February 22, 2020
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Janet Mills issues posthumous pardon to lawyer who defended the Passamaquoddy tribe

Jessica Piper | BDN
Jessica Piper | BDN
Gov. Janet Mills speaks to reporters in Augusta on Tuesday, Jan. 7, 2020 to announce she posthumously pardoned Donald Gellers, who served as a lawyer for the Passamaquoddy tribe in the 1960s. State Rep. Rena Newell of the tribe and Darrell Newell, the tribal vice chief at Indian Township, are behind her.

AUGUSTA, Maine — A lawyer known for representing the Passamaquoddy tribe in the 1960s received a posthumous pardon from Gov. Janet Mills on Tuesday — an unusual move as the governor looks to repair a fraught relationship with Maine’s native tribes.

Donald C. Gellers — known as Don — vigorously defended members of the Passamaquoddy tribe in criminal cases and later filed a massive land claims lawsuit for the tribe. He was convicted on marijuana charges in 1969, though evidence emerged suggesting that law enforcement officials conspired to take him down. He died in 2014.

Flanked by Passamaquoddy officials and her adviser on tribal issues, the Democratic governor spoke about Gellers’ contributions to the lives of others before and after his conviction, saying “he worked on issues small and large, and his work mattered.”

“In court, he secured the dismissal of charges against peaceful protesters, helped return native children who had been placed in non-native homes and successfully challenged state jurisdiction over minor offenses committed on a reservation,” she said.

Mills also noted irregularities in the state’s prosecution of Gellers that called into question the severity of his punishment — once convicted as a felon, Gellers could no longer practice law in Maine.

Darrell Newell, vice chief of the Passamaquoddy at Indian Township, remembered hearing about Gellers growing up and recalled him as a key advocate for the tribe. He cited the pardon as a step in improving relations with the state.

“I think that there has been some healing happening, at least over the past year,” he said. “It’s just a wonderful day, a wonderful accomplishment.”

Gellers’ story was chronicled by the Portland Press Herald shortly before his death as part of a series on the tribe’s relationship with the state. The lawyer believed the tribe had certain rights to its land based on a 1794 treaty in which the Passamaquoddy had ceded some land but received a trust fund, which Gellers estimated to be worth nearly $150 million by the 1960s.

The treaty had been negotiated with the state of Massachusetts, but Maine inherited its obligations when it became a state in 1820. Due to complications arising from sovereign immunity, Gellers filed a lawsuit in Massachusetts on behalf of the tribe, hoping the Bay State would sue Maine.

The suit was filed May 8, 1968. When Gellers returned home from Boston, he was met with a surprise. Gellers, who was known for smoking marijuana, was arrested after half a dozen marijuana cigarettes were allegedly found in the pocket of a jacket hanging in his home.

Gellers and his supporters argued that he was framed, and that the police and the courts were trying to put away a leading defender of the Passamaquoddy tribe. Two witnesses would later allege they were told police had set Gellers up. It made no difference — the lawyer was ultimately charged with “constructive possession” of marijuana, convicted, and sentenced to between two and four years in prison.

Rather than serve prison time, Gellers, who was Jewish, left for Israel, where he adopted the name Tuvia Ben-Shmuel-Yosef and became a rabbi. The lawsuit Gellers filed in Boston never went anywhere, though his former intern took over representing the Passamaquoddy. Gellers later moved back to the United States, settling in New York City. He did not return to Maine.

Gellers’ family began asking for his pardon shortly after his death in 2014. At a pardon hearing last fall, family members recalled how the conviction cast a shadow over the remainder of his life, the Press Herald reported.

Mills, with emotion in her voice, said that there was “merit” to the claim that Gellers was arrested and ultimately convicted at least partially in order to stop his advocacy work. She noted the lawyer’s houseguest and co-defendant faced a lesser penalty and that the same year Gellers was arrested, the Legislature reduced marijuana possession from a felony to a misdemeanor.

The governor said that made it it strange that the state pressed forward with a felony, especially during Gellers’ appeal two years later and disbarment hearing after that. Her pardon of Gellers may be the first posthumous one in Maine history.

The governor’s decision to grant the pardon comes amid her administration’s efforts to improve relations with tribes in Maine. Mills, a Democrat, came into office with a rocky relationship with the state’s tribes. As attorney general, she defended the state in a case against the Penobscot Nation over water rights, which the state won in 2017.

Early in her term, tribal leaders opposed her nomination of Jerry Reid to lead the state’s environmental protection department. However, Mills signed bills to replace Columbus Day with Indigenous Peoples Day and ban Native American mascots in public schools.

 


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