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.