Maine Memory Network

Curated by Catherine M. Burns, PhD, Maine Historical Society volunteer; James E. Francis Sr. (Penobscot), Director of Cultural and Historic Preservation, Penobscot Nation; Tilly Laskey, Curator, Maine Historical Society; Darren J. Ranco, PhD (Penobscot), Professor of Anthropology and Coordinator of Native American Research, University of Maine; Donald Soctomah (Passamaquoddy) Director, Passamaquoddy Cultural Heritage Center and Passamaquoddy Tribal Historic Preservation Officer

---

In 2015, Maliseet Representative Henry Bear drew the Maine legislature’s attention to a historic redaction of the Maine Constitution. Through legislation drafted in February 1875, approved by voters in September 1875, and enacted on January 1, 1876, the Sections 1, 2, and 5 of Article X (ten) of the Maine Constitution ceased to be printed. Since 1876, these sections are redacted from the document. Although they are obscured, they retain their validity.

The redacted parts of Article X include Section 5, the Articles of Separation. This required text from Massachusetts spelled out the terms and conditions that the District of Maine agreed to in order to become a state independent of the Commonwealth of Massachusetts in 1820. However, the Maine Constitution mandates Massachusetts’ consent to annul or alter the Articles of Separation, meaning that Maine was legally bound to keep Article X, Section 5 in the constitution. State politicians seem to have sidestepped this obligation by redacting Section 5 from view in 1875, rather than erasing it as law. Redaction language specifically singled out Section 5 as remaining "in full force" and "with the same effect as if contained in printed copies."

Subsections of the redacted Article X, Section 5 include Maine's obligation to uphold and defend treaties made between Massachusetts and the Passamaquoddy and Penobscot Nations, as well as issues concerning public lands. The 1876 changes to the constitution also included removing Maine's Office of the Land Agent, a matter related to the public lands, but this was later overturned.

Research about the redaction is ongoing, and we present our current understandings here, with a focus on how the 1876 redaction and changes to the printed Maine Constitution affected the Passamaquoddy and Penobscot Nations.

Why Redact?

In 1875 Maine Governor Nelson Dingley informed the Constitutional Commission that,

It was desirable to consolidate amendments made to the constitution from time to time, and take out portions which in the changed condition of the affairs of the state were useless and cumbersome.

Subsection 9 of Article X, Section 5 prohibits altering the Articles of Separation without the consent of Massachusetts. Likely when the 1875 Commission learned it needed Massachusetts' permission, attorney and former politician, Frederick A. Pike of Calais suggested redacting—rather than amending—Article X by adding a newly worded "Section 7" that states:

Sections 1, 2 and 5, of Article X of the Constitution, shall hereafter be omitted in any printed copies thereof prefixed to the laws of the State; but this shall not impair the validity of acts under those sections; and said section 5 shall remain in full force, as part of the Constitution, according to the stipulations of said section, with the same effect as if contained in said printed copies.

Facing the possibility of paying the Passamaquoddy Tribe for lost treaty land while the state struggled with lingering Civil War debt, redacting Section 5 was in line with efforts by Governor Dingley and the Maine legislature to reduce state expenditures.

The unredacted 1820 Maine Constitution Article X, Section 5, subsection 5 reads,

The new State shall, as soon as the necessary arrangements can be made for that purpose, assume and perform all the duties and obligations of this Commonwealth towards the Indians within said district of Maine, whether the same arise from treaties, or otherwise; and for this purpose shall obtain the assent of said Indians, and their release to this Commonwealth of claims and stipulations arising under the treaty at present existing between the said Commonwealth and said Indians.

Psikilluwe
(Passamaquoddy for: Forked Tongue)

The Maine Supreme Judicial Court heard Joseph Granger v. Peter Avery in 1874, a case related to the Passamaquoddy Tribe’s 1794 Treaty with Massachusetts. The case began over a dispute whether the Tribe or Calais lawyer Joseph Granger owned Grass Island in the St. Croix River.

Peter Avery, the Indian Agent for the Passamaquoddy, represented the Tribe, but it is not clear that he was officially the tribal agent when Granger accused Avery of trespass in 1854. This action forced the court to decide whether Granger owned the land through a deed recorded by Massachusetts in 1794 or if Massachusetts had guaranteed the Tribe's possession by a 1794 treaty. The 1794 Treaty included Grass Island and 14 others as part of Passamaquoddy lands; this court case put the Tribe’s possession of all 15 islands at risk.

Although it heard the case in the April 1874 session, the Maine Supreme Judicial Court did not issue its decision until sometime between April and June of 1875. Prior to the Supreme Judicial Court’s ruling, the Constitutional Commission organized by Governor Nelson Dingley proposed the redaction of Article X, Section 5. The legislature later approved the redaction, and Maine voters did the same in September 1875—one month before final judgement in Granger v. Avery.

Peter Avery did not testify in Granger vs. Avery because he had moved from Maine to the gold rush country of California in 1867. Avery died there in June 1874, not long after the Maine law court had begun to hear arguments in the case. The timing of the Granger v. Avery decision in 1875, relative to developing the redaction between February and September of 1875, suggests that the lawsuit informed efforts to generate the redaction.

The court’s decision deprived the Passamaquoddy of their treaty islands. In accordance with Article X, Section 5, it was Maine’s duty to compensate the Passamaquoddy for the value of the lost land, and to pay the Tribe's court costs and damages—neither of which happened.

Nkihtahkomikumon mecim Nkihtahkomikumon
(Passamaquoddy for: Our Land Always Our Land!)

With Article X, Section 5 now obscured, an 1878 report from the Joint Standing Committee on Indian Affairs cited the Articles of Separation in explaining why Maine was responsible for reimbursing the Passamaquoddy Tribe for the 15 islands lost as a result of the Granger v. Avery case, and implied that Maine should refund the Tribe for the amount of Granger's damages deducted from the Passamaquoddy Trust Fund.

By drawing attention to the obligations contained in Article X, Section 5, the committee underscored the state’s actions in ignoring its treaty obligations as defined in the Maine Constitution.

The Joint Standing Committee's report maintained that at separation Massachusetts paid Maine $30,000 in trust to cover future costs. The committee found that,

It may be questionable whether 'obligations' of this particular kind were then understood to have been assumed by this State by the terms of separation. But the language is very broad, and it having been made a part of the Constitution of Maine, the Tribe may fairly look to this State for such remuneration as they may be justly entitled to receive for the loss they have sustained.

During the court case, Peter Sepsis (Passamaquoddy) asserted the islands were Passamaquoddy Homelands, and testified that, "So many year your fellows come here now – Indians always had possession before that. Now my hunting grounds you white people all take ’em up." In January 1879, Passamaquoddy Governor Selmo Francis and Lieutenant Governor Peter Selmore petitioned the Maine legislature to rectify the Tribe’s shrinking land base. The petition focused on Indian Township and asserted that the recently lost islands in the St. Croix River were “our ours!!” and demanded their official return.

The state’s failure to compensate the Tribe for the islands or to reimburse the Tribal trust fund for Joseph Granger’s damages has remained an open question for over a century. In a 1942 report on the history of the relationship between Maine and Tribal Nations, Ralph W. Proctor asked if the state should put $2,486.17 (about $52,000 in 2021) into the Passamaquoddy Trust Fund to cover the amount taken for Joseph Granger’s damages in 1876. Proctor raised additional questions whether Maine still owed the Passamaquoddy Tribe for the 15 lost treaty islands.

---

Lewis Mitchell
By Donald Soctomah

Lewis Mitchell was the Indigenous knowledge keeper of the Passamaquoddy Tribe from 1880 to 1930. He was Tribal Representative to the state legislature, and grandfather to Tribal Representative, Rena Newell.

Lewis Mitchell expressed his frustration about the loss of the St. Croix Islands in Granger v. Avery in an impassioned 1887 speech that the Passamaquoddy people still talk about in 2020. Lewis told the legislature about how Maine divested the Tribe of its treaty land holdings, saying,

When we lost the claim on the Islands, the time Granger vs. Indians, we not only lost the claim, but two thousand five hundred dollars out of the Indian [trust] fund in favor of Mr. Granger. Because he is a nice old man, let him have it; doubtful case, but let him have the money. This we also claim is not right.

Mitchell did not explicitly mention the redaction or Article X, Section 5, but he understood Maine’s responsibility. "Now," he went further, "if the State is the guardian of the Indians’ property, this condition of things ought to be stopped at once."

Under the Articles of Separation between Massachusetts and Maine, Maine was to uphold the Treaty of 1794 with the Passamaquoddy Tribe. Protection of fishing rights and the protection of the land were the two major parts of the treaty. Within a few years of statehood, Maine had violated this treaty by selling reservation lands and violating the tribe's fishing rights by arresting tribal fisherman on the river.

---

continued on Page 2

Creating and Redacting the Maine Constitution

Delegates representing Maine's 236 incorporated towns gathered in Portland at a Constitutional Convention on October 11, 1819 to draft Maine's first constitution. The constitution took effect on Maine's admission to the Union as the 23rd state on March 15, 1820. The Maine Constitution includes a preamble and ten Articles. Article X consists of six sections. Sections 1, 2, and 5 have been obscured since 1876, but even though they are redacted, they remain valid.

Parts of the Maine Constitution could have been considered obsolete in 1875. Article X, Sections 1 and 2 apply to the first meeting of the legislature in 1820. Section 1 outlines timetables for Maine's first legislature and elections, designating numbers of senators and representatives per town. Section 2 addresses the term lengths for the first elected state officials and the governor’s counsellors. Maine had the power to delete Sections 1 and 2, but the Constitutional Commission chose to redact them.

Article X, Section 5, subsection 2 divides armaments received from the federal government in 1808 between the Commonwealth and the District of Maine upon statehood. Subsection 3 distributes funds pertaining to the War of 1812. Subsection 7 stipulates that Maine will honor land grants and other agreements made by Massachusetts before the District of Maine separated from the Commonwealth. Subsection 8 establishes taxing land of residents and non-residents, but most of it deals with claims settled by 1820.

Subsections 1, 4, 6, and 7 deal with the public lands. Under the belief that there were not enough of the public lands left to justify the existence of the Office of the Land Agent any longer, in 1874 the legislature began efforts to dissolve it.

Yet subsections 5 and 9 of Article X, Section 5 remained viable. Subsection 5 concerns Maine’s obligations to guarantee and defend Native treaties made with Massachusetts. Subsection 9 bars Maine from altering the Articles of Separation without the consent of Massachusetts and requires their inclusion in the Maine Constitution.

Like most constitutions, Maine's guiding text is a living document. It was first amended in 1834, and has been changed with 173 amendments approved as of 2020 to reflect modern times. The consolidation and arrangement of law is called "codification," and although Governor Dingley suggested he was simply updating the Maine Constitution in 1875, this does not seem to be the motivation for redaction. If Article X, Section 5 remain in "full force" why redact?

Komuci kishoma
(Passamaquoddy for: Continuing Injustice)

By deciding in Joseph Granger’s favor, the Maine Supreme Judicial Court maintained that the Passamaquoddy Tribe had never possessed the 15 islands in the St. Croix River. The court also denied the validity of "aboriginal title," or the idea that the 1794 Treaty indicated Massachusetts’ acknowledgement of the Tribe’s ongoing possession of their Homeland, rather than a land grant from the state.

The court case over Grass Island stemmed from what essentially amounted to double-deeding by the Commonwealth of Massachusetts. Granger claimed Grass Island though deed first issued to William Bingham by Massachusetts on January 28, 1793. Massachusetts recorded Bingham’s deed on September 12, 1794. Seventeen days afterward, Massachusetts also formally acknowledged the Passamaquoddy Tribe’s ownership of Grass Island and other land in a treaty signed by the Tribe and Massachusetts on September 29, 1794.

In January 1876, the month the redaction took effect, attorney and newly elected legislator Frederick A. Pike proposed the state pay Granger $2,674.17 in damages, a figure higher than the Supreme Judicial Court settlement. This sum seems to have reflected "rent" of Grass Island by the Passamaquoddy Tribe. The Maine legislature ultimately passed a revised resolve that not only increased Granger’s damages, but also forced the Passamaquoddy Tribe to cover Granger's costs by taking funds from the Passamaquoddy Trust Fund.

As Granger’s damages represented a cost of defending the Tribe’s treaty, this was arguably a violation of the now redacted Article X, Section 5. The State of Maine never compensated the tribe for the 15 lost treaty islands, in defiance of redacted sections of Article X, Section 5.

Komuci-nuteptun wikhikon kilun-ote wikuwat
(Passamaquoddy for: Disappearance on Paper but We Are Still Here)

In his January 7, 1875 address to the legislature, Maine Governor Nelson Dingley proposed making amendments to the constitution beyond the removal of the Office of the Land Agent. Dingley advised the legislature against a costly Constitutional Convention, instead requesting a bipartisan council to suggest amendments. In the same address, Dingley expressed financial concerns, particularly related to Maine’s persistent Civil War debt.

The Commission proposed the redaction of Article X, Sections 1, 2, and 5. Dingley argued that parts of the constitution were out of date and, therefore, worthy of removal. But this was not true of portions of Section 5 of Article X pertaining to Maine’s duties to uphold and defend Penobscot and Passamaquoddy treaties with Massachusetts, and a prohibition on modifying the Articles of Separation without Massachusetts’ consent.

While his true intentions are unknown, it is possible that Dingley was not in favor of compensating the Passamaquoddy for the 15 islands, should the Maine Supreme Judicial Court side with Granger. Dingley did not comment publicly on the lawsuit, but as the governor, he was likely aware of what was at stake, since his office had "legal charge" over Native matters in Maine.

Mocikuwin mawi
(Passamaquoddy for: Old Boys Club Decisions)

The 1875 redaction of Maine's Constitution features multiple players with complex relationships and suspicious motives. Documentation surrounding the redaction is vague, obscured or non-existent. The Constitutional Commission first addressed Article X on February 5, 1875, when Fredrick A. Pike of Calais—the same person who later assisted Joseph Granger in receiving his damages—presented the commission with "report No. 10 relative to Codification." It is plausible that Pike proposed the redaction with the Granger case in mind. Pike trained as a lawyer under Joseph Granger and they maintained an ongoing professional relationship.

Pike might have pushed for the redaction in February 1875 as a way of smoothing the path for the Maine Supreme Judicial Court to issue a decision in Granger v. Avery, without simultaneously forcing the state into the position of reimbursing the Tribe for their 15 islands.

Edward Kent, the president of the Constitutional Commission, also possibly had knowledge of the Granger case and its potential financial liability for Maine's coffers. Kent served twice as governor of Maine from 1838-1839 and 1841-1842, and was an associate justice of the Maine Supreme Judicial Court between 1859 and 1873--years in which the court granted extensions for Granger v. Avery. Kent was also close friend of Justice Jonas Cutting, the presiding judge for Granger v. Avery. Kent and Cutting were law partners for 18 years and lived side-by-side in a Greek Revival duplex in Bangor.

The Constitutional Commission sent the legislature 17 proposed amendments. On February 24, 1875 the legislature selected nine to voters in September, including the redaction, known collectively as "proposed Section 7."

Research to date indicates that lawmakers and newspapers did not publicly discuss the implications for the State of Maine or the Passamaquoddy Tribe by removing Article X, Section 5 from print. When the change was discussed at all, it was cast as an amendment simply concerned with "codification," or the arrangement of the law.

Public Lands

One of the amendments proposed to voters in 1875 to change Maine's Constitution included removing the Office of the Land Agent, which managed Maine's public lands. However, it was later overturned because the Maine Constitution mandates having a Land Agent.

Article X, Section 5, subsection 1 establishes how Maine and Massachusetts would divide the "wild" or public lands in the former District of Maine,

All the lands belonging to the Commonwealth, within the District of Maine, shall belong, the one half thereof to the said Commonwealth, and the other half thereof, to the State to be formed within the said District, to be divided as is hereinafter mentioned.

The fourth subsection of Article X, Section 5 states that,

Commissioners shall assign a just portion of the productive property, so held by said Commonwealth as an equivalent and indemnification to said Commonwealth, for all such debts, annuities, or Indian subsidies or claims, which may then remain due, or unsatisfied.

Maine lawmakers and voters could have justifiably seen aspects of Article X, Section 5 as archaic because much of it concerned public lands jointly owned and controlled by Maine and Massachusetts in 1820. Maine had purchased what remained of those lands in 1853. Dashed plans for the railroad to sell public lands to settlers likely motivated efforts to remove the Office of Land Agent from the constitution.

Land Agent Parker P. Burleigh noted in an 1874 report, however, that some land under the control of the European and North American Railroad could not be sold, despite orders laid out in a March 4, 1874 resolve, until title could be determined. Due to a dilemma involving "a few lots reserved by the Commonwealth of Massachusetts, the title of which was also held in doubt."

Land Agents and Tribal Relations

Maine’s first governor, William King, appointed surveyor and Land Agent Lothrop Lewis of Gorham as Indian Agent to the Penobscots in 1820. Lewis negotiated Maine’s assumption of treaty obligations from Massachusetts with Penobscot leaders, an action mandated by Massachusetts in order for Maine to become a state. Tied to Maine's new responsibilities with Tribes as outlined in Article X Section 5 of Maine's Constitution was a fund of $30,000 from Massachusetts.

After almost 200 years of diplomatic negotiations with Massachusetts, Penobscots were reluctant to sever ties with Massachusetts. On July 8, 1820, Lewis reported to the Penobscot's former Indian Agent, General John Blake, that he had just received a release from the Penobscots, allowing Maine to take over Massachusetts' treaty obligations. Lewis urged Blake to convince the Penobscot leaders to meet on August 15, 1820 to formalize the agreement.

Lewis wrote,

By the fifth article of the terms & conditions of the act relating to the separation of the District of Maine from Massachusetts proper, and forming the same into a separate and independent state, it is provided that the new state shall as soon as the necessary arrangements can be made for that purpose, assume and perform all the duties and obligations of this Commonwealth towards the Indians within said district of Maine.

After Maine separated from Massachusetts, both states appointed commissioners under the Act of Separation. Their job involved dividing public lands in Maine equally between the two states, and assigning remaining Massachusetts property in Maine as compensation for outstanding debts, annuities, and Indian claims.

Massachusetts appointed Levi Lincoln and Timothy Bigelow, and Maine appointed James Bridge and Benjamin Porter. Silas Holman and Lothrop Lewis were added to the commission at the first meeting.

Resolve of the 1794 Treaty between the Passamaquoddy Tribe and the Commonwealth of Massachusetts, 1821

In 1957 Louise Sockabesin found a copy of the 1794 treaty between the Passamaquoddy Tribe and the Commonwealth of Massachusetts in a shoe box. Tribal leader John Stevens later used this treaty to back up Tribal claims that huge tracts of Passamaquoddy Homeland had been illegally taken from them, initiating the Maine Indian Land Claims act of 1980.

---

Indians Not Taxed
By Darren Ranco

The original State of Maine Constitution, Article II, Section 1, identifies who can vote in the following way:

Every male citizen of the United States of the age of twenty-one years and upwards, excepting paupers, persons under guardianship, and Indians not taxed shall be an elector for Governor, Senators and Representatives...

While the current language is much different (it now includes every citizen of the United States of age 18 or older who has established residency in the state), the language established in 1819 and 1820 for this section is revealing as it relates to Maine Wabanaki Tribal Nations and to what extent the State recognized tribes as sovereign entities then, and how that might impact Tribal-State relations in 2020.

Maine is one of only five states that has this language in its constitution, and, according to the United States Department of Interior, Solicitors Office, this language, which also appears in the United States Constitution, Article 1, and the 14th Amendment, is an explicit recognition of Tribal sovereignty, by imagining a group of Indians, in Indian territory, in the state, that are beyond state taxation control.

So, what happened? How did this explicit recognition of Tribal sovereignty in the State constitution change so quickly? In early laws and court decisions, the State of Maine quickly interpreted this in racist, discriminatory ways, eliding Indians into the pauper and under guardianship (a term also used for slaves in slave holding states) categories. Strikingly, in the 1842 Maine Supreme Court decision of Murch v. Tomer (21 Me. 535), responded to the language of "Indians not taxed" in the following way:

Imbecility on their [the indians] part, and the dictates of humanity on ours, have necessarily prescribed to them their subjection to our paternal control…

While this 19th century racist language is shocking, an important question to ask would be: without this racist legacy, what would prevent the State from a full recognition of Maine Indian Tribal sovereignty?

---

Wabanaki Representation in the State Legislature

Non-voting Tribal representatives have served in Maine's legislature, first with the Penobscot Nation starting in 1823, Passamaquoddy Tribes in 1842, and The Houlton Band of Maliseet Indians as of 2010.

In 2015 the Penobscot and Passamaquoddy withdrew their delegates, Matthew Dana II and Wayne Mitchell, in protest over affronts to Tribal sovereignty, treaty rights, and self-governance.

The Passamaquoddy reinstated their representative, Rena Newell, in 2018. The Penobscots did not fill their open seat in the Maine legislature. Instead, they appointed an ambassador, Maulian Dana in 2017, to work with both state and federal governments.

---

Resources

During the panel, participants cited these resources and court cases relevant to the 1875 redaction of the 1820 Maine Constitution. Click on the links to access PDF and online versions of the documents.

Treaty between the Passamaquoddy Tribe and The Commonwealth of Massachusetts 1794, Courtesy of the Passamaquoddy Tribe at Indian Township

Treaty of Watertown, 1776, Courtesy of Columbia University 

US Federal Non-intercourse Act, 1790 (making it illegal for non-Federal parties to treaty with Indians) 

Colonel John Allan Letter, 1776 

Commonwealth of Massachusetts; Robbins, Edward H.; Hill, Mark Langdon; and Davis, Daniel, "1818-06-29 Treaty Between Massachusetts and the Penobscot Nation" (1818). Documents. 10. Collections of the Maine State Archives 

Johnson v. M’Intosh 1824, Collections of the Library of Congress 

Murch v. Tomer, 1842 Courtesy of CaseLaw Access Project, Harvard Law School 

Penobscot Tribe of Indians v. Jones P. Veazie & another, 1870, Courtesy of CaseLaw Access Project, Harvard Law School 

Granger v. Avery, 1874, Courtesy of CaseLaw Access Project, Harvard Law School 

State v. Newell , 1892, Courtesy of CaseLaw Access Project, Harvard Law School 

Maine Indian Claims Settlement Act, 1980 

Friendly URL: https://www.mainememory.net/exhibits/redact