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.
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.
Roger Wheeler, President
Friends of Sebago Lake