Redact: Obscuring the Maine Constitution

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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?

Nelson Dingley Jr., Lewiston, 1898

Nelson Dingley Jr., Lewiston, 1898

Item Contributed by
Fryeburg Historical Society

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.

(Passamaquoddy for: Forked Tongue)

Map of St. Croix River area, 1817

Map of St. Croix River area, 1817

Item Contributed by
Maine Historical Society

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!)

Ancestral canoe journey, Motahkomikuk (Indian Township), 2019

Ancestral canoe journey, Motahkomikuk (Indian Township), 2019

Courtesy of Donald Soctomah, an individual partner

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

Contested Northeast boundary map, 1843

Contested Northeast boundary map, 1843

Item Contributed by
Maine Historical Society

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.

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