LEGACY OF THE LAND CLAIMS Twenty-five years after the Maine Indian Claims Settlement Act, has the agreement delivered for Maine and its tribes?

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Editor’s note: This is the first in a two-part series on the 1980 Maine Indian Claims Settlement Act, which marks its 25th anniversary on Oct. 10. Part two will appear Monday.

To passers-by on the stretch of Route 1 along Lewy Lake, the pile of gravel – now overgrown with weeds – hardly seems a monument to anything, let alone one of Maine’s most controversial and consequential legal battles.

“This is where the war started,” John Stevens, a Passamaquoddy elder, half-joked as he recalled his tribe’s 1964 protest on the spot in Indian Township through which a local white man had planned to build a road on what the tribe believed to be its property.

“It’s kind of a memorial for us now,” continued Stevens, now 72, whose protest set in motion 16 years of legal, political and cultural tumult that resulted in the 1980 Maine Indian Claims Settlement Act, which marks its 25th anniversary on Monday.

The unique agreement, signed into law by President Jimmy Carter on Oct. 10, 1980, was full of promise, the result of four years of often tense negotiations among state, tribal and paper company officials. It marked a new chapter, its authors hoped, in the troubled tale of the state and its native population, particularly its two largest tribes, the Penobscot Indian Nation and the Passamaquoddy Tribe.

“It was a new opportunity, which was a lot more than what we had before,” said former Penobscot governor Tim Love, who took his post just days before Carter’s ceremonial signing.

Depending on how one measures progress over the 25 years, much – and little – has changed on the state’s three reservations, where poverty persists despite general improvements in housing, employment and education.

Much of the gains have come with the federal government’s official recognition of Maine tribes – a status confirmed by the settlement. The federal status brought with it millions of dollars over the years to run tribal housing, health, education and law enforcement programs.

But to some tribal members, the stroke of Carter’s eagle quill pen on their 1980 settlement with the state brought something far more valuable: land.

The Penobscot and Passamaquoddy each received $26.8 million to buy more than 300,000 total acres of land – making them among the state’s largest landowners. The Houlton Band of Maliseets, a smaller tribe in Aroostook County, received $900,000 to acquire land.

The settlement also included an additional $13.5 million each for the Penobscot and Passamaquoddy tribes, to be held in federal trust accounts. The annual interest is paid to the tribes and can be used without restriction except for interest from $1 million that must be used to benefit tribal elders. The Houlton band did not receive a trust fund.

In return for the $81.5 million in federal money – the largest settlement of its kind at the time – the tribes dropped their claim to 12.5 million acres of land (about two-thirds of the state) and agreed to abide by most state laws and provide services similar to a municipality.Although 25 years is but a blip in Indian history, change – not all for the better – has come quickly in those years.

They have brought legal, economic and political frustration to the tribes, which have chafed under certain terms of the settlement that deny them many rights – including the ability to operate casino gambling – afforded to other Indian tribes with equal federal status.From behind his desk on the Penobscots’ 315-acre reservation north of Old Town, Love still bristles over the disparity that has kept his tribe, and the Passamaquoddy, at an economic disadvantage when compared to the rest of Indian country.

“The state got something it didn’t deserve,” Love said.

‘A deal is a deal’

Two hours away, a much younger Love can be seen smiling in a group photograph hanging on the wall of John M.R. Paterson’s law office in Portland’s busy Old Port.

Paterson, one of the state’s chief negotiators of the settlement, also has a place in the photo, in which he and the rest of the agreement’s architects stand in front of the West Wing of the White House after the signing.

“A deal is a deal, and we made a deal,” Paterson, 61, said matter-of-factly, dismissing the tribes’ later contention that the agreement has been misinterpreted by the courts. “They understood every word, comma and period.”

Paterson, at the time deputy state attorney general under Gov. Joseph Brennan, recalls being responsible for a key phrase in the settlement that has stymied the Maine tribes’ attempts to take advantage of a 1989 federal law allowing tribal casinos. Essentially, Paterson’s addition prevented any federal Indian law passed after the 1980 settlement from applying to the Maine tribes, unless it specifically named them.

Paterson isn’t necessarily reviled by tribal members, and Love, who worked intently on the negotiations, refers to him as a “worthy adversary.”

The tribes, however, did work feverishly – and successfully – to scuttle Paterson’s 1995 nomination to the Maine Indian Tribal-State Commission, a joint panel created by the settlement to resolve disputes over its interpretation.

While a deal may be a deal, in Paterson’s words, it’s a deal whose origins and intricacies fewer and fewer Mainers understand.

Some evidence of that can be found within Paterson’s own office, where many young lawyers, he said, puzzle over the framed photograph and offer blank looks when he recounts for them the groundbreaking case.

“‘Get out of my office,’ I say,” joked Paterson, although acknowledging that many of the new associates weren’t yet born when the settlement was making national headlines.

But a general misunderstanding of the agreement has fueled hard feelings over the years, said Tom Tureen, who, fresh out of law school, devised the legal strategy that allowed the Maine tribes to reclaim land and become eligible for federal benefits afforded to hundreds of other tribes across the nation.

“To begin with, the other side wasn’t afraid of us at all,” said Tureen, now 61, noting that state attorneys ignored the case for several years, believing the unorthodox legal approach had little chance of success. “That eventually changed.”

Front and center in Paterson’s photograph is a younger Tureen, and no one’s smile is broader than that of the lawsuit’s bespectacled mastermind.

At the time of the photo, it had been 13 years since Tureen first set foot in Washington County as a summer researcher for Eastport attorney Don Gellers, the only local lawyer willing to represent the tribe when a handful of its members were arrested during the Lewy Lake protest. Eventually, all charges were dropped and Gellers had earned the respect of many in the tribe.

In 1968, Gellers was also busy crafting a lawsuit in hope of regaining 6,000 lost acres of 23,000 acres reserved for the tribe in a 1794 treaty with the Commonwealth of Massachusetts, which at the time included Maine.

Three days after the lawsuit’s filing, however, police arrested Gellers for marijuana possession. He was later convicted, but fled the state before serving any prison time. Stevens then asked Tureen, upon his 1969 graduation from George Washington University law school, to take over the case. He readily agreed, but, just as quickly, abandoned Gellers’ strategy in favor of one that eventually would test the limits of the nation’s judicial system and call into real question who owned most of Maine.

‘Deep and difficult waters’

In trying to reclaim some of the tribe’s land, Gellers’ case had relied on the 1794 treaty, uncovered by Stevens, reserving for the tribe 23,000 total acres – including the Lewy Lake tract.

But Tureen, with the tribe’s blessing, would argue that the treaty was null and void because it was made after Congress passed the Nonintercourse Act of 1790, which required that the federal government approve all Indian treaties.

The Passamaquoddy’ 1794 treaty, copies of which today reside within the Maine State Museum archives and the University of Maine special collections, had no such approvals.

Meanwhile, the Penobscot Nation found itself in a similar situation. In 1796, it had ceded most of its land to Massachusetts in return for an annual payment of supplies including 500 bushels of corn, 15 barrels of flour, seven barrels of clear pork, one hogshead of molasses, 100 yards of cloth and 50 good blankets. That bargain also was struck without congressional approval.

Penobscot leaders asked Tureen to include them in his 1972 lawsuit against the U.S. Department of the Interior, attorneys for which had argued that the Penobscot and Passamaquoddy were “state Indians” who were not federally recognized and therefore not covered under the Nonintercourse Act.

But Tureen would soon find out that the clock was ticking on his lawsuit because of an existing federal statute of limitations on Indian land claims nationwide that was set to expire in a matter of months.

Tureen pled his case to U.S. District Court Judge Edward T. Gignoux, who ordered the U.S. Department of Justice to sue the state of Maine on behalf of the tribes to preserve the claim while he ruled on the merits of the case. The department complied and sued Maine for $150 million on behalf of both tribes.

Nearly three years later, in 1975, the tribes won a major victory when Gignoux found that they were entitled to federal recognition and their land afforded the same protections as that of the more established Western tribes.

After that decision was upheld by a higher court, the Justice Department amended its original lawsuit to claim a staggering 12.5 million acres on the tribes’ behalf, much of which was owned by the state’s powerful paper companies in northern and eastern Maine.

“It was important because of the potential of it,” said Suzan Shown Harjo, an American Indian writer living in Washington who became involved in the case first as a radio reporter and then as a special assistant in the Carter administration. “There was a feeling in Indian country that finally, maybe [the Maine tribes] were going to get some justice.”

The ruling itself, although significant, still didn’t catch the attention of state leaders, including the man the tribes believed to be their biggest adversary at that time: Maine Gov. Jim Longley, who had taken office earlier that year.

But it wouldn’t be long before Longley – and nearly everyone else in Maine – would pay close attention to the case. In 1976, the threat of a federal lawsuit against the state threw the Maine bond market into turmoil. With the pending lawsuit, there would be no clear title to the vast area of disputed land, and the town of Millinocket was unable to borrow $1 million because it could not prove it had the authority to raise taxes on its land to repay the municipal bond.

Shortly thereafter, a $27 million statewide bond issue failed to get the needed legal approval, and suddenly the case appeared on everyone’s radar screen as funding for construction projects including roads, bridges – and the Bangor Mall – became hung up in the legal uncertainty.

The next morning, Tureen’s telephone rang.

“I got a call at 4 a.m. from this madman [Longley] screaming at me and telling me he was going to Washington to fix this,” said Tureen. Tureen, a pilot, jumped in his plane in an attempt to beat the governor there.

“I pictured myself in a boat with suddenly huge waves,” Tureen later recalled of the quick and powerful opposition, which included an effort – that ultimately failed – to pass a federal law designed to lock the tribes out of court and unconditionally extinguish their existing claim. “We were getting into some deep and difficult waters.”

Just a few months before the tribe’s winning federal recognition in court, Tureen had attempted to explain the case to Longley during a car ride between Calais and the Passamaquoddy reservation on Pleasant Point.

Longley, famed for his ability to forgo sleep for late-night letter writing, did something unexpected, according to Tureen: He fell asleep.

But for the rest of his term, Longley – and later, Gov. Brennan – would devote many of his waking hours to making the tribes’ suddenly strong claim go away.

For Paterson, one of the state’s top attorneys, that meant years of negotiations in hopes of settling the federal case, the outcome of which – should it be heard in court – was, at best, uncertain.

“It was considered a real crisis,” Paterson said.

Settling on sovereignty

Such a crisis it was that the Maine congressional delegation prevailed upon the Carter administration to intervene in the case, which was causing Maine property owners much consternation and in some quarters fueling anti-Indian sentiment.

“There was a lot of fear … fear of the unknown,” Love said of public reaction at the time. “We had been subservient to the state for so long. Now that was going to change.

“People were saying, ‘Now they want their land back, what’s going to happen to us?'” Love continued. “You can understand that, but at the same time, we wanted justice.”

In reality, many tribal officials knew that the likelihood of regaining the millions of acres they sought in their claim against the state was remote, at best. The courts, they believed, simply wouldn’t allow such a drastic change in the ownership of an area where 350,000 Mainers now lived.

So the tribes’ justice was bound to come through negotiations, and Carter, sympathetic to the tribes’ position, appointed a former Georgia superior court justice as a special envoy to the talks.

The state – then among the poorest in the nation – was unyielding in its refusal to pay any of the reparations. Instead, it insisted that the federal government, which thus far had ignored the Maine tribes, pick up the entire tab. Eventually, Carter came up with $81.5 million – by far the largest settlement of its kind at the time. More importantly, it was enough to satisfy the tribes.

With the money issue out of the way, there remained a more pressing concern: sovereignty.

Longley had repeatedly expressed his unwillingness to create a “nation within a nation,” and the Maine tribes were convinced they should be treated like the western tribes, which had broad powers to control their land without state interference.

“There was no reason the Maine tribes shouldn’t be just like other tribes,” Tureen said during a recent interview at his comfortable South Portland home. “No reason at all.”

But without the approval of Maine’s congressional delegation, the tribes had little chance of realizing the agreed-upon $81.5 million settlement.

And with Carter poised to lose his 1980 re-election bid against Republican Ronald Reagan – who was considered less likely to deal with the tribes – the clock was ticking.

“Things were moving very fast,” Love recalled. “We had some decisions to make.”

Those decisions would ultimately lay the groundwork for a new era in tribal-state relations, but would also jeopardize the tribes’ sovereignty and perpetuate decades of political and cultural conflict.

Monday: A new era begins as the tribes struggle to balance their ancient cultures and fledgling economies under the 1980 settlement’s strict terms.