Ms. Magalie Roman Salas, Secretary
Federal Energy Regulatory Commission
888 First St., N.E.
Washington, D.C. 20426
February 20, 2005
RE: Programmatic Agreement for the Eel Weir Project (FERC No. 2984).
Dear Ms. Salas,
In its January 17, 2005 letter to the Commission, project applicant S.D.
Warren objects to the Commission's consultation with four Maine Native American
tribes in the Draft Programmatic Agreement for the Eel Weir Project on Sebago
Lake. The four tribes ("Maine Tribes") are the Aroostook Band
of Mic Mac Indians, the Houlton Band of Maliseet Indians, the Passamaquoddy
Tribe and the Penobscot Indian Nation.
In its letter, S.D. Warren states:
"The Tribes are offered the opportunity to become 'concurring' parties
to the PA and are afforded opportunities to consult and provide input under
the PA. This treatment of the Maine Tribes is not justified where, as here,
there are no Indian lands or tribal cultural properties that will be affected
by the Project ..."
Documents provided by project intervenor Friends of Sebago Lake (FOSL) cast
doubt on Warren's claim that the Maine Tribes have no property interest
within the Eel Weir Project boundaries, including Sebago Lake and the upper
Presumpscot River. To the contrary, primary source historic documents show
Maine's Tribes never transferred their original title and interest in the
lands surrounding Sebago Lake and the upper Presumpscot River to any other
party. These facts support the Commission's decision to allow the Maine
Tribes to actively participate in the Programmatic Agreement for Native
American cultural resources along Sebago Lake and the upper Presumpscot
River.
I. Discussion of Historic Documents
The only known land conveyance by Maine Tribes in the vicinity of the Eel
Weir Project consists of a June 4,1666 deed by two Indian Sagamores, Warrabitta
and Nunanicut, conveying land owned by them along the lower Presumpscot
River to George Munjoy. This parcel consisted of one mile of land on each
side of the Presumpscot River from the mouth of the river at Casco Bay to
Saccarappa Falls in present-day Westbrook, Maine. A copy of this deed is
found in the Collections of the Maine Historical Society, Vol. 1, Portland,
Maine, 1831.
On August 6, 1727, Province of Massachusetts Bay Lieutenant Governor William
Dummer and representatives of Maine Tribes executed a Treaty at Falmouth,
Maine which ended the 1720s hostilities known today as Governor Dummer's
War.
This treaty states in part: "That the said Indians shall peaceably
enjoy all their lands and properties which have not been by them conveyed
and sold unto or possessed by the English, and be no ways molested in their
planting or improvement; and further that there be allowed them the free
liberty and privilege of hunting, fishing and fowling, as formerly."
(Collections of the Maine Historical Society, Vol. 3, Portland, Maine, 1853.)
Records in the Massachusetts Acts, Laws and Resolves show that less than
a decade after the execution of the 1727 Treaty, the Great and General Court
(legislature) of the Province of Massachusetts Bay in 1733 and 1734 voted
to create two townships consisting of lands along the Presumpscot River
beginning at the westerly boundary of the Town of Falmouth at Saccarappa
Falls and extending to Sebago Lake. The easterly township was called New
Marblehead, later incorporated as the town of Windham. The westerly township
was called Narragansett No. 7 township, later incorporated as the Town of
Gorham.
Referring to the Legislative Act in 1734 which created the township of New
Marblehead, Dole (1974) states: "The foregoing action of the General
Court is important and interesting, as it is the foundation on which rests
all the land titles in Windham at the present time."
The legislative Acts which created these townships make no reference to
the 1727 Treaty between Massachusetts and the Maine Tribes; nor do the Acts
provide any information on if, how, or when the lands in these townships
had been acquired by the Province of Massachusetts Bay. The 18 volumes of
the York County Record of Deeds for the years 1650 to 1737 contain no record
of any conveyance of lands in these townships by the Maine Tribes to any
other party.
Records show that prior to 1737, there were no English settlements along
Sebago Lake or along the Presumpscot River upstream of Saccarappa Falls,
which marked the municipal boundary of the Town of Falmouth. Instead, English
settlement along the Presumpscot River prior to 1737 conformed to the boundaries
of the 1666 land conveyance by the Indian Sagamores Warrabitta and Nunanicut
to George Munjoy. This settlement pattern was in accordance with the terms
of the 1727 Treaty between Massachusetts and the Maine Tribes and existing
records of land ownership which show the lands above Saccarappa Falls, extending
to Sebago Lake, were owned by Maine Tribes.
Records show that Maine Tribes immediately protested the first efforts by
English settlers to occupy lands along the Presumpscot River above Saccarappa
Falls in 1737. Representatives of the Maine Tribes repeatedly claimed the
English settlers had no title to the lands they were settling upon.
The proprietors of New Marblehead Township (Windham) did not begin efforts
to settle the township until three years after the township was created
by the Massachusetts Legislature in 1734. The first act of settlement was
the construction of a meetinghouse, as required by the enacting legislation.
In June 1737, the New Marblehead proprietors voted to raise 120 pounds for
"defraying the charge of building said meeting house and clearing the
land." Proprietors records indicate that construction of a meeting
house began during the summer of 1737 but was halted the same summer due
to the protests of local members of the Maine Tribes who claimed ownership
of the land. (Dole 1974)
A March 16, 1738 letter from prospective settlers to the proprietors of
New Marblehead states:
"Whereas information hath been given in a letter from Thomas Chute
of Falmouth, that the Indians hath forbid the proceeding of the workmen
in building the meeting house on said land which hath not only put a stop
to said proceeding, but is also of great discouragement to those who designed
settlement on their lots this Spring (the time being near expiring for said
settlement according to the conditions of the Great and General Court).
Wherefore our desire is that a meeting of the Proprietors or Grantees be
called as soon as may be, to consider and vote whether it be not most for
the benefit of the Proprietors of said land that some suitable person or
persons be appointed to have some Conference with the Indians who claim
the said lands in order to know their demands and intentions that they may
lay the same before the Government for their advice and direction in our
further proceeding in said settlement." (Dole 1974)
In response, on April 3, 1738 the New Marblehead Proprietors voted:
"To see if there should be a Committee chosen to treat with the Indians
and it was passed in the affirmative. Voted, that there should be three
men chosen for that purpose. Voted, that Joseph Blany, William Goodwin and
Capt. Robert Parramore, or either two of them are appointed a Committee
in the name of the Proprietors to apply themselves to his Excellency the
Governor (and Council if need be) for his or their advice and direction
for their proceeding in the most effectual way to treat with the Indians
in order to know their demands and intentions so as to bring the matter
in dispute between them and the Proprietors to a speedy issue or settlement."
(Dole 1974)
Dole (1974) states: "Nothing in the Proprietors records appears to
show that any action whatever was taken in regard to their foregoing votes;
neither do we find that Mr. Cogswell fully finished his contract and the
meeting house remained as he left it, a mere shell, destitute of floors,
windows and doors."
Records show that in March 1, 1739, the New Marblehead Proprietors voted
to give settlers additional time to build the meeting house, stating that
the delay was because, "They having been impeded by the Menaces of
the Indians."
Records from the Massachusetts Archives (Vol. 2, pp. 355-359) describe a
conference held in Boston on August 10, 1739 between Massachusetts Governor
Jonathan Belcher and a man described as "Polin, Sachem of the Presumpscots."
At this conference, Governor Belcher asked Polin, "How many families
do you have at Presumpscot?" Polin answered, "About 25 men besides
women and children."
Polin informed Governor Belcher:
"We have had a mind to wait on your Excellency a great while now and
are come to do it and salute you. Your Excellency when the Treaty was sealed
was pleased to say if any thing should happen that we could not understand
or did not approve of we should inform your Excellency of it: and what we
are most aggrieved at is that the River Pesumpscut is dammed up so that
the passage of fish which is our food is obstructed, and that Colonel Westbrook
did promise about two years ago that we would leave open a place in the
dam and that the fish should have free passage up the river into the Pond
in the proper season but he has not performed and that we are thereby deprived
of our food. It was agreed that the bounds of the settlements made by the
English are encroaching upon our land, which we never knew or understood
was lawfully purchased, and we move that the English may not be allowed
to settle any farther as yet and that the Government would put a stop to
the settlement on those lands at present."
A note by the Governor's secretary states: "The Indians object to the
settlement of Marblehead Township [Windham] on Pesumpscut and the other
settlements thereabout and they don't allow the English to have any right
to the lands above Saukarappa on Pesumpscut River which is about seven miles
above Pesumpscut Mills."
Records in the Massachusetts Archives show that on August 13, 1739 Governor
Belcher prepared the following instructions to his secretary, J. Willard,
to craft a response to Chief Polin. Belcher's instructions state in part:
"As to complaint of the obstruction given to the fish in the Pesumpscot
River, a letter will be sent by you [J. Willard] to Col. Westbrook that
the passage in the dam be opened and kept open for the fish to go up the
river. As to Indian Title to the lands on Pesumpscot River we are well informed
that there have been deeds given by the Indians of the Lands in that part
of the Country to Old Mr. Jordan and others, but we suppose many of those
papers have been burnt in the time of war; however, as none of that county
are now in town, we cannot come to the knowledge of this matter but we shall
further inquire into the affair and they [the Indians] shall be informed
of it."
There are no records in the Massachusetts Archives indicating whether Governor
Belcher ever conducted further inquiry into the ownership of the lands above
Saccarappa Falls which Polin asserted had never been conveyed by the Maine
Tribes to the English.
The above document demonstrates that while Governor Belcher claimed he was
"well informed" that some deeds may have been granted in the past
by the Indians, he could not produce any record or description of them.
The 18 volumes of the York County Record of Deeds for 1650-1737 contain
no record of any land conveyances by the Maine Tribes for their lands above
Saccarappa Falls on the Presumpscot River or along Sebago Lake.
The August 13, 1739 response by Governor Belcher to Chief Polin throws into
serious question the legal basis for the Massachusetts Legislature's creation
of the townships along the Presumpscot River above Saccarappa Falls in 1733
and 1734. The enacting legislative documents which created these townships
contain no information on how the Province of Massachusetts Bay initially
acquired these lands; nor could Governor Belcher provide any explanation
to Chief Polin five years later. As noted by Dole (1974), the existence
of land conveyances from the Maine Tribes to the Province of Massachusetts
Bay Colony forms the entire foundation of all subsequent land titles to
the upper Presumpscot River and Sebago Lake.
II. Conclusion
The 1827 Treaty between the Maine Tribes and the Province of Massachusetts
Bay and the statements of Governor Jonathan Belcher in 1739 establish that
all lands along the upper Presumpscot River and Sebago Lake were owned by
the Maine Tribes unless and until the Maine Tribes conveyed these lands
to other parties through a recorded deed. The documents reviewed above show
the Maine Tribes never surrendered title to their lands along the upper
Presumpscot River and Sebago Lake to another party.
These documents show S.D. Warren's claim that the Maine Tribes have no property
interest in Sebago Lake, the lands immediately surrounding it, or the prehistoric
cultural artifacts on these lands, has no basis in fact or law.
For this reason, Friends of Sebago Lake requests the Commission deny S.D.
Warren's request to exclude the Maine Tribes from the Programmatic Agreement
(PA) for the Eel Weir hydro-electric project on Sebago Lake.
Sincerely,
Roger Wheeler, President
Friends of Sebago Lake