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A Strong Suit


By Roger M. Klein

ON A TINY ISLAND in the middle of the Penobscot River in northern Maine lives a band of four hundred Native Americans. The island, dubbed Indian Island to notify the tourists, is a picturesque spot for a Sunday drive. But behind the plywood wigwams that advertise "REAL MOCCASINS" and "REST ROOMS" the Penobscot Indians subsist in tattered shelters that the tourists never manage to discover. For the Penobscot are among the poorest of the Native American tribes.

Poor, that is, until a federal judge awarded the Penobscot Indians 180 years back rent on two-thirds of the state of Maine. Indian Island has been the sparse, rocky home of the Indians for many generations--but not forever. Before 1794, the Penobscot roamed the Maine woods freely from the Canadian border down to what is now Massachusetts. In that year the Indians, fearing loss of their land as white settlements encroached on their territory, petitioned Massachusetts, which then included Maine, for a title to their land. Massachusetts generously obliged with a title to a 23,000-acre region in central Maine. The agreement was signed quietly. Almost as quietly as Congress had passed the Nonintercourse Act in 1790--an act that forbade the transfer of Indian lands without the consent of Congress. The act was soon forgotten, and Massachusetts and Maine spent the next 180 years gradually herding the Penobscot out onto Indian Island.

THAT WAS UNTIL LAST YEAR. For in February, 1975, a federal judge ruled that the Nonintercourse retained more than symbolic value. He awarded the Indians $300 million in unpaid back rent on 12 million acres of north and central Maine. The judge ruled that the area was the legal possession of the Penobscot and the Passamaquoddy, a small tribe that had joined in the suit.

At first the decision drew few headlines. But after an Appeals Court judge upheld the ruling in December, 1975, the world began to take the Indians seriously. The foundations of the state of Maine began to vibrate like violin strings.

The hum of events reached a crescendo in November when lawyers refused to certify $27 million in Maine municipal bonds because the lands the cities offered as collateral might not even belong to them. Several state and federal agencies ceased financial transactions in the area claimed by the tribes. The size of the settlement, and prospects for recapture of the land itself, drew thousands of Penobscots and Passamaquoddies out of anonymity. Letters deluged the Bureau of Indian Affairs from people requesting certification of genealogical ties to the tribes. Even the Department of State received inquiries from overseas.

In law, precedents spread with the speed of earthquake tremors. The validating of the Nonintercourse Act cracked open a floodgate that had bottled up dozens of similar Indian land suits. Last month, descendants of the 90 Wampanoag Indians who provided five deer for the first Thanksgiving feast in Plymouth contested the ownership of the entire town of Mashpee, Mass., a total of 16,000 acres of developed and undeveloped land. Within days, real estate sales stopped, building came to a halt, and supermarket sales plummeted as buyers wondered whether the courts would allow them to keep items purchased within city limits. Officials of the Cape Cod tourist town, dreading a ghost town future for Mashpee, sought federal loans to shore up the town's teetering credit rating. As municipal bond sales and mortgages became increasingly difficult to negotiate, race relations in the town, which is one-third Indian, showed signs of strain. Things seemed even bleaker when the residents of Gay Head, Mass., a town across the Sound on Martha's Vineyard, voted to give all of their public land to another Wampanoag group, rather than risk a protracted court battle.

Thomas Tureen, lawyer for the Penobscots and the Passamaquoddies, said last month that the Indians had more in mind when they filed the suit than to recover overdue rent. The Indians own the land outright, he contended, and he plans to sue for the acreage itself--perhaps in the form of forested land and land held by out-of-state corporations--if his clients give him the go-ahead. He estimated that the 12 million acres the Indians farmed, fished and hunted 200 years ago is worth $25 billion today.

It may have been the magnitude of this sum that jolted Maine Governor James Longley into action. (Maine's annual budget averages about half a billion dollars.) Or it may have been the realization that the contested land splits the state into two distinct regions--areas that, if separated, could communicate only through the Indian territory, Canada, or the sea. Whatever the reason, Longley became scared enough to contact members of the state's Congressional delegation, to see what could be done. In response, several legislators introduced a resolution that would have limited the Indian's potential award to a cash settlement. But Congress adjourned before it could consider the proposal.

THE PENOBSCOT and Passamaquoddy suit raises several tricky issues that have long lurked in the shadows of the American historical drama, but have never really gained center stage attention. Critics of the U.S. reservation program have compared it to the South African homeland policy. As in South Africa, reservations were begun to provide the federal government with ways of simply removing Native Americans from the political mainstream. In recent years it has yielded the reservations more and more sovereignty, so that today many tribes have the power to tax, to license and to set and enforce laws for all reservation residents. But the reservation policy differs from the homeland concept for a fundamental reason. Whereas South African blacks on the crowded, inhospitable bantustans want to take their rightful place in South African society, Indians on reservations, if we can believe their leaders, want independence.

And these leaders have now unearthed 400 treaties on which they say the government has reneged. Together these agreements encompass 135 million acres which the leaders say should be in Indian hands. In the next decade, Americans will square with an unavoidable decision: whether to cede an appendage of the country and return it to those who cared for it long ago. For restoring this land to the Indian could do more than simply assuage the liberal guilt that many Americans feel towards Indians. It may return to the Indians what they justly--and perhaps legally--deserve.

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