The MacNeil/Lehrer Report; Indians in Maine

ROBERT MacNEIL: Good evening. If you saw a movie with two small Indian tribes laying claim to millions of acres of land, you might think it was a pleasant little fiction. But it happens to be true right now. Two tribes, the Passamaquoddy and the Penobscot, are claiming that by ancient treaty they own two thirds of the State of Maine. Their claim has been taken seriously enough by the courts and the federal government to have raised real alarm in Maine. With land titles in question, small towns have begun to be rejected for bond issues they need to keep running. Tonight we look at one Indian battle which the Indians could win. Jim?

JIM LEHRER: Robin, the federal government is now very much involved in this matter. The Department of Interior, under court order to assist the Indians as trustees, last week took the first step -- they asked the Department of Justice to enter the case on the side of the Indians and to help them get everything they`ve asked for, land as well as money. The Justice Department immediately asked for a six-week delay in the pending lawsuit so it can study the information supplied by Interior. The delay, said justice, would also give the incoming Carter administration time to study the matter for policy considerations, and for Congress to possibly resolve it. Robin?

MacNEIL: The Indians claim ancient rights to an area determined by the watershed of two main rivers, the Penobscot and the Kennebec, east of the watershed to the Canadian border, an area containing a breathtaking twelve and a half million acres. The land includes some of the most picturesque in Maine, land that today looks much the same as it did during the Revolutionary War, when Maine was still part of the Massachusetts Colony. Both the British and Americans wanted the Maine woods for shipbuilding.

The British were frozen out when the Continental Army made a treaty with the Indians, who inhabited these forests. The Indians still technically controlled the land when the first U.S. Congress passed the Indian Non- Intercourse Act of 1750. This law states that Congress must supervise and specifically ratify any land transactions between an Indian tribe and any non-Indians. It remains on the books to this day.

But in 1794, four years after that law was passed, the State of Massachusetts signed a treaty with its Indian inhabitants. In return for some islands and a few thousand acres the Indians gave up most of their homelands to the state. As the present lawsuit points out, however, that treaty was never ratified by Congress. In any event, years passed; Maine separated from Massachusetts and became a state in its own right; and the treaty and the Indians were more or less forgotten.

Industry -- mostly paper and pulpwood operations -- followed the settlers who moved into the Indian territory. They founded the city of Bangor and more than one hundred small townships. Still, the region remains sparsely populated. Most of the land the Indians are now claiming belongs to just fifteen separate owners, and those famous Maine woods today constitute the largest contiguous privately owned forest in North America. Their exact value is impossible to calculate -- perhaps twenty-five billion dollars, far surpassing anything dreamed of back in 1794. Now, in modern times, there are only three thousand members of the two tribes surviving. How they came to make their claim is a story taken up by Lee Loring of Maine Public Television, at Station WMEB in Orono`` Maine. Lee?

LEE LORING: For most of Maine`s one million plus residents the Indian land suit did not become a pressing concern until recently, when the full implications became evident. But for Maine`s two Indian tribes the suit is the culmination of a long-standing grievance. John Stevens is the tribal governor of the Passamaquoddy settlement at Indian township in eastern Maine. From 1971 until 1975 he was Maine`s Commissioner of Indian Affairs. Governor, what was your part in getting this suit started?

JOHN STEVENS: This began, actually, when two Indians got evicted from where they were living on a reservation. There were two white owners who claimed they owned this land. So in fact it took us about three years of looking around to see what legal grounds we had and finally finding this treaty. It went back to where an old lady invited me into her home and told me to look over some documents she had; and I know her husband at one time was a tribal chief up there, and from that we discovered there werc. numerous documents and that one of them was the treaty itself; and numerous letters that the old chief has written on behalf of that treaty had been violated.

LORING: Were these the first important documents that you were aware of?

STEVENS: Yes. Because when we had the problem with the land we went to the Attorney General`s office in Augusta, and they literally laughed us out of the State House; and they were saying we had no grounds to claim this territory, that we were paupers and that we were there on the good graces of the state.

LORING: What is a Passamaquoddy taught as a young child by his elders about his relationship to the land and what has happened to that land over the past two hundred years?

STEVENS: To always have respect for the land and to always try to replace what you take from it. And to me this has been a duty respected by the tribe. And you know, they almost are too patriotic, I felt, because of the respect they had for the treaty, the respect they had for the state and its laws.

LORING: What, briefly, would you want to do with the land if you got it?

STEVENS: I think we would try to manage it as well as we could, and not to abuse it in any way. A lot of people think we`re just out to get these things and get rich; I think this is secondary. We are interested in land, yes; and we want to manage it ourselves without anybody telling us how to manage it.

LORING: Thank you very much. Jim?

LEHRER: The legal status of Indian tribes in the New England states got a boost in 1970, when attorney Tom Tureen was hired to work with the tribes. Tureen, who now heads the Native American Rights Fund Law office in Maine, is the architect of the tribes` legal strategies. Mr. Tureen, how strong do you think your legal case is in this matter?

THOMAS TUREEN: Obviously we feel that our case is very strong. As you know, last spring the United States court of appeals for the first circuit upheld the decision in the Passamaquoddy case holding that the Non-Intercourse Act protects these tribes and creates a trust relationship between them and the United States; and we have felt from the outset that the question of the applicability of the Non-Intercourse Act was the central issue in the case. Having that resolved, we feel quite secure about our claims.

LEHRER: All right. You`re asking for a lot of land and a lot of money. Are you willing to negotiate a settlement, or are you going for broke?

TUREEN: No, the tribes from the very beginning have said that they were willing to negotiate a settlement, that they felt that an honorable out-of- court settlement could be reached, one which would not displace any homeowners. They`ve said that in negotiations they would not seek possession of anyone`s home; and that`s been a continuous thread all the way through the litigation.

LEHRER: How can you not seek the ownership of anyone`s home if they`re on land that you feel is owned by the Indian tribe?

TUREEN: We feel that the land is certainly owned by the Indian tribes; what we`re talking about is an out-of-court-negotiated settlement. What we`ve said that in such a settlement we would not seek possession of anyone`s home.

LEHRER: I see. It`s been suggested that maybe if you all would back off the particular claim for land and just settle for money, that something could be worked out. Are you willing to negotiate on that basis and just get money rather than land, or is land very much a part of this?

TUREEN: Whoever is saying that simply doesn`t understand my clients. Their position is that only by recovering a significant land base can they obtain the position of independence and importance which they had at the time of the Revolution and which the Non-Intercourse Act was designed to guarantee them, and which they would have today if that law had not been violated; so land is central, and they have said that they will not accept a settlement unless it includes a significant land base.

LEHRER: All right. Has the state been dealing with you on this on a regular basis? Are you in the process of negotiations now, for instance?

TUREEN: No, we`re not.

LEHRER: What`s the problem?

TUREEN: The problem is that the state takes the position that our claim has no merit, and refuses to negotiate a meritless claim,.

LEHRER: I see. When we talk about a settlement, which you say that you`re willing to work out, have you got any kind of ground rules in the back of your mind or wherever, as to how much land that you and your clients are willing to settle for? Do you want more than half of the state, or what part of it will you take, and be happy?

TUREEN: Unfortunately, we can`t open negotiations on this television program.

LEHRER: Why not? (Laughing.)

TUREEN: Well,...

LEHRER: That`s all right; I`m sorry. (Laughing.)

TUREEN: (Laughing.) Because for all this time, you see, we`ve had absolutely no indication that we were doing anything other than talking to the air when we talk about a negotiated settlement.

We are serious when we say that we are ready at any time to enter into good-faith negotiations; that will require some signal from the other side -- you know, the story of talks -- and then we are serious and we are ready to proceed with dispatch.

LEHRER: Thank you, sir. Robin?

MacNEIL: Mr. Tureen`s chief adversary in the case is the Attorney General for the State of Maine, Joseph Brennan, who has maintained that the Indian claim has no validity. Mr. Brennan, now that the Interior Department has spoken, do you still think Mr. Tureen`s claim is invalid?

JOSEPH BRENNAN: Yes, we do think that if we go to court, ultimately we`ll succeed in defending successfully; but that will take several years. Our concern is the short run. If the federal government goes forward for claims for land, it may create some problems about mortgages. After all, though, these claims go back two centuries. You can`t just rewrite history. People up there just weren`t given the land, that are occupying it now; they paid for it, they cleared the land, they built farms, built homes, built towns, built villages. It`s a situation that we feel very strongly will successfully defend the case,

MacNEIL: As you say, if it goes to a court fight, it could drag on for many years; I`ve seen estimates ten, twelve years -something like that -- through all the appeals. Hasn`t it reached the point of being very serious economically for some communities, if not the State of Maine itself?

BRENNAN: For the most part, the State of Maine has adjusted very well. I will say I was very impressed with the attitude of the Justice Department a couple of days ago when they asked for a six weeks` continuance; in their motion for a continuance they said, in effect, the only reasonable solution would be a Congressional solution. And we have not been opposed to the Indians being able to bring their case, but to bring it for money damages. If they`ve got a grievance, let them get redressed before a court, but for money damages; two wrongs don`t make a right.

MacNEIL: Could I pursue that in a moment? I just wanted to ask: It is hurting, though, some communities, is it not, who`ve had bond issues, which they need in advance of taxes to run their operating expenses, refused by some bond houses?

BRENNAN: It has been a problem for bond issues; it has not been a problem as far as transferring the title of the real estate.

MacNEIL: It has not. But there`s a whole sort of showball effect that could happen in the worst scenario, is that not so?

BRENNAN: Well, we`re very hopeful over the last several months, with these claims hanging over our heads; real estate titles have been transferred successfully.

MacNEIL: I see. Mr. Tureen has said often, and just repeated, that the Indians are willing to negotiate. Do you still oppose negotiations for a settlement?

BRENNAN: It`s very difficult for me to responsibly recommend negotiation, recommend giving some part of the State of Maine away, when we feel-that their claim is without merit. What we have suggested is that we go hand-to- hand with Mr. Tureen and the Indians to Congress and ask for legislation that would permit them to litigate their claims before the Indian Claims Commission or before the Court of Claims; and then, if they are proved to be correct, let them get money damages.

MacNEIL: So you`re saying that you would sit down with Mr. Tureen to talk about money, but not about land settlement, is that it?

BRENNAN: I`m saying that the doors to my office are always open to discuss this matter, but we cannot recommend or support the giving away of land in the state for a claim we feel that we can successfully defend. But we`re not unaware of the short-term problems, and for those we`d like to see the Indians litigate their claim again before a court, before the Indian Claims Commission, but not for this land -- this land that`s been occupied for generations after generations. Seven or eight generations went to war over this land.

MacNEIL: Mr. Tureen, how do you react to Mr. Brennan`s position right now?

TUREEN: Well, Mr. Brennan is not talking with us; he`s not talking about a settlement. When he talks about money, you must understand that what he is saying is that he is ready to see Congress extinguish our aboriginal claim and lock us out of the district court in Maine -- you don`t hear anything about the federal district court when he talks -- and shunt us in to the Indian Claims Commission, which he feels we should accept readily as an equal alternative.

You must understand, however, that the Indian Claims Commission is not a court of law, has no power to return land, and has no power to return anything like the measure of monetary damages that the tribes would be entitled to in a court of law. Indian Claims Commission was set up in 1946 for Indian tribes who do not have legally supportable claims, whose land was taken from them legally. I don`t feel that that`s a good-faith offer; it`s been proposed to Congress without consulting the Indians or me; and that kind of proposal simply cannot move us forward.

MacNEIL: Mr. Brennan, you say the door of your office is open. If Mr. Tureen came and knocked on it tomorrow, would you have talks with him about this?

BRENNAN: I certainly would have talks with them, but we feel strongly...

MACNEIL: But you haven`t up till now, is that true?

BRENNAN: We`ve had some discussions off and on, but we feel it doesn`t have to go before the Indian Claims Commission; it could go before the court of claims, it could go before the federal district court. But what we`re saying, that the claim cannot include claims for land. If they get money -- I think money is land -- with that money they could purchase land, if they`re successful. Again, the bottom line is, we feel that they will not be successful; we feel that the state has been in compliance with the Non- Intercourse Act.

MacNEIL: I see. Lee, are you there?

LORING: Yes, I am, Robin. Mr. Tureen, you say that you absolutely do not want this thing to go to Congress and that you do not want it taken out of the courts. What legal recourse would you have if in fact the Congress does move to take it out of the court?

TUREEN: You must understand what we`re saying; we`re not saying that we`re opposed to it going to Congress. We feel that there is every reason for Congress to be involved in a negotiated settle ment. But you see, the options as far as we`re concerned are either to litigate the claim under the present; rules in the present courts, or else to negotiate a settlement. What Mr. Brennan is talking about is having Congress unilaterally extinguish our claim -- take away the claim for land -- and restrict us to something which is not a court, in which we would not be entitled to recover anything like the measure of damages that we normally - - under the normal rules -- would be entitled to.

LORING: You spoke earlier about the need to recover what you called a significant land base as part of any settlement. How big is a significant land base?

TUREEN: Now, that again -- those are things that we`re ready to discuss, but only in the context of good-faith negotiations.

LORING: You have no acreage figure that you could throw out as a ball park...

TUREEN: Not tonight.

LORING: Okay. Mr. Brennan, the state`s fiscal situation has been recently described as a hodge-podge of gobblety-gook rules and regulations strung together with chewing gum and that the whole financial picture in the State of Maine could fall apart at any minute. Are you prepared to take responsibility if in fact that does occur before some sort of interim settlement, at least, takes place?

BRENNAN: Let me say this: my office has been working diligently with bankers in this state; my office has been working with Congressional delegation; we`re very serious about recommending this Congressional solution. And again, the very memorandum in support of the continuance for the U.S. government -- they say that is the only solution, and I think they`re right; and I think we`re making progress. I think the Congress could resolve this and they`re the appropriate party to resolve it.

LORING: If a move were to be made to deprive present landowners who`ve lived on their land for generations, of their land, if the enforcement power of the state were used to move them off, in that eventuality what would you expect to take place in terms of reaction?

BRENNAN: I`m not sure, but let me just talk about moving people off the land. A few weeks ago I met with Secretary of the Interior Kleppe, and he agreed with the statement that no responsible court is going to divest 350,000 Maine citizens of their land. I Just don`t anticipate that happening. We feel very strongly about our case. We`re concerned about the short-run problem; that`s why we want to go to Congress to try for a solution, but I `don`t think I could responsibly recommend giving away the land of Maine for a case that I feel we`re going to successfully defend.

LORING: Mr. Tureen, we`ve been talking about small landowners in this whole conversation. Of course, behind the whole thing is the fact that present ownership of large chunks of land in this claimed area are owned by the paper companies and the large landowners. Now, you have not been negotiating with Mr. Brennan on behalf of the state; have you been, at least, entering into preliminary negotiations with the paper companies?

TUREEN: No, we haven`t.

LORING: Why not?

TUREEN: Our posture in this case has been one of pursuing a strategy which called for the federal government acknowledging and taking up its responsibilities as trustees for the Indians. That has just now happened, and we are ready at any time to begin negotiating with anyone. We have felt all along that it would be most appropriate for the state to take the lead in those negotiations; otherwise it becomes very difficult -- there are literally hundreds of thousands people involved -- and there are a number of large landowners involved. The problem is a conceptual one, and the difficulty that Mr. Brennan is having is that he is in willing to approach this the way one would normally approach a lawsuit that you didn`t want to have to litigate. Normally when you don`t want to have to face the reality of the legal system you negotiate a settlement; Mr. Brennan`s approach is to try to change the rules. And what we say is that simply is unacceptable; it`s unconstitutional, and it`s unacceptable in a much larger sense, because not only does it touch on the sanctity of this nation`s promises to the Indian people but it also goes right to the heart of the integrity of our Judicial system itself. You simply cannot change the rules after the game has started. The Interior Department has said that we have valid claims, and now we are ready to proceed with those or to negotiate a settlement.

LORING: Okay, thank you. Jim?

LEHRER: Governor Stevens, let me ask you, from the tribe`s point of view must any settlement include land as well as money?

STEVENS: Definitely. My tribe has always stated that some land has to be returned to them.

LEHRER: What is your position toward those 350,000 people who now own or live on that land, non-Indian?

STEVENS: I`ve been living in the same situation for over -- well, say 200 years. They really know how I feel now. I think it`s very unjust, and I wouldn`t want to displace anybody, but they have got to realize too that there`s limits to what we can do for them. It`s up to their leaders, the governor of the state and the attorney general of the state to do their part in trying to resolve this for them. It`s not only the Indians. We`re always portrayed as the bad guys, but this time we`re not.

LEHRER: I see. Mr. Brennan, when you speak about a solution coming from the Congress, what you really mean -- if I understand what you`re saying -- is that you want Congress to pass a law which says that the Indians are not entitled to land, they`re entitled only to money, and then work out a mechanism by which they can get the money. Isn`t that what you really want them to do?

BRENNAN: That`s correct, essentially. With the Indian Claims Commission the people in Maine paid for some of those claims, yet they weren`t dealing with Maine properties. But your analysis is roughly correct.

LEHRER: And that`s what bugs you, right Mr. Tureen? You`re afraid Congress might do that, right?

TUREEN: Congress can`t do that -- it would be unconstitutional for Congress to do it. What we`re concerned about is that it`s even being suggested, because that suggestion can only prolong the confusion, can only prolong the agony in the State of Maine, because it won`t work.

LEHRER: But there was a resolution offered at the end of this last Congress -- and I understand the word is that it may be reintroduced;, at least, the people in Maine, including Mr. Brennan, want it reintroduced -- that would actually make this the law. If the Congress does pass that, then what do you folks do?

TUREEN: The resolution what was introduced was not a law; it was not a bill.

LEHRER: Okay.

TUREEN: It would have had no effect. It just said that it`s the sense of Congress that no court in the nation should listen to this tribe`s claim for land -- which, if you think about it, is pretty outrageous. What will we do if Congress attempts to unconstitutionally take away the land claim?

LEHRER: Yes.

TUREEN: We`ll simply proceed with the claim.

LEHRER: Proceed through the courts.

TUREEN: That`s correct. That`s the only option that we have.

LEHRER: I see. All right. Robin?

MacNEIL: If you proceed with the claim, are you prepared, Mr. Tureen, to start proposing sanctions? For instance, are you prepared to challenge transfers of land in domestic housing or to, say, go to the paper companies and get an injunction against them cutting down trees on land you claim isn`t theirs?

TUREEN: That`s a hard question to answer. What I can say is that my clients have been extremely reasonable and enormously patient throughout this whole episode. For five years now we`ve been litigating in the courts and for five years we`ve won. What they will do, or what they will direct us to do, if all at once Congress should attempt to change the rules I simply don`t know, but they do have legal options.

MacNEIL: I see. Mr. Brennan, what do you foresee -- if the Justice Department goes along with what the Interior Department wants it to do, and the case proceeds through litigation -- what do you see as further economic consequences or strains that could develop in Maine?

BRENNAN: Much of that will depend upon how that is viewed by the banking community. I must say that the state, the banking community, has adjusted extremely well in the last several months; and we feel the more people that get aware of our side of the case -- you know, it`s very romantic and sexy, in a sense, to talk about giving two thirds of Maine back to the Indians; that`s fine and dandy. But when a careful legal analysis is made of the case, of the facts and the law, I think most people will come to the conclusion that we have come to -- that their case is without merit. And when the financial community makes that judgment I think things will proceed along; I hope so.

MacNEIL: Jim?

LEHRER: Yes; the Justice Department -- gentlemen, this is for all three of you -- the Justice Department in its statement that it made over the weekend said that if the court granted this delay it would give the Carter administration time to consider this as a matter of policy. First, beginning with you, Mr. Brennan, have you gotten any word from the early soundings from the Carter administration about what their position might be in this case?

BRENNAN: No, we haven`t, but we thought the responsible thing to do was to wait until they had a chance to make an evaluation.

LEHRER: How about you, Mr. Tureen? Have you been lobbying the Carter people?

TUREEN: No, not yet. We feel that there`s a very clear precedent in the Alaskan Native Settlement Act of 1971, when a relatively similar situation was dealt with by Congress in a manner that was reasonably equitable and fair to the natives and to the non-natives in that state.

LEHRER: Well, what, really, could the administration do in a matter like this? They`d either have to back up or support the position of the outgoing Ford administration Interior Department, would they not?

TUREEN: I think the legal issues are pretty clear; the law doesn`t change with the President.

LEHRER: All right. Robin?

MacNEIL: John Stevens, I`ve heard it suggested that some people fear that this situation could turn to a bit of violence if your people were frustrated enough by failure to settle with it. Is there any possibility of that?

STEVENS: There`s always that possibility, and this is what I`m afraid of. This is our only alternative. We have waited so long for this to be settled in court. And the attorney general and the governor of the State of Maine have been telling us, ``Go to the court system, go to the court system.`` Now we are in court and winning. And now they say, ``You are winning too much.`` So what are we going to do when they extinguish all of this claim?

MacNEIL: What are you going to dog-Governor?

STEVENS: I`m not going to say it right here, but I have plans. I think I`ll leave the country. There probably is justice somewhere else.

MacNEIL: Is one of the possibilities for this the four hundred thousand acres that was recently purchased by the state government of Maine, I believe with an eye to making a national park or a state park out of it-- is that one of the potential germs of a solution? Do you think so, Governor?

ST EVE NS: I think it would be a start.

MacNEIL: What about Mr. Tureen?

TUREEN: The public lots that you are referring to are essentially found money; the state thought they had lost them and just got them back. Of course they could be useful.

MacNEIL: I see. Mr. Attorney General?

BRENNAN: I would say that in previous claims by the Indians under the Indian Claims Commission the State of Maine -- its citizens -- paid its share, when they were successful. We think likewise here, and I would not recommend giving away the public lots which Maine is in the process of recovering.

MacNEIL: Thank you all very much in Maine, and thank you, Lee Loring and Jim Lehrer. We`ll watch the progress of that suit with great interest. Jim Lehrer and I will be back tomorrow night. I`m Robert MacNeil. Good night.