Joint Tribal Council of the Passamaquoddy Tribe v. Morton, 528 F.2d 370 (1st Cir. 1975),Joint a 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 the Passamaquoddy and Penobscot, then non-federally-recognized Indian tribes, and established a trust relationship between those tribes and the federal government that the State of Maine could not terminate.
By upholding a declaratory judgement of the United States District Court for the District of Maine, the First Circuit cleared the way for the Passamaquoddy and Penobscot to oblige the federal government to bring a land claim on their behalf for approximately 60% of Maine, an area populated by 350,000 non-Indians.Brodeur, 1982, at 81; Kotlowski, 2006, at 70. According to the Department of Justice, the suit was "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."Paterson & Roseman, 1979, at 115. The decision led to the passage of the Maine Indian Claims Settlement Act in 1980, allocating $81.5 million for the benefit of the tribes, in part to allow them to purchase lands in Maine, and extinguishing all aboriginal title in Maine.Maine Indian Claims Settlement Act, Pub. L. No. 96-420, 94 Stat. 1785 (1980) (codified at 25 U.S.C. §§ 1721–35). The settlement was reached "after more than a decade of enormously complex litigation and negotiation."Kempers, 1989, at 267.
The Passamaquoddy claim was "one of the first of a series of eastern Indian land claims to be prosecuted" and "the first successful suit for the return of any significant amount of land."Kempers, 1989, at 290. Compared to the $81.5 million compensation in the Passamaquoddy case, the financial compensation of other Indian Land Claims Settlements has been "inconsequential."
Background
The transactions
Indigenous populations have been present in modern-day Maine for 11,000 years, with year-round occupation for 6,000 years. Burial sites associated with an Algonquian-speaking culture date back 5,000 years. The Wabanaki Confederacy, which included the Passamaquoddy and Penobscot tribes, also pre-dates European contact in the region. The Passamaquoddy may have had contact with Giovanni da Verrazzano in 1524, but their first extended contact with Europeans would have been with a short-lived settlement built on Dochet Island by Samuel de Champlain and Pierre Dugua, Sieur de Mons in 1604–1605. Research by Emerson Baker in 1989 uncovered over 70 extant deeds documenting private purchases of land from indigenous peoples by English-speaking settlers, the earliest dating to 1639.Emerson W. Baker, "A Scratch with a Bear's Paw": Anglo-Indian Land Deeds in Early Maine, 36 235, 236 (1989). But, most Passamaquoddy lands "remained beyond the reach of English settlers" until the mid-18th century.
A few years prior to the end of the French and Indian Wars in 1763, the Province of Massachusetts Bay had taken possession of all Penobscot land "below the head of the tide" of the Penobscot River (near present-day Bangor). During the Revolutionary War, both the Penobscot and Passamaquoddy, having been solicited by Superintendent John Allan, were allied with the colonies and fought against the British.Brodeur, 1982, at 81–82. After the war, Allan urged the Continental Congress to follow through on various promises made to the tribes; Congress took no action and revoked Allan's appointment.Brodeur, 1982, at 82.
In 1794, Allan—now as Commissioner for the Commonwealth of Massachusetts—negotiated a treaty with the Passamaquoddy that alienated most of the aboriginal lands at issue in the later litigation.Brodeur, 1982, at 82; Paterson & Roseman, 1979, at 372. The treaty reserved for the tribe.Paterson & Roseman, 1979, at 372. In 1796, the Penobscot ceded in the Penobscot River basin. In 1818, the Penobscot ceded all their remaining land, save some islands in the Penobscot River and four six-mile-square townships. Maine gained statehood in 1820 and assumed Massachusetts' obligations under these treaties.Kempers, 1989, at 294 n.10. The "final big grab" happened in 1833, when Maine purchased the four townships, relegating the Penobscot to Indian Island. None of the land cessions occurred pursuant to a federally ratified treaty.Paterson & Roseman, 1979, at 116. According to Kempers: Since the beginning of this country's history, most American Indian tribes have been subject to federal authority and jurisdiction. In Maine, however, indigenous populations lived on reservations that were exclusively and completely administered by the state. This unique arrangement shaped tribal life in Maine, and proved to be a crucial issue in the development and resolution of the tribe's land claim.Kempers, 1989, at 270 (footnote omitted).
In the late 19th century, the Maine Supreme Court had held that the Passamaquoddy were not a tribe and had no aboriginal rights.See State v. Newell, 24 A. 943 (Me. 1892); Granger v. Avery, 64 Me. 292 (1874); Penobscot Tribe of Indians v. Veazie, 58 Me. 402 (1870).
The dispute In the 1950s, the Penobscot Nation had hired a lawyer to research the possibility of a land claim.Brodeur, 1982, at 152–53; Kempers, 1989, at 295 n.18. In light of the Eisenhower administration's Indian termination policy, counsel opined that "obtaining a fair hearing of their claim would be virtually impossible."Kempers, 1989, at 295 n.18. Up until the 1960s, Maine continued to fulfill certain provisions of the 1794 treaty, including the periodic provision of 150 yards of blue cloth, 400 pounds of powder, 100 bushels of salt, 36 hats, and a barrel of rum. By 1964, of the reservation, had been diverted to other purposes and only remained under tribal control.Kempers, 1979, at 272.
In February 1964, the tribal council of the Passamaquoddy Indian Township Reservation requested a meeting with Maine's governor and attorney general to discuss a land dispute related to construction by non-Indians on lands claimed by the tribe.Brodeur, 1982, at 78; Kempers, 1979, at 272. The Passamaquoddy representatives were kept waiting for 5 hours after their scheduled meeting time with the governor, and the attorney general "smiled and wished them well if they ever took their claim to court."Brodeur, 1982, at 78. Soon after the meeting, pursuant to a vote of the Passamaquoddy tribal council, 75 members protested against the construction project along Route 1, resulting in 10 arrests.Brodeur, 1982, at 79. Charged with disorderly conduct and trespassing, they hired attorney Don Gellers to defend them. While these charges were still pending, Gellers began to prepare a land claim on behalf of the tribe.Brodeur, 1982, at 81.
Attorneys
Gellers' theory was that Maine had violated the 1794 treaty by selling of land. Because Maine had made no provision for a waiver of its sovereign immunity (for example, in a state claims court), Gellers' strategy was to sue Massachusetts, hoping that Massachusetts would in turn sue Maine.Brodeur, 1982, at 82–85. On March 8, 1968, Gellers—affiliating with Massachusetts attorney John Bottomly—filed a suit in Suffolk Superior Court in Boston, seeking $150 million in damages.Brodeur, 1982, at 85; , 2001, at 68–71. This initial claim involved land in and around the Indian Township Reservation.Kempers, 1989, at 270. Three days later, Maine narcotics officers raided Gellers' home and arrested him for possession of marijuana. Gellers was eventually convicted and, on bail, fled to Israel; the lawsuit that he started was never prosecuted.
Gellers was representing the Passamaquoddy pursuant to a 10% contingency fee agreement.Brodeur, 1982, at 130. Gellers, in turn, had assigned 40% of his fee to Bottomly. As the negotiations of the Maine Indian Claims Settlement Act were reaching a close in May 1978, even though neither Gellers nor Bottomly had performed any further work for the tribes, Bottomly filed suit in the District of Maine claiming he was entitled to a portion of any eventual settlement. On October 10, Judge Gignoux dismissed Bottomly's suit on the grounds of tribal sovereign immunity. When Bottomly's appeal came before the First Circuit in 1979, Maine filed an amicus brief arguing that the tribe was entitled to no such immunity. The First Circuit rejected this argument.Bottomly v. Passamaquoddy Tribe, 599 F.2d 1061 (1st Cir. 1979). A similar suit by Gellers—who had since been disbarred and changed his name to Tuvia Ben Shmuel Yosef—was thrown out in 1989.Yosef v. Passamaquoddy Tribe, 876 F.2d 283 (2d Cir. 1989).
Tom Tureen—who had worked as a summer law clerk for Gellers in the summer of 1967—joined the Indian Legal Services Unit of Pine Tree Legal Services (funded by the Office of Economic Opportunity to provide legal services to indigent clients) after his graduation in June 1969.Brodeur, 1982, at 85; Kempers, 1989, at 295 n.15. For the remainder of the year, Tureen assisted Passamaquoddy members in "petty disputes" such as divorce and bill collection.Brodeur, 1982, at 85. In early 1970, Tureen began assisting the tribe in an effort to receive federal grants. In 1971, Tureen co-wrote an article with Francis J. O'Toole, the editor-in-chief of the Maine Law Review, arguing that Maine's tribes should fall under federal, not state, jurisdiction. O'Toole and Tureen noted that: "There is no evidence that the treaty was 1794 was made in compliance with the Non-Intercourse Act."Francis J. O'Toole & Thomas N. Tureen, State Power and the Passamaquoddy Tribe: A Gross National Hypocrisy, 23 1, 38 (1971).
The Passamaquoddy tribal council fired Gellers and asked Tureen to take over. Fearing that his federally funded legal aid employer could not withstand the political pressure that the suit would inevitably provoke, in 1971, Tureen asked the Native American Rights Fund (NARF) to act as co-counsel.Brodeur, 1982, at 86. Tureen himself would eventually move to NARF during the course of the litigation. Tureen attempted to persuade a large law firm to join the case pro bono. Among those who turned him down were Arthur Lazarus, Jr. of Frank, Harris, Shriver & Kampelman, who had litigated many claims in front of the Indian Claims Commission. Based on the acreage involved, Lazarus pointed out that the claim would net only $300,000 before the Commission, which would be less than the cost of litigation. When Tureen said, "Mr. Lazarus, this is not an Indian Claims Commission case, this is a Nonintercourse Act claim," Lazarus shook his head and told Tureen he was dreaming. Tureen was able to recruit Barry Margolin, David Crosby, and Stuart Ross of Hogan & Hartson.Brodeur, 1972, at 86; , 2001, at 71–72. The other members of the team were Robert Pelcyger of NARF and Robert Mittel of Pine Tree Legal Assistance.
Prelude and petition