Joint Tribal Council of the Passamaquoddy Tribe v. Morton

Joint Tribal Council of the Passamaquoddy Tribe v. Morton
Court	United States Court of Appeals for the First Circuit
Full case name	Joint Tribal Council of the Passamaquoddy Tribe v. Rogers C. B. Morton, Secretary, Department of the Interior, et al.
Date decided	Dec. 23, 1975
Citation(s)	528 F.2d 370 (1st Cir. 1975)
Judge(s) sitting	Frank Morey Coffin, Edward McEntee, Levin H. Campbell
Case history
Prior action(s)	388 F. Supp. 649 (D. Me. 1975)
Case opinions
Campbell

Joint Tribal Council of the Passamaquoddy Tribe v. Morton, 528 F.2d 370 (1st Cir. 1975),^[1] was a landmark decision regarding aboriginal title in the United States. The United States Court of Appeals for the First Circuit held that the Nonintercourse Act applied to Passamaquoddy and Penobscot, non-federally recognized Indian tribes, and established a trust relationship between that tribes and the federal government that the state of Maine could not terminate. Therefore, the federal government was obliged to litigate the tribes' land claim against the state (and thus, abrogate the state's sovereign immunity).

By upholding a declaratory judgement of the United States District Court for the District of Maine, the First Circuit implied that the Passamaquoddy and Penobscot had a potentially meritorious land claim to approximately 60% of Maine. The decision led to the passage of the Maine Indian Claims Settlement Act in 1980, recognizing the tribes, allocating $81,500,000 to allow the tribes to purchase lands in Maine, and extinguishing all aboriginal title in Maine.^[2]

Background

Most of the Passamaquoddy aboriginal lands were alienated in a 1794 treaty with the state of Massachusetts (the predecessor of Maine).^[3] The treaty reserved 23,000 acres (93 km²) for the tribe, 6,000 acres (24 km²) of which were later diverted for other purposes.^[3] The Passamaquoddy also had grievances about the management of the tribal trust fund, tribal hunting and fishing rights, and the disenfranchisement of tribal members from 1924 to 1967.^[3] Historically, the Maine courts would not have been receptive to such claims; the Maine Supreme Court had held that the Passamaquoddy were not a tribe and had no aboriginal rights.^[4]

On March 8, 1968, attorney Don Gellers of Pine Tree Legal Services filed a suit in Suffolk Superior Court in Boston (Massachusett's trial court) arguing that Massachusetts had violated the 1794 treaty by selling 6,000 acres (24 km²) of land (before Maine became a state in 1820), seeking $150,000,000 in damages.^[5] Three days later, Maine narcotics officers raided Gellers' home and arrested him for possession of marijuana.^[5] On bail, Gellers fled to Israel, and the complaint was never prosecuted.^[5] Tom Tureen, who took over Pine Tree Legal Services from his former boss, argued that the Passamaquoddy should instead argue that the entire treaty was void, in violation of the Nonintercourse Act of 1790, and seek possession of the entire 1,000,000 acres (4,000 km²).^[5] Not only did the Passamaquoddy tribal council approve Tureen's strategy, he was soon approached by the Penobscot who had sold 5,000,000 acres (20,000 km²) in 1796 under similar circumstances.^[5]

Unable to persuade Arthur Lazarus, Jr. (one of the nation's leading Indian lawyers) of Fried, Frank, Harris, Shriver & Jacobson that the suit was meritorious, Tureen instead recruited a team of younger attorneys—Barry Margolin, David Cross, and Stuart Ross—and got funding from the Native American Rights Fund (NARF) in 1971.^[6]

In the wake of the U.S. Supreme Court's decision in Oneida Indian Nation of N.Y. State v. Oneida Cnty. (1974), which held that there is federal subject-matter jurisdiction for possessory land claims by Indian tribes based on aboriginal title, the Passamaquoddy petitioned Rogers Morton, the Secretary of the Interior, to initiate a lawsuit in the name of the United States against Maine on their behalf. The tribe wanted the Secretary to sue by July 18, 1972, when the current federal statute of limitations (28 U.S.C. s 2415(b)) for monetary damages for Indian trespass claims would expire (Congress later extended the deadline).^[3] When the Secretary refused, the Passamaquoddy sued him.^[3]

District of Maine decision

The tribes' complaint asked for a preliminary order requiring the Interior Department to file suit and asked for $25,000,000,000 in damages and 12.5 acres (51,000 m²) of land.^[7] Tureen's appearance before District Judge Edward Thaxter Gignoux was his first ever appearance in court.^[7]

The Secretary argued that no trust relationship existed between the United States and the tribe because there was no treaty between the tribal and the federal government and because the federal government (unlike Maine) had only limited historical dealings with the tribe.^[8]

The court issued a preliminary order requiring the Secretary to file the lawsuit. Before this, "[n]o federal judge in the history of American jurisprudence had ever before ordered the federal government to file a lawsuit."^[9] The Secretary filed two lawsuits for each $150,000,000 in damages against the state on behalf of the two tribes.^[10] Those lawsuits were stayed, pending the resolution of the question of whether such trust relationship existed.^[11] The tribe amended their complaint, abandoning their request for injunctive relief and instead asking only for a declaratory judgment.^[11] Gignoux allowed the state of Maine to intervene.^[11]

Gignoux ruled in the tribe's favor on the first two questions, and thus did not reach the third:

1. whether the Nonintercourse Act applies to the Passamaquoddy Tribe;
2. whether the Act establishes a trust relationship between the United States and the Tribe;
3. whether the United States may deny plaintiffs' request for litigation on the sole ground that there is no trust relationship^[11]

First Circuit opinion

Secretary of the Interior Rogers Morton refused to initiate a Nonintercourse Act lawsuit on behalf of the Passamaquoddy because they were not a federally-recognized tribe.

Levin H. Campbell, for the unanimous panel, affirmed. Because the trust relationship was found, the First Circuit did not reach the third issue.^[12]

Applicability of the Nonintercourse Act

The First Circuit held that the plain meaning of the Act applied to "any tribe," whether federally recognized or not:

Congress is not prevented from legislating as to tribes generally; and this appears to be what it has done in successive versions of the Nonintercourse Act. There is nothing in the Act to suggest that ‘tribe’ is to be read to exclude a bona fide tribe not otherwise federally recognized. Nor, as the district court found, is there evidence of congressional intent or legislative history squaring with appellants' interpretation. Rather we find an inclusive reading consonant with the policy and purpose of the Act.^[13]

The Circuit acknowledged that its holding had great relevance to the tribe's ultimate land claim:

Before turning to the district court's rulings, we must acknowledge a certain awkwardness in deciding whether the Act encompasses the Tribe without considering at the same time whether the Act encompasses the controverted land transactions with Maine. Whether the Tribe is a tribe within the Act would best be decided, under ordinary circumstances, along with the Tribe's specific land claims, for the Act only speaks of tribes in the context of their land dealings.^[14]

However, the Circuit did not wish to foreclose the result of that potential future lawsuit:

[W]e are not to be deemed as settling, by implication or otherwise, whether the Act affords relief from, or even extends to, the Tribe's land transactions with Maine. When and if the specific transactions are litigated, new facts and legal and equitable considerations may well appear, and Maine should be free in any such future litigation to defend broadly, even to the extent of arguing positions and theories which overlap considerably those treated here.^[14]

Existence of trust relationship

Campbell acknowledged that federal dealings with the Passamaquoddy had been sparse:

[T]he federal government's dealings with the Tribe have been few. It has never, since 1789, entered into a treaty with the Tribe, nor has Congress ever enacted any legislation mentioning the Tribe.^[15]

However, the Circuit held that the Nonintercourse Act alone was sufficient to create the trust relationship, even in the absence of federal recognition or a treaty:

[T]he Nonintercourse Act imposes upon the federal government a fiduciary's role with respect to protection of the lands of a tribe covered by the Act seems to us beyond question, both from the history, wording and structure of the Act and from the cases cited above and in the district court's opinion. The purpose of the Act has been held to acknowledge and guarantee the Indian tribes' right of occupancy . . . and clearly there can be no meaningful guarantee without a corresponding federal duty to investigate and take such action as may be warranted in the circumstances.^[16]

Having found that the trust relationship existed, the Circuit rejected the remainder of Maine's arguments on the grounds that "Congress alone has the right to determine when its guardianship shall cease."^[17] However, the Circuit noted that "we do not foreclose later consideration of whether Congress or the Tribe should be deemed in some manner to have acquiesced in, or Congress to have ratified, the Tribe's land transactions with Maine."^[18]

Settlement negotiations

Edward Bennett Williams, Maine's lawyer

The defendants did not appeal to the U.S. Supreme Court.^[9] After the First Circuit upheld the District of Maine's judgment, Tom Tureen (the Passamaquoddy's lawyer) tried to negotiate a cash settlement; when Maine refused to negotiate, the demand shifted to land.^[19] The 1794 and 1818 treaties negotiated by Massachusetts with the tribes, but without federal approval, covered 12,000,000 acres (49,000 km²) of land, approximately 60% of the state.^[19]

At first both Maine's governor, James B. Longley, and the Great Northern Nekoosa Corporation, the largest landowner in the state were unwilling to discuss a settlement.^[9] In 1976, however, Boston law firm Ropes & Gray opined that the state's $27,000,000 bond issue could not go forward using the state property as collateral.^[20]

In 1977, the Maine delegation introduced a bill to extinguish all aboriginal title in Maine without compensation; the tribes vowed "years of disruptive lawsuits" and the Senate's Indian Affairs Committee refused to hold hearings.^[21]

Bradley H. Patterson, Jr., a member of the Ford administration, evaluated the tribe's claim and concluded that "Maine's tribes stood to gain a sizeable portion of that state" if the federal government went forward and litigated the dispute on behalf of the tribe, to which the court had declared the tribe was entitled.^[22] Patterson evaluated various other options, and recommended what would become the Maine Indian Claims Settlement Act; however, in December 1976, Ford decided to pass this issue to the next administration: that of President Jimmy Carter.^[22]

On January 11, 1977, Carter's interior department issued a recommendation to eject 350,000 non-Indians from the claimed lands.^[23] Governor Longley's counterproposal was to pay the tribes the value of the land as of 1796, without interest (the valuation method used in Indian Claims Commission cases).^[23] Peter Taft, the grandson of President Taft, and the head of the Justice Department's Land and Natural Resources Division, declared that he would file suit claiming the 5,000,000–8,000,000 acres (20,000–32,000 km²) of forests within the claim area on June 1, unless a settlement was reached.^[24]

In 1979, Carter created a special White House task force to investigate the claims.^[24] Carter named retiring judge William B. Gunter, of the state Supreme Court of Georgia, to mediate the dispute.^[25] Archibald Cox, former Watergate independent prosecutor, joined Tureen free of charge.^[26] In response, Governor Longley hired Edward Bennett Williams, the name parter of Williams & Connolly to defend the state.^[27]

On July 25, 1979, in a memorandum to President Carter, Gunter announced his proposed solution: $25,000,000, 100,000 acres (400 km²) from the disputed area, and the option to purchase as much as 400,000 acres (1,600 km²) more.^[28] If the tribes rejected the settlement, Gunter proposed that Congress extinguish all aboriginal title to privately held lands, and allow the tribes to litigate their claims to public lands.^[25]

Both the tribes and the state rejected Gunter's solution.^[29] Carter appointed a new three-member task force, which facilitated negotiations over a settlement that would include portions of cash, land, and BIA services.^[29]

Maine Indian Claims Settlement Act

Further information: Indian Land Claims Settlements

William Cohen (D-ME) pushed the settlement act through Congress.

After negotiations concluded, the Maine state legislature passed a statute enabling the settlement in 1979.^[30] Subsequently, freshman senator William Cohen (D-ME) pushed the deal through Congress.^[31]

In 1980, Congress passed and Carter signed the Maine Indian Claims Settlement Act, extinguishing all aboriginal title in Maine, including the claims of the Passamaquoddy and Penobscot. In return, the Act granted both tribes federal recognition and allocated $81,500,000 million for the tribes to purchase up to 300,000 acres (1,200 km²) of land.

The Act has subsequently been amended to provide additional compensation to the Houlton Band of Maliseet Indians and the Aroostock Band of Micmacs, two groups that were not compensated in the original settlement (but whose aboriginal title, if unextinguished in 1980, was nonetheless extinguished by the Act).^[32]

Notes

1. ^ Joint Tribal Council of the Passamaquoddy Tribe v. Morton, 528 F.2d 370 (1st Cir. 1975).
2. ^ Maine Indian Claims Settlement Act, Pub. L. No. 96-420, 94 Stat. 1785 (codified at 25 U.S.C. §§ 1721–35).
3. ^ ^{a b c d e} 528 F.2d at 372.
4. ^ See State v. Newell, 24 A. 943 (Me. 1892); Granger v. Avery, 64 Me. 292 (1874); Penobscot Tribe of Indians v. Veazie, 58 Me. 402 (1870).
5. ^ ^{a b c d e} Eisler, 2001, at 68–71.
6. ^ Eisler, 2001, at 71–72.
7. ^ ^{a b} Eisler, 2001, at 74.
8. ^ 528 F.2d at 372–73.
9. ^ ^{a b c} Eisler, 2001, at 75.
10. ^ Kotolowski, 2006, p. 68.
11. ^ ^{a b c d} 528 F.2d at 373.
12. ^ 528 F.2d at 375 ("Whether, even if there is a trust relationship with the Passamaquoddies, the United States has an affirmative duty to sue Maine on the Tribe's behalf is a separate issue that was not raised or decided below and which consequently we do not address.").
13. ^ 528 F.2d at 377 (footnote omitted).
14. ^ ^{a b} 528 F.2d at 376.
15. ^ 528 F.2d at 374.
16. ^ 528 F.2d at 379 (citation omitted).
17. ^ 528 F.2d at 380.
18. ^ 528 F.2d at 380–81.
19. ^ ^{a b} Kotlowski, 2006, p. 70.
20. ^ Eisler, 2001, at 76–77.
21. ^ Kotlowski, 2006, p. 71.
22. ^ ^{a b} Kotlowski, 2006, p. 74.
23. ^ ^{a b} Eisler, 2001, at 76.
24. ^ ^{a b} Eisler, 2001, at 77.
25. ^ ^{a b} Kotlowski, 2006, p. 76.
26. ^ Eisler, 2001, at 77–78.
27. ^ Eisler, 2001, at 78.
28. ^ Eisler, 2001, at 78; Kotlowski, 2006, at 76.
29. ^ ^{a b} Kotlowski, 2006, p. 77.
30. ^ Me. Rev. Stat. tit. 30, §§ 6201–14 (1979).
31. ^ Kotlowski, 2006, p. 80.
32. ^ Aroostook Band of Micmacs Settlement Act, Pub. L. No. 102-171, 105 Stat. 1143 (1991) (codified at 25 U.S.C. § 1721); Houlton Band of Maliseet Indians Supplementary Claims Settlement Act, Pub. L. No. 99-566, 100 Stat 3184 (1986) (codified at 25 U.S.C. § 1724).

References

• Emerson W. Baker, "A Scratch with a Bear's Paw": Anglo-Indian Land Deeds in Early Maine, 36 Ethnohistory 235 (1989).
• Paul Brodeur, Annals of Law: Restitution, The New Yorker 76—155 (Oct. 11, 1982).
• Kim Isaac Eisler, Revenge of the Pequots: How a Small Native American Tribe Created the World's Most Profitable Casino 63–81 (2002).
• Nicole Friederichs, A Reason to Revisit Maine's Indian Claims Settlement Acts: The United Nations Declaration on the Rights of Indigenous Peoples, 35 Am. Indian L. Rev. 497 (2011).
• Dean J. Kotlowski, Out of the Woods: The Making of the Maine Indian Claims Settlement Act, 30 Am. Indian Culture & Res. J. 63 (2006).
• Francis J. O'Toole & Thomas N. Tureen, State Power and the Passamaquoddy Tribe: A Gross National Hypocrisy, 23 Me. L. Rev. 1 (1971).