Joint Tribal Council of the Passamaquoddy Tribe v. Morton
Encyclopedia
Joint Tribal Council of the Passamaquoddy Tribe v. Morton, 528 F.2d 370 (1st Cir. 1975), 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 tribe
s, 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.
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 6000 acres (24.3 km²) of land (before Maine became a state in 1820), seeking $150,000,000 in damages. Three days later, Maine narcotics officers raided Gellers' home and arrested him for possession of marijuana. On bail, Gellers fled to Israel, and the complaint was never prosecuted. 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 1000000 acres (4,046.9 km²). Not only did the Passamaquoddy tribal council approve Tureen's strategy, he was soon approached by the Penobscot who had sold 5000000 acres (20,234.3 km²) in 1796 under similar circumstances.
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.
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). When the Secretary refused, the Passamaquoddy sued him.
was his first ever appearance in court.
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.
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." The Secretary filed two lawsuits for each $150,000,000 in damages against the state on behalf of the two tribes. Those lawsuits were stayed, pending the resolution of the question of whether such trust relationship existed. The tribe amended their complaint, abandoning their request for injunctive relief and instead asking only for a declaratory judgment
. Gignoux allowed the state of Maine to intervene.
Gignoux ruled in the tribe's favor on the first two questions, and thus did not reach the third:
Levin H. Campbell, for the unanimous panel, affirmed. Because the trust relationship was found, the First Circuit did not reach the third issue.
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:
The Circuit acknowledged that its holding had great relevance to the tribe's ultimate land claim:
However, the Circuit did not wish to foreclose the result of that potential future lawsuit:
Existence of trust relationship
Campbell acknowledged that federal dealings with the Passamaquoddy had been sparse:
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:
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." 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."
The defendants did not appeal to the U.S. Supreme Court. 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. The 1794 and 1818 treaties negotiated by Massachusetts with the tribes, but without federal approval, covered 12000000 acres (48,562.3 km²) of land, approximately 60% of the state.
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. 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.
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.
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. 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
.
On January 11, 1977, Carter's interior department issued a recommendation to eject 350,000 non-Indians from the claimed lands. 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). 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 5000000–8000000 acre (20,234.3–32,374.9 km2) of forests within the claim area on June 1, unless a settlement was reached.
In 1979, Carter created a special White House task force to investigate the claims. Carter named retiring judge William B. Gunter, of the state Supreme Court of Georgia, to mediate the dispute. Archibald Cox
, former Watergate independent prosecutor, joined Tureen free of charge. In response, Governor Longley hired Edward Bennett Williams
, the name parter of Williams & Connolly
to defend the state.
On July 25, 1979, in a memorandum to President Carter, Gunter announced his proposed solution: $25,000,000, 100000 acres (404.7 km²) from the disputed area, and the option to purchase as much as 400000 acres (1,618.7 km²) more. 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.
Both the tribes and the state rejected Gunter's solution. Carter appointed a new three-member task force, which facilitated negotiations over a settlement that would include portions of cash, land, and BIA services.
After negotiations concluded, the Maine state legislature passed a statute enabling the settlement in 1979. Subsequently, freshman senator William Cohen
(D-ME) pushed the deal through Congress.
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 300000 acres (1,214.1 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).
Landmark decision
Landmark court decisions establish new precedents that establish a significant new legal principle or concept, or otherwise substantially change the interpretation of existing law...
regarding aboriginal title in the United States
Aboriginal title in the United States
The United States was the first jurisdiction to acknowledge the common law doctrine of aboriginal title...
. The United States Court of Appeals for the First Circuit
United States Court of Appeals for the First Circuit
The United States Court of Appeals for the First Circuit is a federal court with appellate jurisdiction over the district courts in the following districts:* District of Maine* District of Massachusetts...
held that the Nonintercourse Act applied to Passamaquoddy and Penobscot, non-federally recognized Indian tribe
Indian tribe
In the United States, a Native American tribe is any extant or historical tribe, band, nation, or other group or community of Indigenous peoples in the United States...
s, 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
Sovereign immunity in the United States
Sovereign immunity in the United States is the legal privilege by which the American federal, state, and tribal governments cannot be sued. Local governments in most jurisdictions enjoy immunity from some forms of suit, particularly in tort...
).
By upholding a declaratory judgement of the United States District Court for the District of Maine
United States District Court for the District of Maine
The U.S. District Court for the District of Maine is the U.S. district court for the state of Maine. The District of Maine was one of the original thirteen district courts established by the Judiciary Act of 1789, even though Maine was not a separate state from Massachusetts until 1820...
, 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
Aboriginal title
Aboriginal title is a common law doctrine that the land rights of indigenous peoples to customary tenure persist after the assumption of sovereignty under settler colonialism...
in Maine.
Background
Most of the Passamaquoddy aboriginal lands were alienated in a 1794 treaty with the state of Massachusetts (the predecessor of Maine). The treaty reserved 23000 acres (93.1 km²) for the tribe, 6000 acres (24.3 km²) of which were later diverted for other purposes. 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. 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.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 6000 acres (24.3 km²) of land (before Maine became a state in 1820), seeking $150,000,000 in damages. Three days later, Maine narcotics officers raided Gellers' home and arrested him for possession of marijuana. On bail, Gellers fled to Israel, and the complaint was never prosecuted. Tom Tureen
Tom Tureen
Thomas Norton Tureen is a prominent American lawyer, known for his work with Native American tribes and the Native American Rights Fund pioneering the use of the Nonintercourse Act to challenge post-1790 acquisitions of Native American lands by state governments without federal approval.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 1000000 acres (4,046.9 km²). Not only did the Passamaquoddy tribal council approve Tureen's strategy, he was soon approached by the Penobscot who had sold 5000000 acres (20,234.3 km²) in 1796 under similar circumstances.
Unable to persuade Arthur Lazarus, Jr.
Arthur Lazarus, Jr.
Arthur Lazarus, Jr. is a retired attorney primarily known for his work with American Indian tribes and Alaska Native corporations. His clients included the Blackfeet, Tuscarora, Seneca, and Navajo. His best-known case was the Black Hills Land Claim on behalf of the Sioux. He was the final attorney...
(one of the nation's leading Indian lawyers) of Fried, Frank, Harris, Shriver & Jacobson
Fried, Frank, Harris, Shriver & Jacobson
Fried, Frank, Harris, Shriver & Jacobson LLP is a law firm founded in New York City in the early 20th century that has grown into an international law firm with offices in New York City, Washington, DC, London, Paris, Frankfurt, Hong Kong and Shanghai. The firm has 468 attorneys worldwide...
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
Native American Rights Fund
The Native American Rights Fund, also known as NARF, is a non-profit organization that uses existing laws and treaties to ensure that state governments and the national government live up to their legal obligations...
(NARF) in 1971.
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
Subject-matter jurisdiction
Subject-matter jurisdiction is the authority of a court to hear cases of a particular type or cases relating to a specific subject matter. For instance, bankruptcy court only has the authority to hear bankruptcy cases....
for possessory land claims by Indian tribes based on aboriginal title
Aboriginal title
Aboriginal title is a common law doctrine that the land rights of indigenous peoples to customary tenure persist after the assumption of sovereignty under settler colonialism...
, the Passamaquoddy petitioned Rogers Morton
Rogers Morton
Rogers Clark Ballard Morton was an American politician who served as Secretary of the Interior and Secretary of Commerce under Presidents Richard Nixon and Gerald Ford, respectively...
, the Secretary of the Interior
United States Secretary of the Interior
The United States Secretary of the Interior is the head of the United States Department of the Interior.The US Department of the Interior should not be confused with the concept of Ministries of the Interior as used in other countries...
, 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
Statute of limitations
A statute of limitations is an enactment in a common law legal system that sets the maximum time after an event that legal proceedings based on that event may be initiated...
(28 U.S.C. s 2415(b)) for monetary damages for Indian trespass
Trespass
Trespass is an area of tort law broadly divided into three groups: trespass to the person, trespass to chattels and trespass to land.Trespass to the person, historically involved six separate trespasses: threats, assault, battery, wounding, mayhem, and maiming...
claims would expire (Congress later extended the deadline). When the Secretary refused, the Passamaquoddy sued him.
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 (50,585.8 m²) of land. Tureen's appearance before District Judge Edward Thaxter GignouxEdward Thaxter Gignoux
Edward Thaxter Gignoux was a United States federal judge.Born in Portland, Maine, Gignoux received an A.B. from Harvard College in 1937 and an LL.B. from Harvard Law School in 1940. He was in private practice in Buffalo, New York from 1940 to 1941, then in Washington, D.C. from 1941 to 1942...
was his first ever appearance in court.
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.
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." The Secretary filed two lawsuits for each $150,000,000 in damages against the state on behalf of the two tribes. Those lawsuits were stayed, pending the resolution of the question of whether such trust relationship existed. The tribe amended their complaint, abandoning their request for injunctive relief and instead asking only for a declaratory judgment
Declaratory judgment
A declaratory judgment is a judgment of a court in a civil case which declares the rights, duties, or obligations of one or more parties in a dispute. A declaratory judgment is legally binding, but it does not order any action by a party. In this way, the declaratory judgment is like an action to...
. Gignoux allowed the state of Maine to intervene.
Gignoux ruled in the tribe's favor on the first two questions, and thus did not reach the third:
- whether the Nonintercourse Act applies to the Passamaquoddy Tribe;
- whether the Act establishes a trust relationship between the United States and the Tribe;
- whether the United States may deny plaintiffs' request for litigation on the sole ground that there is no trust relationship
First Circuit opinion
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.
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.
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.
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.
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.
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." 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."
Settlement negotiations
Tom Tureen
Thomas Norton Tureen is a prominent American lawyer, known for his work with Native American tribes and the Native American Rights Fund pioneering the use of the Nonintercourse Act to challenge post-1790 acquisitions of Native American lands by state governments without federal approval.Tureen...
(the Passamaquoddy's lawyer) tried to negotiate a cash settlement; when Maine refused to negotiate, the demand shifted to land. The 1794 and 1818 treaties negotiated by Massachusetts with the tribes, but without federal approval, covered 12000000 acres (48,562.3 km²) of land, approximately 60% of the state.
At first both Maine's governor, James B. Longley
James B. Longley
James Bernard Longley, Sr. was an American politician. He served as the 69th Governor of Maine from 1975 to 1979, and was the first Independent to hold the office. In 1949, he married the former Helen Angela Walsh, who died on September 13, 2005. They had five children, including former Republican...
, and the Great Northern Nekoosa Corporation, the largest landowner in the state were unwilling to discuss a settlement. 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.
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.
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. 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
Jimmy Carter
James Earl "Jimmy" Carter, Jr. is an American politician who served as the 39th President of the United States and was the recipient of the 2002 Nobel Peace Prize, the only U.S. President to have received the Prize after leaving office...
.
On January 11, 1977, Carter's interior department issued a recommendation to eject 350,000 non-Indians from the claimed lands. 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
Indian claims commission
The Indian Claims Commission was a judicial panel for relations between the United States Federal Government and Native American tribes. It was established in 1946 by the United States Congress to hear claims of Indian tribes against the United States...
cases). 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 5000000–8000000 acre (20,234.3–32,374.9 km2) of forests within the claim area on June 1, unless a settlement was reached.
In 1979, Carter created a special White House task force to investigate the claims. Carter named retiring judge William B. Gunter, of the state Supreme Court of Georgia, to mediate the dispute. Archibald Cox
Archibald Cox
Archibald Cox, Jr., was an American lawyer and law professor who served as U.S. Solicitor General under President John F. Kennedy. He became known as the first special prosecutor for the Watergate scandal. During his career, he was a pioneering expert on labor law and also an authority on...
, former Watergate independent prosecutor, joined Tureen free of charge. In response, Governor Longley hired Edward Bennett Williams
Edward Bennett Williams
Edward Bennett Williams was a Washington, D.C. trial attorney who founded the law firm of Williams & Connolly and owned several professional sports teams...
, the name parter of Williams & Connolly
Williams & Connolly
Williams & Connolly LLP is a prominent litigation firm based in Washington, D.C. The firm was founded by trial lawyer Edward Bennett Williams, who left the partnership of D.C. firm Hogan & Hartson to launch his own litigation boutique....
to defend the state.
On July 25, 1979, in a memorandum to President Carter, Gunter announced his proposed solution: $25,000,000, 100000 acres (404.7 km²) from the disputed area, and the option to purchase as much as 400000 acres (1,618.7 km²) more. 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.
Both the tribes and the state rejected Gunter's solution. Carter appointed a new three-member task force, which facilitated negotiations over a settlement that would include portions of cash, land, and BIA services.
Maine Indian Claims Settlement Act
William Cohen
William Sebastian Cohen is an author and American politician from the U.S. state of Maine. A Republican, Cohen served as Secretary of Defense under Democratic President Bill Clinton.-Early life and education:...
(D-ME) pushed the deal through Congress.
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
Passamaquoddy
The Passamaquoddy are the First Nations people who live in northeastern North America, primarily in Maine and New Brunswick....
and Penobscot. In return, the Act granted both tribes federal recognition and allocated $81,500,000 million for the tribes to purchase up to 300000 acres (1,214.1 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).