The obscure Penobscot and Passamaquoddy tribes, total population, 3500, got yawns and titters as a reaction five years ago when they first claimed a right to 10 million acres of land and billions of dollars in trespass damages, and demanded that the Interior Department file suit as their trustee. The tribes said that the landóan area comprising more than half of the state of Maine, and larger than Massachusetts, Connecticut and Rhode Island put togetheróhad been taken from their ancestors during the late 18th and early 19th centuries in violation of a 1790 act of Congress. Most of the land is uninhabited forest owned by big paper companies and other large landowners including the state government; about 350,000 people live in the inhabited parts of the claim area. At first the Interior and Justice Departments refused to press the Indians’ claim for them. But after the Indians won a preliminary legal skirmish over the applicability of the 1790 act, the federal government began working activelyóif somewhat reluctantlyóon their behalf. The Justice Department now says the United States will file suit against the state of Maine in support of the Indian claim, unless it’s settled by June 1. The yawns and titters have given way to urgent pleas by Maine officials for Congress to bail them out. "A dark cloud of doubt and instability is hovering over the state of Maine" because of the uncertainty cast on land titles by the Indian claims, Maine Representative William S. Cohen lamented on the floor of the House March 1. Cohen and the rest of the Maine delegation have introduced a bill that would wipe out the Indian land claims by retroactively validating almost 200 years of land transactions that the tribes claim were illegal.

Both the litigation and the Maine delegation’s bill are being held in abeyance while Justice Gunter holds White House meetings with state and federal officials and the Indians’ legal team. It will be difficult to bring the tribes and the state to an amicable settlement. Gunter said last week that the parties are "just about as far apart as you can get" and that "feelings between the Indians and the state officials are running very high." The lawyers for both sides purport to believe that their legal positions are impregnable. Maine attorney general Joseph E. Brennan has adamantly refused to consider any negotiated settlement that would take land or tax dollars from the state or its citizens. The tribes are to negotiate about money, but insist that any settlement must include a significant land base for them. Gunter says he still hopes to bring the parties together in time, but he plans to make a recommendation to the President by July 1, including possible legislation, even if there is no agreement. Gunter also is negotiating with the parties in a similar suit by the Wampanoag Tribe asserting ownership of the entire town of Mashpee, Massachusettsóabout 17,000 acresóand has agreed to act as the President’s special representative in that case also if President Carter wants him to. The cloud cast on land titles in Mashpee has brought the town’s booming real estate industry, and most of the rest of its economy, to a grinding halt.

The most important date in the Maine controversy is July 18 of this year. For complex legal reasons, that is when the statute of limitation expires on these claims going as far back as 1790. Unless there is a settlement by July 18, or Congress extends the limitation, the litigation will go forward with the US Government participating on the Indian side, as it is required to do, as their legal trustee. This might well bring chaos to the Maine economy. Municipalities within the claim area have been unable to sell bonds since early last year because of the new uncertainty over title to the lands that constitute their tax base. If Justice actually files suit, Representative Cohen told the House, the state might be brought to its knees. "Banks will no longer finance home loans and mortgages; investment and commerical development will be terminated," federal economic programs will dry up and residents might refuse to pay taxes and mortgages, he predicted. State officials also warn darkly that once citizens begin to believe their homes are really endangered, anti-Indian violence might break out. The litigation, including appeals to the Supreme Court, probably would take five to 10 years, during which the possibility of an Indian victory would hang over the state’s timber-based economy like a Sword of Damocles.

As befits a case which the Justice Department has described in court papers as "potentially the most complex litigation ever brought in the federal courts with social and economic impacts without precedent and incredible potential litigation costs," both sides have brought in big-gun lawyers with demonstrated clout in Washington as the scene of the battle shifts from the federal district court in Portland to the White House and the halls of Congress. The tribes have enlisted the uncompensated assistance of Archibald Cox, the Harvard Law School professor who enjoys the most prestigious niche in the Watergate Wing of the legal profession’s Hall of Righteousness. Not to be outdone, Governor Longley of Maine has hired Edward Bennett Williams, Washington’s best known trial lawyer and owner of the Washington Redskins. Maine officials say they hired Williams because he knows his way around Washington. The Indians hope that Cox’s reputation as a "symbol of the integrity of the judicial system" will help them to stave off legislation that would deny them their day in court. Cox has stated that such an eleventh-hour legislative sabotage of the budding lawsuit would besmirch the national honor. Another old Watergate hand, Nixon lawyer James D. St. Clair, has been hired by the town of Mashpee, Massachsetts to find a way around the Wampanoag Tribe’s claim.

The real architect of the Maine tribes’ successes so far has been not Cox but a 33-year-old non-Indian lawyer named Tom Tureen. Tureen was first attracted to a career in Indian law when he was a Princeton undergraduate working for the summer with Sioux children in South Dakota. In 1967, between years at George Washington Law School, he worked as an assistant to Donald Gellers, an Eastport, Maine lawyer who was researching a rather modest claim the Passamaquoddy tribe had been trying to get the state to pay attention to for 10 years. The claim’s basis was a 1794 treaty between the tribe and the state of Massachusetts, of which what is now Maine was a part until 1820. The treaty purported to guarantee the tribe’s ownership of its reservation land in the northeastern corner of Maine, some 23,000 acres in all, in exchange for giving up all claim to the vast tracts that had once been the Passamaquoddys’ exclusive domain.

This old treaty had been long forgotten until 1957, when an old Passamaquoddy woman pulled it out of a box she kept under her bed and showed it to tribal leader John Stevens. Stevens knew that several thousand of the 23,000 acres had since been taken by the white man, leaving the tribe less than 17,000 acres in two locations. He drove with other tribal leaders to the state capital in Augusta to seek some help from the state attorney general, who was too busy to see them.

Not much else happened until 1964, when a commercial cabin owner won some land on the edge of the reservation from another non-Indian in a poker game, and tried to build cabins on the land. The Passamaquoddys thought the land was reserved to them by the 1794 treaty. A group of Indians staged a sit-in and got arrested. Donald Gellers, the lawyer they hired to defend them against criminal trespass charges, agreed to research their rights under the 1794 treaty. He was working on a claim for the alienated 6000 acres when he was arrested for possession of marijuana. Gellers’ legal difficulties, and his eventual departure for more hospitable climes, left the tribe in need of a new lawyer.

Tureen had spent the summer of 1967 helping Gellers with the Indian litigation. In 1970 he took on the whole case, originally as the one-man Indian Legal Services Unit of the federal Office of Economic Opportunity’s legal assistance project in Maine. Tureen’s research soon led him to a conclusion that the Indians and his predecessor never had dreamed of: the 1794 treaty itself was invalid and the Passamaquoddy and Penobscot Tribes still owned the millions of acres they had occupied in colonial times. After quitting OEO, Tureen joined the Native American Rights Fund, a foundation-funded group of Indian lawyers based in Boulder, Colorado. He persuaded Hogan & Hartson, a large Washington, DC, law firm, to help out on a nonpaying basis. Tureen and his new legal team spent more than a year developing the legal and historical basis for the claim and considering ways of pressing it. He presented his conclusions to the Passamaquoddy Tribe in late 1971, and got the go-ahead to see if he could batter down the wall of official indifference which had greeted previous efforts to assert the tribe’s rights. He has been battering ever since with singular success.

Tureen’s greatest triumph so far has been forcing the United States Government to take up the Indians’ cause. For both legal and practical reasons, it would have been next to impossible for the tribes to pursue the suit on their own. The tribes were caught in a bind: it was not even clear they had the right to sue on their own, but they couldn’t interest the government in suing on their behalf. Early in 1972 the tribes petitioned the Bureau of Indian Affairs to file suit for them. BIA recommended that a suit be filed, but the Interior Department squelched the recommendation. Meanwhile, the statute of limitations on an important part of the potential suit was due to expire in July 1972. So Tureen went to court in June and got from Federal District Judge Edward Gignoux a preliminary order requiring the government to file a "protective suit" before the July deadline. Tureen says this is the first time a federal court ever ordered the government to file a lawsuit. Two and a half years later, in February 1975, Judge Gignoux ruled that the federal government is legal trustee for all Indian tribes. The Federal Circuit Court of Appeals, in affirming Gignoux’s decision 10 months later, said the trust relationship at a minimum required the government to investigate and take appropriate action on any Indian claim that tribal rights had been violated. Neither the federal government nor the state of Maine, which had intervened against Tureen and the tribes, appealed to the Supreme Court, so this is now the law.

The legal theory of Tureen’s case is disarmingly simple. The Indian Nonintercourse Act, which was enacted by the first Congress in 1790 and remains on the statute books in substantially identical form today, states that no purchases, grants or seizures of lands from Indian tribes "shall be of any validity" unless "made by treaty or convention entered into pursuant to the Constitution"óthat is, unless approved by Congress. The Maine tribes claim their ancestors held "aboriginal title" to some 10 million acres in Maine in 1790, by virtue of possession since time immemorial; that almost all of the land was subsequently taken by Maine and Massachusetts in a series of transactions, including the 1794 treaty, that never were submitted to Congress for approval; and therefore that these transactions were invalid and the land still belongs to the tribes. The whites who have settled there over the past 185 years, and the large paper companies and family trusts that hold huge tracts for lumbering, have been trespassers. They are therefore liable not only to be ejected from the land but also to pay damages for all the years of illegal occupation.

The legal and factual issues presented by this claim have led the parties deep into a mire of obscure historical lore about the wanderings of long-dead Indians and speculation about the intentions of long-dead congressmen. Exactly which watersheds did the "riverine" Maine tribes exercise "aboriginal title" over by traversing them on their hunting, fishing, and berry-picking expeditions two centuries ago? Were the tribes dispossessed of their lands during the French and Indian War when Royal Governor Thomas Pownall declared war against them and, in 1759, planted a leaden plate at the head of the tide of the Penobscot River proclaiming "possession" on behalf of Great Britain? Did Congress in 1790 intend the Nonintercourse Act to apply to the 13 original states, or just to the western territories?

Such arcane inquiries may seem to be a rather peculiar way for a legal system to go about resolving the relative rights of 20th century Indians and whites. But behind the historical fine print that forms the technical legal basis of the tribes’ claims is the national sense of guilt about the brutal conduct of the white settlers who seized, stole, and swindled the continent from its Indian natives, relegated them to a few poverty-infested enclaves and more or less forgot about them. This feeling of guilt breathes vigor into the ancient but long unobserved legal doctrine that the federal government must act as a trustee to protect the best interests of Indian tribes. The Supreme Court has held repeatedly that the purpose of the Indian Nonintercourse Act was to obligate the federal government to protect a "simple, uninformed people" against the greed and trickery of the land-hungry state governments and pioneers. The theory was enunciated most forcefully by Chief Justice John Marshall, who described the status of Indian tribes as that of "domestic dependent nations" whose title to their aboriginal lands was good against all unless and until the sovereign Congress decided to extinguish it, and whose "relation to the United States resembles that of a ward to his guardian." Meanwhile, the reality was that of President Andrew Jackson, who championed the conquest and subjection of the Indian tribes in the West, left the already subjected Eastern tribes like the Passamaquoddys and Penobscots to the tender mercies of the state governments, and bid John Marshall to enforce his pro-Indian decisions if he could.

Now, in an era when the executive branch has become accustomed to doing what the courts tell it to do, the Indians are calling in their debts. After years of hearing from the white establishment that minorities should eschew disruption and politely seek redress for their complaints by working within the system, they are working within the system with a vengeance. And their advocates do not apologize for dredging up memories of ancient wrongs to threaten the land ownership of white citizens who were not responsible for these wrongs. "These folks never should have been poor," Tom Tureen says. "The current generation is very directly affected by what happened 180 years ago. The whole framework of the Nonintercourse Act was set up so that they would be protected. There were specific promises to these tribes from George Washington. They never should have had to grovel at the feet of the state."

Maine attorney general Brennan sees things differently. "The people up here think the thing is outrageous and bizarre. The more I get involved in this case the more I get irate at the United States government. They’ve pretty much agreed that if there are any wrongdoers they died 150 years ago. I can’t understand how the Interior Department could recommend ejectment of 350,000 innocent people from their land." Brennan does not doubt that "this Country owes something to its native Americans," but he vehemently denies that the government or property owners of Maine owe any such "moral debt." If the country is going to pay its "moral debt" to the Indians, Brennan reasons, the blacks and other minorities will be able to assert an equally compelling entitlement to redress. "We cannot create a system of perfect historical moral accounting that requires monetary payment for asserted ancient wrong." So the resolution of the Maine case should be left to the strict application of legal doctrine, he says, without muddying the waters by discussions of ancient wrongs.

But experience teaches that an ounce of legal leverage is worth more to the underprivileged in this country than a ton of moral entitlementóparticularly when those demanding redress are few enough that the federal government can do them justice without spending more than, say, the cost of a B-1 bomber. It may be hard for many to see why, as a matter of simple justice, the 3500 Indians in northern Maine have any more coming to them than the millions of blacks in the nation’s ghettos. But any argument that a little social justice for a few of our history’s victims should be denied until we are ready to open the federal treasury to all of them has a rather unsavory Catch-22 logic to it. And the fact remains that the tribes seem to have a pretty strong legal case, quite independent of whatever moral force their claim may or may not have.

The most unsettling thing about the Maine tribes’ claim is that the landowners against whom they say the law affords them a remedy are innocent of any wrongdoing. There are no living wrongdoers in the caseóunless the state government and its taxpayers and the contemporary stockholders of the large paper companies which bought huge tracts for a song 100 years ago are "guilty" as corporate bodies. The Indians, the justice Department, and the state officials seem to agree that the burden of any settlement ought to be assumed primarily by the federal treasury, although Tureen says the state and the large landowners should expect to lose some land. After all, it is the federal government that has neglected its trust responsibility to the Maine tribes for the past 187 years, and that is best able to redress a larger wrong committed by the nation as a whole. And of course the federal government has more money than anybody else in sight.

But the tribes have no statutory basis or favorable precedent for suing the federal government. Their only means of seeking to turn their legal rights into the land and money they want is to use what rights the law does give them to take as hostages the landowners in the claim area, and to hope that before the litigation reaches a showdown and the relations between the Indians and their neighbors get ugly, Congress will be stirred from its slumber, drown the claims in federal money and, along the way, buy a little social justice.

Tureen asserts that Judge Gignoux’s decision settled the only really difficult legal issue in this case, and the graceful thing for the state and the big landowners to do now would be to recognize their legal predicament and sit down to negotiate a settlement. Maine attorney general Brennan says there are other legal issues that make the Indians’ claim so weak that the government needn’t intervene on their behalf even though it is their trusteeóa battle he apparently has lostóand that certainly make it unnecessary for the state and its non-Indian landowners to settle with the tribes.

Brennan argues, for example, that as of 1790, the date of the Nonintercourse Act, the tribes were ragged bands of only a few hundred Indians who already had lost most of their aboriginal territory by conquest, white settlement, and a series of agreements; that all pre-1820 transactions with the tribes were implicitly ratified by Congress when it admitted Maine to the Union in 1820 and approved the terms of the Compact of Separation between Maine and Massachusetts; that the federal government has implicitly recognized non-Indian ownership of land in the claim area by transactions such as purchasing land for post offices and the like; and that in any event the Nonintercourse Act was never intended to apply within the 13 original states. Brennan also has raised arguments based on the common law doctrines of laches, which bars assertion of legal rights that have been neglected so long that to raise them would be unfair; and adverse possession, which bars any challenge to the title of someone who has occupied land for a long enough time under a claim of ownership. These doctrines are the legal embodiment of the common-sense perception expressed by many Maine residents that you can’t turn the world upside down and penalize thousands of innocent landowners to undo long-forgotten legal wrongs. But a federal court in Rhode Island last year, in a case involving a Nonintercourse Act claim by the Narragansett Tribe to 3200 acres in Charlestown, held that such common law defenses do no apply against an Indian land claim based on federal statutory law.

In January of this year the Interior Department recommended to the Justice Department that ejectment actions be filed on behalf of the tribes against all occupants of some 10 million acres of Maine, including the heavily populated coastal regions. The Justice Department conducted an independent review of the claims. In court papers filed February 28, it said that if an out-of-court settlement is not reached it will sue for a smaller area, comprising about five to seven million acres, proceeding first against the state and a few large landowners. Justice said the tribes have agreed to give up most of their claims against homeowners and small property owners, if a monetary claim against an "appropriate sovereign" could be substituted for those claims. So far neither the federal government nor the state of Maine has agreed to substitute itself.

Congress has at least three options in attempting to resolve the Maine claims, aside from doing nothing and letting the litigation proceed. First it could attempt simply to scuttle the claims by passing a law retroactively validating all prior conveyances of land from the tribes. That is what the Maine congressional delegation’s bill appears to be designed to do. The Supreme Court has held that Congress may extinguish aboriginal title whenever it pleases, so it is apparently within the power of Congress to scuttle the tribes’ land claims. But Tureen claims that the due process clause of the Fifth Amendment of the US Consitution makes it impossible for Congress to wipe out the tribes’ claims for trespass damages. The legal question appears to be an open one. If Tureen is right the Indians might get the land anyway, by getting a huge trespass judgement then levying execution on the losing defendants’ real estate.

If Congress chooses to be just a bit more responsive to Professor Cox’s conception of the national honor, it could enact a law wiping out the land claims, but authorizing some court or commission to calculate the monetary value of the tribes’ claim and to pay the tribes compensation out of the federal treasury. Tureen doesn’t like that solution either. He says it probably would result in long delays and little more than token compensation to the tribes.

The settlement model the tribes apparently prefer is that of the Alaska Native Claims Settlement Act of 1971, in which Congress awarded 40 million acres of federal land and almost a billion dollars to 70,000 Eskimos, Aleuts, and Indians to compensate for the wrongful taking of their lands years before. One problems with doing something like this in the Maine case is that the federal government has no substantial land holdings in Maine. But the government could get the land from large landowners, either voluntarily or by eminent domain, compensate them for it and give it to the tribes.

Arriving at a fair monetary settlement would be a task of mind-boggling complexity. Any settlement in Maine probably would be a model for settlement of other Nonintercourse Act claims brewing in Oneida, New York (300,000 acres claimed), Kent and Ledyard, Connecticut (2300 acres), Martha’s Vineyard (3000 acres) and Rock Hill, South Carolina (144,000 acres), as well as the Mashpee and Narragansett cases. No very meaningful figure for the value of the Maine tribes’ trespass claims has been suggested. The uninhabited portions of the 10 million acres of land they claim are valued in the range of $100 an acre, but the value of the inhabited portions is incalculable. If the suit ever went to trial, the landowners doubtless would claim that if the Indians recover the land they should pay restitution for all improvements to the property (buildings, etc.), as the defendants have asserted in the Mashpee case. Tureen has on occasion estimated the total value of the tribes’ claims, including land as well as trespass damages, at $25 billionóa figure that is no more wildly inflated than the typical initial damage estimate of the plaintiff in any modern lawsuit. That would give each Indian about six million dollars. The Justice Department’s 1972 "protective complaint" asked for $300 million in damages from the state of Maine alone; a department lawyer says that figure was "picked right out of the air."

The Alaska settlement might suggest a starting point. It amounted to roughly $15,000 and 600 acres per Indian. Multiplied by 3500 Passamaquoddys and Penobscots, that adds up something over $50 million and two million acres. Whether the Maine tribes would give up their gargantuan claim for a settlement of that size remains to be seen. Tureen points out that the Alaska natives, unlike his clients, had no claim for trespass damages; moreover, the tribal memberships may total as much as 5000 after the scent of money brings long-departed members who can prove their ancestry back to the fold. Any land and money that come out of this lawsuit or settlement of it will go to the tribes, and not to individual Indians. The tribal councils will be able to decide what to do with it.

To the Passamaquoddys’ white neighbors in Washington county, many of whom are as poor as the Indians or poorer, a settlement of such magnitude will seem like an unjustified windfall. But our system of legal rights bestows windfalls on a lot of peopleóthe heirs of rich men and women, the divorced wives of rich men, the owners of land on which oil is discovered. There may be a certain justice, at least, if for once the legal system confers a windfall on people whom our society for hundreds of years has relegated to a position of penury and humiliating dependence. The Maine tribes are not as poor as they were a decade or two ago. They have learned the art of federal grantsmanship, and an influx of money and jobs from federal housing and other programs has cut their unemployment rate to something on the order of 30 percent. The state also contributes substantial social service aid. People on their reservations don’t starve any more. But what the tribes say they want is something on the order of the independence and dignity that would still be theirs if their lands had not been taken away from them in the first place.

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