Tribal members rally outside the Maine State House during the long negotiation period between Judge Gignoux’s ruling and the signing of the Maine Indian Claims Settlement Act.
By Brian Kevin
From our April 2022 issue
Very few people took seriously the lawsuit that 28-year-old attorney Tom Tureen filed in Portland’s federal district court on June 2, 1972. When Tureen had described the suit, on behalf of Maine’s Passamaquoddy Tribe, to an influential DC Native-affairs attorney a few months earlier, the more-senior lawyer had bluntly told him he was dreaming. When, years later, the New York Times ran a front-page story about the case’s gobsmacking implications — for Wabanaki tribal members, for Maine, and for the nation — the reporter opened by marveling that the suit had once “seemed insignificant, even ludicrous.”
It was more than just a David-versus-Goliath battle. It was David brazenly strong-arming Goliath into battling even more indomitable giants on his behalf.
The defendant in the suit was Nixon’s interior secretary, Rogers Morton, whose department encompasses the federal Bureau of Indian Affairs. Fifteen weeks earlier, Passamaquoddy governors John Stevens and Eugene Francis, each representing one of Maine’s two Passamaquoddy reservations, had written to the BIA’s director. They’d requested that he ask the U.S. Department of Justice to file a lawsuit against the state of Maine for the return of ancestral lands that 18th-century Passamquoddies had relinquished to Massachusetts via a questionable treaty. A copy of the 1794 treaty had materialized 15 years before, from a shoebox belonging to Stevens’s wife’s great-aunt. In the course of reviewing it for a much more modest land-claim suit, Tureen, then a legal-aid lawyer working for Passamaquoddy clients in Eastport, became convinced the entire treaty was invalid.
The reason was a piece of legislation from 1790 known as the Non-Intercourse Act, which mandates that the U.S. Congress ratify all sales of tribal lands. The act also creates a trust relationship between the feds and the tribes whose lands are in this way regulated — the basis for subsidies and services that the BIA has long provided tribes in the central and western U.S. But the law was mostly written to prevent transactions on the frontier that might threaten government interests, so it had simply never been applied to tribal nations within the original 13 colonies. Tureen could find nothing in the statutes, however, that explicitly ruled out eastern tribes — and no indication that Congress had ratified Massachusetts’s acquisition of the Passamaquoddies’ territory.
So, working with the tribe, he assembled a legal team and started building a case that would compel the state of Maine, which had split from Massachusetts, to return some portion of ancestral land and pay restitution on the rest. Because sovereign immunity prevented the tribe itself from suing Maine, the Passamaquoddies’ hope was that the federal government would own up to its neglected role as a protector of tribal interests and bring a case against the state. Governors Stevens and Francis wrote to the BIA petitioning for this on George Washington’s birthday, a nod to the tribe’s support of the Continental Army during the American Revolution. And they did so with urgency: while researching the case, Tureen’s team found that Congress had quietly, years before, established a statute of limitations for federal involvement in old Native land claims. The Passamaquoddies had only until July 18, 1972, to convince the feds to back their cause.
The Interior Department dragged its feet, though, stonewalling even after Tureen convinced Maine’s entire Congressional delegation to issue statements of support, suggesting the tribe’s case deserved to be heard. Years later, Tureen told a New Yorker reporter of having heard secondhand about a conversation between a top Native-affairs officer at Interior and a member of Nixon’s staff. “An attorney friend of mine quoted [the official] as saying that it was high time the Indians accepted the facts of life,” Tureen explained, “that the statute of limitations was about to expire, and that no court had ever ordered the federal government to file a lawsuit on behalf of anyone — much less a multimillion-dollar lawsuit on behalf of a powerless and virtually penniless Indian tribe.”
So Tureen’s team filed what became Passamaquoddy v. Morton, setting in motion a legal and political drama that, in many ways, is still unfolding today. The suit argued that the Non-Intercourse Act applied to the Passamaquoddies and that, therefore, the state’s claim to any of the tribe’s former territory should be voided. The unresponsive Interior Department had breached its responsibility to the tribe, Tureen argued, and if the court didn’t compel the Justice Department to sue Maine before the July deadline, then it would be too late to do so by the time the court made a ruling. Government rebuttals were clumsy, and in late June, Judge Edward Gignoux ordered the Justice Department to file suit.
“This action alone was extraordinary,” John Paterson, then a lawyer in the Maine Attorney General’s office, wrote decades later. “As far as can be determined, that may have been the only time when a federal court had taken such an action.”
Meanwhile, reps from the Penobscot Nation had been talking with Tureen and their Wabanaki peers, and they voted to join the fray. One day before the deadline, the Justice Department filed suit on their behalf as well. Between the two tribes, the amount of disputed land came to as many as 12.5 million acres, valued at perhaps $25 billion — around $168 billion today. Some 350,000 Mainers lived on those acres, theoretically at risk of eviction, and much of the land was controlled by Maine’s powerful timber companies.
Judge Gignoux immediately put the suits against the state on hold, pending the outcome of Passamaquoddy, and surprisingly, their existence didn’t make much of a public splash. “I have no doubt that many people were sincere in wanting the Indians to have their day in court,” Tureen told the New Yorker. “I also happen to think that just beneath the surface of all the talk about fairness lurked the comforting conviction that, as always, the Indians were bound to lose.”
They were not. Judge Gignoux ruled in 1975 that the Non-Intercourse Act indeed governed dealings with the two tribes. The ruling, upheld on appeal, gave the tribes federal recognition and opened the door to the land-claim suits. Only in 1976, when the window to challenge Gignoux’s ruling in the Supreme Court had closed — and when the disputed ownership started causing municipal bonds to be canceled — did the gravity of the conflict seem to dawn on Maine’s leaders and press. In September of that year, independent governor James Longley flew to DC to plead the state’s case. A few weeks later, a Justice Department official wrote to Judge Gignoux, urging the suits be settled out of court, describing them as “potentially the most complex litigation ever brought in the federal courts, with social and economic impacts without precedent and incredible potential litigation costs to all parties.”
It took another four years and plenty of rancor, but a settlement was reached in the form of the 1980 Maine Indian Claims Settlement Act, which President Jimmy Carter signed during the waning days of his term. The settlement — paid out by the feds, rather than the state — amounted to $81.5 million shared among the tribes, the majority earmarked for the Passamaquoddy and Penobscot to reacquire tribal lands. (A small portion went to the Houlton Band of Maliseet Indians, which joined negotiations late, while the Aroostook Band of Micmacs, the fourth Wabanaki nation in Maine, settled its own claim years later.) By any measure, the settlement represented a victory for the tribes that few could have predicted in 1972, and the court rulings that led to it empowered tribes across the eastern U.S. to launch successful land-claim campaigns of their own.
The settlement provisions, and state laws that implemented them, also allowed Maine to preserve a level of jurisdiction over tribal affairs that’s uncommon among federally recognized tribes — the reason why the state and the tribes are now in an escalating clash over matters of sovereignty. Contemporary generations of Wabanaki, along with coalitions of non-Native supporters, argue that the settlement was flawed, if not consciously underhanded, in withholding from tribes in Maine the rights to regulate hunting and fishing on tribal lands, establish their own tax codes, regulate gaming, benefit from new federal laws affecting tribal nations, and more. A passionately debated bill now before the State House would amend the 1980 legislation and oblige the state to recognize such rights. As the first edition of the Wabanaki Alliance newsletter wrote of Passamaquoddy v. Morton shortly after it was filed, seemingly not daring to hope, “One can only speculate on the outcome.”
From our special feature, “1972: The Year That Changed Maine.” Read about more 1972 happenings here, and pick up a copy of our April 2022 issue to read them all.
