Tribal leaders decry attempted ‘territorial taking’ by state as court rehears Penobscot River case Maine Beacon Article October 4

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Tribal leaders decry attempted ‘territorial taking’ by state as court rehears Penobscot River case

October 4, 2020Evan Popp

Arguments began Sept. 22 in the rehearing of a dispute between the Penobscot Nation and the state of Maine over stewardship of the Penobscot River — a case that could have major legal implications for the territorial rights of Indigenous people in the state. 

The dispute is about whether the Penobscot Nation can claim its namesake river as part of its reservation and therefore regulate activity on the waterway. In 2012, then-Maine Attorney General William Schneider issued an advisory opinion that the river was subject to state law, not tribal law, prompting the Penobscot Nation to sue. 

In a story posted to Facebook about the case, Sunlight Media Collective — a group of Indigenous and non-Indigenous media-makers — reported that the main stem of the Penobscot is monitored by tribal wardens, but that violations by anyone who is not part of the Tribe are referred to the state. According to Sunlight, the Penobscot Natural Resources Department “regularly tests water quality and shares data with Maine, as well. There are no Tribal restrictions on boating or fishing in that section of the River.”

Multiple members of the Penobscot Nation did not respond to a request for comment. But Sunlight Media Collective reported that tribal members feel the state is unjustified in its assertion that the river isn’t part of the reservation.

“The Penobscot Nation views the State’s action as an attempted territorial taking, a threat to Penobscot stewardship of the Penobscot River, and as a termination policy of the Tribe’s cultural existence within our sustenance fishing waters,” Sunlight Media Collective wrote. 

This is the second time the river case has come before the 1st Circuit United States Court of Appeals. In 2017, a three judge panel of the 1st Circuit Court ruled 2-1 that the Penobscot Nation reservation does not include the main stem of the Penobscot River. 

However, the court has now granted an en banc review of the case, which vacates the panel’s decision and allows the case to be reheard by the three judges on the original panel as well as three new judges. 

If the judges split 3-3, a 2015 U.S. District Court ruling would stand. That ruling stated that while the Penobscot Nation has sustenance fishing rights on the main stem of the river, the water itself is not within the reservation.

The timeline for the 1st Circuit Court’s decision is unclear. 

Penobscots say they never gave up stewardship of the river

In the Sunlight Media Collective report, representatives of the Penobscot Nation said the state has no claim to the river. 

“We are saying, ‘We never gave up that river, our ancestral river that flows around our islands,’” Maria Girouard, a Penobscot historian, told the news outlet.

Penobscot Nation Chief Kirk Francis added that there is nothing in the Maine Indian Claims Settlement Act of 1980 — which was supposed to resolve territorial disputes between the tribes of the Wabanaki Confederacy and the state — that says the Nation gave up stewardship of the river. 

“There is nowhere, anywhere, that anybody can point to that says the river was even part of the discussion,” Francis told Sunlight Media Collective. “That was already an assumption by tribal leaders and tribal people that the river was [part of] the reservation.” 

A sign on the Penobscot River.| Courtesy Sunlight Media Collective via Facebook

In his argument before the 1st Circuit Court last week, Penobscot Nation attorney Pratik Shah also pointed to language in the Settlement Act to support his argument that the river should be included as part of the Tribe’s reservation.

“The state makes a mockery of the Settlement Act’s explicit confirmation of the Penobscot Nation’s on-reservation fishing rights — rights rendered meaningless if the reservation excludes the main stem of the Nation’s namesake river, indisputably the only place on the reservation with water to fish,” Shah said. 

At the very least, Shah said the provision of the law that grants the Penobscot Nation fishing rights injects ambiguity into whether the main stem of the river is part of the tribe’s reservation. Because of that, Shah said “the Indian canons of construction” — a legal principle stating that ambiguous parts of treaties should be decided in favor of tribes — must apply.   

Under questioning from judges, the state of Maine’s lawyer Kimberly Patwardhan, assistant attorney general, said, “With respect to sustenance fishing…it could be that it’s ambiguous with respect to the boundaries of the reservation.”

Patwardhan backpedaled after a judge asked if she was conceding that the statute was ambiguous. 

Francis told Sunlight Media Collective that the canons of construction prevent states or other entities from using ambiguity in agreements to take land from Indigenous people. 

“Following the federal Indian law canons of construction is critically important to the protection of the tribes,” he said.  

In his argument, Shah also addressed the claim that the Penobscot Nation lost its claim to the river because of adverse possession, a legal principle that says land can change ownership based on what entity has continuous possession of it.   

Shah said the U.S. Supreme Court rejected the adverse possession argument made by Oklahoma in a landmark 2020 case, in which it was decided that much of eastern Oklahoma remains Native American territory.   

“The adverse possession argument here runs afoul of the Indian canons [and] it runs afoul of Supreme Court precedent,” Shah said. 

Judges question state’s argument 

Patwardhan asked for the Circuit Court panel’s decision in favor of the state to be affirmed. However, she faced almost immediate questions about how the state could defend its claim that the main stem of the river doesn’t belong to the Penobscot Nation given that the Settlement Act grants the tribe fishing rights, which only exist along that main stem. 

“We don’t think the court needs to address the issue of sustenance fishing,” Patwardhan said. 

“Well I do,” Judge O. Rogeriee Thompson retorted. 

Judge Sandra Lynch also seemed annoyed by Patwardhan’s answer to the sustenance fishing question. 

“It does the state of Maine no good to try to avoid that question as a matter of statutory interpretation,” she told Patwardhan. 

The Office of the Maine Attorney General did not respond to a request for comment on its argument in the case.

Dispute part of contentious history 

The state’s stance on control of the Penobscot River is a continuation of a fraught relationship between Democratic Gov. Janet Mills and Indigenous people in Maine. 

Prior to becoming governor, as the state’s Attorney General, Mills led the legal effort opposing the Penobscot Nation’s claim to the river. After the 1st Circuit Court ruled against the Nation in 2017, Mills released a statement saying, “We are gratified by the court’s ruling and we look forward to working with the Penobscot Nation on areas of mutual interest.” 

A sign that translated reads, “Water is life.” | Courtesy Sunlight Media Collective via Facebook

As governor, Mills has made reforms such as signing legislation to change Columbus Day to Indigenous People’s Day. But she and Maine Attorney General Aaron Frey — who has taken over the state’s argument in the Penobscot River case — drew the ire of tribal leaders after they led the opposition earlier this year to a series of changes to the Settlement Act that advocates say would have taken strides toward restoring tribal sovereignty. 

Sherri Mitchell, a Penobscot Nation member and Indigenous rights attorney, argued in February in testimony before the Maine Legislature’s Judiciary Committee that opposition to reforming the Settlement Act and granting sovereignty to tribes is “rooted in racially motivated paternalism that publicly calls into question the capacity of Wabanaki peoples to govern themselves.” 

Other parties in river case

There are a number of other entities involved in the Penobscot River case. On the side of the state are Expera Old Town, Lincoln Paper and Tissue, and Great Northern Paper Company as well as the towns of Bucksport and Orono. 

The U.S. government has sided with the Penobscot Nation in the case. In addition, the Maine Indian Tribal-State Commission intervened in the case, submitting an amicus brief in support of the Nation. 

In last week’s hearing, U.S. government attorney Mary Gabrielle Sprague called for the court to side with the Tribe to, “Preserve for the Penobscot Nation critical benefits of the bargain agreed to in the Settlement Acts.” 

Sprague said prior decisions by the court have correctly concluded that, “the Penobscot Nation, Maine and Congress all intended to confirm to the Nation a reservation homeland that includes both the uplands and the sorrunding submerged lands in the main stem of the Penobscot River.” 

In its brief, the Maine Indian Tribal-State Commission (MITC) — an inter-governmental body made up of six members appointed by the state, six appointed by tribes and one chairperson selected by the other 12 members — argued that the controversy over the Penobscot River was started when the state switched its position on the issue.

The commission writes: “It is clear from the record that until the State took its current position in 2012, MITSC, the State, and the Penobscot Nation understood the Nation’s on-reservation sustenance rights and authority were on the Main Stem of the Penobscot River.” 

Top photo: Courtesy of Sunlight Media Collective via Facebook.