'Biggest Indian victory since the Little Big Horn'

Butch Phillips, a tall and dark-eyed Penobscot Indian, plans to hunt this fall for food with a bow and arrow in some of Maine's wilds. A good portion of that wilderness may soon be his.

All of Maine's 3,500 Penobscot and Passamaquoddy native Americans, whose ancestors once roamed the land now known as Down East, are on the verge of getting 300,000 acres returned to their tribes.

These two aboriginal groups have agreed to a proposed out-of-court settlement , announced in March, under which they would give up their claim to two-thirds of Maine. In exchange, Congress would grant them a $27 million development fund and $54.5 million to buy land from willing private land owners.

Some have called the March agreement "the biggest Indian victory since General Custer lost at Little Big Horn."

The ground-breaking legal pact was approved by the Maine Legislature April 3 and will soon to be taken up by US lawmakers, who await a nod from Maine's congressional delegation.

The proposed settlement, however, already has sent strong signals of hope to other Eastern Indians who have claimed, in a wave of litigation in the past decade, that their lands were illegally taken from them.

Hanging over Maine's property owners during eight years of negotiations between the state and the Indians has been the unnerving possibility that the tribes could successfully sue for return of 12.5 million acres and for $25 billion in trespassing damages.

"We could have brought down the house on Maine," says Passamaquoddy Lt. Gov. Cliv Dore. The alternative to a compromise was a drawn-out, expensive court battle that would have kept a legal cloud over local bond issues, property title transfers, and land development.

The case began in 1957 when an elderly Passamaquoddy woman opened a shoe box and found a 1794 land treaty between the tribes and Massachusetts (which included Maine until 1820). Thomas N. Tureen, a young lawyer who has championed the Maine Indian cause since 1969, discovered a simple and fundamental legal claim for the tribes: Under the Indian Nonintercourse Act passed by Congress in 1790, all land deals between whites and Indians in the Eastern United States had to be ratified by Congress. Since no such approval was granted for lands taken from Maine Indians over the years, as was the case with other Eastern tribes, they were entitled to return of their property, Mr. Tureen reasoned.

The case has been closely watched since 1972, with the Carter White House playing a supportive role for the Indians. Joining the legal tussle for the state was James St. Clair, former lawyer to President Nixon, and for the Indians , Archibald Cox, former Watergate prosecutor.

In 1975, the case was cause for a US district court judge to rule in a precedent-setting decision that the federal government has a "trust relationship" with Eastern tribes and therefore must file with the Indians against Maine in the land claims.

In 1978, the arrival of a new Maine attorney general, Richard Cohen, and the stepping aside of Maine Gov. James Longley, who was an Indian-claim antagonist, created a new political climate for the heavy-stakes negotiations in a state made nervous and bitter by the pending claim. One White House-negotiated settlemnet that year collapsed quickly, however.

In 1979, another court decision forced the state to resolve the problem of whether the state has criminal jurisdiction over Indian lands, and this led to a settlement proposal in the land-claims case early in 1980.

On March 15, the tribes voted 2 to 1 in favor of the pact. Attorney General Cohan, who maintains that the state had only a "60-40 percent chance" of winning the dispute if it went to court, called the case "potentially the most complex litigation in the history of the United States."

Gov. Joseph Brennan, who supports the compromise, strongly contends the court suit could have been won by the state.

The compromise may become a model for settlement of other Nonintercourse Act cases pending in Rock Hill, S.C. (144,000 acres claimed by the Catawbea); Oneida , N.Y. (300,000 acres claimed by the Oneida); St. Regis, N.Y. (14,000 acres claimed by the Mohawk); Chalmette, La. (813 acres by the Chittimacha); and others.

"These other parties are more willing to settle when they know the significance of these claims," says Tim Vollman, assistant solicitor for the US Department of Interior. The Maine case could force Congress to look at the whole picture of Indian land claims in the US, says US Sen. William S. Cohen (R) of Maine.

The two Maine tribes live on about 21,000 acres in several locations. The settlement would allow no new Indian claims of "historic injustices."

"We are giving up a lot more than we are paining," says Penobscot Indian Andrew X. Akins, chairman of the tribal negotiating team. But, says counsel Tureen: "The slate is effectively wiped clean."

The tribes have selected what they consider the best 300,000 acres scattered in northern Maine forests out of a possible 700,000 acres offered for sale by major timber companies, which were a party to the talks because they stood to lose the most if the Indian claims were upheld in court.

Congress in its new fiscal conservatism is expected to balk at the fact that the timber companies would be paid market land prices -- about $181 an acre -- to be paid for by American taxpayers. "This could be seen as nothing more than a money grab," says an aide to Democrat Edmund S. Muskie, Maine's senior US senator.

Mr. Muskie, chairman of the Senate Budget Committee and often a critic of his colleagues for pushing pet spending projects, will be watched closely for the strength of his support for the $81.5 million settlement cost to be borne by the US Treasury. (Coincidentally, the settlement was announced the day that President Carter unveiled his budget cuts.) If Congress asks for a lower figure, tribal leaders doubt they can get support from their people for more negotiating.

Dead River Company, which put up 129,000 acres for sale to the Indians, will likely be chosen to manage the tribal land because Indian leders prefer the firm's ecologically minded policies in cutting timber and use of pesticides.

The settlement does not subject the tribes to scrutiny in elections and their methods of government, and the state would be severely restricted in any public taking of Indian land. But the pact would subject the Indians to controls on matters in which they have previously been left to themselves.And unlike other Indian agreements, these new controls are by the state, not by the federal government.

One right given up is immunity from state environmental laws. The state also would collect some taxes and prosecute major crimes on the new Indian lands. There would be a very limited joint regulation of hunting, fishing, and trapping on the new lands. In many ways, the tribal lands would be treated as if they were municipalities.

"Other tribes will be watching to see how Maine Indians will be protected by the federal government but left to manage their own land. This is a novel approach to a thorny problem. Previous settlements required the tribe's legal status to terminated," Mr. Tureen says.

Opponents of the Indian claims objected to the creation of "a nation within a nation" that would make non-Indians "second-class citizens." This charge, Indian lawyer Tureen says, is just as unrealistic as the Indians' claim to total autonomy. Indians today abide by many state and federal rules.

A new social and economic relationship is sure to be struck between the tribes and their new non-Indian neighbors, encouraging the Indians to be active and responsible citizens, Maine Assistant Attorney General John Paterson says.

The $27 million development fund will go to create jobs. Purchases of a blueberry field and two sawmills are already being negotiated.

"It's a victory, and it's a stepping stone. No one will get rich. The goal is to offer every member of the tribe a job and a share of the profits. Normally, an Indian gets a job outside the reservation and in a few weeks, he is bumped and becomes a bum," says Albert Dana, a Passamaquoddy leader.

With high unemployment and suicide rates, and income averaging about $3,000 a year, the Maine Indians are eager for the settlement to bring a long-sought prosperity after 200 years of what they view as neglect and abuse by the white man.

"Many of our people said the new money would harm our heritage and culture, such as our ceremonies. I believe economic independence will strengthen our traditions," says Mr. Akins, who notes that the return of tribe members since the land claims were introduced has doubled the population on Indian Island, a Penobscot reservation. "Instead of worrying about what to eat and where to sleep, people will be able to concentrate on our past and pass it along to the generations that follow us."

In the past two years, tribal leaders note an "eruption" of Penobscot and Passamaquoddy Indians taking interest in the traditional "Indian Way." It is now said that there are three religions in the tribes: Roman Catholic, Baptist, and the Great Spirit. A few members plan to "rough it" in the new territory, living in a way similar to that of their forefathers.

"There is nothing better than being a Penebscot Indian. We can't imagine being anyone else. We believe we are the keepers of the earth," Mr. Akins says.

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