Penobscot Nation loses claim to ownership of namesake river in Maine

Wednesday, July 5, 2017

The Penobscot Nation does not own a 60-mile stretch of its namesake river in Maine, a divided federal appeals court has ruled.

By a vote of 2-1, the 1st Circuit Court of Appeals on Friday confirmed that the tribe owns certain islands within the Penobscot River. But water itself belongs to the state, Judge Sandra L. Lynch wrote in a 29-page ruling.

The holding was based on language found in the Maine Indian Claims Settlement Act and in a corresponding state law. According to the court, the Penobscot Reservation consists of "land" but not "water."

"The plain meaning of 'islands in the Penobscot River' is the islands in the river, not the islands and the river or the riverbed," Lynch wrote for the court.

The decision represents a major setback for the tribe, whose lawsuit drew the support of the Obama administration. The United States intervened in the case of hopes of clarifying that the reservation includes certain portions of the river.

Indianz.Com on SoundCloud: 1st Circuit Court of Appeals: Penobscot Nation v. Mills

The tribe had been hoping to exercise sovereignty over fishing, hunting and other activities on the river. But the state is now poised to impose its own laws on Penobscot citizens in the portion that runs through the reservation.

"We respect and honor the Penobscot Nation’s deep historical and cultural ties with the river and look forward to working with them to preserve the health and vibrancy of this major watershed which is so critical to all the people of Maine," Attorney General Janet Mills said in a statement after the ruling.

The lawsuit is just one of a number of tribal-state disagreements that have boiled over in the decades since the land claim was finalized in 1980. Most of the disputes have centered around natural resources issues, including fishing quotas, water quality and pollution controls.

The relationship reached a low point in 2015 when the Penobscot Nation and Passamaquoddy Tribe (Pleasant Point and Indian Township) withdrew their representatives from the Maine Legislature after complaining that their needs weren't being addressed.

The tribes have accused the state of repeatedly going back on its word to deal with them on a government-to-government basis. One judge on the 1st Circuit agreed with that characterization in a dissent issued as part of the river case.

Joseph Dana, a citizen of the Penobscot Nation, paddles a birch-bark canoe on the Penobscot River in Maine as the decommissioning of the Veazie Dam takes place in 2013. Photo: Meagan Racey / U.S. Fish and Wildlife Service

"In the present case, the United States is on the right side of history and the law, but regrettably the same cannot be said of the state of Maine and its co-parties," Judge Juan R. Torruella wrote in the 38-page opinion in which he said he "respectfully, but emphatically" disagreed with his colleagues.

According to Torruella, the majority ignored U.S. Supreme Court precedent in excluding the waters of the Penobscot River from the reservation. Ambiguities in the settlement act should be resolved in the tribe's favor, he wrote.

"The fact that the Indians can fish 'within' their reservation implies that there is a place to do so," Torruella wrote. "Unless the majority is of the view that one can fish where there is no water, there is no place to fish on the uplands of the Nation's islands -- which implies that some part of the river has to be a part of the reservation."

The disagreement makes the case a prime candidate for a rehearing among a larger group of judges on the 1st Circuit. The tribe could also petition the Supreme Court to take up the dispute, although chances of success are lower there.

1st Circuit Court of Appeals Decision in Penobscot Nation v. Mills:
Opinion | Dissent