Appeals court sides with state in Penobscot River ruling

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A split 2-1 ruling recently by the Federal First Circuit Court of Appeals in Boston denied the Penobscot Indian Nation’s claim to ownership of the Penobscot River.

In 2012 the nation sued the state after then-Attorney General Bill Schneider wrote to the Penobscots to express his opinion that only the State of Maine had authority to stop or otherwise regulate paddlers, hunters or anglers on the river.

The Penobscot Indian Nation countered by filing suit to assert ownership of the entire river, despite what state officials said was the plain language of the 1980 Maine Indian Claims Settlement Act that said otherwise. The First Circuit’s decision also recognized that the State of Maine has not interfered and does not intend to interfere with the sustenance fishing rights of the Penobscot Nation.

“The (federal) district court (which initially ruled against the Penobscots) was correct to hold that the Settlement Acts mean what they plainly say,” wrote the majority in the decision. “The Penobscot Indian Reservation consists of the specified ‘islands in’ the main stem of the Penobscot River. It does not include the main stem itself, any portion thereof, or the submerged lands underneath.”

“We are gratified by the court’s ruling and we look forward to working with the Penobscot Nation on areas of mutual interest. 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,” said Attorney General Janet T. Mills.

In a dissenting opinion, Judge Juan Torruella opposed the majority’s reasoning and conclusions, and supported the position of the Penobscot Nation, and United States Department of the Interior, that the Penobscot Tribe did not relinquish rights to the Main Stem of the Penobscot River surrounding their islands in the 1796, 1818 and 1833 treaties with Massachusetts, and subsequently Maine, and that the 1980 Maine Indian Land Claims Settlement Act reserved what was retained in those treaties. Furthermore, said Torruella, the Settlement Act provides for the tribe’s sustenance fishing rights “within” the boundaries of the reservation, which only could include the Penobscot River.

Penobscot Chief Kirk Francis said the decision was a continuation of termination policies intended to strip away the Penobscot’s identity as an Indian tribe.”

“In his dissent, Judge Torruella correctly asserts that this case is just another attempt to take rights away from native people,” said Grancis in a statement. “He stated that the fish, waterfowl and other animals have been utilized by the Nation since time immemorial and not solely on the Islands but in the waters of the Penobscot River. We are factually, morally, and spiritually on the right side of this issue. Our right to our practices and culture within our territory is inherent and not something anyone has given to us or can take away, as is our responsibility.

“I am confident that we will all live up to this responsibility, we will never give up this fight. This is not something we can ignore or walk away from. We have an obligation to our ancestors and our descendants to continue the struggle to maintain our culture and our identity just as our ancestors have for hundreds of years. We have already started to strategize about next steps and this effort will require us all to work together in a united way with all the resources and energy we have.”