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EARLY SURVEYING PRACTICE PERFORMED BY SURVEYORS FOR MASSACHUSETTS AND MAINE

IN RELATION TO TREATY LANGUAGE OF LANDS DESCRIBED IN 1796 AND 1818 TREATIES WITH

THE PENOBSCOT INDIANS ALONG THE PENOBSCOT RIVER AND WHETHER THOSE PRACTICES

WERE CONSISTENT WITH THE VIEW THAT THE STATE UPON ACQUIRING LAND APPURTENANT

TO THE RIVER DID OR DID NOT ACQUIRE THE BED OF THE PENOBSCOT RIVER ITSELF

Kenneth D Roy Cadastral Surveyor

Bureau of Land Management

Eastern States Cadastral Survey

June 13 2014

SCOPE OF RESEARCH AND FINDINGS

I have been asked to perform research and provide an expert opinion on the specific question of

whether land surveys executed by surveyors authorized by Massachusetts and Maine and the language

they used on their plats in their field notes and subsequently in deeds and conveyances from the

Commonwealth of Massachusetts and Maine provide evidence that the 1796 1818 and 1820 Treaties

with the Penobscot Indian Nation ceded to the State the bed of the Penobscot River or alternatively an

understanding that the Penobscot Indian Nation never conveyed title to the bed of the Penobscot River

The research for the basis of this opinion was primarilyperformed at the Massachusetts and Maine

State Archives which possess all of the land office records relating to the survey and settlement of lands

in Maine during and after the signing of the Penobscot treaties It should be noted that in general the

history of earlier surveys in thisportion of the State is sometimes difficult to trace The records of

surveyor instructions plats and field notes found in the state archive’s collections are fragmented and

in many cases incomplete There are also instances where title to land was conveyed on the basis of a

plan of survey without an actual survey actually marking the boundaries of land This report will detail

the land office surveying records found in the state archives

It is not the purpose of this report to offer any legal opinion on whether the treaty descriptions

and language indicates ownership of the bed of the river itself but to research the actions and

statements of the surveyors and surveys and to analyze whether this extrinsic evidence is consistent

with either the cession or the retention of the bed of the Penobscot River by the Penobscot Indians

The area of question known as the main stem of the Penobscot River lies from the head of tide

referenced in many plats and documents as “Nichols Rock” north of Bangor to the fork of the River into

the East and West Branches located 60 miles north in Medway The land encompassing this area is

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referenced throughout many township surveys as the Old Indian Purchase OIP FigureNo 1 River

Townships East of the Penobscot River EPR North of the Waldo Patent NWP Indian Purchase IP

and West of the East Line of the State WELS shown in part in Figure No 1 and hereinafter described

My qualifications to provide this opinion are as follows I have been a licensed surveyor in

Maine License No 2333 since 2002 I have a BS and MS in Surveying Engineering from the

University of Maine in 1992 and 1997 respectively I was the lead surveyor of the Bureau of Land

Management BLM Maine Project Office from 2002 to 2009 where I performed 21 federal authority

surveys in Maine for the BLM of lands held in trust by the United States for the benefit of the four Indian

tribes in the State I have been with the BLM Eastern States Office Branch of Cadastral Survey since

1992 with two brief periods in the private sector and the US Fish and Wildlife Service where I have

performed numerous other federal authority surveys of federal interest lands throughout the Eastern

portions of the United States Currently I am the BLM Indian Land Surveyor BILS for the Bureau of

Indian Affairs BIA Midwest Regional Office in Bloomington Minnesota where I work with the 35 tribes

in Michigan Wisconsin Minnesota and Iowa I have performed hundreds of land description reviews of

surveys deeds and treaty language both old and new and offered opinions and recommendations on

the validity of such answered countless inquiries from tribes and the general public regarding survey

procedures land descriptions and title of Indian lands and provided title research and survey opinion

support to the DOI Field Solicitor’s Office for several trespass quiet title action and riparian omitted

lands and apportionment cases

No compensation was received for this research and was performed as part of myregular duties

for the BLM and the BIA

DESCRIPTIONS OF LANDS IN TREATIES WITH THE PENOBSCOTS

This part briefly defines the documents and language of descriptions of land along the

Penobscot River in the 1796 1818 and 1820 Treaties with the Penobscot Indians

On August 1 1796 the Commonwealth of Massachusetts treated with the Penobscot Indians

where the tribe agreed to

grant release relinquish and quit claim to the said Commonwealth their the said Tribes right

Interest and claim to all the lands on both sides of the River Penobscot emphasis added

beginning near Colonel Jonathan Eddy’s dwelling house at Nichol’s rock so called and

extending up the said River thirty miles on a direct line according to the General Course of said

River on each side thereof excepting however and reserving to the said tribe all the Islands in

said River above Old Town including said Old Town Island within the limits of the said thirty

miles1

1 “Documents of American Indian Diplomacy Volume 1” Vine Delonia Raymond J DeMallie University of Oklahoma Press 1999 Pg 1094

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This area of land became known as the “Old Indian Purchase,” comprising nine townships as

portrayed in FigureNo 1 The Commonwealth wasted no time in surveying the lands to ready them for

sale The description in the 1796 Treaty defines the retention by the Tribe of the islands in the river

within the Old Indian Purchase which implies the retention of the bed of the River and the riparian rights

associated with those Islands

What remained as Indian Lands including the islands in the 1796 Treaty was the lands north of

the Old Indian Purchase or 30 miles from the head of the tide and at least six miles on either side of the

river as stated in the 1775 Watertown Resolve During the time from the 1796 Treaty up to the 1818

Treaty there are several complaints and disputes which document the Tribes concern about trespass on

the territory and rights defined in the 1796 Treaty including the dispute over several islands located at

the falls just below Old Town Island

On June 29 1818 the Penobscot Nation signed a Treaty with the Commonwealth of

Massachusetts where the tribe agreed to

“grant sell convey release and quitclaim to the Commonwealth of Massachusetts all their the

said tribes rights title interest and estate in and to all the lands they claim occupy and possess

by any means whatever on both sides of the Penobscot river emphasis added and the

branches thereof above the tract of thirty miles in length on both sides of said river emphasis

added which said tribe conveyed and released to said commonwealth by their deed of the

eight of August 1796 excepting and reserving from this sale and conveyance for the perpetual

use of said tribe of Indians four townships of land of six miles square each in the following

places emphasis added

The first beginning on the east bank of the Penobscot River opposite the five islands so called

and running up said river according to its course and crossing the mouth of the Mattawamkeag

River an extent of six miles from the place of beginning and extending back from said river six

milesand to laid out in conformity to a general plan or arrangement which shall be made in the

survey of the adjoining townships on the river Separated to show the four townships distinctly

as described

One other of said townships lies on the opposite or western shore of said river and is to begin

as nearly opposite to the place of beginning of the first described township as can be having

regard to the general plan of the townships that may be laid out on the western side of said

Penobscot River running up said river according to its course six miles and extending back from

said river six miles

Two other of said township are to begin at the foot of an island in west branch of Penobscot

River in Nolacemeac Lake and extending on both sides of said lake bounding on the ninth range

of townships surveyed by Samuel Weston Esq which two townships shall contain six miles

square each to be laid out so as to correspond in courses with the townships which now are or

hereafter may be surveyed on the public lands of the State.” 2

2 Massachusetts State Archives Eastern Lands Papers Office of Secretary of State SC1 Series 34x

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These reserved townships became known Townships Nos 1 2 3 and 4 Indian Purchase

IP as shown on Figure 2 Townships Nos 1 and 2 T1 IP T2 IP are referred to as the lower

Indian Purchase Townships and are now known as the Towns of Mattawamkeag and Woodville

respectively Townships Nos 3 and 4 are referred to as the upper Indian Purchase Townships

and are still known today as Townships Nos 3 and 4 Indian Purchase T3 IP T4 IP

Figure No 1 Massachusetts State Archives Archives Map Collection AMC Map No 1618a Osgood Carleton No date

Figure No 2 shows the Township designations for the four townships reserved for the

Penobscot Tribe now known and referred to as Townships Nos 1 2 3 4 Indian Purchase IP in the

1818 Treaty along with the designations of surveys performed along the Penobscot River subsequent

thereto as well as lands in the Old Indian Purchase defined in the 1796 Treaty with their currently known

names hereinafter described

After the District of Maine separated from the Commonwealth of Massachusetts in 1820 the

newly formed State executed two Treaties with the Penobscot Tribe on August 17 1820 One obliged

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Figure No 2 Principal Original Grants and Sales of Lands in Maine Moses Greenleaf 1829 http www davidrumsey com maps880039 24207 html

T A R 6 WELS

Medway

W

IP IP

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the State of Maine to assume the duties and obligations of the Commonwealth of Massachusetts

towards the Indians in the State and the other released “all claims and stipulations...said tribe have on

or against said Commonwealth.” 3In 1829 the Penobscot Tribe petitioned the State of Maine to

authorize the sale of the two lower townships retained in the 1818 treaty which eventually led to the

sale of all “four townships belong to said Indians” 4on June 10 1833 for the sum of 50,000

HISTORY OF EXPLORATION AND SURVEY OF ISLANDS IN THE PENOBSCOT RIVER

In 1764 Joseph Chadwick was directed by order of the Government of the Massachusetts Bay to

explore the interior of the country to see if it were practicable to make a road from Fort Pownall now

known as Fort Point State Park near Stockton Springs to Quebec His journal from this expedition

which included eight Penobscot guides is located in the Massachusetts States Archives in the Archives

Collection Volume 243 Page 86 A portion of his plan is shown in Figure No 3

Page 6 of the journal notes the trepidation the Penobscots had about settlements extending

beyond the head of the tide shown in FigureNo 3 at “D,” as they “ordered me to go and mark out a

line and acquaint the people that they were not to make any settlements above the falls In obedience

to the above orders I marked out a line and acquainted the people and gave the Indian a sketch.”

Figure No 4 is a sketch of the Penobscot River taken from the account of Joseph Treat and John

Marsh dated August 29 1786 No field notes journals or documents were recovered detailing any

other particulars of this exploration

Shortly after the 1796 Treaty Park Holland under authority from Massachusetts Resolve

approved March 11 1797 defined the limits of the line 30 miles north of the head of the tide The plan

shown in Figure No 5 depicts no islands and makes no mention in regards to the ownership of the river

3 Massachusetts State Archives Eastern Lands Papers Office of Secretary of State SC1 Series 34x

4 Commissioners Report and Agreement regarding Purchase of Penobscot Indian Lands

http windowsonmaine libraryumaine eduviewaspxobjectId 492currentFile 2

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Figure No 3 Massachusetts State Archives 3rd Series Collection Volume 13 Page 22 Map No 762

The certification on the plat by Park Holland reads

We the subscribers being appointed chainmen and surveyor to run out the lands on the

Penobscot River to extinguish the Indian claim in said lands in behalf of the Commonwealth of

Massachusetts by the parties The Commissioners appointed by the Commonwealth on one

part and the chiefs of the Penobscot Tribe of Indians on the other part Park Holland surveyor

Major Seth Catlin and Capt Thomas White chainmen having been duly qualified for said

purpose do certify that the foregoing plan is just and true according to our best skill and

judgment having been done under the immediate inspection of the Hon William Sheppard Esq

on the part of the Commonwealth of Massachusetts and Sabatis Neptune on the part of the

Indian Chiefs and after running from Nichols Rock at the head of tide thirty miles up said river

agreeable to said plan the bounds are as follows as agreed by the parties viz on the West side

of the River above the Thirty miles as aforesaid are two yellow birch marked a few rods below a

small cove at high water mark with stones around the same and a large stone betwisch bet

the trees Westerly is rising ground on the Easterly side of the River is a large Rock the lower

part just out of the water at low water being about seven feet high and is remarkable rock for

this river it appears to be composed of small rocks and has a hole in the south side of it and

there is two large white pines and an oak tree marked facing the rock before mentioned

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Figure No4 Massachusetts State Archives 3rd Series Collection Volume 24 Page 50 Map No 2545

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Figure No 5 Massachusetts State Archives 3rd Series Collection Volume 19 Page 29 Map No 1459

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The intentions of the parties in regards to the ownership of the bed of the Penobscot River is

not any clearer from Mr Holland’s account as the focus appears to be to locate and describe the

northern extent of what would be the Old Indian Purchase That focus may explain why no islands were

surveyed or located by Mr Holland The plat and description do note two birch trees at the high water

mark of the west side of the river and an abnormal rock on at low water on the east side Unless

specifically defined in a legal land description segregation of uplands and lowlands are presumed to be

the high water mark which closely equates to the bank thereof

SUBSEQUENT SURVEYS AND EXPLORATION

Not seven months after Maine’s admission to the union Joseph Treat received instructions from

Governor William King on September 11 1820 to proceed up the Penobscot River –thence through the

Lakes and River St John for the purpose of examining and ascertaining the quality of the soil and growth

on the Public Land in that vicinity5He was guided on the expedition by Penobscot Tribal leader John

Neptune and his 214 page journal with several detailed maps of their travels from September 17 to

November 20 are a meticulous record and view into the land and tribal existence and occupation at the

beginning of the relationship between the Tribe and the new State of Maine

The first significant survey of the Islands of the Penobscot River was performed by Zebulon

Bradley pursuant to Maine Public Law 1835 Chapter 158 approved on March 10 1835 which in part

states

Sec 1 The Land Agent shall cause the Islands in the Penobscot River from Old Town Falls to

Mattawamkeag Point to be accurately surveyed and numbered and their present value

estimated and duplicate plans thereof to be made and returned one to the Land Office and one

to the Indian Agent

Sec 2 That the Indian Agent shall cause to be survey and laid down on both plans a suitable

quantity of islands as may be deemed valuable for mills booms and fisheries also a suitable

tract of land for a farm referred to herein as “Public Farm”on which to keep the old Indians

invalids and orphan children who are unable to support themselves also suitable tracts of wood

and timber land for the use of the tribe He shall also cause to be surveyed and designate on

said plans a suitable lot or lots for each Indian of said Tribe male or female of the age of twenty

one years and upward who may apply for a lot for the purpose of cultivation...And all lots thus

surveyed laid down and marked upon said plans shall be the property of him or her to whom

assigned during the pleasure of the Legislature

Sec 3 That in all cases where an Indian has already commenced the cultivation of the soil such

Indian shall have his or her lot laid out so as to include his or her improvement

5 “Wabanaki Homeland and the New State of Maine The 1820 Journal of Plans of Survey of Joseph Treat” Micah A Pawling 2007

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Sec 4 That it shall not be in the power of and Indian to sell his or her lot Nor shall any Indian

commit strip or waste on his or her lot nor cut or carry off growth on said lots any faster than is

necessary for cultivation And any Indian cutting or carrying off from any of the Indian Lands

either public or private any part of the growth thereof except by permission of the Indian

Agent shall be taken and considered a trespasser and dealt with accordingly

Sec 7 That the Indian Agent may lease for term of years sufficiently long to induce persons to

take them up any reserved privileges for mills booms and fisheries provided the Governor and

council may approve the same and all the rents accruing under such leases shall be paid into

the Treasury of the State and may be expended for the benefit of said Tribe under the direction

of the Governor and council 6

There are four sets of these island survey plans each consisting of 11 individual sheets The act

instructed the Indian Agent to obtain the survey in duplicate with one to the Land Office and one to the

Indian Agent The Land Office originals are located in the Maine State Archive Plan Book 10 Pages 41

51 This set is the only one originally signed by Zebulon Bradley on November 18 1835 and does not

portray any lots on any island The Indian Agent set noted as copy is in Plan Book 10 Pages 1525 and

included in Attachment No 1 and portrays several lots with assignees’ names

The third and fourth copy set of the plans are in the offices of the James W Sewall Coin Old

Town Maine The third set referenced as Indian Plan Book No 2 includes additional lots surveyed by

Caleb Leavit in 1836 and the fourth set Indian Plan Book No 1 includes additional lots surveyed by

Lore Alford in 1866

Zebulon Bradley’s field notes and instructions for his 1835 survey of the 146 Islands in the

Penobscot River are located in the Maine State Archives MeSA in Field Note Volume 76 Page 229 The

instructions to Mr Bradley direct him to “ to accurately survey all the Islands in the Penobscot River from

the Old Town Falls to Mattawamkeag Point and to estimate the value of each separate and distinct

from the other” These notes detail the acreage quality and value of each island as instructed

Field Note Volume 70 in the MeSA are notes and instructions to Love Alford in 1840 to enter on

the duplicate copy of the plans of the islands prepared by Zebulon Bradley deposited in the Land Office

in Bangor the survey of the lots prepared by Caleb Leavitt in 1836 and the surveys made by him in 1838

1839 and 1840 and also to enter the field notes in a book for that purpose These notes describe by

metes and bounds the several lots surveyed but do not provide additional meanders along the shores of

the islands No notes were found for any lots surveyed by Lore Alford in 1866

6 Sections of Maine Public Law 1835 Chapter 158 not relevant to this inquiry were omitted

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While the islands were surveyed each of the 11 individual sheets states “the shores of the river

bounding on the main land are not laid down by actual survey” This statement makes it clear that the

focus of this survey was only to address the Indian reserved islands in the Penobscot River and not the

shore of the sides of the rivers These plans also include the following statement from Mark Trafton

Indian Agent

Bangor December 25 1835 In accordance with the provisions of an Act passed March 10 1835

entitled and Act additional to the several Acts for the better regulation and management of the

Penobscot Tribe of Indians I have made the following reservations for MillsBooms and

Fisheries to wit Islands Numbered...Each sheets notes a particular island number as shown

thereon painted in red and a strip of two rods wide around and upon the shores of all other

Islands represented on this sheet and shaded red

This statement provide evidence of the State’s understanding of the tribe’s inherent right of

ownership beyond the shoreline commonly referenced as “water privileges,” including the bed of the

Penobscot River that would normally be a part or attached to the islands as a result of the treaties

There are several documents and reports to the Standing Committee on Indian Affairs located in the

Executive Council Records in the Maine State Archives which detail “certain water privileges” leased to

particular individuals from 1836 to 1838 pursuant toPL 1835 ch 158

It should be noted that 13 days after the passage of PL 1835 ch 158 the Legislature repealed

“that which authorizes the Indian Agent to sell timber standing and growing on land belonging to the

Penobscot tribe of Indians” on March 23 1835 Relating thereto Title 22 Chapter 1353 4779 of the

Maine Revised Statute repealed in 1979 stated in part

“Surveys of the Island in Penobscot River from Old Town Falls to Mattawamkeag Point and field

notes thereof as made under chapter 158 of the public laws on 1835 and chapter 396 of the

public laws of 1839 plans of which were returned to the land office and to the Indian agent

shall be deemed authentic in all matters to which they relate The water privileges emphasis

added belonging to said islands valuable for mills booms fisheries tracts of wood and

timberland and other lots indicated on said plans as reserved for public use except the public

farm which is subject to allotment by chapter 22 of the private and special laws of 1878 are not

subject to assignment or distribution to members of said tribe but shall remain for the benefit

of the whole tribe.”

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HISTORY OF SURVEYS OF LANDS AND TOWNSHIPS ALONG THE PENOBSCOT RIVER AND

TERMS USED IN THE CONVEYANCE OF LANDS FROM THE COMMONWEALTH OF

MASSACHUSETS

The following list of surveying instructions plats field notes and deeds organized by townships

along the Penobscot River recovered at the Massachusetts and Maine State Archives demonstrates the

varied use of language and calls as it pertains to the lands on both sides of the Penobscot River and the

islands therein The Old Indian Purchase was surveyed into nine townships with each divided into

quarters by Park Holland John Chamberlain and Jonathan Maynard under the direction of Salem Towne

in 1797 The associated notes sometimes describe only portions of the quarters of townships and do not

contain any calls down or along the river but instead only describe the line to or from the Penobscot

River

I've examined the survey and deed descriptions for the townships along the Penobscot River in

the wake of the treaties and towns and townships along the Kennebec Androscoggin and Saco Rivers in

Maine and the evidence yielded points both ways which is to say it is ambiguous In some instances

the language used to mark the boundaries would typically be construed by a surveyor as separating the

river from the upland But in other cases the language does not indicate such separation It seems

clear to me that the surveyors had no opinion one way or the other with regard to whether the

Penobscot River was included in the cession Below are a few examples of separation and unseparation

language along the Penobscot River post 1796 and 1818 treaty which includes a “separated,”

“unseparated,” or “inconclusive” in parentheses to indicate case laws interpretation in regards to the

ownership of the of the river

Township No 4 West of the Penobscot River Old Indian Purchase Orono Old Town

Survey notes of T4 ESPR by P Holland J Chamberlain and J Maynard 1797 MeSA Vol 1 Page 77 –

Post 1796 Treaty

North line as run west by Chamberlain “Begin on the west side of the river at a beech tree marked...”

inconclusive

Survey notes of lots in T4 WSPR by James Irish 1818 MeSA Field Book 2493 –Post 1818 Treaty

Descriptions of 5 lots along the river described in the same following fashion

“Beginning at a cedar stake standing near Penobscot River...to a cedar stake standing near

Penobscot River thence northerly by said river to the first bounds mentioned” unseparated

Township No 1 West of the Penobscot River Old Indian Purchase Edinburg

Survey notes of T4 ESPR by P Holland J Chamberlain and J Maynard 1797 MeSA Vol 1 Page 61 –

Post 1796 Treaty

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North line as run west by Maynard “Commenced at a large crotched Birch on the west side of

Penobscot River marked...”

South line as run east by Maynard “to the river marked a small Rock Maple Tree”

Line between the 3rd and 4th quarter run east by Maynard no mention of river or monument

Line between the 2nd and 3rd quarter run west by Chamberlain “Commenced at a Black Oak south of a

cove marked.”

Line between the 1st and 2nd quarter run east by Chamberlain no mention of river or monument all

inconclusive

Survey notes of lots in T1 WSPR by James Irish 1818 MeSA Field Book 2493 –Post 1818 Treaty

Descriptions of 34 lots along the river described in the same following fashion

“Beginning at a white birch tree standing near Penobscot River...to a poplar tree standing near

Penobscot River thence northerly by said river to the first bounds mentioned” unseparated

Township No 4 East of the Penobscot River Old Indian Purchase –Bradley

Massachusetts Deeds MeSA Vol 6 Pg 457 dated March 5 1808 –Post 1796 Treaty

Deed from Salem Towne Land Agent to Timothy Battle Co being the 2nd qtr of said Township

“Beginning at a pine stump on the easterly bank of the Penobscot River...to the bank on

Penobscot River to a stake and stones from thence up said river to the first mentioned bounds.”

separated

This lot is noted as “Sold by Gen Towne” on the plat for the 1818 survey described below

Survey notes of lots in T4 ESPR by James Irish 1818 MeSA Vol 100 Page 122 –Post 1818 Treaty

Descriptions of 26 lots with 12 along the river described in the same following fashion

“Beginning at a cedar stake standing near the Penobscot River...to a cedar stake standing near

Penobscot River thence northerly by said river to the first bounds mentioned” unseparated

Several deeds from the Commonwealth of Massachusetts to individuals for lands retained after

separation recovered from the Maine State Archives Massachusetts Deeds Volume recite the exact

language of the aforementioned survey notes for the descriptions of the lots and some refer specifically

to James Irish’s survey Vol 1B Pgs 81 82 88 and 90 Vol 2B Pg 48

Township No 3 East of the Penobscot River Old Indian Purchase –Milford

Survey notes of T3 ESPR by P Holland J Chamberlain and J Maynard 1797 MeSA Vol 1 Page 80 –

Post 1796 Treaty

North line as run west by Holland “strike the river I marked a Maple No 2 and No 3 1797 This

between Long Island and Musquash Island.”

Line between the 1st and 2nd quarter run east by Chamberlain “Commence at a Maple Tree on the east

side of Penobscot River marked...”

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Line between the 2nd and 3rd quarter run east by Maynard “Begin the NW corner of the 3rd qtr of Twp

No 3 on the east side of the Penobscot Rive where I mark a beech tree...” all inconclusive

Massachusetts Deeds MeSA Vol 4 Pg 261 dated December 23 1831 –Post 1818 Treaty

Deed from Commonwealth of Massachusetts to Benjamin Fisk North of Twp Except 3 Lots

“Beginning on the northwest corner of the Township at a maple tree near the bank of the

Penobscot River...to a beech tree near Penobscot River marked...thence northerly by the side

of the Penobscot River to the place of beginning.” unseparated

River Township No 2 East of the Penobscot River –Lincoln

Survey notes of lots in T2 ESPR by Andrew McMillan 1824 MeSA Vol 101 Page 9

Descriptions of 16 lots along the river with some described in the same following fashion

“Run from a Yellow Oak on the bank of the river...run on the river from said oak to an Elm Tree”

and others described

“Beginning at hemlock NW corner No 9...thence on river from said hemlock” unseparated

Ranges 7 8 9 North of the Waldo Patent NWP Includes Chester Howland and T2 R8 NWP

Massachusetts State Archives EA2 Series 694x Item 2236 dated May 1 1794 –Pre 1796 Treaty

Instructions from Daniel Cony in behalf of the Committee to Samuel Weston to survey three ranges of

township between the Penobscot River and the east line of the million acres on the Kennebec River

“to be bounded West on the said million acres South on the sixth range already surveyed and a

line to be extended east from the north east corner of township number one in the sixth range

to the Penobscot River Easterly on Penobscot River and North on unlocated lands...And you

will accurately survey the western bank or water’s edge of Penobscot River” separated

These instructions and surveys for lands north of the Old Indian Purchase were executed two

years prior to the 1796 Treaty and 24 years prior to the Commonwealth acquire said lands from the

Penobscot Tribe in 1818 The reasons for accurately surveying the western bank or water’s edge of the

Penobscot River may possibly be considered as an acknowledgement of the Tribe’s possession and

ownership of the river prior to the 1796 treaty

Indian Purchase No 1 Mattawamkeag and Indian Purchase No 2 Woodville

Massachusetts State Archives EA2 Series 694x Item 112 dated August 15 1818

Instructions from Lothrop Lewis Surveyor General to James Irish to survey the township of the land

reserved by said Indian by the 1818 Treaty

“Begin on the easterly side of the river almost with the center of the five islands and survey and

mark out a township of the contents six miles square”

The survey shown in FigureNo 6 but notes for this survey were not found or located The lines

of the Township Nos 1 and 2 IP T1 T2 IP do not cross the Penobscot River but do cross the

Mattawamkeag River This is important because of the wording in the aforementioned Treaty of 1818

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Figure No 6 –Plan Book 6 Page 22 –T1 IP T2 IP –James Irish – 1818

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“grant sell convey release and quitclaim to the Commonwealth of Massachusetts all their the

said tribes rights title interest and estate in and to all the lands they claim occupy and possess

by any means whatever on both sides of the Penobscot river and the branches thereof

emphasis added above the tract of thirty miles in length on both sides of said river.”

This wording specifically notes the inclusion of the branches of the Penobscot and provide

evidence that the bed of the Penobscot River itself had not been included in the cession because if the

Penobscot River were to be a part of the cession there would be no need to say “and the branches

thereof” because the beds of the water bodies branches included would already be included in the

language “on both side of the Penobscot River” if that language were construed to mean the bed was

ceded This would explain why the townships boundary lines are drawn through the Mattawamkeag

and the many branches shown thereon in Figure No 6

It is fair to note the plat for the following survey of T1 IP into Lots by Joseph Kelsey in 1834 after

the State purchased the townships shown in Figure No 7 do have lines crossing the Mattawamkeag

River

Survey notes of T1 IP into lotsby Joseph Kelsey 1834 MeSA Vol 75 Page 39

Descriptions of 158 lots with 19 along the river described in the same following fashion

“Beginning at a pine tree standing on the bank of the Penobscot River...to a pine tree on the

bank of the Penobscot River Thence by the shore to the place of beginning” separated

The notes also include the “Field Notes of the Survey of the Shore of the Penobscot River”

“Beginning at a Pine Tree marked 1818 standing on the bank of the Penobscot River being the

NW corner of Township No 1 Indian Purchase thence...after eight meander courses)...thus

far the bank has been high covered with black growth...to a hemlock tree being the Southwest

corner of the Township.” separated

TOWN INCORPORATIONS AND PROCLAMATIONS

Settlements and or Townships could petition the Commonwealth of Massachusetts and the State of

Maine to be incorporated as a town The legislature under its authority would then enact the law

proclaiming the town and define the provisions of the partitioned or newly created town The most

prevalent item in these laws is the definition of the boundaries of the town The following is a summary

listing of those town boundary descriptions used along its bordering river The summary list of towns

along the Kennebec Androscoggin and Saco Rivers is grouped by towns whose boundary lines 1 only

went to the bank and 2 those whose boundary lines crossed or went to the middle or thread of the

river The third grouping consists of the townships along the Penobscot established on land ceded by

the 1796 and 1818 treaties

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Figure No 7 –Plan Book 7 Page 37 –T1 IP –Joseph Kelsey–1834

Incorporations of Towns along other Rivers that went to the bank or side

Massachusetts PL 1790 91 ch 20 App Jan 30 1792 –Sidney from Vassalborough Kennebec River

“all the land and water lying on the west Boundaries side of Kennebec river in the town of

Vassalborough and bounded as follows Viz Beginning at said Kennebec River on the westerly side

thereof and in the line between the towns of Winslow and Vassalborough aforesaid...to Kennebec River

thence northerly on the westerly side of said river emphasis added and bounded by the same to the

first mentioned bounds...”

Massachusetts PL 1794 95 ch 59 App February 28 1795 –Starks Kennebec River

“Beginning on the west Bank of said River in the North Line of the Plymouth Claim thence...to Kennebec

River and Continuing Northerly by said River on the west Bank thereof to the first mentioned bound...”

Massachusetts PL 1794 95 ch 62 App February 28 1795 –Clinton Kennebec River

“Beginning on the bank of said River in the South line of Canaan thence...to Kennebec River thence

Northerly by Kennebec River on the Easterly bank thereof to the first mentioned bound...”

Incorporations of Towns along other Rivers that went to the middleor across the river

Massachusetts PL 1784 85 ch 40 App November 30 1785 –Standish Saco River

“to Saco River thence to run down said river adjoining the same to the westerly corner of Buxton

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Massachusetts PL 1770 71 ch 27 App April 26 1771 –Hallowell Kennebec River

“Beginning on the east side of Kennebec River at the north line of James Winslow's land...“

“to Kennebec River and to run on the same west north west course across said river to the end of five

miles on the west side thereof...”

“to Kennebec River and over said river to the first mentioned bound be and hereby is

erected into a township by the name of Hallowell...”

Massachusetts PL 1770 71 ch 33 App April 26 1771 –Winslow Kennebec River

“Beginning on the east side of Kennebec River at an hemlock tree standing on the bank of said river

thence...to Kennebec River thence to run across said river the same course...to said Kennebec River

thence across said river to the hemlock tree aforesaid the first mentioned bounds be and hereby is

erected into a town by the name of Winslow.”

Massachusetts PL 1788 89 ch 76 App February 17 1789 –Durham Androscoggin River

“to Androscoggin river thence South easterly by the middle of said river to the head line of Brunswick...”

Massachusetts PL 1802 03 ch 23 App June 23 1802 –Waterville from Winslow Kennebec River

“all that part of the town of Winslow which lies on the west side of Kennebec River as known by its

present bounds by a line drawn on the middle of Kennebec River as its future Eastern boundary...”

Massachusetts PL 1804 05 ch 19 App June 22 1804 –Emden Kennebec River

“Beginning at a marked tree on the bank of Kennebec River at the north east corner of the Plymouth

claim thence...to the middle of the Channel of said Kennebec River thence following the middle of the

Main Channel of Kennebec River down said river until it intersects a line running East from the first

mentioned bounds thence west on said line to the bounds first mentioned...”

Massachusetts PL 1806 09 ch 38 App February 23 1809 –Solon Kennebec River

“Described within the following bounds with the inhabitants thereon be and the same are hereby

incorporated and established a town by the name of Solon viz Bounded North by Bingham s purchase

East by the town of Athens South by the town of Madison and West by a line drawn on the middle of

Kennebec River..”

MainePSL 1873 ch 390 App February 14 1860 –Bunkers Island to Fairfield Kennebec River

“All that part of the town of Benton in the county of Kennebec lying westerly of the following described

line is hereby set off from said town of Benton and annexed to the town of Fairfield in the county of

Somerset and the dividing line between the counties of Kennebec and Somerset is varied accordingly

Said line is described as follows to wit beginning in the west line of Benton in the middle of the

Kennebec river opposite Oaks rock so called thence east to the middle of the east channel of said river

thence up the middle of said channel to a point opposite the head of Bunker's island so called thence

northwest to the east line of the town of Benton.”

Incorporations of Towns along the Penobscot River in the 1796 and 1818 cessions

Massachusetts PL 1804 05 ch 93 App March 12 1806 –Orono Penobscot River

“Beginning at the North east corner of Bangor on Penobscot River thence...to Penobscot River at the

Northeast corner of the second quarter of township Number four thence by a line drawn on the middle

of the eastern channel of Penobscot river so as to include the whole of the Island called Marsh's Island

to the bound first mentioned...”

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Massachusetts PL 1809 12 ch 57 App February 22 1811 –Eddington Penobscot River

“Beginning at a stake and stones on the eastwardly side of Penobscot river being the original

corner of land as granted to Jonathan Eddy and others thence...to Penobscot river thence northwardly

on said river to the bounds first mentioned...”

MainePSL 1826 ch 388 App February 10 1826 –Howland Penobscot River

“Beginning at a birch tree marked in the north line of the old Indian purchase and running northeasterly

by said river to the south line of township numbered one in the eighth range...”

MainePSL 1833 ch 351 App February 28 1833 –Milford Penobscot River

“being township numbered three on the east side of Penobscot river Old Indian Purchase bounded on

the west by Penobscot river...”

MainePSL 1834 ch 466 App February 26 1834 –Chester Penobscot River

“That the River Township numbered One in the eighth range on the West side of the Penobscot River in

the County of Penobscot with the inhabitants thereof be and the same hereby is incorporated into a

town by the name of Chester.”

MainePSL 1834 ch 470 App February 26 1834 –Greenbush Penobscot River

“That township numbered two on the East side of the Penobscot river bounded West by the Penobscot

river North by township numbered One East by the Bingham Purchase and South by Milford in the

County of Penobscot with the inhabitants thereof be and the same hereby is incorporated into a

town by the name of Greenbush.”

MainePSL 1835 ch 513 App January 31 1835 –Edinburg Penobscot River

“That River Township No one in the sixth Range of Townships West of the Penobscot River Old Indian

Purchase with the inhabitants thereof be and the same is hereby incorporated into a town by the name

of Edinburg.”

MainePSL 1835 ch 514 App January 31 1835 –Endfield Penobscot River

“That Treat's Tract and the remaining part of Township No One River Township East side of Penobscot

River with the inhabitants thereof be and the same is hereby incorporated into a town by the name of

Enfield.”

MainePSL 1835 ch 518 App January 31 1835 –Passadumkeag Penobscot River

“That Township No One Old Indian purchase East of Penobscot River with the inhabitants

thereof be and the same is hereby incorporated into a town by the name of Passadumkeag.”

MainePSL 1835 ch 520 App February 3 1835 –Bradley Penobscot River

“That Township numbered four east side of Penobscot River Old Indian Purchase with the inhabitants

thereof be and the same hereby is incorporated into a town by the name of Bradley.”

MainePSL 1839 ch 529 App February 3 1839 –Mattamiscontis from Howland Penobscot River

“so much of the town of Howland in the County of Penobscot as lies north of the following described line

viz beginning at a point on the west bank of the Penobscot River on the line between the river lots

numbered twenty three and twenty four in said town thence...to the Penobscot River thence

southwesterly by said river to the first mentioned bounds...”

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MainePSL 1839 ch 546 App March 19 1839 –Argyle Penobscot River

“That so much of the plantation of Argyle in the County of Penobscot as lies east of the Birch stream and

its main or west branch bounded north by the town of Lagrange and Edinburg east by Penobscot river

south by the town of Orono and west by said Birch stream be and hereby is incorporated

into a town by the name of ArgyIe”

MainePSL 1840 ch 64 App March 16 1840 –Old Town from Orono Penobscot River

“So much of the town of Orono in the County of Penobscot as lies north of the following line

commencing on the east of Marsh Island on the south line of lot number one and running

a westerly course on said line to the centre line of said Island thence northerly on said centre line to

the north line of lot number five and the west side of the Island thence westerly on said north line of

lot number five to Stillwater river thence across said river...”

MainePSL 1857 ch 41 App March 21 1853 –Winn Penobscot River

“The tract of land in the county of Penobscot now known as the plantation of Five Islands or River

township number four and bounded on the northwest by the Penobscot river on the southwest by the

town of Lincoln on the south by the town of Lee on the east by township number six in range number

three on the north by east Indian township or Mattawamkeag plantation so called with the

inhabitants thereon is hereby incorporated into a town by the name of Winn.”

MainePSL 1860 ch 384 App February 14 1860 –Mattawamkeag Penobscot River

“Township number one Indian purchase east side of the Penobscot river in the county of Penobscot

with its present boundaries is hereby incorporated into a town by the name of Mattawamkeag.”

MainePSL 1895 ch 101 App February 28 1895 –Woodville Penobscot River

“Township number two Indian Purchase in the county of Penobscot and known as Woodville

plantation is hereby incorporated into a town by the name of Woodville.”

It is clear from the above groupings that the legislatures of Massachusetts and Maine approved

town incorporation acts before and after the 1796 and 1818 treaties which clearly indicated whether

the township lines should run to the middle of the river or just to the banks That clear language is not

however found in the towns along the Penobscot River within the 1796 and 1818 ceded lands making it

unclear whether the riverbed was intended to be separated from the uplands

The hereinbefore described act incorporating the Town of Sidney describes the land along the

Kennebec River as “to Kennebec River thence northerly on the westerly side of said river” This language

separates the Kennebec River from the township leaving it in the neighboring township of Vassalboro

This act was approved January 30 1792 long before 1796 and 1818 treaties and is extremely similarto

that found in the said treaties with the use of the “side of the river” language and is highly consistent

with the belief that the tribe retained ownership of the bed of the Penobscot River

Moreover the town of Orono which was part of the 1796 cession does have boundary lines

extending into the Penobscot River In the 1796 treaty the Penobscot Nation retained all islands north

of Old Town Island Marsh Island described in the Orono township boundaries fell south of Old Town

Island The fact that lines were run into the Penobscot River for this township but not townships above

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it shows that the State consciously chose not to run lines into the river for the other townships along the

Penobscot River

Massachusetts PL 1804 05 ch 93 App March 12 1806 –Orono Penobscot River

“Beginning at the North east corner of Bangor on Penobscot River thence...to Penobscot River at the

Northeast corner of the second quarter of township Number four thence by a line drawn on the middle

of the eastern channel of Penobscot river so as to include the whole of the Island called Marsh's Island

to the bound first mentioned...”

CONCLUSIONS OF FINDINGS

The following summaries briefly detail the consistent survey and descriptive extrinsic evidence

and actual treaty writings which provide the basis of my opinion that the wording of “lands on both

sides of the Penobscot River” was not intended to include the bed of the Penobscot River itself

1 The language in the 1818 Treaty itself of “and the branches thereof “ provides compelling

evidence of the true intent of Penobscot River ownership above the Old Indian Purchase

This is supported by the 1818 James Irish survey of Township Nos 1 and 2 Indian Purchase

as detailed above

2 The provisions and actions surrounding the 1835 act to survey lot and lease water

privileges for the islands in the Penobscot River at a minumum demonstrate the State’s

recognition of the tribe’s inherent ownership of the bed of the River that would normally be

attached to an island in a nontidal navigable river in Maine

3 The town incorporation acts along the Penobscot River establish no boundary lines

proceeding into the River where oftentimes in other Maine townships such lines typically

would be described to the middle or cross the River Moreover the treaty language of the

1796 and 1818 treaties is most comparable to the language used in the Act incorporating

the Town of Sydney which Act separates the river from the township suggesting the same

occurred with the treaties of 1796 and 1818

s Kenneth D Roy

June 13 2014

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