First Light Learning Journey – December 10-12
Just a few trip notes from Susan Caldwell @ The Nature Conservancy (not by any means complete!)
Indian Island – Maine Indian Claims Settlement Act
December 10, 2018
Present: Maria Girouard (Penobscot), Shiwa Noh (Nibezun Board), Tim Shay (Nibezun Board), Carol Dana (Penobscot), Peter Forbes, Brian Wentzell, Jerry Bley, Steve Tatko, Eric Topper, Stefan Jackson, Lissa Widoff, Erica Kaufman, Kristin Peet, Ciona Ulbrich, Lucy McCarthy, Buck O’Herin, Patrick Watson, Catherine Schmidt, Aaron Englander, Aaron Mequier and Susan Caldwell
We gathered at Indian Island to discuss the Maine Indian Claims Settlement Act (MICSA). Peter welcomed all and introduced Maria who is a Wabanaki historian and former Penobscot tribal council member. She focused on the MICSA for her master’s thesis. Maria provided some information regarding the conditions leading to the passage of the Act and its impact on the Indians in Maine since its passage in 1980. These notes below capture some of the discussion over the course of her remarks, input from others and questions from First Light participants.
- It’s all about the land! Indians in Maine began losing their lands in the 1600s and continued to do so over the next three centuries despite several promises and treaties.
- Land transactions transferring land from Indians to others should have been ratified by Congress since 1820, but that was never put into practice. Chief Orono had agreed to fight in the Revolutionary War in exchange for assurance of access to lands for hunting.
- Cultural and political conditions in the 1960s and 1970s led to enabling conditions for the passage of this legislation. At that time Indians in Maine were trapped in a paternalistic relationship with the State of Maine that kept them oppressed and powerless.
- In the 1820s there were 3 cases known as the Marshall Trilogy that impacted the relationship between Federal Government and the Tribes. There was a great deal of fighting between Tribes for land ownership.
- Tom Tureen was young attorney who contributed time and legal strategy to enacting the legislation.
- There was discussion of the legal strategy at the time and consideration that the Tribes could potentially go for taking back two-thirds of the state but decided against this approach due to a greater risk of losing all.
- There have been other native land claims legislation all over the country at the time and there was a federal deadline set in July 1980 to decide regarding setting the claims, which gave a sense of urgency.
- The claim began in Passamaquoddy territory and then included Penobscot Indians as well. Micmac and Maliseet Indians did not have a seated government at the time and were not included originally.
- [Excerpt from web search on MICSA: MICSA extinguished all aboriginal title in Maine. In return, the Act allocated $81.5 million. $27 million was placed in trust for the Passamaquoddy and Penobscot tribes, and the remaining $55 million was allocated towards the tribes’ purchase of up to 300,000 acres of land. The land acquisition funds were divided such: $900,000 for the Houlton Maliseet; $26.8 million for the Passamaquoddy; and $26.8 million for the Penobscot. Further, the Houlton Maliseet gained federal recognition (which the Passamaquoddy and Penobscot had possessed since 1976). Micmac were not included. Their land claims have never been addressed and they didn’t receive federal recognition until 1991.]
- MICSA still maintains somewhat of a paternalistic relationship as Tribes need to ask permission from Federal Government. Indians seek sovereignty and the right to govern themselves and care for the health and welfare of their people. It’s hard to step into sovereignty from a place of poverty and oppression.
- There was a working group set up in 2006 to work on amending the 1980 Act, but it did not lead to any legislative changes.
- There was a real sense of urgency to get the MICSA passed. It was a huge document and there was a rush to complete negotiations and a need to rely on the attorneys to get it through the system. It barely passed. After the Penobscot and Passamaquoddy approved the draft bill it was passed along to Augusta where some changes were made. Even more changes were made when the bill went to DC and the Tribes didn’t have a chance to review/approve those final changes.
- The current case between Penobscot Indians and the State of Maine is regarding the dispute that the Penobscot Indians only own islands in the Penobscot River. The 1818 treaty defines the scope of the reservation. The scope of the land claims area includes a 12-mile corridor along the river from the coast to Katahdin at a breadth of 6 miles on either side of the river.
- The Penobscot Tribe governs hunting and fishing regulations on their lands. The Penobscot Department of Natural Resources sets the hunting and fishing limits for moose, deer and bear. Non-tribal members can hunt spring bear. Each family can take one moose per household. The Fee lands fall under state jurisdiction for hunting.
- Reservation lands are aboriginal lands. Fee lands are located in other townships. There are also Trust lands acquired after the 1980 Act. All new lands are acquired initially as Fee lands, and the Council can apply for lands to be transferred from Fee to Trust. Approximately 130,000 acres were acquired after the MICSA.
- Racism and fear have been evident throughout the centuries. There was fear that Indians would acquire lands and evict all others.
- Land is lasting. Money is spent and wasted away. Tribes are interested in expanding contiguous lands. The tax burden can be a problem. Tribes do not pay taxes on Trust lands but do pay taxes on fee lands. Tribal lands went from approximately 6000 acres to 133,000 acres (about 100k in Trust and 30k in Fee) since the MICSA. Fee lands can be sold to non-tribal people like any other private property.
- Nibezun project involved the creation of a 501c(3) to acquire the land and develop programs and manage infrastructure. There is interest potentially in the creation of a Native Land Trust. There are now 9 native-run, native-staffed land trusts in the United States who address both land conservation and tribal land sovereignty issues.
- The State of Maine has to approve gaming and any proposal has to include Passamaquoddy and Penobscot.
- There have been 14 relevant litigated cases since MICSA to test its interpretation. Consider the spirit and intent of the law. Some would like to see a Truth and Reconciliation Commission review the MICSA. Relationships between Tribes, State and Federal Government have been challenging.
- What can we do to be supportive of Tribes? How can we share land and resources to address some of the failings of the Act? Engage and learn and increase awareness. Share knowledge of the land and available resources. Support the teaching of life skills and native language. Nibezun sets a good example of Indian’s relationship with the land. Language and place names are important. Focus on place names and meanings and reintroduce them to the land. Reaffirm aboriginal rights to the lands for harvest and gathering. Bring experience and privilege to help create Native Land Trusts.
Peter thanked all for sharing their knowledge. This has been a great opportunity to connect. It is admirable to be able to share difficult history with open sharing and even laughter. Thank you!