Turmoil of land claims preceded Settlement Acts


by: Jim Adams / Associate Editor / Indian Country Today

BOSTON - Fear. Power. Money.

These were the motives behind the series of Settlement Acts that still govern Indian law in New England, said a series of speakers at a Suffolk University Law School conference on the topic March 31. The meeting brought together top-level lawyers, scholars and tribal leaders who are struggling daily in the difficult legal environment created by the acts.

But the conference provided some perspective on the controversy, in presentations that recalled the intense pressures that produced the laws. Maine lawyer Tom Tureen, for instance, has sometimes been criticized for negotiating a Maine Settlement Act in 1980 that left the sovereignty of his clients in massive ambiguity. But James Sappier, a member of the Penobscot negotiating team at the time, told the conference that they hired three law firms to conduct their high-stakes case because they were afraid that Tureen "might get bumped off."

"It was a very big case," he said.

The Indian land claims suits of the 1970s and ’80s aroused powerful antagonisms that still lie not far below the surface in current New England controversies over federal recognition. (In fact, although state politicians don’t harp on it, they might be just as important as fear of new casinos.) The Settlement Acts were a product of the fear of landowners over losing their property, or at least some of its value. (Title insurance companies refused to issue guarantees during the peak of the uncertainty.) The potential sums involved were enormous, in the billions of dollars, said Sappier.

But in negotiations over settlements, which often entailed federal recognition, state governments did everything they could to maintain their power over the tribes. "The dominant society is afraid that if the minority culture is not controlled, it’s going to run amok," said Douglas Luckerman, an attorney now in the thick of several sovereignty lawsuits.

Luckerman’s caseload alone illustrates the plethora of issues created by the Settlement Acts, and the way they differ from tribe to tribe. He is representing the Aroostook Band of Micmac Indians of Maine in an employment suit, the Aquinnah Wampanoag Indians of Massachusetts in a zoning dispute and the Narragansett Indians of Rhode Island in the aftermath of the state police raid on their smoke shop. All of these cases raise basic issues of tribal sovereignty, often, he said, in the face of uncomprehending judges. In addition, the Penobscot and Passamaquoddy nations of Maine are pursuing two separate cases with varying twists on the Maine Indian Claims Settlement Act.

Beverly Wright, chairperson of the Wampanoag Tribe of Gay Head, emphasized how deeply the tribes were committed to preserving sovereignty. "It is something we always had in our hearts," she said, "but didn’t have a name for it."

Many of the speakers, however, emphasized what a daring enterprise it was to bring about the settlement act era, in spite of its ambiguities, and praised the courage of that generation of tribal leaders.

Dale White, General Counsel for the Mohegan Tribe and an enrolled member of the St. Regis Mohawks, listed three key steps that made these acts possible. First, he said, were the land claims themselves. The cases, he said, grew out of the rediscovery of an obscure statute passed in 1790 by the first U.S. congress, the Non-Intercourse Act. This law reasserted the direct federal relation with Indian tribes incorporated in the U.S. Constitution and declared that any land purchase from a tribe without Congressional approval was invalid. Since states almost always ignored the law in taking tribal land, the fact that it was still on the books and indeed was reaffirmed in 1834, was earth shaking.

(The law was the basis of the Penobscot and Passamaquoddy land claims case, and floor discussion with veterans of the Penobscot team brought out that it was not Tom Tureen who came across it, as some have written, but an associate of his named Don Jeller. According to a history on the Passamaquoddy Web site, the suit was ready to go to court when the lead lawyer was arrested on a marijuana charge, and Tureen subsequently picked it up.)

The second crucial step, however, was to get the federal court to take the law seriously. (As one participant observed from the floor, the Non-Intercourse Act wasn’t totally forgotten. Tribes in New York and Massachusetts invoked it in suits around the 1900s, but their cases were thrown out.) Legal doctrines can prevent people from bringing suits after a long time has lapsed since the injury. But the U.S. Supreme Court had ruled in the 1974 case of Oneida Indian Nation v. New York that these defenses didn’t apply to Indian suits.

"If the [state] appellants had won," said White, "that would have been it. This claim would have been over."

He added that whether we liked it or not, "the U.S. was a key factor. It was important that the tribes were able to get the U.S., the Justice Department, the Interior Department, on board supporting their case."

As the case survived appeals court challenges, the third step started, the political reaction. As people throughout New England realized that the claims were having a serious impact on their titles, their outcry powerfully affected their Congressional delegations. The Settlement Acts quickly followed, first Rhode Island in 1978, then Maine in 1980, then Connecticut and Massachusetts.

To put these controversies in perspective, White warned that some of the court issues, were still open. "None of the land claims cases in New York are settled," he said. "They are going on 25 years later."

The discussion at Suffolk University will also continue, said professors Kristen Carpenter and Lorie Graham, who moderated the panel. They said that the sponsoring Native American Law Student Association planned to present a series of conferences on the acts.

Source: indiancountry.com  online Native newspaper

Back to Native Americans Today

Home