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Should the major claims in Maine, New York, and

South Carolina ever reach the stage where lawsuits are actually filed on behalf of the Indians by the Department of Justice against individual defendants, the consequences to many hundreds of thousands of people are likely to be equally as severe as the consequences that have thus far been visited upon the people of Mashpee. Moreover, such litigation would hamper or preclude hundreds of towns, cities, and counties and perhaps even state governments from borrowing funds

in the municipal bond market that are badly needed to meet a

wide range of social and economic goals.

D.

Presidential and congressional activities to
date have not resulted in a resolution of the
problems posed by the Indian claims.

While there has been some congressional and

presidential activity during the past year regarding the

problems posed by the Nonintercourse Act claims, none of these activities have as yet produced any solution.

1.

After the recommendations of President Carter's
Special Representative for a solution in Maine
were not accepted by the tribes involved or by
the State of Maine, the Administration and the
tribes negotiated a proposed settlement covering
the claims to most of the privately-held land
in dispute. Whether the proposed settlement can
be expanded to cover the claims to all privately-
held land and to land held by the State, and
whether the terms of the proposed settlement will
be acceptable to the Congress, remains uncertain.
In an attempt to resolve the problems posed by

the tribal claims in Maine and Mashpee, President Carter, in

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March, 1977, appointed former Georgia Supreme Court Judge
William B. Gunter as his Special Representative to develop
recommendations on how to resolve these claims. After examin-
ing the relevant law and facts, and numerous meetings with
all concerned parties, Judge Gunter submitted his report on
the Maine claims to the President on July 15, 1977. Judge
Gunter has not submitted a report on the claims in Mashpee.
With respect to the claims of the Passamaquoddy

and Penobscot tribes in Maine, Judge Gunter concluded that
because of the "adverse economic consequences that have devel-
oped to date and that will increase with intensity in the near
future," a solution to the problems could not await judicial
determination, and therefore it was necessary for President
Carter to recommend a legislative solution to the Congress.
Judge Gunter found that the private landowners who own property
within the claims area did not bear any responsibility for the
creation of the problem and, as innocent parties, should not
have to bear any financial burden that might be involved in
resolving the problem. It was his conclusion that the
"Federal Government is primarily responsible for the creation
of this problem," because of its failure since 1790 to

failure
1

recognize its trust responsibilities to the tribes involved

Judge Gunter's belief that the United States had a trust responsibility to the Passamaquoddy and Penobscot Tribes was based on the trial and appellate court decisions in

(footnote continued)

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and its failure to approve the conveyances of land by the tribes in the 18th and 19th centuries. He noted the irony of the unusual and unfortunate situation whereby the federal government, although primarily responsible for the creation of the problem, was now actually compounding the problem by threatening to bring suit on behalf of the Indian tribes against innocent private landowners.

Judge Gunter's proposed solution for the Maine claims included (1) the appropriation of $25 million by the federal government for the two Maine tribes, (2) the conveyance of 100,000 acres of land owned by the State of Maine to the two tribes, and (3) the extinguishment by Congress of all tribal claims to land or for trespass damages. In the event that the tribes did not consent to the proposal, Judge Gunter recommended that their claims against private landowners be extinguished by Congress without compensation and that the lawsuit seeking to recover state-owned land

footnote continued)

Passamaquoddy v. Morton, 388 F. Supp. 649 (D.Me.), aff'd, 528 F.2d 370 (1st Cir. 1975), in which the courts held that even though these tribes were never treated as federally recognized tribes for purposes of various Bureau of Indian Affairs programs, the Nonintercourse Act imposed a fiduciary duty on the federal government with respect to the land transfers of all tribes. The decision of the Court of Appeals for the First Circuit did not define or elaborate on the extent of the federal government's trust responsibilities under the Nonintercourse Act. These decisions are discussed at pages 102-105, below.

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be allowed to proceed. If the State of Maine did not consent, the $25 million would be appropriated by the Congress for the benefit of the tribes, tribal claims against private landowners would be extinguished, and the lawsuit against the state-owned land would proceed.

When it appeared that the support of the

affected tribes and the State of Maine could not be obtained
for the Gunter proposal, the White House, on October 8,
1977, announced the appointment of a three member working
group (consisting of A. Stephens Clay, a law partner of
Judge Gunter who assisted him in investigating the Maine and
Mashpee claims, Elliot Cutler, Associate Director for Natural
Resources, Energy and Science of the Office of Management
and Budget, and Leo M. Krulitz, Solicitor of the Department
of the Interior), whose purpose was to attempt to reach a
consensual agreement for the resolution of the dispute in
Maine within the framework recommended by Judge Gunter.

On February 9, 1978, the working group

announced that it had negotiated a settlement agreement with the Passamaquoddy and Penobscot Tribes whereby the tribes would receive $25 million from the federal government (as well as future benefits provided under various programs administered by the Bureau of Indian Affairs) in return for the extinguishment of all claims of the two tribes involving land in Maine with the exception of (1) approximately 350,000 acres owned by the

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State of Maine, and (2) approximately three million acres ́owned by 14 -large landowners.com(Each of these large landowners would be entitled to have tribal claims extinguished to 50,000 of acres of land owned by them.): The tribes have indicated that they would be willing to settle their claims against then State

of Maine if the state agrees to continúencotappropriate $1.7 million per year for the next 15 years' for the benefit of the 1/

tribes, and that they would be willing to settle their remaining claims to the three million acres owned by the 14 landowners if those landowners give the tribes (1) 300,000 acres of land (for which the federal government would pay $5 per

2/

acre), and (2) an option to purchase an addition 200,000 acres at fair market value (the federal government would give the tribes an additional $3.5 million to help purchase this option land). The settlement provides that the working group will have 60 days to try to negotiate agreements with the State of Maine and the 14 landowners that would dispose of the claims against Maine and these landowners. If such agreements are not reached, the basic settlement commits the Administration to submit legislation to Congress to implement the basic

The State of Maine at present provides approximately $1.7 million per year in various services and benefits to the two tribes.

2/ The settlement itself indicates that the land has a present fair market value of approximately $112.50 per acre.