Rep. Tom Cole: “Some people act as though a treaty signed a hundred or so years ago doesn’t exist – yes, it does as long as the parties are still there and there wasn’t a time limit placed on it.”

Congress Members Support Penobscot v. Maine in Unprecedented Court Filing

Gale Courey Toensing

A group of Congress members has filed a brief in federal court backing the Penobscot Indian Nation’s lawsuit against the State of Maine over hunting and fishing rights in the Penobscot River.

It is almost certainly the first time members of Congress have entered a lawsuit in support of an Indian nation’s struggle for its sovereign rights against a state and, therefore, sets a precedent.

The amici curiae, or friends of the court, brief was filed April 29 in federal district court in Maine by five members of the Congressional Native American Caucus: Betty McCollum (D-MN), co-chair of the Congressional Native American Caucus with Tom Cole (R-OK), a citizen of the Chickasaw Nation; Raúl M. Grijalva, (D-AZ), vice chair of the Congressional Native American Caucus; Ron Kind (D-WI), vice chair of the Congressional Native American Caucus; and Ben Ray Luján (D-NM), vice chair of the Congressional Native American Caucus.

“As members of the Caucus, amici have focused their legislative efforts on supporting the sovereign rights of, and federal obligations to, tribal nations and villages. A particular focus has been the growth of Native American communities through policies that support tribal political self-determination and economic self-sufficiency,” the group writes in its brief. “Amici therefore seek to strengthen the relationships between the United States and Indian tribes through legislation that secures the vital sovereign interests of tribal governments, including the implementation of federal statutes such as the Maine Indian Claims Settlement Act (MICSA), which was enacted to protect the rights of the Penobscot Nation and its members to sustenance fishing, hunting, and trapping within its reservation without interference from the State of Maine.”

Cole said the Native American caucus tries to stay out of inter-tribal disputes between tribes. “I don’t think that’s an appropriate place for us to be, but in this case my counterpart Betty McCollum, co-chair of the Native American Caucus, and I both felt the same way – that this was just an egregious case of a state effectively abrogating parts of a treaty.”

Sometimes tribes don’t defend their rights when they should, Cole said. “We applaud the Penobscots for going to court to defend their rights. The battle they’re fighting is not just for themselves. If sovereignty is diminished anywhere it’s diminished everywhere. If any of our tribes have their treaties unilaterally altered without the permission, consent and participation it hurts every single tribe in the country. I’m glad they decided to fight it; the least we can do is express our support.”

Cole said he agreed with some tribal leaders who think the Penobscot case might turn out to be as significant for east coast tribes as the “fish wars” of the 1960s and 1970s led by the late Nisqually leader Billy Frank Jr. were to the west coast tribes. At that time protesters held “fish-ins” at traditional fishing locations aimed specifically at asserting their treaty-protected fishing rights and, more broadly, their resistance to being culturally assimilated into American society.

RELATED: The Fire That Was Billy Frank Jr.; Indian Country’s Greatest Defender

“Some people act as though a treaty signed a hundred or so years ago doesn’t exist – yes, it does as long as the parties are still there and there wasn’t a time limit placed on it,” Cole said. “After all, land was given up in exchange for guarantees and those guarantees have to hold. The history of the United States in terms of holding up its side of treaties is not very commendable.”

The Penobscot case is not a partisan issue, Cole said; it’s an issue in which Congress needs to uphold its obligations and the trust responsibilities toward the tribe.

Penobscot Chief Kirk Francis told ICTMN that the Nation is “extremely honored and excited that congress has weighed in on this very important case.” He said he was unaware of any other case in which members of Congress supported a tribe against a state. “I think this is truly historic and shows the level of seriousness with which they take these issues of protecting basic tribal cultural rights around attempted territorial removal and extinguishing fishing rights.”

The lawsuit – Penobscot Nation v. State of Maine, Maine Attorney General Janet Mills and two other state officials – was filed in August, 2012, in response to 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 river flows around 60 miles north of 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 MICSA and its state companion, the 1980 Maine Implementing Act (MIA). The river is central to the Nation’s identity and culture, Francis said recently. ”This river is simply who we are. 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,” he said.

Mills did not respond to a request for comment.

A year after the Nation filed the lawsuit, the federal government’s Department of Justice (DoJ) at the Nation’s request entered the case both as an intervener on the Penobscot Nation’s behalf and as a plaintiff filing a separate action against the state of Maine.

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

RELATED: Feds Join Penobscot Suit against State of Maine on Fishing Rights

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The amici brief outlines three principles that “must” inform the interpretation of statutes regulating Indian nations: (1) that Congress reserves Indian lands to assist and protect Indians and intends that the reservation is also seen to favor and protect Indians; (2) that Congress drafts legislation against the longstanding Indian canon of construction, which requires courts to interpret ambiguities in Indian-related legislation in favor of Indians; and (3) when the U.S. acts as a trustee to settle a dispute over an Indian nation’s aboriginal property and fishing rights, it expects the court to act as a partner in fulfilling the federal government’s “solemn trust responsibilities.”

Congress plainly intended to include the Penobscot River within the Penobscot Reservation when it ratified Maine’s Act to Implement the Maine Indian Claims Settlement Act, and so did the State of Maine until recently, the amici wrote in their brief. “The State now contends that Congress, in drafting the Settlement Act, intended to harm the Penobscot Nation by persuading it to cede historically tribal land to the State, while preserving its sustenance fishing rights in name only by diminishing tribal land to include only the dry land of the islands in question,” the brief says. “But this interpretation cannot be squared with Congress’s intent to draft a statute that fulfills its trust responsibilities to the Penobscot Nation. Congress plainly intended to protect the Penobscot Nation’s right to fish for anadromous fish in the Penobscot River and therefore included the Main Stem of the Penobscot River, which contains the only anadromous fish available to the Tribe, within the Penobscot Reservation.”

Requests for summary judgment from the Penobscot Nation, the DoJ and the state are pending. The amici brief urges the court to grant summary judgment to the Nation.

Francis said he hopes all tribes’ nation-to-nation trust relationships with the federal government will be protected. He praised the Congressional Native American Caucus members for their activism. “They truly have proven their commitment to these issues,” Francs said. “For us this is such a scary and stressful time – having our rights and territory attacked – and this at the very least tells us in a very relevant and important way that we are not alone.”

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