Update: Penobscot Nation v. Mills
Wabanaki Legal News, Fall 2016
By Ethan Plaut, Esq.
Since our last issue, there has been a major development in the case known as Penobscot Nation v. Mills, or the “Penobscot River Case.” This is a case about what sovereign rights the Penobscot Nation has in the Penobscot River.
In the 1970s, the Penobscot Nation claimed that several prior land transfers were invalid under federal law, and that the Penobscot Nation therefore still had a claim to significant portions of land in Maine. That claim triggered a lawsuit, which was eventually settled by agreement. Part of that agreement was the Maine Indian Claims Settlement Act (a federal law) and the Maine Implementing Act (a state law). These laws tried to define the relationships between several tribes and the State of Maine, including hunting and fishing rights.
In 2012 Maine’s Attorney General William Schneider issued a written opinion that the Penobscot River was not part of the Penobscot Reservation. He agreed that certain islands on the river were part of the Reservation but, as to the river itself, he claimed both tribal members and non-members had to comply with State law and the tribe lacked jurisdiction to regulate what occurred on the river. The Tribe filed a lawsuit to dispute those claims, and the United States joined the Tribe in its challenge. Many other parties joined the lawsuit as well.
In December 2015 United States District Court Judge George Singal issued a ruling in the case. He determined that there were only two issues that needed to be resolved in the lawsuit: (a) the boundaries of the Reservation within a particular portion of the river referred to as the “Main Stem”, and (b) the scope of sustenance fishing rights of the Penobscot Nation on the same portion of the river.
On the first issue, the court decided that the Reservation does not include the river itself, but instead only the islands within the river. The court explained that the Maine Indian Claims Settlement Act defines the Reservation as “lands,” and the Maine Implementing Act defines the term “Penobscot Indian Reservation” as “islands in the Penobscot River.” So, the court concluded, reading these statutes to include water within the reservation would not make sense because these laws talk about the Reservation only in terms of “land” and “islands.” The court also said that how the Tribe and State had treated the river in the time period between the original land claims lawsuit and the current lawsuit was a factor in its decision. The court found that the parties had acted as if the Reservation did not include the river itself, and that those actions supported its interpretation of the Settlement and Implementation Acts.
On the issue of sustenance fishing, Judge Singal said the relevant laws provide “broad protection for tribal sustenance fishing.” He again looked to the words used in the statutes and the historical practices. He concluded that the statutes allow the Penobscot Nation to take fish for individual sustenance in the relevant section of the Penobscot River. The State had argued tribal members could only take fish while standing on the land or on an island, and the court flatly rejected that interpretation of the statutes.
The decision by Judge Singal ended the case in the United States District Court. However, his decision has been appealed by both sides to the lawsuit. That means the case will now go to a panel of judges on the First Circuit Court of Appeals. The Tribe and the United States are challenging on appeal the ruling that the Reservation does not include the river itself. The State is challenging Judge Singal’s decision to let the United States be a plaintiff in the case in the first place. There is no clear timeline as to when the First Circuit Court of Appeals will make a decision. Look for further updates in future editions of the Wabanaki Legal News.