page_title: Joint Tribal Council of the Passamaquoddy Tribe v. Morton
section_title: Attorneys
hierarchical_section_title: Joint Tribal Council of the Passamaquoddy Tribe v. Morton / Background / Attorneys
caption_attribution_description: English: Black Hills of South Dakota from the Space Shuttle
context_page_description: Joint Tribal Council of the Passamaquoddy Tribe v. Morton, 528 F.2d 370, was a landmark decision regarding aboriginal title in the United States. The United States Court of Appeals for the First Circuit held that the Nonintercourse Act applied to the Passamaquoddy and Penobscot, non-federally-recognized Indian tribes, and established a trust relationship between those tribes and the federal government that the state of Maine could not terminate.
  By upholding a declaratory judgement of the United States District Court for the District of Maine, the First Circuit cleared the way for the Passamaquoddy and Penobscot to oblige the federal government to bring a land claim on their behalf for approximately 60% of Maine, an area populated by 350,000 non-Indians. According to the Department of Justice, the suit was "potentially the most complex litigation ever brought in the federal courts with social and economic impacts without precedent and incredible potential litigation costs to all parties."
context_section_description: Gellers' theory was that Maine had violated the 1794 treaty by selling 6,000 acres (24 km²) of land. Because Maine had made no provision for a waiver of its sovereign immunity (for example, in a state claims court), Gellers' strategy was to sue Massachusetts, hoping that Massachusetts would in turn sue Maine. On March 8, 1968, Gellers—affiliating with Massachusetts attorney John Bottomly—filed a suit in Suffolk Superior Court in Boston, seeking $150 million in damages. This initial claim involved land in and around the Indian Township Reservation. Three days later, Maine narcotics officers raided Gellers' home and arrested him for possession of marijuana. Gellers was eventually convicted and, on bail, fled to Israel; the lawsuit that he started was never prosecuted.
  Gellers was representing the Passamaquoddy pursuant to a 10% contingency fee agreement. Gellers, in turn, had assigned 40% of his fee to Bottomly. As the negotiations of the Maine Indian Claims Settlement Act were reaching a close in May 1978, even though neither Gellers nor Bottomly had performed any further work for the tribes, Bottomly filed suit in the District of Maine claiming he was entitled to a portion of any eventual settlement. On October 10, Judge Gignoux dismissed Bottomly's suit on the grounds of tribal sovereign immunity. When Bottomly's appeal came before the First Circuit in 1979, Maine filed an amicus brief arguing that the tribe was entitled to no such immunity. The First Circuit rejected this argument. A similar suit by Gellers—who had since been disbarred and changed his name to Tuvia Ben Shmuel Yosef—was thrown out in 1989.
  Tom Tureen—who had worked as a summer law clerk for Gellers in the summer of 1967—joined the Indian Legal Services Unit of Pine Tree Legal Services (funded by the Office of Economic Opportunity to provide legal services to indigent clients) after his graduation in June 1969. For the remainder of the year, Tureen assisted Passamaquoddy members in "petty disputes" such as divorce and bill collection. In early 1970, Tureen began assisting the tribe in an effort to receive federal grants. In 1971, Tureen co-wrote an article with Francis J. O'Toole, the editor-in-chief of the Maine Law Review, arguing that Maine's tribes should fall under federal, not state, jurisdiction. O'Toole and Tureen noted that: "There is no evidence that the treaty was 1794 was made in compliance with the Non-Intercourse Act."
  The Passamaquoddy tribal council fired Gellers and asked Tureen to take over. Fearing that his federally funded legal aid employer could not withstand the political pressure that the suit would inevitably provoke, in 1971, Tureen asked the Native American Rights Fund (NARF) to act as co-counsel. Tureen himself would eventually move to NARF during the course of the litigation. Tureen attempted to persuade a large law firm to join the case pro bono. Among those who turned him down were Arthur Lazarus, Jr. of Frank, Harris, Shriver & Kampelman, who had litigated many claims in front of the Indian Claims Commission. Based on the acreage involved, Lazarus pointed out that the claim would net only $300,000 before the Commission, which would be less than the cost of litigation. When Tureen said, "Mr. Lazarus, this is not an Indian Claims Commission case, this is a Nonintercourse Act claim," Lazarus shook his head and told Tureen he was dreaming. Tureen was able to recruit Barry Margolin, David Crosby, and Stuart Ross of Hogan & Hartson. The other members of the team were Robert Pelcyger of NARF and Robert Mittel of Pine Tree Legal Assistance.
caption: Arthur Lazarus, Jr., the architect of the Black Hills Land Claim (pictured), turned down the case because he believed the litigation costs would exceed the recovery.
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