8 MAINE LAW REVIEW [Vol. 31:5 After remand and discovery, the case was tried without a jury in November 1975. In July 1977 Judge Edmund Port, the judge who had dismissed the complaint six years earlier, ruled that the 1795 transaction between the Oneidas and New York State was invalid," acknowledging at the same time that his ruling would effectively cloud titles to the 100,000 acres of land in the two counties notwithstanding the plaintiffs' meager prayer for relief.20 Indeed, his opinion notes that the United States Marshal for his district had been notified to be prepared to serve 10,000 defendants upon the expected filing of land claims by the Justice Department on behalf of the Cayuga Indian Nation of New York and the St. Regis Mohawk Tribe." Judge Port was quite aware of the potential disruption his decision portended. B. Joint Tribal Council of the Passamaquoddy Tribe v. Morton In March 1972, the Passamaquoddy Tribe of Maine petitioned the Interior Department for a recommendation that the Justice Department file suit on the tribe's behalf to remedy a 1794 violation of the Nonintercourse Act by the Commonwealth of Massachusetts. In June 1972 the department refused the tribe's request, and the tribe responded immediately by filing suit seeking an order to compel the Justice Department to sue the State of Maine on the tribe's behalf. A chronological perspective is important in the Passamaquoddy case because a statute of limitations that governed suits for trespass damage claims brought by the United States on behalf of Indians was due to expire on July 17, 1972. Consequently, what was perceived as a major monetary claim would have been barred after that date. Since at that time the first district court opinion in the Oneida 22. (b) Subject to the provisions of section 2416 of this title, and except 28 U.S.C. § 2415(b) (1970) (originally enacted as Act of July 18, 1966, Pub. L. No. 89505, 1(b), 80 Stat. 304). Section 1(g) provides that any right of action which accrued prior to the date of enactment shall be deemed to have occurred on that date, namely July 18, 1966. 28 U.S.C. § 2415(g) (1970). Hence, all Passamaquoddy claims to pre-1966 trespass damages would have been barred. Section 1(c) provides that nothing in the statute shall be deemed to limit the time for bringing an action to establish title or a right of possession to real or personal property. 28 U.S.C. § 2415(c) (1970). Thus, the statute did not affect the Tribe's claims to the land itself. 1979] LAND CLAIMS SURVEY 9 County case had not yet been overturned, counsel for the Passamaquoddy Tribe evidently figured that his client needed the United States' participation in order to establish subject matter jurisdiction in the federal court. This extraordinary relief was sought because without the United States as plaintiff, the eleventh amendment" appeared to deprive federal courts of jurisdiction." Judge Gignoux granted the tribe's petition, ordering the United States to file a protective complaint before the statute would bar the claim. The Justice Department compiled, filing a short notice complaint seeking $150 million from the State of Maine-an admittedly “off-the-wall" figure." A nearly identical complaint was filed pursuant to stipulation on behalf of the Penobscot Indian Nation of Maine." As it turned out, Congress soon extended the statute of limitations five more years to July 1977." Subsequently, the Passamaquoddy Tribe amended their complaint to seek only a declaration that the Nonintercourse Act applied to the Passamaquoddy and that the Act established a trust relationship between the tribe and the United States. The Interior and Justice Departments took the position that the Act applied only to "federally-recognized tribes," and that the Passamaquoddy could not be so categorized because they had never entered into a treaty with the United States, had not been expressly recognized in federal legislation, and had not received services from the Bureau of Indian Affairs. The parties stipulated for purposes of a motion for summary judgment that the Passamaquoddy Tribe was an Indian tribe in the racial and cultural sense. Then, in January of 1975, Judge Gignoux ruled that the tribe was indeed an Indian tribe within the meaning of the Nonintercourse Act and that there was a trust relationship between the United States and the tribe with respect to tribal lands subject to the Act." In so ruling, he expressly rejected the government's distinction between "federally-recognized" tribes and "other" Indian tribes. The First Circuit affirmed" in December of 1975, and neither the United States nor the State of Maine, which had intervened as a party defendant, filed a petition for certiorari in the Supreme Court. By the spring of 1976 the Interior Department was faced with interpreting the meaning of its trust relationship with the Passamaquoddy Tribe. After a year of researching the Passamaquoddy and Penobscot 23. U.S. CONST. amend. XI. 24. Narragansett Tribe of Indians v. Murphy, 426 F. Supp. 132, 135 n.4 (D.R.I. 1976). 25. United States v. Maine, No. 1966-ND (D. Me., filed July 1, 1972). 26. United States v. Maine, No. 1969-ND (D. Me., filed July 17, 1972). 27. Act of October 13, 1972, Pub. L. No. 92-485, 86 Stat. 803 (codified at 28 U.S.C. 2415(b) (1976)). 28. Joint Tribal Council of Passamaquoddy Tribe v. Morton, 388 F. Supp. 649 (D. Me. 1975). 29. 528 F.2d 370 (1st Cir. 1975). 10 MAINE LAW REVIEW [Vol. 31:5 claims, on January 10, 1977, the Interior Department sent two final draft litigation reports to the Justice Department acknowledging the validity of the two tribes' claims to millions of acres of land in central and northern Maine. Following the change in administrations, the Interior Department sent a final recommendation to the Justice Department on February 25, 1977, endorsing the conclusions of the final draft reports, subject to some modifications. Three days later, in response to a court order, the Justice Department filed a memorandum with the United States District Court in Maine, stating that the tribes had substantial claims to at least five million acres of land in central Maine. The memorandum noted the ruling of the First Circuit regarding the trust relationship between the Passamaquoddy and the United States, and commented, "The Department of (the) Interior has interpreted this responsibility to require a suit for possession and trespass damages and we agree."" Nevertheless, the memorandum also stated that litigation was the least desirable means of resolving the claim and observed that the President was about to appoint a special representative to assist the parties in reaching set⚫tlement." Accordingly, an extension of time was sought from the court in order to seek alternatives to litigation. The Justice Department memorandum was no doubt a significant event in the course of this controversy since federal trust responsibility towards the tribal claimants was finally acknowledged. Furthermore, the federal government undertook a voluntary but important policy role, namely responsibility for ensuring that henceforth serious attempts be made to settle these claims. On the other hand, the conclusions of the memorandum should not have come as a great surprise to anyone familiar with Indian claim developments at that time. This is not to say that there are none who have questioned or criticized the conclusions of the memorandum, or that these conclusions are beyond criticism. But by the time the department's memo was filed with the court, a series of events had coalesced to provide impetus for an affirmative federal stand. First, of course, the United States was under a court order to report on how it intended to comply with the ruling in Passamaquoddy v. Morton. But other events provided a much broader focus for the decision-makers. III. RELATED Developments, 1975-1977 In 1975 the Narragansett Indians, seeking possession of a few thousand acres of land in Charlestown, filed suit against the State of Rhode Island and local property owners." In August, 1976, Indian 30. Memorandum in Support of Plaintiff's Motion for Further Extension of Time to Report to the Court at 9, United States v. Maine, Nos. 1966, 1969 (D. Me., filed July 1, 1972; July 17, 1972). 31. Id. at 2, 6. 32. Narragansett Tribe of Indians v. Southern R. I. Land Dev. Corp., 418 F. Supp. 798 (D.R.I. 1976). 1979] LAND CLAIMS SURVEY 11 claimants brought a similar suit in the Town of Mashpee on Cape Code after filing a lis pendens on virtually every piece of realty in the town." Shortly thereafter reputable bond counsel questioned the security of the titles in the areas claimed by the tribes in Maine." Moreover, by this time the Oneidas, the Cayuga Indian Nation of New York, the St. Regis Mohawk Tribe of New York, and the Catawba Tribe of South Carolina had publicly petitioned the Interior Department for assistance in the pursuit of their claims. Finally, and most importantly, the statute of limitations governing trespass damage claims was once again due to expire by July 17, 1977. The danger that massive land claim suits would be filed before that date if the statutory period was not extended again was apparent. Not surprisingly, the Interior Department was besieged with calls and letters from anxious property owners and concerned Congressmen. Clearly, the Government's recognition of its trust responsibility to the Passamaquoddy and other tribal claimants has enabled it to play a pivotal role in encouraging the negotiation of settlements in some claims. To have taken a niggardly view of its responsibility to the Maine tribes would have only prolonged litigation that was already in its fifth year, and would have eliminated the opportunity to play a role in bringing state and tribal adversaries together. On June 29, 1977, the Interior and Justice Departments formally recognized that the three New York claims were substantial and announced that, if the statute of limitations were not extended, the federal government had an obligation to the tribes as trustee to pursue those claims. Meanwhile, preparation was underway for the filing of suits in the Cayuga and Mohawk claims if the statute were not extended, an event which, as Port observed in his July 12, 1977 Oneida County opinion, had led the U. S. Marshal to prepare to serve thousands of summonses and complaints." At the same time, the Administration was pushing strongly in Congress for a further extension of the statutory deadline, which was eventually extended to April 1, 1980. Since then, the Administration has taken the position that the federal government will not resort to litigation until all avenues of settlement have been exhausted. The Interior Department has played a role in connection with eight of the eastern claims. The best known, of course, are the Passama 33. Mashpee Tribe v. New Seabury Corp., 427 F. Supp. 899 (D. Mass. 1977); Mashpee Tribe v. Town of Mashpee, 447 F. Supp. 940 (D. Mass. 1978), aff'd sub nom. Mashpee Tribe v. New Seabury Corp., 592 F.2d 575 (1st Cir. 1979), cert. denied, 48 U.S.L.W. 3221 (Oct. 2, 1979). 34. Maine Indian Suit for Land Halts Bond Sales and Endangers Titles, New York Times, October 24, 1976, at 1, col. 2. 35. See notes 22 and 27 supra. 36. This was a strategy essentially agreed upon by officials in both the Ford and Carter Administrations. 37. See text accompanying note 21 supra. 12 MAINE LAW REVIEW [Vol. 31:5 quoddy and Penobscot claims in Maine. The Maine claims are based on aboriginal title, the Indian right of use and occupancy existing at the time European explorers first arrived. The tribes claim that various treaties and transactions with the Commonwealth of Massachusetts and the State of Maine between 1794 and 1833 violated the Indians' right to possession of millions of acres of land, primarily located in the St. Croix and Penobscot River watersheds. The success of their claim in the courts depends on anthropological and historical evidence of their aboriginal occupancy of these vast areas of land. As mentioned, the Justice and Interior Departments have taken the position that the tribes have substantial claims to five million acres in central Maine. The three claims in New York differ significantly from the Maine claims. All three tribes, the Oneidas, the Cayugas, and the St. Regis Mohawks, entered into treaties, ratified by the United States Congress, confirming their rights to specific reserves within the state." The transactions which allegedly violated the restrictions of the Nonintercourse Act occurred later. The Interior Department views as consequential Oneida, Cayuga, and Mohawk claims to 250,000, 62,000 and 14,000 acres, respectively. The claim of the Catawba Tribe in South Carolina differs even further from the Maine claims. The Catawba Tribe claims 140,000 acres reserved to it in a 1763 treaty with the British Crown. In 1840 those lands were ceded in a treaty with the state. On August 30, 1977, the Interior Department took the position that the Catawba had a credible claim, and that efforts to settle the claim should be pursued. The Department has also taken the position that the Chitimacha Tribe of Louisiana has a legitimate claim to 813 acres lost to the tribe in the latter part of the 19th century. The lands, part of the tribe's aboriginal territory, had been patented to the Chitimacha by the General Land Office in 1852 pursuant to a special federal statute governing titles in the Louisiana Purchase." The tribe, meanwhile, has filed suit for possession of approximately 7,000 additional acres in the same vicinity." IV. SETTLEMENT EFFORTS The Administration has encouraged the negotiation of settlements in all these claims with varying results. In Maine, the principals appear to be close to settlement. The Indians are demanding that $63 million be appropriated by Congress for the benefit of the tribe, a portion of which sum will be used for the purchase of 300,000 acres 39. Treaty of Nov. 11, 1794, 7 Stat. 44; 2 C. Kappler, supra note 12, at 34; Treaty of May 31, 1796, 7 Stat. 55, 2 C. Kappler, supra note 12, at 45. 40. Act of June 17, 1844, ch. 95, 5 Stat. 676. 41. Chitimacha Tribe v. Harry L. Laws Co., No. 770-772L, (W.D. La., filed July 1977). |