Penobscot Nation Sues State Over Settlement-Protected Hunting and Fishing RightsPenobscot Nation Sues State Over Settlement-Protected Hunting and Fishing Rights

Gale Courey Toensing
11/21/12

The Penobscot Indian Nation has sued the State of Maine over its assertion that the nation has jurisdiction and regulatory authority over hunting and fishing only on its reservation islands and not in the Penobscot River.

The nation’s original lawsuit was filed August 20 and arose from an opinion issued by Maine Attorney General William J. Schneider to Maine Commissioner of Inland Fisheries and Wildlife Chandler Woodcock and the Colonel of the Maine Game Warden Services Joel T. Wilkinson. All three are named as defendants in the lawsuit. An amended complaint was filed November 6.

Schneider issued his opinion in response to a query from Woodcock and Wilkinson regarding the regulatory jurisdictions of the Penobscot Nation and the state. In his August 8, 2012, opinion he said that the nation has no authority to regulate fishing or hunting in the waters of the “main stem” of the Penobscot River and that the state has exclusive regulatory and enforcement authority over all activities occurring there.

The main stem of the Penobscot River flows south from the confluence of the river at Medway, Maine, where the East and West Branches meet for around 60 miles to Indian Island where the Penobscot Nation’s government is located and most of its citizens live. The Penobscots own numerous islands in the main stem as well as hundreds of thousands of acres of land elsewhere in the state as a result of the 1980 Maine Indian Claims Settlement Act (MICSA).

“For the purposes of your inquiry, which involves activities occurring on the main stem of the River, this means the Penobscots Nation has authority to regulate hunting and fishing on those islands included in its Reservation from Indian Island in Old Town, northward to the confluence of the East and West branches (of the Penobscot River) on Medway,” Schneider wrote. Comparing the Penobscot Nation to private landowners, Schneider said the Nation may restrict access to their land. “However,” Schneider says, “the River itself is not part of the Penobscot Nation’s Reservation, and therefore is not subject to its regulatory authority of proprietary control. The Penobscot River is held in trust by the state for all Maine citizens, and state law, including statutes and regulations governing hunting, are fully applicable there,” he continued. “Accordingly, members of the public engaged in hunting, fishing or other recreational activities on the water of the Penobscot River are subject to Maine law as they would be elsewhere in the state, and are not subject to any additional restrictions from the Penobscot Nation.”

The Penobscot lawsuit, prepared by the firm of Drummond Woodsum, says that Schneider’s directive is contrary to the Maine Indian Claims Settlement Act, which affirms the Nation’s jurisdictional and regulatory authority over sustenance fishing in the river. “The Nation has exercised exclusive jurisdiction over sustenance fishing by its members in the waters of the Penobscot River surrounding Indian Island and other islands in the river northward thereof from time immemorial and currently does so pursuant to laws duly promulgated and enacted by the Nation,” the lawsuit says. “The Nation’s jurisdiction over sustenance fishing by its members in the Penobscot River is an exercise of its inherent sovereign authority, as a matter of federal law, and it remains intact; it has never been surrendered by treaty or by an act of Congress.”

The lawsuit asks for an injunction to keep Maine game wardens from policing the river and preventing tribal members from engaging in sustenance fishing.

Schneider’s opinion also conflicts with a 1988 opinion by former Maine Attorney General James Tierney, who affirmed that the Settlement Act does not give the state any authority to regulate tribal members’ sustenance fishing in the main stem of the river, according to the lawsuit. The opinion, addressed to William J. Vail, the chairman of the Atlantic Sea Run Salmon commission at the time, says that Passamaquoddy and Penobscot tribal citizens are “authorized to take fish within the boundaries of their respective Indian reservations…notwithstanding any rule or regulation promulgated by the Commission or any other law of the State.”

The Penobscot lawsuit provoked a strong response from Portland, Maine, attorney Matthew Manahan of Pierce Atwood LLP, who told the Bangor Daily News that he had was building a coalition of municipalities and businesses to intervene in the case. He said he contacted 10 municipalities and six companies that were interested in participating. Manahan expressed concern that if the Penobscot Nation wins the case there could be stronger anti-pollution regulations against industries, such as the paper mills, which discharge into the river. “This lawsuit could have significant consequences for non-Indian waste discharge licensees discharging into the river or its tributaries,” he wrote in an e-mail, the Bangor Daily News reported.

Manahan’s story provoked an equally strong response from Paul Bisulca, former Penobscot representative to the state legislature and former chairman of the Maine Indian Tribal-State Commission. “It was deja vu all over again,” Bisulca said in a special column in the Bangor Daily News. “I say that because this … is about the same attorney, Matthew Manahan, the same river and the same issue as 17 years ago. And the same tactic was employed by Manahan to spread fear among communities and businesses, while raising protection money from those communities and businesses. You know what? The hypothetical danger that the Indians were poised to take over the Penobscot River, voiced by this attorney, never materialized. The sky did not fall, and Indian sustenance fishing rights were respected.”

Bisulca noted that in June 1995 when Manahan was representing pulp and paper interests in several hydroelectric permitting actions, he said in a letter to the Federal Energy Regulatory Commission (FERC) that the Penobscot Nation’s reservation included only “the tops of the islands in the Penobscot River. This is what I termed the ‘nullity theory’ because it nullified the Indian sustenance fishing right to which Maine had agreed in 1980. For those who are not familiar with the islands in the Penobscot River, there are no fishing opportunities on the islands,” Bisulca said.

Bisulca went on to recall that Bennett Katz, the chairman of the Maine Indian Tribal-State Commission in 1995, also wrote to the FERC in response to Manahan’s letter. “I was the Majority Leader of the Maine Senate at the time of the enactment of the Maine Indian Claims Settlement Act,” Katz wrote. “I cannot imagine that this meaning was intended by my colleagues in the Legislature who voted in support of the Settlement. Furthermore, I am certain that the Penobscots never would have agreed to the Settlement had it been understood that their fishing rights extended only to the tops of their islands.”

Schneider could not be reached for comment. The Penobscot Nation’s attorney Kaighn Smith Jr. said the lawsuit is in its early phase and it would be “inappropriate” to comment right now.

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