 (E.
hich has always
sion V. Hope Gas Co., 320 U.S. 591, 619,
D.N.Y.1972). 19 This contention is based
the courts. See,
64 S.Ct. 281, 88 L.Ed. 333 (1944), in
on two fundamental misconceptions. In
U.S. 199, 212-
volved attempts to review an intermedi-
the first place, plaintiffs de not ask this
L.Ed.2d 270
ate stage of administrative action with-
Court to order the Attorney General to
that this case
out reviewing the ultimate stage; they
bring suit on their behalf in the
political ques-
are inapposite where the ultimate action
present action, plaintiffs seek only a de-
is itself being reviewed.
claratory judgment that the Noninter-
course Act establishes a trust relation-
of Review
[18] The second argument presented
ship between the United States and the
Procedure Act.
by defendants and intervenor as pre-
tervenor assert
Passamaquoddies. In the second place,
venting judicial review under the Ad-
to
institute
suit
the doctrine of prosecutorial discretion
ministrative Procedure Act is that de-
cannot shield legal error. As the court
Passamaquoddies
fendants' action constitutes "agency ac-
is not subject
stated in Nader V. Saxbe, 497 F.2d 676,
tion
committed to agency dis-
the provisions
679-680 19 (D.C.Cir.1974),
cretion by law," 5 U.S.C. § 701(a) (2).
Procedure Act, 5
The thrust of the argument is that the
It would seem to follow that the exer-
argument is
Attorney General has absolute discretion
cise of prosecutorial discretion, like
ontend that de-
to institute litigation, 28 U.S.C. §§ 516,
the exercise of Executive discretion
agency ac-
U.S.C. § 704.
made "consistent with" the Secretary's de
protecting Indian land and administering
the decision of
termination that no trust relationship exists,
government policy pursuant to statutes such
final action,
that was not the sole basis for the Attorney
as the Nonintercourse Act. See, e. g., Hynes
General's decision. The Notice incorporated
V. Grimes Packing Co., 337 U.S. 86, 96-97,
of the Sec-
the determination of the Interior Depart
69 S.Ct. 968, 93 L.Ed. 1231 (1949) Boles V.
to
recommend
ment and stated that, consistent with that
Greenville Housing Authority, 468 F.2d 476,
separately"
decision, the Justice Department was declin-
479 (6th Cir. 1972).
the
Secretary's
ing to institute the action requested by
plaintiffs. The Notice was filed in response
19. Similarly, intervenor cites several cases
udicially-review-
to the Court's order of June 16, 1972 direct-
which stand merely for the proposition that
record before the
ing defendants, in the event their decision
25 U.S.C. § 175 (requiring that the United
however, that
was to deny plaintiffs' request, to state their
States Attorney "shall" represent all Indians
exclusively
reasons for so deciding. The only reason
in all suits at law and equity) does not im-
of the Secretary
stated in the Notice is the Secretary's deter-
pose a mandatory duty. Rincon Band of
mination that no trust relationship exists.
Mission Indians V. Escondido Mutual Water
17 and that the
It is clear that the Attorney General adopt-
Co., 459. F.2d 1082, 1084-1085 (9th Cir.
ed the Secretary's determination as his only
1972) United States v. Gila River Pima-
pecious defendants'
reason for declining to bring suit.
Maricopa Indian Community, 391 F.2d 53, 56
he Notice filed by
(9th Cir. 1968) Siniscal V.'s United States,
Court on June 22,
18. The defendant Secretary is a proper party
208 F.2d 406, 410 (9th Cir. 1953), cert. de-
that the Attorney
because the Department of the Interior is
nied, 348 U.S. 818, 75 S.Ct. 29, 99 L.Ed. 645
bring suit was
the federal agency primarily responsible for
(1954).
388 F.Supp.-42½
666
388 FEDERAL SUPPLEMENT
generally, is subject to statutory and
Powell sought both a declaratory judg-
constitutional limits enforceable
ment that the House of Representatives
through judicial review. The law has
could not constitutionally prevent him
long recognized the distinction be-
from taking his seat because of prior
tween judicial usurpation of discre-
misconduct, and a writ of mandamus or
tionary authority and judicial review
an injunction to compel officers and em-
of the statutory and constitutional
ployees of the House to seat him. The
limits to that authority. Judicial re-
District Court dismissed the complaint,
view of the latter sort is normally
and the Court of Appeals affirmed on
available unless Congress has express-
the grounds that the case was not justi-
ly withdrawn it. (citations omitted).
ciable because the requested coercive re-
See also Boyd V. United States, supra,
lief would bring the judiciary into open
345 F.Supp. at 792-793. Where, as in
conflict with a coordinate branch and a
the present case, the decision of an ad-
declaratory judgment would "not finally
ministrative official is based upon an er-
terminate the controversy." Powell V.
roneous legal conclusion, the courts have
McCormack, 129 U.S.App.D.C. 354, 395
an obligation to correct the error so that
F.2d 577, 597 (1968). The Supreme
he may exercise his discretion based
Court reversed and remanded the case to
upon a correct understanding of the law.
the District Court with instructions to
Perkins V. Elg, 307 U.S. 325, 349-350,
enter a declaratory judgment for Powell
59 S.Ct. 884, 83 L.Ed. 1320 (1939); Se-
and to consider other appropriate reme-
curities and Exchange Commission V.
dies. With respect to the defendants'
Chenery Corp., 318 U.S. 80, 94, 63 S.Ct.
claim of nonjusticiability because the
454, 87 Ed. 626 (1943) McGrath V.
Court lacked power to grant coercive re-
Kristensen, 340*U.S. 162, 168-171, 71 S.
lief, the Court said:
Ct. 224, 95 L.Ed. 173 (1950). See 5 U.
We need express no opinion about
S.C. § 706. Cf. Citizens to Preserve
the appropriateness of coercive relief
Overton Park, Inc. V. Volpe, 401 U.S.
in this case, for the petitioners sought
402, 410, 91 S.Ct. 814, 28 L.Ed.2d 136
declaratory judgment, a form of relief
(1971), Abbott Laboratories V. Gard-
the District Court could have issued.
ner, 387 U.S. 136, 140-141, 87 S.Ct.
The Declaratory Judgment Act, 28 U.
1507, 18 L.Ed.2d 681 (1967).
S.C. § 2201, provides that a district
The Administrative Procedure Act
court may "declare the rights
of any interested party
does not bar judicial review of defend-
whether or not further re-
ants' action.
lief is or could be sought." The avail-
[19] The Propriety of Declaratory
ability of declaratory relief depends
Relief. Intervenor contends that since
on whether there is a live dispute be-
the Court is without authority to compel
tween the parties, and a request for
the Attorney General to file suit on be-
declaratory relief may be considered
half of plaintiffs, the prayer for declara-
independently of whether other forms
tory relief is merely an effort to obtain
of relief are appropriate. We thus
an advisory opinion, which the Court
conclude that in terms of the general
should decline to render. See Sierra
criteria of justiciability, this case is
Club V. Morton, 405 U.S. 727, 732 n.
justiciable. 395 U.S. at 517-518, 89
92 S.Ct. 1361, 31 L.Ed.2d 636 (1972)
S.Ct. at 1962 (citations omitted).
Public Service Commission V. Wycoff
It is thus clear that plaintiffs are not
Co., 344 U.S. 237, 241, 73 S.Ct. 236, 97
barred from declaratory relief merely
L.Ed. 291 (1952). Intervenor's argu-
because this Court may not be able to
ment is identical to that rejected by the
fashion coercive relief. See also Perkins
Supreme Court in Powell V. McCormack,
V. Elg, supra, 307 U.S. at 349-350, 59 S.
395 U.S. 486, 89 S.Ct. 1944, 23 L.Ed.2d
Ct. 884; McGrath V. Kristensen, supra,
491 (1969). In that case, Adam Clayton
340 U.S. at 168-171, 71 S.Ct. 224.
JOINT TRIBAL COUN. OF PASSAMAQUODDY TRIBE V. MORTON 667
Cite as 388 F.Supp. 649 (1975)
laratory judg-
In 1783 and 1784 Allan wrote several
:epresentatives
Judgment will be entered for the letters to the Federal Government in
prevent him
plaintiffs declaring that the Indian Non- which he indicated that the Passama-
cause of prior
intercourse Act, 25 U.S.C. § 177, is ap-
quoddy Indians had greatly assisted the
mandamus or
plicable to the Passamaquoddy Indian
American cause and urged Congress to
ficers and em-
Tribe; that the Act establishes a trust
fulfill the promises he had made on be-
seat him. The
relationship between the United States
half of the Government, especially with
the complaint,
and the Tribe; and that defendants may
respect to protecting Passamaquoddy
S affirmed on
not deny plaintiffs' request for litiga-
hunting gròunds. Congress failed to act
was not justi-
tion in their behalf on the sole ground
on Allan's recommendations, and on
ed coercive re-
that there is no trust relationship be-
March 5, 1784, Allan's appointment was
ciary into open
tween the United States and the Tribe.
revoked pursuant to a resolution of the
branch and a
Plaintiffs may submit a proposed form
Continental Congress revoking the ap-
ild "not finally
of decree, with notice to defendants,
pointments of all Indian Superintend-
Powell V.
within ten days. Defendants may
ents.
354, 395
present their comments thereon within
The Supreme
3. In 1793 the same John Allan ap-
five days thereafter.
ded the case to
peared before the Massachusetts General
instructions to
It is so ordered.
Court. He reported that during the
ent for Powell
Revolutionary War the Passamaquoddy
propriate reme-
APPENDIX
Tribe had relinquished their claims to
be defendants'
land in Massachusetts on the condition
because the
that the United States would confirm
coercive re-
the Tribe's right to inhabit, unmolested,
Contacts between the Federal Govern-
certain parcels of their aboriginal terri-
ment and the Passamaquoddy
opinion about
Tribe since 1776
tory
coercive relief
4. In 1819 Congress passed legislation
1. On December 24, 1776, George
itioners sought
entitled, "An Act making provision for
Washington wrote to the Passamaquod-
form of relief
the civilization of the Indian tribes ad-
dy Tribe and told them that he was glad
have issued.
joining the frontier settlements.' Act
to hear that the Tribe had accepted the
Act, 28 U.
of March 3, 1819, 3 Stat. 516. In 1824,
chain of friendship which he sent in
that a. district
using funds appropriated pursuant to
February 1776, and warned the Tribe
the rights
this Act, the Federal Government con-
against turning against the United
terested party
tributed $233.00 to the Tribe, an amount
States.
further re-
which covered one-third of the cost of
The
avail-
2. John Allan served as the Continental
the construction of a school. From 1824
relief depends
Congress' agent to the Indians of the
to 1828 the Federal Government used
dispute be-
Northeast during the American Revolu-
funds appropriated pursuant to the 1819
request for
tionary War. Appointed in 1777, he was
Act to contribute $250.00 a year to Eli-
be considered
instructed to enlist the support of the
jah Kellogg, a missionary to the Indians,
other forms
Indian tribes for the American colonies.
who sought to establish and maintain a
We thus
In May 1777 Allan met with the Passa-
school for the Passamaquoddies. In
of the general
maquoddy and St. John's Tribes. In
1829 the Government withheld funds for
this case is
recognition of Allan's promises that the
the school because of intra-tribal dis-
517-518, 89
Tribe would be given ammunition for
putes concerning the religion of the Su-
omitted).
hunting, protection of their game and
perintendent. In December 1829 two
intiffs are not
hunting grounds, regulation of trade to
leaders of the Passamaquoddy Tribe,
relief merely
prevent imposition, the exclusive right
Deacon Sockbason and Sabattis Neptune,
not be able to
to hunt beaver, the free exercise of reli-
met in Washington with Thomas L.
See also Perkins
gion, a clergyman, and the appointment
McKenny, Director of the Office of In-
349-350, 59 S.
of an agent for their protection and sup-
dian Affairs, and John H. Eaton, Secre-
istensen, supra,
port in time of need, the Passamaquoddy
tary of War, seeking a reinstatement of
224.
Tribe pledged their support to the colo-
the funds for the school, money to hire a
nies.
priest, and a parcel of land. Although
668
388 FEDERAL SUPPLEMENT
the funds for the school were temporari-
land
where
they
could
"assemble
unmo-
ly reinstated and money for a priest was
lested."
In
response
to
the
petition,
the
provided, all funds were permanently
Massachusetts:
Legislature
appointed
a
terminated in 1831 because of the con-
committee to assign land to the Passa-
tinuation of sectarian strife.
maquoddy Indians. Treaty negotiations
5. In December 1829 President Jackson
began in 1793, and on September 24,
1794 Massachusetts and the Passama-
requested funds from Congress to pur-
chase additional land for the Passama-
quoddy Tribe entered into a treaty.
quoddy Tribe. Congress failed to act on
John Allan, the former Federal Indian
the President's request.
agent, was one of the members of the
committee appointed by the Massachu-
6. In July 1832 the Commissioner of
Indian Affairs, Elbert Herring, denied
setts Legislature, and his name appears
as one of the signers of the treaty for
Kellogg's request for funds for the im-
Massachusetts. By the terms of the
provement of Passamaquoddy agricul-
treaty, the Passamaquoddy Tribe sur-
ture.
rendered all claims to land in the terri-
7. During the period 1899 to 1912, five
tory of Massachusetts in exchange for a
members of the Passamaquoddy Tribe
conveyance of 23,000 acres of land at In-
attended the Carlisle Indian School at
dian Township, ten acres of land at
Carlisle, Pennsylvania. In 1970 a mem-
Pleasant Point, and the exclusive right
ber of the Passamaquoddy Tribe gradu-
to fish and hunt the Schoodic River, all
ated from Haskel Indian College at
in the District of Maine. Seven years
Lawrence, Kansas
later, in 1801, Massachusetts assigned
8. Since 1965 the Tribe has received
an additional 90 acres of land at Pleas-
funds from the Department of Housing
Point to the Tribe.
and Urban Development, the Office of
3.
In 1819 Massachusetts passed legis-
Economic Opportunity and Federal
lation commonly known as the Articles
agencies other than the Department of
of Separation, which provided for the
the Interior. Although eligibility for
establishment of Maine as a separate
such assistance has been determined by
State. Under the Articles of Separation
criteria applicable to all citizens, in
Maine agreed to "assume and perform
many instances the funds were taken
all duties and obligations of the Com-
from special Indian allocations or were
monwealth, towards the Indians within
administered by special Indian desks
said District of Maine, whether the
within the various agencies.
same arise from treaties or otherwise,
See n. 2, supra.
II
Contacts between the States of Massa-
Maine Contacts
chusetts and Maine and the Passa-
4. Since its admission as a State in
maquoddy Tribe since 1776 Massa-
1820, Maine has enacted approximately
chusetts Contacts
350 laws which relate specifically to the
1. On July 19, 1776, the Governor of
Passamaquoddy Tribe. This legislation
Massachusetts on behalf of Massachu-
includes 72 laws providing appropria-
settş and the other states entered into a
tions for or regulating Passamaquoddy
treaty of alliance and friendship with
agriculture; 33 laws making provision*
delegates from the St. John's and Mic-
for the appropriation of necessities,
mac Tribes in which the Indian dele-
such as blankets, food, fuel, and
gates agreed to use their influence to
wood, for the Tribe; 85 laws relating to
convince the Passamaquoddy and other
educational services and facilities for
tribes to supply men for George Wash-
the Tribe; 13 laws making provision for
ington's army.
the delivery of health care services and
2. In 1792 leaders of the Passamaquod-
facilities to the Tribe; 22 laws making
dy Tribe petitioned Massachusetts for
allowance for Passamaquoddy housing
JOINT TRIBAL COUN. OF PASSAMAQUODDY TRIBE V. MORTON 669
Cite as 388 Supp. 649 (1975)
mble unmo-
(Me.Const. art. 9, $ 14-D, authorizes the
d. In 1954 an amendment to the
petition, the
Legislature to make available a fund not
Maine Constitution, Const. art.
appointed
to exceed $1,000,000.00 for the purpose
2, § 1, extended the franchise to
of insuring mortgages on homes owned,
Indians. 22 M.R.S.A. § 4831, as
the Passa-
negotiations
"by members of the 2 tribes on several
amended, P.L.1973, ch. 104, au-
ptember 24,
Indian reservations") 54 laws making
thorizes an official tribal govern-
he Passama-
special provision for Indian indigent re-
ment. This statute provides that
lief; 54 laws relating to the improve-
each Passamaquoddy reservation
0 a treaty.
deral Indian
ment and protection of roads and water
shall have a governor, lieutenant
nbers of the
on the Passamaquoddy reservation; and
governor, and six-man tribal coun-
e Massachu-
15 laws providing for the legal represen-
cil. It further provides that each
tation of the Tribe and its members.
reservation shall elect, on an alter-
name appears
he treaty for
nate basis, a representative to the
5. The following is a representative
erms of the
State Legislature to serve as the
sample of Maine statutes currently in
Passamaquoddy representative.
y Tribe. sur-
effect providing for the welfare and pro-
in the terri-
tection of the Passamaquoddy Tribe.
e. 22 M.R.S.A. 4702, as amended
xchange for a
P.L.1971, ch. 544, establishes a
of land at In-
Beginning in 1823 Maine has ad-
Department of Indian Affairs,
S of land at
ministered trust funds on behalf
which is under the control and su-
xclusive right
of the Passamaquoddy Tribe. 22
pervision of the Commissioner of
odic-River, all
M.R.S.A. § 4834, as amended, P.
Indian Affairs. 22 M.R.S.A. $
Seven years
L.1973, ch. 141, creates a trust
4733, as adopted, P.L.1967, ch.
setts assigned
fund out of the annual net pro-
252, eff. May 8, 1967, provides for
land at Pleas-
ceeds from the sale of timber and
the creation of an Indian Housing
grass taken from Indian Town-
Authority.
S passed legis-,
ship. This statute permits the
as the Articles
tribal council to determine the
f. Maine has always retained a vari-
manner in which a certain per-
ety of miscellaneous laws which
ovided for the
as a separate
centage of the funds shall be ex-
affect various aspects of Passama-
s of Separation
pended
quoddy tribal life. For instance,
le and perform
current Maine statutes permit
b. 22 M.R.S.A. § 4707 renders void
is of the Com-
members of the Tribe to obtain
any contract made by an Indian
Indians within
for the sale or disposal of trees,
free hunting and fishing licenses,
whether the
timber, or grass on Indian lands.
12 M.R.S.A. § 2401-B(7), as
or otherwise,
amended, P.L.1973, ch. 92; forbid
c. 22 M.R.S.A. § 4709 authorizes the
any person from keeping Indian
Attorney General, on his own ini-
skeletons or bones for more than a
acts
tiative or at the request of a
year without returning them to
Tribe, to sue in the name of the
as a State in
Tribe in actions for money owed
the Tribe for burial, 22 M.R.S.A.
d approximately
the Tribe for injuries done to
8 4720, as adopted, P.L.1973, ch.
ecifically to the
tribal land. The damages re-
788, §§ 95, 96, eff. April 1, 1974;
This legislation
covered by such a suit are to be
and impose a $250.00 fine upon
ding appropria-
distributed by the Commissioner
any person who poses as an Indian
Passamaquoddy
of Indian Affairs, or invested in
for the purpose of vending goods
aking provision
useful articles.
or wares, 22 M.R.S.A. § 4715.
of necessities,
ood, fuel, and
laws relating to
facilities for
provision for
care services and
22 laws making
aquoddy housing
Ch. 5
PROTECTION OF INDIANS
25 § 177
Land Office, fixed the lines which control-
not conveying the bed of such river in-
led the court when a question arose as to
terferes with no object or purpose of the
whether a claimant was within or with-
grant. U. S. V. Mackey, D.C.Okl.1913, 214
out the particular reservation at the time
F. 137, appeal of certain parties dismiss-
of alleged depredation. French V. U. S.,
ed 216 F. 129, 132 C.C.A. 373, and decree
1914, 49 Ct.Cl. 337.
reversed on other grounds 216 F. 126, 132
C.C.A. 370.
3. Division of tribal lands among mem-
bers, surveys for
5. Errors in surveys
To accomplish the object of legislation
Where in making the survey of the
by which Congress provided for the
land ceded by the United States to the
eventual dissolution of certain tribes such
Choctaw Nation under the treaties of
23 the Creek nation and the division of
1820 and 1825, 7 Stat. 210, 234, an error
2 large portion of the tribal lands among
was made in running the eastern bound-
the members of the tribe, it was neces-
ary of said lands in that the surveyor
sary under this section to survey and sub-
bore to the west and did not cover in the
divide such lands, in like manner as pub-
actual survey all the lands ceded to the
lic lands are divided. U. S. V. Mackey, D.
Choctaws; and where said error was not
C.Ok!.1913, 214 F. 137.
discovered until a resurvey was made in
1857 pursuant to the provisions of the
& Title to Arkansas River bed, grant to
Treaty of 1855, 11 Stat. 611, the tract of
Creek tribe as carrying
land was not legally taken until after the
The grant of lands in Indian Territory
Treaty of 1853. Chickasaw Nation V.
to the Creek Tribe of Indians by patent
U. S., 1942, 94 Ct.Cl. 213.
of Aug. 11, 1852, did not vest the tribe
with any right or title to the bed of the
Where the Commissioner of Indian Af-
Arkansas river between high-water marks,
fairs, after the report of the error in the
but the same remained in the United
1825 survey as discovered in the survey
States and passed to the state of Okla-
of 1857, decided to stand by the original
homa on its admission, subject to such
survey; and where Congress by Act Mar.
rights as were given by its laws to own-
3, 1875, 18 Stat. 476, ratified the original
ers of lands bordering on the stream but
marking, because the original erroneous
the purpose of such grant to the Creeks
boundary was to be recognized by the
was to provide them a home in the then
Government it was not intended by Con-
far West so long as they should exist as
gress that the Government should not ac-
2 tribe and continue to occupy the lands
count to the rightful owners for the prop-
granted and to construe such grant as
erty wrongfully taken. Id.
§
177.
Purchases or grants of lands from Indians
No purchase, grant, lease, or other conveyance of lands, or of any
title or claim thereto, from any Indian nation or tribe of Indians,
shall be of any validity in law or equity, unless the same be made
by treaty or convention entered into pursuant to the Constitution.
Every person who, not being employed under the authority of the
United States, attempts to negotiate such treaty or convention, di-
rectly or indirectly, or to treat with any such nation or tribe of
Indians for the title or purchase of any lands by them held or
claimed, is liable to a penalty of $1,000. The agent of any State
who may be present at any treaty held with Indians under the au-
thority of the United States, in the presence and with the approba-
tion of the commissioner of the United States appointed to hold the
same, may, however, propose to, and adjust with, the Indians the
compensation to be made for their claim to lands within such State,
which shall be extinguished by treaty. R.S. § 2116.
Historical Note
Derivation. Act June 30, 1834, c. 161, $ 12, 4 Stat. 730.
Cross References
the
Patents to be held in trust; descent and partition, see section 348 of this ti- FORD
139
GERALD
370
528 FEDERAL REPORTER, 2d SERIES
These were a medical certificate stating
prerequisite. Since no evidence of that
that petitioner was suffering from tu-
was presented, it was not an abuse of
berculosis, a service memo, and a call-in
discretion to deny him the status of vol-
letter addressed to him in Mexico. He
untary departure.
contends that it was error to admit them
The petition for review of the Serv-
because they lacked probative value and
ice's order of deportation is denied and
their authors were not present at the
the order is affirmed.
hearing.
Since the documents tended to corrob-
orate a key portion of the statement in
SWORT KEYNUMBERSYSTEM
Form 1-213, petitioner's return to Mexi-
8 in 1961 for health reasons, their rele-
vance is undeniable. Nor does the lack
of foundation testimony by live witness-
es in a deportation hearing necessitate
reversal. Hernandez V. INS, 498 F.2d
JOINT TRIBAL COUNCIL OF the
919, 921 (9th Cir. 1974); Marlowe V. INS,
PASSAMAQUODDY TRIBE et al.,
457 F.2d 1314, 1315 (9th Cir. 1972).
Plaintiffs-Appellees,
Without evidence to indicate the need to
V.
have these witnesses present, we cannot
say that their absence was so fundamen-
Rogers C.B. MORTON, Secretary,
tally unfair so as to violate due process.
Department of the Interior, et al.,
Our standard on review of a de-
Defendants-Appellees,
portation order, fixed by 8 U.S.C.
State of Maine, Intervenor-Appellant.
§ 1105a(a)(4), is limited to determining
that the agency's order is supported by
JOINT TRIBAL COUNCIL OF the
reasonable, substantial, and probative ev-
PASSAMAQUODDY TRIBE et al.,
idence on the record considered as a
Plaintiffs-Appellees,
whole. Lavoie, 418 F.2d at 735. From
V.
the Form 1-213 and the corroborative
documents it was found that petitioner
Rogers C. B. MORTON, Secretary,
left the United States in 1961 and re-en-
Department of the Interier, et al.,
tered in 1972 without inspection or prop-
Defendants-Appellants.
er documentation. This finding is sup-
Nos. 75-1171, 75-1172.
ported by substantial, probative evidence
and will not be overturned by this court.
United States Court of Appeals,
First Circuit.
[7] Under 8 U.S.C. § 1361, petitioner
FORD
bore the burden of proof on the issue of
Argued Sept. 11, 1975.
legal entry. Since he offered no evi-
Decided Dec. 23, 1975.
dence to rebut the evidence of illegal
LIBRARY
entry in 1972, the order of deportability
must be affirmed.
Action was brought by the joint
[8,9] Petitioner also appeals the de-
tribal council of the Passamaquoddy In-
nial of the privilege of voluntary depar-
dian Tribe and the tribe's two governors
ture. 8 U.S.C. § 1254(c). He presented
against federal officials for a declaratory
no evidence in support of his eligibility,
judgment as to the applicability of the
contending that there existed sufficient
Indian Nonintercourse Act to the tribe.
information in his administrative file to
The state of Maine intervened as a party
support the application. The petitioner
defendant. Judgment was given for the
bears the burden of proof to establish
Indians in the United States District
eligibility for voluntary departure. Kha-
Court for the District of Maine, Edward
laf V. INS, 361 F.2d 208 (7th Cir. 1966).
Thaxter Gignoux, J., 388 F.Supp. 649,
Good moral character of the alien is a
and the state of Maine and federal offi-
JOINT TRIB. COUN. OF PASSAMAQUODDY TRIBE V. MORTON 371
Cite as F.2d 370 (1975)
of
that
cials appealed. The Court of Appeals, maquoddy Tribe did not-cut off whatev-
buse
of
Levin H. Campbell, Circuit Judge, held federal duties existed. 25 U.S.C.A.
of
vol-
that the Nonintercourse Act applies to $ 177; 22 M.R.S.A. § 4831
the Passamaquoddy Tribe and estab-
5. Indians
7
Serv-
lished a trust relationship between the
and
United States and the tribe. No con-
Unwillingness of Congress to furnish
gressional termination of the guardian-
aid when requested by Passamaquoddy
ship role was shown, and neither the
Indian Tribe did not alone show congres-
tribe nor the state of Maine would have
sional intention that Nonintercourse Act
the right to terminate the federal
should not apply. 25 U.S.C.A. § 177.
government's responsibility.
6. Indians 10
Judgment ffirmed.
Under Nonintercourse Act, federal
government bears trust relationship to
Passamaquoddy Indian Tribe; such rela-
1. Indians 10
tionship under the Act pertains to land
Right to extinguish Indian title is
"transactions which are or may be cover-
the
attribute of sovereignty which no state,
ed by the Act and is rooted in rights and
a.,
but only United States, can exercise, and
duties encompassed or created by the
Nonintercourse Act gives statutory rec-
Act. 25 U.S.C.A. § 177.
ognition to that fact. 25 U.S.C.A. § 177;
Act Mar. 1, 1793, 1 Stat. 137, 329; Act
7. Indians
6
Mar. 3, 1819, 3 Stat. 516; Act Mar. 3,
Once Congress has established trust
F
1820, 3 Stat. 544.
relationship with an Indian tribe, Con-
gress alone has right to determine when
2. Indians -2
pellant.
its guardianship shall cease; neither the
Passamaquoddy Tribe of Indians,
tribe nor state of Maine, separately or
the
though not otherwise federally recog-
together, has right to make that decision
F
nized, is "tribe" within Nonintercourse
and so to terminate the federal govern-
Act. 25 U.S.C.A. § 177.
ment's responsibilities. 25 U.S.C.A.
See publication Words and Phrases
§ 177; 22 M.R.S.A. § 4831.
for other judicial constructions and
definitions.
retary,
8. Indians -6
al.,
3. Indians 6
Any withdrawal of trust obligations
Congress' power to regulate com-
toward Indian tribe by Congress would
merce includes-authority to decide when
have to be plain and unambiguous to be
and to what extent it shall recognize
effective. 25 U.S.C.A. § 177.
particular Indian community as depend-
ent tribe under its guardianship, and
9. Indians -6
Congress has right to determine for it-
Record in Indian tribe's action
self when guardianship maintained over
against Secretary of the Department of
Indian shall cease, but Congress' power
the Interior and other defendants failed
is limited in sense that it may. not bring
to establish that Congress had at any
community or body of people within
time terminated or withdrawn its protec-
he
joint
range of its power by arbitrarily calling
tion which had been extended under the
In-
them an Indian tribe, and may exercise
Nonintercourse Act. 25 U.S.C.A. § 177.
governors
its guardianship and protection only in
claratory
respect of distinctly Indian communities.
10. Courts 365(1)
of
the
25 U.S.C.A. § 177; U.S.C.A.Const. art. 1,
Federal government had no obliga-
the
tribe.
§ 8.
tion to respond to decision by the Su-
a
party
preme Judicial Court of Maine, which
for
the
4. Indians =7
could not affect federal authority with
District
Voluntary assistance rendered by
respect to Indian tribe, and federal
Edward
state to Indian tribe is not necessarily
government's alleged failure to react to
649,
inconsistent with federal protection, and
such decision was not to be taken by a
offi-
Maine's assumption of duties to Passa-
federal district court as an acknowledg-
372
528 FEDERAL REPORTER, 2d SERIES
ment of such state court ruling. 25 U.S.
State of Maine on behalf of the Tribe.
C.A. § 177.
Earlier, in a letter to the Commissioner
of the Bureau of Indian Affairs, the
Tribe had stated the following griev-
Martin L Wilk, Deputy Atty. Gen.,
ances against Maine and its predecessor,
with whom Joseph E. Brennan, Atty.
Massachusetts (hereinafter collectively
Gen., was on brief, for State of Maine,
"Maine"): that Maine "had divested the
Augusta, Me., appellant.
Tribe of most of its aboriginal territory
Edmund B. Clark, Atty., Dept. of Jus-
in a treaty negotiated in 1794; that
tice, with whom Wallace H. Johnson,
Maine had wrongfully diverted 6,000 of
Asst. Atty. Gen., Walter Kiechel, Deputy
the 23,000 acres reserved to the Tribe in
Asst. Atty. Gen., and Edward J. Shawak-
that treaty; and that Maine had mis-
er, Atty., Dept. of Justice, Washington,
managed tribal trust funds, interfered
D. C., for Rogers C. B. Morton, appel-
with tribal self-government, denied trib-
lants.
al hunting, fishing and trapping rights,
Thomas N. Tureen, Calais, Me., with
and taken away the right of members to
whom David C. Crosby, Barry A. Margo-
vote, from 1924 to 1967. The Tribe had
lin, Calais, Me., Stuart P. Ross, Hogan &
requested the Secretary to sue Maine on
Hartson, Washington, D. C., Robert S.
its behalf to redress these asserted
Pelcyger, Boulder, Colo., and Robert E.
wrongs before July 18, 1972, the date an
Mittel, Portland, Me., were on brief for
action would allegedly be barred.¹ Al-
appellees.
though the Commissioner of the Bureau
of Indian Affairs favored compliance
Before COFFIN, Chief Judge, McEN-
with plaintiffs' request, defendants did
TEE and CAMPBELL, Circuit Judges.
not act.
LEVIN H. CAMPBELL, Circuit
On June 2, 1972, plaintiffs filed this
Judge.
action, seeking a declaratory judgment
This is an appeal from a declaratory
that the Tribe is entitled to federal pro-
judgment entered in the District Court
tection under the Indian Nonintercourse
for the District of Maine. 388 F.Supp.
Act, 25 U.S.C. § 177,2 and a preliminary
649, 667 (D.Me.1975).
injunction. ordering defendants to file a
Plaintiffs are, under Maine law, the
protective action on the Tribe's behalf
political representatives of the Passa-
against the State of Maine by July 18,
maquoddy Indian Tribe ("the Tribe").
1972. Defendants persisted in their re-
22 M.R.S.A. § 4831 (Supp.1975). They
fusal to sue for the Tribe, relying upon
brought this action against the Secretary
the advice of the Acting Solicitor for the
of the Interior and the Attorney General
Department of the Interior, who stated,
of the United States after the Secretary
"[N]o treaty exists between the United
refused to initiate a lawsuit against the
States and the Tribe and, except for
1. 28 U.S.C. § 2415(b) sets forth a special stat-
authority of the United States, attempts to ne-
ute of limitations for actions seeking damages
gotiate such treaty or convention, directly or
resulting from trespass on Indian lands. The
indirectly, or to treat with any such nation or
time for filing such an action was originally
tribe of Indians for the title or purchase of any
July 18, 1972, but has since been extended by
lands by them held or claimed, is liable to a
Congress to July 18, 1977. Act of October 13,
penalty of $1,000. The agent of any State who
1972, P.L. 92-485, 86 Stat. 803.
may be present at any treaty held with Indians
2. Title 25 U.S.C. § 177 provides as follows:
under the authority of the United States, in the
presence and with the approbation of the com-
"No purchase, grant, lease, or other convey-
missioner of the United States appointed to
ance of lands, or of any title or claim thereto,
hold the same, may, however, propose to, and
from any Indian nation or tribe of Indians,
adjust with, the Indians the compensation to
shall be of any validity in law or equity, unless
be made for their claim to lands within such
the same be made by treaty or convention
State, which shall be extinguished by treaty."
entered into pursuant to the Constitution. Ev-
ery person who, not being employed under the
JOINT TRIB. COUN. OF PASSAMAQUODDY TRIBE V. MORTON
373
Cite as 528 F.2d (1975)
isolated and inexplicable instances in firm, subject to the qualifications herein-
the past, this Department, in its trust after stated.
capacity, has had no dealings with the
Tribe. On the contrary, it is the
I
States of Maine and Massachusetts
which have acted as trustees for the
The issues in this proceeding can best
tribal property for almost 200 years.
be understood in light of facts about the
Tribe appearing in the parties' stipula-
tion and exhibits and in the district
court's comprehensive and scholarly opin-
[W]e are aware that the
ion.4
Tribe may thus be foreclosed from
The Tribe now resides on two reserva-
pursuing its claims against the State
in the federal courts. However, as
tions in Washington County in Maine.
there is no trust relationship between
Its members and their ancestors, as was
agreed below, have constituted an Indian
the United States and this Tribe,
tribe in both the racial and cultural,
the Tribe's proper legal rem-
sense since at least 1776. Plaintiffs al-
edy should be sought elsewhere."
lege that until 1794 the Tribe occupied
After a hearing, the district court or-
its aboriginal territory all of what is
dered defendants to file suit by July 1,
now Washington County and certain oth-
1972, and to include all matters of which
er land in Maine. In 1777, the Tribe
the Tribe had complained. In compli-
pledged its support to the American Col-
ance, they instituted United States V.
onies during the Revolutionary War in
Maine, Civil No. 1966 N.D. An appeal
exchange for promises by John Allan,
from that order was dismissed on mo-
Indian agent of the Continental Con-
tions of both plaintiffs and defendants.
gress, that the Tribe would be given am-
Civil No. 1966 N.D. has meanwhile been
munition for hunting, protection for
stayed pending final determination of
their game and hunting grounds, regula-
the present action.
tion of trade to prevent imposition, the
Plaintiffs then filed two amended and
exclusive right to hunt beaver, the free
supplemental complaints herein, aban-
exercise of religion, and a clergyman.
doning their request for an injunction
In addition, an agent would be appointed
and seeking only a declaratory judg-
for their protection and support in time
ment. The State of Maine was allowed
of need. Allan, as Superintendent of the
to intervene. As finally framed and ar-
Eastern Indian Agency, reported to the
gued in the district court, the issues
federal government on several occasions
were,³ (1) whether the Nonintercourse
in 1783 and 1784 that the Passamaquod-
Act applies to the Passamaquoddy Tribe;
dy Tribe had greatly assisted the revolu-
(2) whether the Act establishes a trust
tionary cause and urged Congress to ful-
relationship between the United States
fill these promises made on the Govern-
and the Tribe; and (3) whether the
ment's behalf. Allan also transmitted
United States may deny plaintiffs' re-
the views of the Tribe in this regard.
quest for litigation on the sole ground
However, the Continental Congress
that there is no trust relationship: The
failed to act on Allan's recommendations.
district court ruled in plaintiffs' favor on
His appointment was revoked in March
all points. Both the federal defendants
1784, under a resolution revoking the ap-
and the State of Maine appeal. We af-
pointments of all Indian Superintend-
3. Plaintiffs also requested in their second
4. Plaintiffs' contentions that the Department
amended and supplemental complaint a declar-
of the Interior has wrongfully turned its back
atory judgment that the Const. art. I, §§ 8
on the Tribe, and that federal guardianship
and 10, and art. II, § 2, are applicable to the
must replace that of the State, are elaborated
Tribe. Relief along these lines was not pur-
in detail in O'Toole & Tureen, State Power and
sued below and is not now an issue.
the Passamaquoddy Tribe; "A Gross National
Hypocrisy?", 23 Me.L.Rev. 1 (1971).
374
528 FEDERAL REPORTER, 2d SERIES
ents. In 1790, the First Congress adopt-
this Commonwealth [Massachusetts], to-
ed the Indian Nonintercourse Act.
wards the Indians within said District of
Maine, whether the same arise from
In 1792, the Passamaquoddy Tribe pe-
treaties, or otherwise
Maine
titioned Massachusetts for land upon
was thereafter recognized by Congress
which to settle, and Massachusetts ap-
and admitted to the Union. Act of
pointed a committee to investigate, one
March 3, 1820, ch. 19, 3 Stat. 544. The
member of which was the same John
Maine Constitution, with the above quot-
Allan. Allan reported that during the
ed provision relating to the Indians, was
Revolutionary War the Passamaquoddy
read in the Senate, referred to commit-
Tribe had given up its -claims to lands
tee, and finally declared by Congress to
known to be its haunts on the condition
be established in the course of the ad-
that the United States would confirm its
mission proceedings.
"ancient spots of ground" and a suitable
tract for the use of both the Tribe and
Since its admission as a state, Maine
all other Indians who might resort there.
has enacted approximately 350 laws
Soon after, in 1794, Massachusetts en-
which relate specifically to the Passama-
tered into an agreement, also referred to
quoddy Tribe. This legislation includes
as a treaty, with the Passamaquoddy
72 laws providing appropriations for or
Tribe by which the Tribe relinquished all
regulating Passamaquoddy agriculture;
its rights, title, interest, claims or de-
33 laws making provision for the appro-
mands of any lands within Massachu-
priation of necessities, such as blankets,
setts in exchange for a 23,000 acre tract
food, fuel, and wood, for the Tribe; 85
comprising Township No. 2 in the first
laws relating to educational services and
range, other smaller tracts, including ten
facilities for the Tribe; 13 laws making
acres at Pleasant-point, and the privilege
provision for the delivery of health care
of fishing on both branches of the
services and facilities to the Tribe; 22
Schoodic River. All pine trees fit for
laws making allowance for Passama-
masts were reserved to the state govern-
quoddy housing; 54 laws making special
ment for a reasonable compensation. An
provision for Indian indigent relief; 54
additional ninety acres at Pleasant-point
laws relating to the improvement and
were later appropriated to the use of the
protection of roads and water on the
Tribe by Massachusetts in 1801.
Passamaquoddy reservation; and 15 laws
providing for the legal representation of
Since 1789, Massachusetts and later
the Tribe and its members.
Maine have assumed considerable respon-
In contrast, the federal government's
sibility for the Tribe's protection and
dealings with the Tribe have been few.
welfare. Maine was a District of Massa-
It has never, since 1789, entered into a
chusetts until 1819, when it separated
treaty with the Tribe, nor has Congress
from Massachusetts under the Articles of
ever enacted any legislation mentioning
Separation, Act of June 19, 1819, Mass.
the Tribe. In 1824, the Department of
Laws, ch. 61, p. 248, which were incorpo-
War contributed funds to the Tribe, one-
rated into the Maine Constitution as Ar-
third toward the construction of a school,
ticle X, Section 5. The Articles provided
pursuant to an act for the civilization of
that Maine "shall
assume and
Indian tribes. Act of March 3, 1819, 3
perform all the duties and obligations of
Stat. 516. It also gave money annually
5. The first Nonintercourse Act, 1 Stat. 137,
chase or grant of lands, or of any title or claim
138, provided that "no sale of lands made by
thereto, from any Indians or nation or tribe of
any Indians, or any nation or tribe of Indians
Indians, within the bounds of the United
within the United States, shall be valid to any
States, shall be of any validity in law. or equi-
person or persons, or to any state
ty, unless the same be made by a treaty or
unless the same shall be made and duly exe-
convention entered into pursuant to the consti-
cuted at some public treaty, held under the
tution." Subsequent amendments have made
authority of the United States." This was
no major changes and the present version was
amended in 1793, 1 Stat. 329, 330: "No pur-
enacted in 1834. (See note 2 supra.)
JOINT TRIB. COUN. OF PASSAMAQUODDY TRIBE V. MORTON
375
Cite as 528 F.2d 370 (1975)
from 1824 to 1828 under the same act to ment of Housing and Urban Develop-
Elijah Kellogg of the Society for the
ment, writing to the Commissioner of
Propagation of the Gospel Among the
the Maine Department of Indian Affairs
Indians,
to
support
a
school
for
the
in regard to the establishment of public
Tribe. The funds were granted at the
housing authorities by the governing
request of the State of Maine, were
councils of the Passamaquoddy and Pe-
channeled through the State, and were
nobscot Tribes, stated in part that "[i]t is
subject to State controls. Kellogg, ac-
our understanding that these tribes do
cording to one nineteenth century
not have any governmental powers in
source, was himself sent to the Tribe as
their own right or by virtue of any fed-
a schoolmaster by the State of Maine,
eral law.
and as a missionary by the Missionary
In 1968, the Tribe brought suit against
Society of Massachusetts. These funds
the Commonwealth of Massachusetts in
were withheld during 1829 because of
the Massachusetts state courts alleging
intra-tribal differences concerning the
that the Commonwealth, with the con-
religion of the Superintendent of the
sent of the federal government, assumed
school and, as a result, two principal men
jurisdiction over and responsibility for
of the Tribe, Deacon Sockbason and Sa-
the Tribe and that by the act admitting
battis Neptune, went to Washington to
Maine into the Union, Congress con-
meet with Thomas L McKenney, Di-
firmed and ratified that relationship.
rector of the Office of Indian Affairs,
and John H. Eaton, Secretary of War, to
II
seek reinstatement of the school funds
and additional money to hire a priest
The central issue in this action is
and to purchase a parcel of land. Money
whether the Secretary of the Interior
was again appropriated for the school
was correct in finding that the United
and the priest in 1830, although discon-
States has no trust, relationship" with
tinued after 1831 on account of the same
the Tribe and, therefore, should play no
intra-tribal differences. However, de-
role in the Tribe's dispute with Maine.
spite a request from President Jackson,
Whether, even if there is a trust rela-
Congress failed to appropriate any mon-
tionship with the Passamaquoddies, the
ey to purchase land for the Tribe. After
United States has an affirmative duty to
the school funds were again suspended
sue Maine on the Tribe's behalf is a sep-
during 1831 because of the same sectari-
arate issue that was not raised or decid-
an strife, the Tribe requested that the
ed below and which consequently we do
funding be reinstated and used for the
not address. The district court held only
improvement of the Tribe's agriculture;
that defendants "erred in denying plain-
this request was also denied and the
tiffs' request for litigation on the sole
funding was never resumed. During the
ground that no trust relationship exists
period from 1899 to 1912, five members
between the United States and the Pas-
of the Tribe attended the Carlisle Indian
samaquoddy Tribe." It was left to the
School for short periods of time. A
Secretary to translate the finding of a
member of the Tribe also graduated
"trust relationship" into concrete duties.
from Haskel Indian College in 1970.
Over the years, the federal govern-
Since 1965, various federal agencies oth-
ment has recognized many Indian tribes,
er than the Department of the Interior
specifically naming them in treaties,
have provided funds to the Tribe under
agreements, or statutes. The general
federal assistance programs available to
notion of a "trust relationship," often
all citizens meeting the requirements of
called a guardian-ward relationship, has
the program. Some of these funds were
been used to characterize the resulting
taken from special Indian allocations or
relationship between the federal govern-
were administered by special Indian
ment and those tribes, see Worcester V.
desks within the various agencies. In
Georgia, 31 U.S. (6 Pet.) 515, 8 L.Ed. 483
1966, the General Counsel to the Depart-
(1832); Cherokee Nation V. Georgia, 30
376
528 FEDERAL REPORTER, 2d SERIES
U.S.
(5
Pet.)
8
L.Ed.
25
(1831);
and
ment's protective role under the Nonin-
the cases cited in the district court's
tercourse Act, see below, it is appropri-
opinion, 388 F.Supp. at 662-63. It is the
ate that plaintiffs and the federal
defendants' and the intervenor's conten-
government learn how they stand on
tion here that such a relationship may
these core matters before adjudication of
only be claimed by those specifically rec-
the Tribe's dispute with Maine
ognized
Yet the resulting bifurcation of deci-
The Tribe, however, contends other-
necessarily restricts the reach of the
wise. It rests its claim of a trust rela-
present rulings. In reviewing the dis-
tionship on the Nonintercourse Act, en-
trict court's decision that the Tribe is a
acted in its original form by the First
tribe within the Nonintercourse Act, we
Congress in 1790 to protect the lands
are not to be deemed as settling, by im-
of "any
tribe of Indians."
plication or otherwise, whether the Act
Plaintiffs argue, and the district court
affords relief from, or even extends to,
found, that the unlimited reference to
the Tribe's land transactions with Maine.
"any
tribe"
must
be
read
to
When and if the specific transactions are
include the Passamaquoddy Tribe as well
litigated, new facts and legal and equita-
as tribes specially recognized under sepa-
ble considerations may well appear, and
rate federal treaties, agreements or stat
Maine should be free in-any such future
utes. As the Act applies to them, plain-
litigation to defend broadly, even to the
tiffs urge that it is sufficient to evidence
extent of arguing positions and theories
congressional acknowledgement of a
which overlap considerably those treated
trust relationship in their case at least as
here
respects the Tribe's land claims.
Now, however, for purposes of the is-
Before turning to the district court's
sues currently existing between them-
rulings, we must acknowledge a certain
selves and the federal government, plain-
awkwardness s in deciding whether the
tiffs are entitled to declaratory rulings
Act encompasses the Tribe without con-
on the basis of which courses can be
sidering at the same time whether the
charted and actions planned and taken.
Act encompasses the controverted land
transactions with Maine. Whether the
Is the Passamaquoddy Tribe a
"tribe" within the Nonintercourse
Tribe is a tribe within the Act would
best be decided, under ordinary circum-
stances, along with the Tribe's specific
[1] The district court found the Pas-
land claims, for the Act only speaks of
samaquoddy Tribe to be within the lan-
tribes in the context of their land deal-
guage of the Nonintercourse Act, "any
ings. If that approach were adopted
tribe of Indians." It read the
here, however, the Tribe would be de-
quoted language as encompassing all
prived of a decision in time to do any
tribes of Indians. The court reasoned
good on those matters cited by the
that the Act should be given its plain
Department of the Interior as reasons
meaning, there being no evidence of any
for withholding assistance in litigation
contrary congressional intent, legislative
against Maine. And without United
history, or administrative interpretation;
States participation, the Tribe may find
that the policy of the United States is to
it difficult or impossible ever to secure a
protect Indian title; that there is no
judicial determination of the claims.
reason why the Passamaquoddy Tribe
Given, in addition, the federal govern-
should be excluded since it is stipulated
6. Indian title, also called "right of occupancy,"
extinguish Indian title is an attribute of sover-
refers to the Indian tribes' aboriginal title to
eignty which no state, but only the United
land which predates the establishment of the
States, can exercise, the Nonintercourse Act
United States. See, e. g., Oneida Indian Na-
giving statutory recognition to that fact. Id. at
tion V. County of Oneida, 414 U.S. 661, 667, 94
667, 670, 94 S.Ct. 772; O'Toole & Tureen, su-
S.Ct. 772, 39 L.Ed.2d 73 (1974). The right to
pra note 4, at 25-26.
JOINT TRIB. COUN. OF PASSAMAQUODDY TRIBE V. MORTON
377
the Nonin-
to be a tribe racially and culturally; that
with appellants' interpretation. Rather
is appropri-
there is no requirement that tribe
we find an inclusive reading consonant
the federal
must be otherwise recognized by the fed-
with the policy and purpose of the Act
stand on
eral government to come within the
That policy has been said to be to pro-
djudication of
Nonintercourse Act; and that even
if
tect the Indian tribes' right of occupan-
Maine.
"tribe" is thought to be ambiguous, it
cy, even when that right is unrecognized
of deci-
should be construed non-technically and
by any treaty, United States V. Santa Fe
reach of the
to the advantage of Indians so as to
Pacific R. Co., 314 U.S. 339, 345, 347, 62
the dis-
include the Passamaquoddy Tribe
S.Ct. 248, 86 L.Ed. 260 (1941), rehearing
the Tribe is a
[2, 3] Intervenor and defendants con-
denied, 314 U.S. 716, 62 S.Ct. 476, 86
course Act, we
tend that "any
tribe of Indi-
L.Ed. 570 (1942), and the purpose to pre-
ettling, by im-
ans" is ambiguous; that its proper
vent the unfair, improvident, or improp-
ether the Act
meaning is a community of Indians
er disposition of Indian lands, Federal
extends to,
Power Commission V. Tuscarora Indian
which the federal government has at
with Maine.
some time specifically recognized; and
Nation, 362 U.S. 99, 119, 80 S.Ct. 543, 4
ransactions are
that the Passamaquoddy Tribe is, in that
L.Ed.2d 584, rehearing denied, 362 U.S.
and equita-
sense, not a tribe. "No court", says in-
956, 80 S.Ct. 858, 4 L.Ed.2d 873 (1960);
appear, and
tervenor, "has ever held a statute regu-
United States V. Candelaria, 271 U.S.
such future
lating trade and intercourse with Indians
432, 441, 46 S.Ct. 561, 70 L.Ed. 1023
even to the
to apply to a tribe which the Federal
(1926). Since Indian lands have, histori-
and theories
Government disavows any relationship
cally, been of great concern to Congress,
those treated
with.
see Oneida Indian Nation V. County of
Oneida, 414 U.S. 661, 667, 94 S.Ct. 772,
But while Congress' power to regulate
of
the
is-
39 L.Ed.2d 73 (1974), we have no diffi-
commerce with the Indian tribes, U.S.
between them-
culty in concluding that Congress intend-
Const. art. I, § 8, includes authority to
ernment, plain-
ed to exercise its power fully.
decide when and to what extent it shall
aratory rulings
recognize a particular Indian community
This is not to say that if there were
courses can be
as a dependent tribe under its guardian-
doubt about the tribal status of the
and taken.
ship,⁷ United States Sandoval, 231
Tribe, the judgments of officials in the
Tribe a
U.S. 28, 46, 34 S.Ct. 1, '58 L.Ed. 107
federal executive branch might not be of
Nonintercourse
(1913), Congress is not prevented from
great significance. The Supreme Court
legislating as to tribes generally; and
has said that, it is the rule of this court
this appears to be what it has done in
to follow the executive and other politi-
found the Pas-
successive versions of the Nonintercourse
cal departments of the government,
within the lan-
Act. There is nothing in the Act to sug-
whose more special duty is to deter-
Act, "any
gest that "tribe" is to be read to exclude
mine such affairs." United States V.
It read the
a bona fide tribe not otherwise federally
Sandoval, 231 U.S. at 47, 34 S.Ct. at 6,
compassing
all
recognized.⁸ Nor, as the district court
quoting United States V. Holliday, 70
court
reasoned
found, is there evidence of congressional
U.S. (3 Wall.) 407, 419, 18 L.Ed. 182
given its plain
intent or legislative history squaring
(1865). But the Passamaquoddies were a
evidence of any
legislative
7. Congress also has right to determine for
there is no question that the Tribe is a "dis-
interpretation;
itself when the guardianship which has been
tinctly Indian" community.
States is to
maintained over the Indian shall cease. Unit-
8. In United States V. Candelaria, 271 U.S. 432,
there is no
ed States V. Sandoval, 231 U.S. 28, 46, 34 S.Ct.
442, 46 S.Ct. 561, 563, 70 L.Ed. 1023 (1926),
naquoddy Tribe
1, 6, 58 L.Ed. 107 (1913). On the other hand,
the Supreme Court, quoting Montoya V: United
it is stipulated
Congress' power is limited in the sense that it
States, 180 U.S. 261, 266, 21 S.Ct. 358, 45
may not bring "a community or body of peo-
L.Ed. 521 (1901), read "Indian tribe," as used
ple within the range of [its]
power
in the Nonintercourse Act of 1834, 25 U.S.C.
attribute of sover-
by arbitrarily calling them an Indian tribe,"
$ 177, to mean "a body of Indians of the same
only the United
and may exercise its guardianship and protec-
or a similar race, united in a community under
lonintercourse Act
tion only "in respect of distinctly Indian com-
one leadership or government, and inhabiting
to that fact. Id. at
munities." Id. It having been stipulated,
a particular, though sometimes ill-defined, ter-
oole
&
Tureen,
su-
however, that the Passamaquoddy Tribe is a
ritory." The Tribe plainly fits that definition.
tribe in both the racial and cultural sense,
528 F.2d-24½
378
528 FEDERAL REPORTER, 2d SERIES
tribe before the nation's founding and
do, it is true, suggest that the Act's cov-
have to this day been dealt with as a
erage is limited to. tribes consisting of
tribal unit by the State.' See 22 M.R.
"simple, uninformed an inter-
S.A. ch. 1355. No one in this proceeding
pretation understandable in light of the
has challenged the Tribe's identity as a
Act's protective purpose. But it is not
tribe in the ordinary sense. Moreover,
claimed that the Tribe and its members
there is no evidence that the absence of
are so sophisticated or assimilated as to
federal dealings was or is based on
be other than those entitled to protec-
doubts as to the genuineness of the Pas-
tion. Cf. Joseph, supra. Candelaria is
samaquoddies' tribal status, apart, that
cited mainly in support of intervenor's
is, from the simple lack of recognition.
argument that the Act requires federal
Under such circumstances, the absence
recognition, but it does not elevate rec-
of specific federal recognition in and of
ognition to a sine qua non it merely
itself provides little basis for concluding
indicates that if there is a question of
that the Passamaquoddies are not a
inclusion, federal recognition of depend-
"tribe" within the Act.
ent, tribal status may be helpful evi-
Intervenor cites two cases dealing
dence of Gongress' intent.
with the Pueblo Indians of New Mexico
for its contention that "tribe" refers only
[4,5] Appellants also assert that
to tribes that have been federally recog-
there is significance to Congress' approv-
nized. United States V. Candelaria, su-
al of the Articles of Separation between
pra; United States V. Joseph, 94 U.S.
Maine and Massachusetts, providing that
614, 24 L.Ed. 295 (1876). In Joseph, the
Maine would assume the duties and obli-
Supreme Court found that the Pueblo
gations which Massachusetts owed to the
Indians were not a tribe within the Non-
Indians. But, as the district court recog-
intercourse Act, apparently because of
nized, Maine's assumption of duties to
their high degree of civilization and the
the Tribe did not cut off whatever feder-
nature of their earlier relations with the
al duties existed. Voluntary assistance
Government of Mexico when they had
rendered by a state to a tribe is not
been under its control.¹ In Candelaria,
necessarily inconsistent with federal pro-
the Court held that the Pueblos did come
tection. See State V. Dibble, 62 U.S. (21
within the Act, though it did not ex-
How.) 366, 16 L.Ed. 149 (1858). Similar-
pressly overrule the Joseph view that
ly, Congress' unwillingness to furnish aid
some tribes, because highly civilized or
when requested did not, without more,
otherwise, might conceivably be exempt.
show a congressional intention that the
The Court found that the Pueblos were a
Nonintercourse Act should not apply.
simple, uninformed people such as the
(See Part II, C infra.) The reasons be-
Act was intended to protect and pointed
hind Congress' inaction are too proble-
to federal recognition in the past as evi-
matic for the matter to have meaning
dencing Congress' intention to protect
for purposes of statutory construction.
the Pueblos. 271 U.S. at 440-42, 46
Cf. Order of Railway Conductors V.
S.Ct. 561. These cases lend little aid to
Swan, 329 U.S. 520, 529, 67 S.Ct. 405, 91
intervenor and defendants. The cases
L.Ed. 471 (1947).
9. In State V. Newell, 84 Me. 465, 24 A. 943
tribal existence for purposes of the Act turns
(1892), it is true, the Maine court disputed the
on whether a given tribe has retained sover-
continued viability of the Tribe, apparently on
eignty in this absolute sense.
the grounds that its sovereignty, such as the
10. The Pueblos had submitted to all laws of
power to make war or peace, and the like, had
the Mexican Government, their civil rights had
vanished, and the political and civil rights of
its members were enforced only in the courts
been fully recognized, and they had been ab-
of the State. Nonetheless that court did ac-
sorbed into the "general mass of the popula-
tion." United States V. Joseph, 94 U.S. 614,
knowledge the Passamaquoddies' tribal organi-
617, 24 L.Ed. 295 (1876).
zation for certain purposes, id. at 468, 24 A.
943, and no federal cases hold that the test of
JOINT TRIB. COUN. OF PASSAMAQUODDY TRIBE V. MORTON
379
Cite as 528 2d 370 (1975)
that the Act's cov-
We
have
considered
appellants's
re-
We
emphasize
what
is
obvious,
that
tribes consisting of
maining arguments carefully and find
the "trust relationship" we affirm has as
-people," an inter-
them unpersuasive. We agree with the
its source the Nonintercourse Act, mean-
able in light of the
district court that the words any
ing that the trust relationship pertains
ose But it is not
tribe of Indians" appearing in the Act
to land transactions which are or may be
be and its members
include the Passamaquoddy Tribe.
covered by the Act, and is rooted in
or assimilated as to
rights and duties encompassed or created
entitled to protec-
B. Is there 2 trust relationship between
by the Act. Congress or the executive
pra Candelaria is
the Passamaquoddy. Tribe and the
branch may at a later time recognize the
ort of intervenor's
federal government?
Tribe for other purposes within their
ict requires federal
powers, creating a broader set of federal
es not elevate rec-
[6] The district court found that the
responsibilities; and we of course do not
ua non it merely
Nonintercourse Act establishes a trust
rule out the possibility that there are
re is a question of
relationship between the United States
statutes or legal theories not now before
ognition of depend-
and the Indian tribes, including the Pas-
us which might create duties and rights
ay be helpful evi-
samaquoddy Tribe. It relied on a series
of unforeseen, broader dimension. But
itent.
of decisions by the Court of Claims, Fort
on the present record, only the Noninter-
Sill Apache Tribe V. United States, 201
course Act is the source of the finding of
also assert that
Ct.Cl. 630, 477 F.2d 1360 (1973); United
"trust relationship," and neither the
to Congress' approv-
States Oneida Nation of New York,
decision below nor our own is to be read
Separation between
201 Ct.Cl. 546, 477 F.2d 939 (1973); Sen-
as requiring the Department of the Inte-
setts, providing that
eca Nation V. United States, 173 Ct.CL
rior to look to objects outside the Act in
the duties and obli-
917 (1965), while also finding support in
defining its fiduciary obligations to the
chusetts owed to the
an extensive body of cases holding that
Tribe.
district court recog-
when the federal government enters into
Once this is said, there is little else
aption of duties to
a treaty with an Indian tribe or enacts a
left, since it would be inappropriate to
off whatever feder-
statute on its behalf, the Government
attempt to spell out what duties are im-
Voluntary assistance
commits itself to a guardian-ward rela-
posed by the trust relationship. This dis-
to a tribe is not
tionship with that tribe. See, e. g.,
pute arises merely from the defendants'
nt with federal pro-
Heckman V. United States, 224 U.S. 413,
flat denial of any trust relationship; no
Dibble, 62 U.S. (21
32 S.Ct. 424, 56 L.Ed. 820 (1912); United
question of spelling out specific duties is
149 (1858). Similar-
States V. Kagama, 118 U.S. 375, 6 S.Ct.
presented. It is now appropriate that
gness to furnish aid
1109, 30 L.Ed. 228 (1886); Worcester V.
the departments of the federal govern-
not, without more,
Georgia, supra.
ment charged with responsibility in these
intention that the
We agree with the district court's con-
matters should be allowed initially at
should not apply.
clusions and in large part with its rea-
least to give specific content to the de-
L) The reasons be-
soning and analysis of legal authority.
clared fiduciary role.
ion are too proble-
That the Nonintercourse Act imposes
Thus we are not moved by intervenor's
r to have meaning
upon the federal government a fiduci-
criticism of the lower court's interpreta-
utory-construction
ary's role with respect to protection of
tion of cited Court of Claims cases, for
Conductors
the lands of a tribe covered by the Act
those arguments go more to the scope of
529, S.Ct. 405, 91
seems to us beyond question, both from
the federal government's duties under
the history, wording and structure of the
particular circumstances than to the ex-
Act and from the cases cited above and
istence of a trust relationship. Nor are
poses of the Act turns
in the district court's opinion. The pur-
we moved by intervenor's other com-
be has retained sover-
pose of the Act has been held to ac-
plaint that the judgment below implies
sense.
knowledge and guarantee the Indian
some sort of overly "general" fiduciary
bmitted to all laws of
tribes' right of occupancy, United States
relationship, unlimited and undefined.
It, their civil rights had
V. Santa Fe Pacific R. Co., 314 U.S. at
and they had been ab-
A fiduciary relationship in this context
il mass of the popula-
348, 62 S.Ct. 248, and clearly there can
must indeed be based upon a specific
Joseph, 94 U.S. 614,
be no meaningful guarantee without a
statute, treaty or agreement which helps
i).
corresponding federal duty to investigate
define and, in some cases, limit the rele-
and take such action as may be warrant-
vant duties; but, as we have held, the
ed in the circumstances.
Nonintercourse Act is such a statute.
380
528 FEDERAL REPORTER, 2d SERIES
We affirm, on the basis set forth here-
ter V. Shaw, 280 U.S. 363, 367, 50 S.Ct.
in, the finding of a trust relationship and
121, 74 L.Ed. 478 (1930). We agree with
the finding that the federal government
the district court that any-withdrawal of
may not decline to litigate on the sole
trust obligations by Congress would have
ground that there is no trust relation-
to have been "plain and unambiguous"
ship.
to be effective.¹ We also agree that
there is no affirmative evidence that
C. Are plaintiffs precluded by acquies-
Congress at any time terminated or
cence or by congressional termina-
withdrew its protection under the Nonin-
tion of its guardianship role from
tercourse Act. The federal government
now asserting a trust relationship
has been largely inactive in relation to
with the federal government?
the Tribe and has, on occasion, refused
[7] Intervenor also contends that, un-
requests by the Tribe for assistance. In-
der general equitable principles, the
tervenor argues that this course of deal-
Tribe should be precluded from now in-
ings is sufficient in and of itself to show
voking a trust relationship with the fed-
a withdrawal of protection. However,
eral government because of its long-
refusing specific. requests is quite differ-
standing relationship with the State of
ent from broadly refusing ever to deal
Maine. However, once Congress has es-
with the Tribe, and, as stated above,
tablished a trust relationship with an In-
there is no evidence of the latter.
dian tribe, Congress alone has the right
to determine when its guardianship shall
[10] Intervenor also points to a deci-
cease. United States V. Nice, 241 U.S.
sion by the Supreme Judicial Court of
591, 598, 36 S.Ct. 696, 60 L.Ed. 1192
Maine, State V. Newell, 84 Me. 465, 24 A.
(1916); Tiger V. Western Investment Co.,
943 (1892), which found that the Passa-
221 U.S. 286, 315, 31 S.Ct. 578, 55 L.Ed.
maquoddy Tribe has never been recog-
738 (1911). Neither the Passamaquoddy
nized by the fedeal government, and ar-
Tribe nor the State of Maine, separately
gues that the federal government's fail-
or together, would have the right to
ure to react to that decision by recogniz-
make that decision and so terminate the
ing the Tribe in some way amounts to an
federal government's responsibilities.¹¹
acknowledgement of that ruling. How-
[8, 9] We turn, then, to whether Con-
ever, the federal government had no ob-
gress itself has manifested at any time a
ligation to respond to the state court's
determination that its responsibilities un-
decision, which could not affect federal
der the Nonintercourse Act should cease
authority with respect to the Tribe. See
with respect to the Tribe. The district
Oneida Indian Nation V. County of Onei-
court cited a rule of construction that
da, supra.
statutes or treaties relating to the Indi-
We accordingly affirm the district
ans shall be construed liberally and in a
court's ruling that the United States
non-technical sense, as the Indians would
never sufficiently manifested withdrawal
naturally understand them, and never to
of its protection so as to sever any trust
the Indians' prejudice. Antoine V.
relationship. In so ruling, we do not
Washington, 420 U.S. 194, 199-200, 95
foreclose later consideration of whether
S.Ct. 944, 43 L.Ed.2d 129 (1975); Carpen-
Congress or the Tribe should be deemed
11. One might argue that, although Congress
12. The Supreme Court has said with respect to
has not terminated this relationship, the
the termination of Indian reservations that it
Tribe's own course of dealings with the State
will not lightly conclude that a reservation has
of Maine still prevent it from asking Congress
been terminated and will require a clear indi-
for assistance. However, the Indians' pre-
cation of that fact. DeCoteau V. District
sumed helplessness is at the heart of the
County Court, 420 U.S. 425, 444, 95 S.Ct.
guardian-ward analogy; to deny the ward a
1082, 43 L.Ed.2d 300 (1975).
right to call upon the guardian for protection
would be to deny that he was incapable of
looking out for himself.
UNITED STATES V. WILLIS
381
Cite as 528 F.2d 381 (1976)
in some manner to have acquiesced in, or of the drawer was forged, and where he
Congress to have cratified, the Tribe's drew the money after the forged check
of
land transactions with Maine.
cleared the Texas bank, he was properly
Judgment affirmed..
found guilty of interstate transportation
of a forged security, even though the
fruition of the alleged scheme occurred
after the mails were utilized. 18 U.S.
o
KEY NUMBER SYSTEM
C.A. § 2314.
2. Receiving Stolen Goods
1
Mail fraud statute's peculiar lan-
to
guage, i.e., that use of the mails be for
the purpose of executing a fraudulent
UNITED STATES of America,
scheme, is not an element of the crime
Plaintiff-Appellee,
of interstate transportation of a forged
V.
security; all that the interstate transpor-
tation statute requires is that defendant
Alvin WILLIS, Jr.,
either transport or cause to be transport-
Defendant-Appellant.
ed in interstate commerce the forged se-
No. 75-3009.
curity knowing it was forged. 18 U.S.
C.A. $ 2314.
United States Court of Appeals,
Ninth Circuit.
of
Jan. 12, 1976.
Jerome S. Stanley, Sacramento, Cal.,
for defendant-appellant.
Bruce Babcock, Jr., Asst. U. S. Atty.,
The United States District Court for
Sacramento, Cal., for plaintiff-appellee.
the Eastern District of California, Thom-
as J. MacBride, Chief Judge, found de-
OPINION
fendant guilty of interstate transporta-
Before CHOY and KENNEDY, Circuit
tion of a forged security, and he appeal-
Judges, and WONG,* District Judge.
ed. The Court of Appeals held that
where defendant knowingly and fraudu-
PER CURIAM:
lently deposited a forged check drawn on
On stipulated facts, Defendant was
a Texas bank in his California bank
ee
found guilty of interstate transportation
account knowing that the signature of
of a forged security. We affirm.
the drawer was forged, and where he
He contends here that United States
drew the money after the forged check
V. Maze, 414 U.S. 395, 94 S.Ct. 645, 38
cleared the Texas bank, he was properly
L.Ed.2d 603 (1974) bars his conviction be-
found guilty of interstate transportation
cause the fruition of the alleged scheme
of a forged security, even though the
occurred after the mails were utilized.
fruition of the alleged scheme. occurred
after the mails were utilized.
(In Maze, a case under the mail fraud
statute, 18 U.S.C. § 1341, the mailing
Affirmed.
occurred after the fraud was consum-
mated so the Court held that the use of
to
1. Receiving Stolen Goods -1
the mails had not been "for the purpose
it
Where defendant' knowingly and
of executing such [fraudulent] scheme or
fraudulently deposited a forged check
artifice" as the statute required.)
drawn on a Texas bank in his California
[1] Here the essential stipulated facts
Ct.
bank account knowing that the signature
were that Willis knowingly and fraudu-
The Honorable Dick Yin Wong, United States District Judge, District of Hawaii, sitting by
designation.
THE WHITE HOUSE
WASHINGTON
August 26, 1976
MEMORANDUM FOR: The Secretary of the Treasury
The Secretary of Defense
The Attorney General
The Secretary of the Interior
The Secretary of Agriculture
The Secretary of Commerce
The Secretary of Labor
The Secretary of Health, Education, and Welfare
The Secretary of Housing and Urban Development
The Secretary of Transportation
The Director, Office of Management and Budget
The Chairman, Civil Service Commission
The Administrator of General Services
The Administrator, Small Business Administration
The Administrator of Veterans Affairs
The Director, Community Services Administration
The Administrator, Environmental Protection
Agency
The Acting Chairman, Equal Employment
Opportunity Commission
The Governor, Farm Credit Administration
I am today designating Bradley H. Patterson, Jr., of the White
House Office to assist me in the area of American Indian affairs.
It will be Mr. Patterson's specific responsibility to work with
each of you to improve the coordination among the Federal agencies
with programs that serve the Indian people.
It is important that you insure the effective delivery and
efficient operation of Federal Indian programs and services.
I request that priority attention be given to coordination
of these efforts among the Departments and Agencies and within
the Executive Office of the President.
In addition, I request you continue to insure that when Federal
actions are planned which affect Indian communities, the responsible
Indian leaders are consulted in the planning process.
FORD
LIBRARY
Some items in this folder were not digitized because it contains copyrighted
materials. Please contact the Gerald R. Ford Presidential Library for access to
these materials.
Welcome To
INDIAN
ISLAND
Home of the Penobso
The New York Times/Arthur Grace
Nicholas Sappiel, leader of Penobscot Indians, chides Maine officials who "used to laugh about this case"
Maine Indian Suit for Land Halts
Bond Sales and Endangers Titles
By JOHN KIFNER
Special to The New York Times
CALAIS, Me., Oct. 23-The Indians may
But Mr. Tureen, a young antipoverty
legally own two-thirds of Maine.
lawyer who read the fine print of history,
This possibility, raised in a lawsuit that
has steered his case over a convoluted
seemed insignificant, even ludicrous, four
course that saw the Federal courts order
years ago, has suddenly blocked the sale
the United States Government to sue the
of millions of dollars of municipal bonds,
State of Maine on behalf of the Indians.
cast in doubt the ownership of private
Mr. Tureen contends that the Federal
lands and whole towns and thrown the
courts have now settled what he says is
state government here into consternation.
the central issue of the case by finding
The suit on behalf of the Passamaquod-
that the Nonintercourse, Act applies to
dy and Penobscot Indian tribes charges
the Maine tribes.
that their ancestrial forest lands were il-
"Nobody could believe it," Mr. Tureen
legally bargained away to the local white
said of the suit he filed in 1972, and
authorities in violation of the Federal
added, "We would have settled cheap."
Nonintercourse Act of 1790.
The claims center on 12 million acres
Now the Indians, who were allies of
or more, worth some $25 billion, accord-
the patriots in the Revolution, are not
ing to Thomas N. Tureen, alttorney for the
inclined to accept Gov. James B. Longley's
Indians here.
urging that they drop their land claims.
"They used to laugh about this case
The existence of the case has, in recent
and everything else," said Nicholas Sappi-
days, stopped the sale of $27 million of
el, the leader of the Penobscot Indians.
bonds by the Maine Bond Bank, halting
"Now they're getting a few gray hairs.
school and hospital construction in small
You've never seen: so many lawyers. It
municipalities. It has also left the larger
reminds you of a cartoon."
towns of Ellsworth and Millinocket un-
"It's preposterous," said State Attorney
able to float $4.4 million in bonds and
General Joseph E. Brennan, Maine's chief
sent Governor Longley and other offi-
legal officer. You just don't undo 200
years of history that readily
Continued on Page 59, Column 1
THE WHITE HOUSE
WASHINGTON
November 24, 1976
MEMORANDUM FOR: JIM CONNOR
BOBBIE KILBERG BK
FROM:
Counsel's Office agrees with the actions
reported in Cannon's memorandum.
CC: Phil Buchen
FORD
GERALO
THE WHITE HOUSE
ACTION MEMORANDUM
WASHINGTON
LOG NO.:
Date:
November 18, 1976
Time:
FOR ACTION:
CC (for information):
Phil Buchen (Bobbie Kilberg)
FROM THE STAFF SECRETARY
DUE: Date:
Soon as Possible
Time:
SUBJECT:
Memo from Bradley Patterson & George
Humphreys re: Governor Longley's Inquirey re the
Passamaquoddy/Penobscot Case
ACTION REQUESTED:
For Necessary Action
For Your Recommendations
Prepare Agenda and Brief
Draft Reply
X For Your Comments
Draft Remarks
REMARKS:
As Discussed would like your comments on
this informational memo before sending into the
President.
GERALD LIBRARY A. FORD
PLEASE ATTACH THIS COPY TO MATERIAL SUBMITTED.
If you have any questions or if you anticipate a
Jim Connor
delay in submitting the required material, please
For the President
telephone the Staff Secretary immediately.
THE WHITE HOUSE
WASHINGTON
INFORMATION
November 15, 1976
MEMORANDUM FOR THE PRESIDENT
THROUGH:
JAMES M. CANNON
BRADLEY H. PATTERSON, July JR.
Pred
Patterm
FROM:
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.
FORD is LIBRARY
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- 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 General, transmitting documents showing the
the strength of the case and inviting his input and comment.
WWW.LIBRARY is 078870
-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.
GERALD FORD LIBRARY
THE WHITE HOUSE
WASHINGTON
November 29, 1976
NOTE FOR
Phil Buchen
George Numphreys
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
LIBRARY
DEPARTMENT OF
United States Department of the Interior
OFFICE OF THE SECRETARY
March
OFF
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
1776-1976
DERALO FORD LIBRARY
-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,
H. Gray Quitin
Acting Secretary of the Interior
FORD is LIBRARY 071439
DEPARTMENT
OF
United States Department of the Interior
THE
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
8
GERALD
FORD
LIBRARY
-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
Passamaquoddy 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.
R.
FORDA
LIBRA
THE WHITE HOUSE
washington
November 23
TO:
PHIL BUCHEN
FROM: GEORGE W. HUMPHREYS
Memo went to the
President on 11/15.
FURD
LIBRARY
COPY FOR MR. BUCHEN
THE WHITE HOUSE
WASHINGTON
copy Hold FILE.
November 12, 1976
v
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
respectively, wherein the Indians gave up
GERALD FORD LIBRAFT
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 tine 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.
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Indian
THE WHITE HOUSE
WASHINGTON
December 3, 1976
MEMORANDUM TO:
PHIL BUCHEN
BRADLEY PATTERSON
FROM:
JIM CANNON
SUBJECT:
Passamaquoddy Jui 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.
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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.
FORD : LIBRARY 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.
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