Feds want to take Penobscots’ side in suit over river rights

Federal government asks court to allow it to join the Penobscot Indian Nation in lawsuit against Maine over fishing and hunting rights on ancestral river.
Kirk Francis poses for a photo
Penobscot Nation Chief Kirk Francis. Photo courtesy the Bangor Daily News.

UPDATE, MARCH 24, 2014:

PORTLAND — A U.S. District Court judge is allowing the federal government to join the Penobscot Indian Nation in its lawsuit against the state over fishing and hunting rights on their ancestral river.

In his Feb. 7 ruling, U.S. District Court Judge George Singal wrote, “the Court believes that the United States has a unique interest in this case.”

That interest, wrote Singal, stemmed from “the inevitable interaction between federal administrative agencies and any government or sovereign that might regulate activities on the Penobscot River.”

In response to the development, Penobscot Nation Chief Kirk Francis said, “It only makes sense that the United States is in this case.  It is about the settlement of United States v. Maine, the Tribe’s historic land claims against the State for illegally taking our land and resources. .”

The state attorney general’s office had opposed the federal move to intervene in the case.

The lawsuit was the culmination of several years of conflict between the state and the tribe over fishing and hunting rights on the Penobscot.

Original Story:

PORTLAND — The federal government, saying “intervention … is not a step the United States takes lightly” has asked a court to allow it to join the Penobscot Indian Nation in their lawsuit against the state over fishing and hunting rights on their ancestral river.

“As a part of its trust obligations to the Nation, the United States has a legal interest in protecting the Nation’s reservation borders and in ensuring that the Nation can fully exercise its sovereign powers … without improper interference from the State and others,” wrote Justice Department lawyers in the Aug. 16 filing with the U.S. District Court for Maine.

The lawsuit has its beginning in a letter written last August by then-state Attorney General William Schneider about tribal rights to police hunting and fishing on the Penobscot River adjacent to the tribal lands in northern Maine.

The letter was sent to both state and Penobscot Nation officials after the state claimed tribal officials confronted state employees and members of the public on the River “for the purpose of asserting jurisdiction over activities occurring on the river.”

Attorney General Janet Mills’ spokesman Tim Feeley explained in an email: “In recent years Penobscot tribal wardens and officials have demanded that nontribal duck hunters, fishermen and boaters obtain permits from the Nation to be on the river.

Maine Attorney General Janet Mills
Maine Attorney General Janet Mills. Photo courtesy the Bangor Daily News. 

Tribal officials also demanded that State employees who conduct water quality monitoring on the river obtain a permit from the Penobscot Nation before they set out on the river. There is no support in the law for this demand.”

Schneider wrote that the tribe can control hunting and fishing only on the islands it owns in the Penobscot River, but that “the river itself is not part of the Penobscot Nation’s Reservation.”

The tribe says that the state’s position reverses longstanding legal interpretations that they have the right to fish and hunt on the river and to regulate fishing and hunting by others.

The lawsuit they mounted in August, 2012 in response to Schneider’s opinion claims the Penobscots have had authority over sustenance fishing in the river’s waters “from time immemorial” and that Maine and federal law allow tribal members to fish for sea-run fish like Atlantic salmon that only exist in the river, not on their islands. The lawsuit asks the court to re-affirm those rights and to rule that the  state’s legal interpretations are “incorrect and misstate the Nation’s rights and authorities confirmed by Congress…”

Penobscot Chief Kirk Francis said that the state’s position threatens to cut the tribe’s members off from the body of water that gives them their name and identity.

“We are a fishing culture and a river people and once that’s gone, the Penobscots don’t exist anymore and that’s the seriousness of the case,” Francis said.

The move by the federal government to intervene in the dispute, said law professor Robert Anderson, “is an indication of the strength of the tribal claims to portions of the river and associated fishing rights within the reservation.”

Anderson, a professor of Indian law at both Harvard and the University of Washington, said it’s unusual for the federal government to step into a case like this.

“It’s well-known in the legal community that the United States is very careful when exercising its authority as the trustee to litigate in support of the tribal claims. The motion to intervene by the United States should be perceived as implementing the federal trust responsibility to protect Indian tribal rights and resources.”

Feeley said Attorney General Mills feels that it is “regrettable that Washington officials are joining this effort to take control over the river away from the people of Maine.”

“We believe strongly that all Maine citizens have the right to use the river for hunting, fishing and recreational boating as they have for decades, without worrying about interference from Penobscot Nation officials,” Feeley said.

If Judge George Singal allows the federal government to join the case, it will have company in an already crowded list of participants. Eighteen municipalities and businesses that hold state permits to dump waste into the river, from the towns of East Millinocket and Bucksport to Verso Paper and the Veazie Sewer District, are participating in the lawsuit. They say they’re afraid that the Penobscots will try to limit their ability to dump waste if the tribe has regulatory power over the river.

“It is imperative to the … permittees that (they) may continue to use those waters unhindered by regulation imposed or sought to be imposed by the Penobscot Nation,” they wrote in documents filed with the court.

Before formally intervening in the case, the Justice Department tried to find a way to settle the case, according to a letter sent on Aug. 16 to Attorney General Mills by Ethan Shenkman,  a U. S. deputy assistant attorney general.

“As I indicated to you, we remain willing to earnestly pursue alternatives to litigation,” wrote Shenkman. “It has become apparent, however, that there is not a realistic short-term prospect of settlement before the United States becomes a party to the case…”


John Christie

John Christie is the co-founder, former publisher and former senior reporter of the Maine Center for Public Interest Reporting. He has covered local, state and national politics as a reporter, editor and publisher at newspapers in Maine, Massachusetts and Florida and holds a BA in political science from the University of New Hampshire.

Naomi Schalit

Naomi Schalit is a co-founder of the Maine Center for Public Interest Reporting, which operates The Maine Monitor.
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