Feds Join Penobscot Suit Against State of Maine on Fishing Rights

Gale Courey Toensing

In an uncommon act of legal solidarity with an Indian tribe, the federal government has joined the Penobscot Indian Nation in support of its federal lawsuit against the State of Maine over hunting and fishing rights in the Penobscot River.

The Penobscot Nation sued Maine last August over the state’s assertion that the Nation has jurisdiction and regulatory authority over hunting and fishing only on its reservation islands and not in the “Main Stem” of the Penobscot River. The Main Stem 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 Nation owns 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) and its state companion, the 1980 Maine Implementing Act (MIA). The river is central to the Nation’s identity and culture, Chief Kirk Francis said at a recent ceremony celebrating the river’s ongoing restoration project. ”This river is simply who we are,” Francis said. “It’s the very core of our identity as a people and it’s simply the most important thing in the Penobscot Nation’s life.”

A month after filing the lawsuit, the Nation asked the Department of the Interior to intervene. “Because intervention in this matter is not a step the United States takes lightly, time was needed to investigate and evaluate the merits of the legal claims at issue here, as well as determine whether intervention serves broader federal interests,” the Department of Justice (DoJ) attorneys say in their motion, which was in district court in Maine August 16.

Federal interventions in Indian lawsuits are rare. In recent years, the Justice Department intervened on behalf of the Oneida Indian Nation, whose litigation issues were settled recently in a historic agreement with the state, and in Cayuga Indian Nation’s land rights case.

The Justice investigation found that the federal government, as part of its trust obligation to the Nation, “has a legal interest in protecting the Nation’s reservation borders and in ensuring that the Nation can fully exercise its sovereign powers within those borders without improper interference from the State and others.” In addition, since the lawsuit involves a dispute between the Nation and state over how the settlement acts define the reservation boundaries, the federal government “has an interest in how federal statutes affecting the rights and interests of Indians are interpreted by the courts.”

The DoJ attorneys tried unsuccessfully to negotiate a settlement of the case with Attorney General Mills and other state officials in talks during June and July.  “[I]n the wake of those talks, [we] concluded intervention was appropriate,” the court document says.

Mills received but did not respond to a request for comment from Indian Country Today Media Network.

The Nation’s lawsuit filed August 20, 2013 responded to an opinion from former 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 were named as defendants in the in the original lawsuit; Mills replaced Schneider in an amended filing last November.  Schneider compared the Nation to “private landowners” and said it has authority to regulate fishing, hunting and other activities only on Indian Island and the other reservation islands in the river.  “The River itself is not part of the Penobscot Nation’s Reservation, and therefore is not subject to its regulatory authority or proprietary control.” He asserted state jurisdiction over the entire Penobscot River.

Justice attorneys point out that the Maine Implementing Act “reserves and protects” Penobscot citizens’ right to engage in sustenance fishing “free of State interference or regulation” within their reservation boundaries. “If . . . the Nation’s Reservation does not include waters of the Main Stem of the Penobscot River, the intent of Congress to preserve a Nation sustenance right as part of the settlement of Maine land claims will have been nullified,” they say.

Almost two dozen municipalities and businesses have intervened on the state’s side, organized by attorney Matthew Manahan of Pierce Atwood LLP. The interveners worry that if the Nation wins the case there could be stronger anti-pollution regulations against industries, such as the paper mills, which discharge waste into the river.

The DoJ interveners ask the court to reaffirm the Nation’s reservation boundary includes the Main Stem, reassert its sustenance fishing rights, and declare its “exclusive authority” to regulate hunting and fishing rights in its reservation waters. A trial is expected to take place early next year.

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