1976 to 1980

unsettled

A Passamaquoddy Indian pauses in contemplation at the edge of Long Lake on Peter Dana Point in Indian Township recently. Stakes were high for Maine’s tribes and the state alike in the developments that preceded the historic Indian land claims settlement. Photo by Gabe Souza/Staff Photographer

F

inally, the day came when Maine’s political leaders, the press and the public realized the Indians’ land claim was real. It was Monday, Sept. 27, 1976, the day the town of Millinocket discovered it could not float a $1 million sewer bond because of the lawsuit. Within hours, the state treasurer discovered a similar fate would befall bonds planned by seven school districts, six towns and two hospital groups – with $27 million in total at stake.

The Boston law firm Ropes & Gray – legal adviser to most of the nation’s bond markets – warned that the tribes’ claims as the rightful owners of huge swaths of northern and eastern Maine could render all of these bonds worthless. With uncertainty over title within the vast claim area, residential mortgages and property sales were also up in the air.

Suddenly everyone was taking the Indians’ cases seriously.

Early that Wednesday morning, Gov. Jim Longley – the fiery populist – called Tom Tureen, screaming.

“He was absolutely livid, and said he was going to Washington to fix this,” Tureen recalls. The governor had a radical fix in mind: changing federal law to ensure the Indians would never get their day in court. He had gone from dismissing the suit as a joke to demanding a suspension of the rule of law.

“This was a real constitutional crisis he was precipitating, because in a constitutional democracy, you don’t deal with a group of people who are poor and powerless and win a decision in court by asking Congress to write a new law,” Tureen says. “How do you expect people to have respect for the law if, when it benefits someone you didn’t expect it to, you change it?”

Tureen jumped out of bed in Calais, raced to his plane at the airfield in St. Stephen, New Brunswick, and took off for Washington National Airport. Somewhere out ahead of him, a state-owned, eight-seat Piper Navajo was headed in the same direction, carrying the furious governor. En route, Tureen managed to learn via radio that Longley had called a meeting with Maine’s congressional delegation in the U.S. Capitol.

Back then, security in Washington wasn’t was it is today. Visitors could just stroll into the Capitol building, and Tureen wandered the halls unaccompanied trying to find the meeting room. “I was unannounced, but it didn’t matter, because Longley was screaming so loudly I could hear everything he was saying through the door in the hall,” Tureen says. “He was a wild guy.”

Congress, Longley told Sens. Edmund Muskie and Bill Hathaway and Reps. William Cohen and Dave Emery, should pass a resolution ordering the federal courts not to hear the tribes’ cases.

“It didn’t take any of us very long to realize that whether this was reasonable or unreasonable or right or wrong or just or unjust, the fact was that a tremendous amount of economic damage would be done to the state if the issue wasn’t resolved one way or another,” Emery recalls. “We didn’t want to set up a situation where the state government and Gov. Longley and Attorney General Joe Brennan would be on one side and these four guys sent to Washington were on the other.”

Cohen drafted the resolution, which was backed by the entire delegation, despite the fact that Muskie and Hathaway had previously lobbied the federal government to give the Passamaquoddy their day in court.

“Longley was a problem for them, because he was very popular and had created this firestorm,” Tureen says. “He put them in a very tough spot.”

Fortunately for the tribes, Congress adjourned without taking up the resolution. Everyone returned to Maine for an awkward winter of recrimination and worry.

Longley was a polarizing figure, comparable in some ways to Maine’s current Gov. Paul LePage. He won in a three-way race, with 60.3 percent of the electorate voting for his rivals. He called state legislators “pimps,” prompting national media attention. He stayed up late into the night writing venomous, punctuation-less letters to his opponents. “He’s just about divided the state during his first 70 days in office,” Bangor Daily News State House Bureau Chief John Day wrote in March 1975. “People either like him, or they think he’s Attila the Hun.”

For the Passamaquoddy, Longley was the latter. “He got on television and thanked the people of Maine for not resorting to violence – but nobody had been talking about violence,” says Tureen, who started getting death threats by telephone. “The tribe had been saying all along that this was a case for settlement, that could be resolved by negotiation … and Longley saw the claims as a way to create a need for his leadership, by telling people they had something to fear and that he was the one to protect them.”

“It was simple demagoguery,” he adds. “And it worked. He could have been elected emperor for life at some points in there.”

Bobby Newell, who would serve on the tribal negotiating team, remembers getting a knock on his door at Pleasant Point, a four-hour drive from Augusta, shortly after being quoted disparaging Longley in the papers. There, on his doorstep, was the governor himself. “He wasn’t yelling, but he was extremely agitated,” Newell recalls. “I said, ‘Listen, you may be the governor of Maine, but this is my house!'”

That winter, the Passamaquoddy and Penobscot made a number of goodwill concessions, including a pledge not to seek to fine or seize land from small landowners in the claims area; their case would seek damages from the federal government and target land held by the state or the paper companies. Maine’s congressional delegation responded by introducing bills to extinguish the Indians’ claims and limit the damages they could collect.

“The basic bill they proposed said ‘Never mind their rights,'” recalls Wayne Newell, who served on the tribal council at the time. “The majority was just going to wipe away their crimes.”

Then, to defuse the situation, the White House got involved. Months of proposals and counterproposals followed, with negotiating teams from the state and the tribes rejecting each. But everyone had ample incentive to keep talking because sending such an explosive case to trial carried staggering risks.

The Indians had reason to fear that, if pushed to the wall, Maine might get Congress to extinguish their claim or the courts would bow to public opinion. “The case could never be litigated because as a practical matter it was far too complex,” says the head of the state’s negotiating team, John Paterson, who was deputy attorney general. “The tribes and their lawyers … knew they’d be going to the Supreme Court and saying, ‘Uphold this 1790 law and evict 350,000 people from their land.’ There was tremendous risk in that (because) judges read newspapers too.”

On the other hand, if the parties went to trial, the state team feared titles, mortgages and new bond flotations could be frozen across two-thirds of the state for five or six years. Attorney General Richard Cohen – who took office in 1979 – would later tell the Legislature these would be “potentially catastrophic consequences” even if the state ultimately prevailed in court.

“Given … the risks of the people of this state losing a substantial amount of land, the possibility of the state and its citizens being required to pay millions in trespass damages, I concluded that I had a duty to look for a reasonable settlement,” he added. The state’s central goal: to make the federal government pay all the costs of whatever settlement was negotiated.

Meanwhile, the atmosphere was turning uglier. Indian children were harassed at schools. There were runs on guns at sporting goods stores. One state legislator told White House negotiators “someone should get a gun and shoot those bastards.” A state senator said he was going to “invest heavily in Winchesters and Remingtons.”

Esther Attean, 10 years old at the time, remembers waiting for the bus near the base of the Pleasant Point causeway, watching a 16-year-old Penobscot girl walk across the span. A truck driven by three white guys from Eastport swerved to knock her off the causeway, breaking her legs. “They just deliberately hit her, and the police never came and nobody was prosecuted,” she recalls. “But there was a lot of violence like that then.”

Pierre Redmond, an activist from Madison, argued against negotiation on the grounds that the Indians’ suit presented no threat because a victory could never be enforced. “Will there be any army of United States marshals which will descend upon the homeowners, farmers and woodsmen of eastern Maine? Will they be armed?” he asked in testimony before Congress. “Will people be injured and possibly killed if there is resistance to this court order? … Does anyone in Maine seriously advance the argument that the courts would do such a thing?”

Sen. Hathaway, who had taken a moderate approach in the negotiations, was taken to task in the 1978 Senate campaign by his challenger, Rep. Bill Cohen, an outspoken opponent of the claim. Cohen ran an ad accusing Hathaway of breaking Maine in half, with an image of the state cracking like an egg. Cohen would crush the incumbent in November.

Then, two legal bombshells scared the parties into one another’s arms.

The first, bizarrely enough, involved former Chief Allen Sockabasin allegedly burning down his reservation’s school in April 1977. Sockabasin and another Indian had been convicted of arson by a Washington County court but they appealed on the grounds that Indian Township was “Indian Country” under the federal Indian Non-Intercourse Act of 1790 and therefore the state had no criminal jurisdiction.

In July 1978, to the horror of state officials, Maine’s highest court unanimously sided with the defendants. Maine criminal, environmental, business, hunting, fishing and income tax laws suddenly no longer applied on tribal reservations.

The state came to the table. Terms were negotiated. The federal government had agreed to pay.

Then in 1979 the U.S. Supreme Court handed down a decision in the case Wilson v. Omaha, which put into question the central pillar of Tureen’s entire case. The 1790 Non-Intercourse Act, the justices ruled, applied only in “Indian Country,” which did not include land “within any state,” suggesting the nation’s highest court might overturn the Sockabasin case and any land claims case won by tribes in the original Colonies.

“We were in the very last stages of negotiation and suddenly there was the risk that the Supreme Court might agree to review the Sockabasin case,” Tureen recalls. “If we lost that, the tribes suddenly would not have federal jurisdiction or the protections of federal Indian laws. … The whole thing might go away.”

Tureen says he managed to plant a story in The Washington Post saying a settlement had been reached, which appeared the very morning the Supreme Court justices were conferencing to decide whether to take up the Sockabain case. “We did that quite purposefully so that the court would believe this was no longer a critical case to take,” he recalls. “They didn’t.”

They had dodged a bullet, but Tureen knew the two tribes’ prospects if they went to trial had been greatly compromised, as the nation’s highest court might well overturn their claims on appeal. Ronald Reagan – an opponent of the land claims – also appeared likely to defeat President Jimmy Carter in the 1980 election, which increased the pressure to get a settlement through Congress before a change in administrations.

“They were reading the tea leaves of Reagan not being sympathetic to an appropriation of millions of dollars to some unknown tribes in Maine,” Paterson, then the state’s deputy attorney general, says. “To get it done, they realized they had to make peace with the state of Maine.”

The federal government would be funding the settlement, but Maine nevertheless demanded the tribes make a major compromise in regards to their sovereign powers.

Gov. Longley’s position had always been clear: that the Indians could never be allowed to have “a state within a state,” and this was embraced by Attorney General Brennan, who succeeded him as governor in January 1979. “That was all Longley,” says Tureen, who believes the jurisdictional issue wouldn’t otherwise have come up.

“We could never have a nation within a nation in Maine,” Brennan’s counsel, David Flanagan, told lawmakers. “Such a result would not only be unworkable in a state our size, but it would also promote racial and ethnic hostility and resentment to the ultimate detriment of our people.”

Paterson, who drafted the final state-level settlement bill, says this had become “an uncompromising point of principle for the state.”

“We weren’t going to get into a situation where we had a patchwork of land where the tribes could do anything they wanted, especially since so much of Maine was unorganized territory, blank slates subject to all sorts of change,” he recalls.

The price of a settlement was steep. Unlike other federally recognized tribes across the country, Maine’s Indians were to be subject to virtually all state laws. Instead of sovereign reservations, they would be given the powers of municipalities – to run schools and police departments, to enact zoning, build roads, and receive state municipal aid. They would be entitled to govern their internal affairs, and to set up tribal courts to rule on minor offenses between tribal members on tribal land, but would pay state taxes and accept state environmental, labor and gambling regulations.

The deal, Flanagan would testify, involved “no significant compromise of the state’s sovereignty at all. What we have created is certainly not a nation within a nation but rather two new municipalities within the state.”

It was an enormous compromise, and one the Passamaquoddy have second-guessed ever since.

“The core provisions of federal Indian law are there – like the ability to exclude non-Indians in your midst from voting – making a system to help ensure the survival of the tribes as a separate people,” Tureen says. “But it was definitely a compromise. It was a clear choice, and the stakes were very high.”

A final agreement was reached on March 4, 1980, under which the Passamaquoddy, the Penobscots, and the Houlton Band of Maliseets would split $81.5 million. As their share, the Passamaquoddy would receive a $13.5 million trust fund and $26.8 million to acquire land.

“On our side we had dishwashers and housewives, and on their side they had people who had been lawyers for a thousand years,” recalls Bobby Newell, a member of the Maine tribes’ four-person negotiating team. “The end result was remarkable given how outgunned we were. We made a deal.”

The tribal negotiating teams understood the essence of the compromise at the time, but most of their constituents did not.

Tribal members were asked to approve the settlement in hastily called referendum votes. The Passamaquoddy vote was held with less than a week’s notice; tribal courts refused requests for a delay, leading the Washington, D.C.-based Indian Law Resource Center to declare that it wasn’t “a fair or proper referendum whatsoever.”

“This proposed settlement deal has been thrust upon these people in such haste that they have not been able to make an informed, reasoned decision,” the group told Congress.

“We were given the agreement with a few hours’ notice and there was no consultation or information distributed in any way so that the people could make an informed decision,” says Pleasant Point resident Vera Francis, who had just reached voting age in 1980. “I voted no, because you just don’t sign on to something without knowing all the details.”

The Passamaquoddy approved the deal nearly unanimously, and the Penobscots by a wide margin. State legislators endorsed the agreement a few weeks later, with Congress passing matching federal legislation in September.

On Oct. 10, 1980, President Carter signed the Maine Indian Claims Settlement Act into law, ushering Maine’s Indians into a promising but hazardous new epoch.

Colin Woodard can be contacted at 791-6317 or at:

cwoodard@pressherald.com

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