The Rebirth of a Nation? A Chapter in Penobscot History NICHOLAS N. SMITH Brunswick, Maine THE EARLIEST PERIOD The first treaty of peace between the Maine Indians and the English came to a successful close in 1676 (Williamson 1832.1:519), and it was quickly followed by a second with other Indians further upriver. On 28 April 1678, the Androscoggin, Kennebec, Saco and Penobscot went to Casco Bay and signed a peace treaty with commissioners from Massachusetts. By 1752 no fewer than 13 treaties were signed between Maine Indians negotiating with commissioners representing the Colony of Massachu­ setts, who in turn represented the English Crown. In 1754, George II of England, defining Indian tribes as "independent nations under the protec­ tion of the Crown," declared that henceforth only the Crown itself would make treaties with Indians. In 1701 Maine Indians signed the Great Peace of Montreal (Havard [1992]: 138); in short, the French, too, recognized the Maine tribes as sov­ ereign entities with treaty-making powers. In 1776 the colonies declared their independence, terminating the Crown's regulation of treaties with Maine Indians; beween 1754 and 1776 no treaties had been made between the Penobscot and England. On 19 July 1776 the Penobscot, Passamaquoddy, Maliseet and Micmac Indi­ ans acknowledged the independence of the American colonies, when a delegation from the tribes went to George Washington's headquarters to declare their allegiance to him and offered to fight for his cause. John Allan, given a Colonel's rank, was the agent for the Passamaquoddy, Maliseet and Micmac, but refused to work with the Penobscot, ... supposing at that time that it was so in the heart of the Country, that they were under the immediate jurisdiction of the Genl court of this State, and they having such intercourse with the Inhabitants, I pre­ sumed that things were carried on reciprocally, for the Interests of the State as well as Indians, ... (Kidder 1867:234). Papers of the 36th Algonquian Conference, ed. H.C. Wolfart (Winnipeg: University of Manitoba, 2005), pp. 407-423. 408 NICHOLAS N. SMITH Andrew Gilman, a trader, was then appointed to act as negotiator and interpreter for the Penobscot who gave their allegiance to Boston, though a treaty to secure their allegiance was not thought necessary. The Passa­ maquoddy were under the impression that General Washington's Letter to the Passamaquoddy Tribe of 24 December 1776 was a treaty based on bilateral terms although, in fact, it was only a copy of a letter sent to the various eastern tribes, asking them to support the Americans. The Cana­ dian Micmac and Maliseet tribes, however, signed the Treaty of Water- town, in 1776, the first treaty signed by the Continental Congress, pledging to support the rebellious colonies (Upton 1979:73-74). The Continental Congress usually considered all the Maritime tribes of eastern Maine as a unit, labelled "Eastern Indians." However, each tribe had previously been regarded as a sovereign unit - distinct from Massachusetts, and from one another - when there was serious business conducted, resulting in signed agreements. Just as the tribes had been addressed independently when their young men were asked to join the American forces, they also expected to be invited as independent entities to the peace talks that concluded the Revolution. When it became obvious that no such invitation was forthcoming, the Penobscot knew that they had no guarantee of rights to land they regarded as their own. They con­ cluded, therefore, that each tribe must make a treaty with Massachusetts to preserve their lands. Although the U.S. Constitution established (in Article I, section 8, paragraph 3) that treaty-making with Indians is a function of Congress, Massachusetts negotiated four treaties with Maine Indians between 1786 and 1818: The Treaty of 1786 between Massachusetts and the Penobscot, defin­ ing the limits of Penobscot lands. The Treaty of 1794 between Massachusetts and the Passamaquoddy, defining the limits of Passamaquoddy lands. The Treaty of 1796 between Massachusetts and the Penobscot, reduc­ ing the Penobscot territory. The Treaty of 1818 between Massachusetts and the Penobscot, giving Massachusetts rights to build roads in the Penobscot territory and Massachusetts citizens the right to use the waterways within the Penobscot territory. In this last instance, on 13 February 1818, the Governor of Massachusetts chose a committee of three to treat with Penobscot Chiefs Orono and John THE REBIRTH OF A NATION? 409 Neptune for land. On 20 February 1819 they "... did negotiate a treaty with the Penobscot Tribe of Indians" (Resolves of Massachusetts 1750- 1819:711). With the District of Maine about to become a state in 1820, in 1819 Massachusetts passed An act relating to the separation of the District of Maine from Massachusetts proper, and forming the same into a separate and independent state, stipulating that: The new State shall as soon as the necessary arrangements can be made for that purpose, assume and perform all the duties and obliga­ tions of the Commonwealth, towards the Indians within said District of Maine, whether the same arise from treaties, or otherwise ... In 1820 a treaty between Maine and the Penobscot adopted the 1818 treaty between the Penobscot and Massachusetts by substituting "Maine" for "Massachusetts." All the Massachusetts obligations and responsibili­ ties to the Penobscot were transferred to the new State of Maine by the signing of a new treaty between the Penobscot and Maine. The Maine Legislature, however, had little interest in Maine's Indians. Their laws were usually made without consultation, and were often contrary to Wabanaki tradition. An Indian representative was permitted to attend meet­ ings of the Legislature, to make recommendations and advise regarding Indian laws, but he had no vote. These advisers were at first self-appointed and usually promoted their own, rather than tribal, interests. Later, the Penob­ scot and Passamaquoddy were limited to one Indian Representative from each tribe, who could serve no more than two consecutive terms at a time. The American style of voting was substituted for the long-standing tradition of electing chiefs for life, with the chiefs of neighboring members of the Wabanaki confederacy participating in the election. The power to make treaties is an important ingredient of sovereignty. It has often been claimed that the Indians did not know or understand the treaties they signed. The treaty-making process that began in 1711 and ended with the 1727 treaty - a sixteen-year process - is an example of the Maine Indians' determination to protect their rights to land, traditions and culture. The strong oral history passed down from generation to generation has ensured that their knowledge of the primary conditions expressed in the treaties has been retained. It appears that either the White signers did not understand the implications of the agreements they signed, or that they intended only to acknowledge the sections advantageous to themselves. 410 NICHOLAS N. SMITH The case State v. Newell (24 Atl. 943, 19 April 1892) held that Maine's resident Indians were not "Indian tribes" within the treaty-mak­ ing powers of the Federal government, nor were they in political life or territory successors of any of the various eastern tribes of Indians with whom treaties had been made: hence they could not claim any privileges or exemptions under such treaties. This case stands to this day as the basis for many decisions concerning Maine Indian rights. WORLD WAR II AND ITS AFTERMATH In 1940 there were many restless young men on the reserves, and as the US built up its armed forces, some of the young hunters jumped at the chance of employment. They returned several years later expecting job opportunities equal with those of other Maine veterans, but they found none. In Old Town, for example, a young non-veteran was selected to fill an opening as garbage collector on the Penobscot Reserve over a Penob­ scot candidate who had a fine overseas service record. The result was that veterans, with knowledge about the world beyond their island, began leaving the island; they were successful in finding work elsewhere and soon there were small Penobscot communities in Hartford, Bridgeport, and other cities in Connecticut. By 1950 the island elders realized that their sovereign rights had been undermined. In particular, they felt degraded by State welfare offi­ cials who made no attempt to understand those whose destinies they con­ trolled, and by the State's definition of Indians as wards of the state. In 1945, the Legislature had even transferred the power of selecting the fer­ ryman for the service between the Indian Island Reserve and Old Town from the Penobscot Chief to the Director of the Health and Welfare Department (Ghere 1984:243). Education was the first area of open conflict. Penobscot Chief Albert Nicola faced excommunication by his parish priest when he transferred his son from the church-run reservation school to the Old Town Public School to provide him with a better education. The children in his extended family soon followed suit. These forerunners of the education revolution saw the need to re-frain keen hunting and trapping talents to contemporary challenges. In 1952 the feisty Nicola charged that the State's attitude towards THE REBIRTH OF A NATION? 411 Maine Indians was that of a dictator (Mincher, Bangor Evening Commer­ cial, 26 June 1952, p.l). Nicola continued to push for more Indian control (Ghere 1984:250). Finally the conservative Maine Legislature moved to streamline State control by cutting out the Indian Agents and giving almost total power to the Welfare Department. This did not have the desired result. A frustrated Chairman David Fuller of the Legislative Indian Committee went to Washington seeking advice; on his return he discussed their recommendations with me.1 When Fuller resigned from the Committee a few weeks later, I con­ cluded that the conservative Legislature was not ready to make the recom­ mended changes, and it was increasingly obvious that the Indians were becoming more knowledgeable with respect to their treaties and treaty rights than the State Legislature was.