Judge rules Penobscot Nation reservation does not include river’s waters

December 15, 2015 | by Kevin Miller | Portland Press Herald

Link to original article

But U.S. District Judge George Singal clarifies that Penobscot tribal members’ sustenance fishing rights extend throughout the main stem of the Penobscot River.

A federal judge has ruled that the Penobscot Nation's reservation does not extend to the waters of the Penobscot River, but the tribe's members can conduct sustenance fishing on the river's main stem. This is the East Branch.

A federal judge has ruled that the Penobscot Nation’s reservation does not extend to the waters of the Penobscot River, but the tribe’s members can conduct sustenance fishing on the river’s main stem. This is the East Branch. 2014 Press Herald File Photo/Gregory Rec

A federal judge ruled Wednesday that the Penobscot Nation’s reservation ends at the shoreline of tribal islands, siding with the state in a jurisdictional dispute over the waters of the Penobscot River.

But in a mixed ruling, U.S. District Court Judge George Singal reaffirmed tribal members’ sustenance fishing rights throughout the main stem of the Penobscot.

Singal rejected arguments from the Penobscot Nation and federal agencies that the tribe’s reservation boundaries extend “from bank to bank” of Maine’s second-largest river. Instead, Singal sided with Attorney General Janet Mills in ruling there was “no ambiguity” in the definition of the reservation as laid out in the landmark Maine Indian Claims Settlement Act of 1980 negotiated between the state, federal government and tribes.

“The Settlement Acts clearly define the Penobscot Indian Reservation to include the delineated islands of the main stem, but do not suggest that any of the waters of the main stem fall within the Penobscot Indian Reservation,” Singal wrote. “That clear statutory language provides no opportunity to suggest that any of the waters of the main stem are also included within the boundaries of the Penobscot Indian Reservation.”

But Singal rejected the state’s interpretation on the fishing issue and, seeking to clarify what he said was ambiguous language, said the tribe has a “retained right to sustenance fish in the main stem, as it had done historically and continuously.” Under the state’s erroneous interpretation, Singal wrote, tribal members would only be allowed to fish from land.

“There is no evidence that the Maine Legislature, Congress, or the Penobscot Nation intended for the Settlement Acts to change and further restrict the already long-accepted practice of Penobscot Nation members sustenance fishing in the main stem, such that tribal members would need to have at minimum one foot on an island and could no longer sustenance fish from boats in the main stem,” Singal said.

This ruling doesn’t address a dispute over water-quality standards in the waterways that pass through tribal lands. A separate lawsuit on that issue that the state filed against the federal government is pending.

Tribal leaders were evaluating the ruling Wednesday evening and plan to “huddle up” with attorneys from the U.S. Department of Justice, which helped argue the tribe’s case, to discuss next steps, which could include an appeal.

Penobscot Nation Chief Kirk Francis described the ruling as “a mixed bag.” Francis was gratified Singal upheld the tribe’s sustenance fishing rights “from bank to bank” but disappointed that the judge did not believe those waters are part of the reservation. That is concerning, Francis added, because the tribe needs to understand how to manage a resource that members depend on for sustenance.

“Obviously it’s not the greatest decision for the tribe,” Francis said. “We are trying to understand how the existing statute and the decision fit together.”

Mills said the case, which has been watched closely by American Indian organizations around the country, could have had “potentially enormous” ramifications for river users. While the tribe’s attorneys argued that the case was primarily about sustenance fishing rights, lawyers for the state said Penobscots’ interpretation of their boundaries could allow the tribe to exclude fishermen from the river, charge fees for access or even regulate industrial and municipal discharges into the Penobscot.

“The state respects that federal Judge George Singal has digested thousands of pages of filings by all the parties and intervenors,” Mills’ office said in a statement. “In this very thorough 64-page ruling the judge decided very clearly that the reservation itself does not include the main stem of the Penobscot River. The river is, as the state argued, held in trust for the benefit and use of all. The State is equally pleased that the court recognized the historical right of individual tribal members to engage in sustenance fishing along the river, a right which the state has always accorded and never denied.”

The case stems from a 2012 letter from then-Attorney General William Schneider, although the underlying tensions over tribal jurisdiction and fishing rights date back decades.

Responding to reports that tribal game wardens were stopping and summonsing non-tribal sportsmen on the river, Schneider advised the Maine Warden Service and Maine Marine Patrol that the Penobscot reservation does not include the main stem of the river.

“Like private landowners, the Penobscot Nation may also restrict access to their lands, here islands, as it sees fit,” Schneider wrote. “However, the river itself is not part of the Penobscot Nation’s Reservation, and therefore is not subject to its regulatory authority or 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.”

The Penobscot Nation filed suit in federal court 12 days later, claiming that any attempt to enforce state law against tribal members who are sustenance fishing in the river “threatens to violate the federal law right of the Nation’s members to be free from state authority over such activity.”

The case is emblematic of the growing rift between Maine’s tribal governments and the LePage administration as well as ongoing tensions over the 35-year-old settlement agreement. In May, the Penobscot Nation and Passamaquoddy Tribe withdrew their representatives to the Maine Legislature and accused the state of attempting to perpetuate a “guardian-to-ward relationship” with the sovereign tribal nations. Mills, meanwhile, is suing the U.S. Environmental Protection Agency over water quality standards in waters that pass through tribal areas.

Sunlight Media Collective Releases Documentary on the Battle Over Contested Penobscot River Territory

Indian Island, ME: On Friday, Sunlight Media Collective released

♦───♦♦♦───♦

The Penobscot: Ancestral River, Contested Territory,

♦───♦♦♦───♦

a documentary film that explores the conflict between the state of Maine and the Penobscot Nation over contested river territory. Spanning from the 1700’s to the present-day legal battle of Penobscot Nation v. Mills, the film illustrates the Penobscots’ centuries-long fight to retain their territory and their inherent, treaty-reserved sustenance fishing rights for future generations. Featuring first-person accounts, the film tells the urgent, inspiring story of a struggle for justice and cultural survival in the face of an astonishingly open abuse of state power.

The documentary release closely follows a meeting between Penobscot Chief Kirk Francis and President Obama, where they discussed the Penobscot Nation v. Mills case. The Penobscot Nation is suing the state of Maine in response to a decision by former Attorney General William Schneider that the Penobscot Indian reservation, which includes more than 200 islands in the Penobscot River, does not include any portion of the water— a decision that amounts to territorial theft by the state. Oral arguments for the case are scheduled for October 14th at the US District Court in Portland, ME.

 

The case is taking place in the context of a larger state battle over river jurisdiction and water quality standards. In February, the federal EPA ruled that Maine must improve its water quality standards to protect Penobscot sustenance fishing rights. Governor Paul LePage has called the ruling “outrageous” and threatened to relinquish state regulatory responsibilities to the federal EPA if they did not reverse the ruling.

 

The Penobscot: Ancestral River, Contested Territory chronicles the Penobscot’s struggle to maintain their centuries-long stewardship to ensure a healthy ecosystem for all of Maine, a struggle exemplified by these contemporary legal battles. According to Penobscot Chief Kirk Francis, the Penobscot v. Mills case “is really not about controlling the river system, or controlling individuals within the system. It’s really about our ability to manage a subsistence resource that we have a responsibility for, for multiple generations.”

 

Funded by Broad Reach Fund of the Maine Community Foundation, The Penobscot: Ancestral River, Contested Territory is available for free on the Sunlight Media Collective website (www.sunlightmediacollective.org), and DVDs are available by order. To schedule a screening, please email sunlightmediacollective@gmail.com.

 

The Sunlight Media Collective is a collaboration between Penobscot and non-native filmmakers. The film is just one example of an up-swell of activism and work on issues affecting the Wabanaki tribes. In October, Upstander Productions will also release a short documentary entitled First Light, on the recently completed Maine Wabanaki-State Child Welfare Truth and Reconciliation Commission.

♦───♦♦♦───♦

Screenings of The Penobscot: Ancestral River, Contested Territory currently scheduled:

October 21st, Belfast Free Library, Belfast, 6:00PM

October 24th, Gates Auditorium, College of the Atlantic, Bar Harbor, 1:30PM

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For more information, contact sunlightmediacollective@gmail.com.

 

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Escalation in Penbscot River Battle: ACT NOW

flotilla 5-23-15Defending Water for Life in Maine and Stop the East-West Corridor are fully committed to supporting the Penobscot Nation in their fight to maintain their River.  Below is an urgent update and call to action from Penobscot historian, activist, and founder of Dawnland Environment Defense, Maria Girouard:

From: Maria Girouard <sacredhomelands(at)gmail(dot)com>

Date: Mon, Sep 7, 2015 at 8:15 AM 

Dear Friends and Allies of the Penobscot River,
Last week, Maine Governor Lepage escalated the river dispute between Penobscot Nation and state government by calling on our elected officials in Washington to “intervene” (…interfere…) in Environmental Protection Agency (EPA) efforts to protect Penobscot fishing rights and ensure a clean, healthy river for all. (letter attached)
I’m sharing an essay (also attached) so you can decide whether Lepage is acting on your behalf.  For those who feel compelled to help Penobscots and the beautiful River we all love, addresses for our Washington delegates are provided below.  I encourage you all to raise your voices. They heard from Lepage, now they should hear from the People.   And if you’d like to send words of appreciation or a thank you note along to the Environmental Protection Agency for protecting the health of the Penobscot River, that address is provided below as well. 🙂   Please feel free to share this communication far and wide to help sound the alarm about the looming threat of industrialization and accompanying territorial theft at the hands of state government.  There is a quote attributed to Elie Wiesel: “The only thing necessary for evil to triumph is for good men to do nothing.”  I implore you to please do something…. for the Water, for the Grandchildren.
Kci Woliwoni (“Great thanks”)
Maria
Senator Susan M. Collins
413 Dirksen Senate Office Building
Washington, DC 20510
Senator Angus S. King
133 Hart Senate Office Building
Washington, D 20510
Congressman Bruce L. Poliquin
426 Cannon House Office Building
Washington, DC 20515
Congresswoman Rochelle M. Pingree
2162 Rayburn House Office Building
Washington, DC 201515
To send words of appreciation or a thank you note along to the Environmental Protection Agency for protecting the health of the Penobscot River:
Mr. H. Curtis Spalding
Regional Administrator
USEPA REGION 1 – New England
5 Post Office Square
Mail Code: ORA
Boston, MA 02109-3912
Email:  Spalding.curt@Epa.gov
A million thanks to you for caring!  ><)),>  ~ ~ ><)),>  ~~ ><)),>
Due to file size constraints the File Attachments mentioned are archived at:
0831 Governor Letter to Senators and Congressmen  ‘Clean Water Act’
 
Escalation of an Age-Old Conflict Update from the trenches

The Historical Continuum: WE ARE ALL PARTICIPANTS IN AN AGE-OLD CLASH OF CULTURES

By Maria Girouard – Penobscot historian.

canoe on penobscot, JfR

Panawapskewi (“Penobscot people”) are the indigenous people of this territory, and have nurtured a relationship with and maintained a presence on the Penobscot River for thousands of years. We are an ancient riverine people who have survived enormous losses as a result of colonization – displacement of our ancestors, destruction of our fisheries, degradation of the Water, deforestation of traditional hunting grounds, and disruption in our traditional form of governance.

A Colonial Agreement: In exchange for Penobscot alliance in the revolutionary war, colonial government agreed to protect Penobscot territory from encroachment and to preserve Penobscot aboriginal territory for their perpetual use so that traditional sustenance lifeways could be maintained. (Perpetual: meaning forever, never to be changed). This agreement is recorded in the 1775 Congressional Resolves. Following the war, there was a large war debt.   Abundant Penobscot resources proved too tantalizing to resist.

Treaties were negotiated: Treaties are nation-to-nation agreements negotiated between sovereigns. The Treaty of 1796 and the Treaties of 1818 and 1820, ceded portions of Penobscot territory but the river and the fisheries were never relinquished. Historical records reveal multiple pleas on deaf ears about destruction of the fisheries and decimation of hunting grounds leading to Penobscot starvation.

Treaties were broken: An 1801 petition to colonial government declared, The Penobscots “feel themselves and their Tribe greatly wronged and injured by a Mr. Winslow and his two sons of Portland erecting a sawmill at the Falls in Penobscot … when the government secured to their Tribe and their descendants the aforesaid island with other islands in the Penobscot River with all their natural rights and privileges, the Fishery was esteemed the most important advantage attached to their island and which no individual could deprive them of – they would therefore humbly request your excellent and honor in your wisdom to prevent an Evil so great as would be the total ruin of the tribe.”

In the 1940s, Penobscot Elder Florence Nicola Shay spoke out against the state and broken treaty promises – “The treaties are merely useless pieces of paper today as all promises have been broken… we are a segregated, alienated people and many of us are beginning to feel the weight of the heel that is crushing us to nothingness. We are still in slavery, we are dictated to, and we are made to feel that we do not own our own souls.”

A major turning point in tribal-state history: In the 1970s Penobscot & Passamaquoddy tribes sued the State of Maine for theft of aboriginal territory which had left them displaced and impoverished. The 1794 Trade and Non-Intercourse Act, a federal law aimed at curbing massive land grabs, had been ignored. The law required any and all land transactions with an Indian person or tribe be ratified by Congress. Since Maine had become a state in 1820, no land transactions were ratified; therefore, all were null and void. Following a tumultuous decade riddled with overt racial hostility and fear-mongering played out in the press, the State of Maine, the Penobscot Nation and the Passamaquoddy tribes negotiated a settlement agreement resulting in the federal 1980 Maine Indian Claims Settlement Act. The Settlement Act was intended to stop the further taking of Indian Territory and to strengthen tribal sovereignty and tribal-state relations, but like all agreements that preceded it, it, too, was broken and little was settled.

Territorial takings are not a thing of the past: In August 2012, Penobscot Chief and Council received a letter from state government asserting an Attorney General’s opinion – that the Penobscot Indian Reservation did not include any portion of their ancestral River. An opinion with which Penobscot Nation could never agree. Interestingly, this new opinion was contrary to a previous Attorney General’s opinion (AG James Tierney, 1988) which stated that the Penobscot River was reservation territory (?!)

Penobscot Nation v. Mills, is a current U.S. district court case to protect Penobscot fishing rights. It has a large cast of characters! The Penobscot Nation, Maine Attorney General Janet Mills, the United States Department of Justice, and 17 intervening towns and industries up and down the River. Until recently, the case had 18 interveners, but on April 1, 2015, in an amazing act of humanity, the Town of Orono filed a motion to withdraw from the case. After deliberation, their town council admitted to knowing very little about how they got involved; they concluded that their participation was unnecessary, and decided that they did not wish to be in contentious litigation against the Penobscots. The remaining interveners are: the City of Brewer, Town of Bucksport, Covanta Maine, LLC, Town of East Millinocket, Great Northern Paper Company, LLC, Guilford-Sangerville Sanitary District, Town of Howland, Kruger Energy (USA) Inc., Town of Lincoln, Lincoln Pulp and Tissue LLC, Lincoln Sanitary District, Town of Mattawamkeag, Town of Millinocket, Red Shield Acquisition LLC, True Textiles, Inc., Veazie Sewer District, and Verso Paper Corp. Led by Pierce Atwood attorney, Matt Manahan, these interveners are asking a judge to determine that the Penobscot reservation does not include any portion of the Water. The U.S. Department of Justice intervened on behalf of the Penobscots, viewing this as an attempted territorial taking by the State of Maine which they have a duty to protect against.

Confusing an already complex issue: Happening alongside Penobscot Nation v Mills, is a battle between the State and the federal Environmental Protection Agency over water quality in Indian Territory. Last summer, the State of Maine sued the EPA demanding jurisdiction over water quality in Indian Territory. In February 2015, the EPA agreed that according to the Maine Indian Claims Settlement Act, the State of Maine did in fact have jurisdiction over water quality, but since Penobscots retained an inherent right to sustenance fish, the water quality in their reservation had to be sufficient to safely consume fish. The State has again sued the EPA and stated that they have no intention of complying with the order to clean up the Penobscot.

Gaining Support: Penobscot Nation has gained thousands of allies but could use more! This case has gained the interest and support of numerous social justice and environmental organizations who agree that Maine must cease and desist its aggression. Maine priorities should be elsewhere – not in continued territorial takings and suing for the right to pollute. Together, we are writing our Grandchildren’s history (and protecting their Drink). Let’s make it a history that will make both them and the ancestors proud!

Let your voices be heard: Call on our state to stop its hostilities and respect tribal fishing rights.

  • Attorney General Janet T. Mills, 6 State House Station, Augusta, Maine 04333
  • Governor Paul LePage, Office of the Governor, #1 State House Station, Augusta, ME 04333
  • Find (and write!) your legislators at http://legislature.maine.gov/

 

 

 

 

“The Penobscots believe that the God of Nature gave them their fisheries, and no man alive has the right to take that away from them…” (historical petition to Massachusetts Colonial Government)

Legislation would put hidden sections of Maine’s constitution back into print

Publication of the redacted passages, many involving the state’s treaty obligations to its Indian tribes, has been banned for 139 years.

Link to Original Article

INDIAN ISLAND — One hundred and thirty-nine years ago, 2,100 words of Maine’s Constitution vanished from circulation, although they remained in effect.

The sections, which included the treaty obligations with Indian tribes that Maine agreed to assume as a condition of its separation from Massachusetts in 1820, are still forbidden to be published with the rest of the state’s fundamental laws, the result of a constitutional amendment ratified by Maine’s people in 1875 and which went into effect the following year.

Judges and legal experts remained cognizant of the redacted passages, which are found in pre-1876 copies of the constitution. But for a century, few ordinary citizens or tribal members knew what the passages said.

Now the Maine Legislature is expected to vote soon on a bill that would undo the prohibition on publishing the passages. The bill, sponsored by the Maliseet tribe’s representative to the Legislature, Henry Bear, would add a constitutional amendment referendum question to the ballot this November, asking Maine voters if they wish to repeal the printing ban on the redacted constitutional language in Article X, Section 5.

“Right now you can’t access that section, even though it remains in force – you won’t see it,” said Bear, who became the only active tribal representative Tuesday when his Passamaquoddy and Penobscot counterparts renounced their seats in protest over Maine’s refusal to compromise on a range of jurisdictional disputes. “I think it’s essential that all parts of our constitution are legally publishable,” he said.

The section, the state constitution has read since 1876, “shall hereafter be omitted in any printed copies” but “shall remain in full force, as part of the Constitution … with the same effects as if contained in said printed copies.”

On Wednesday, a legislative panel recommended in an 11-1 vote that the bill be passed. At a May 19 public hearing, nobody testified in opposition. The bill, L.D. 893, is likely to go to a full floor vote this week.

Legislators on the Judiciary Committee were surprised to learn that part of the state constitution was unprintable, said Sen. Chris Johnson, D-Somerville. “There was a very strong opinion around the table that what is in our constitution should be printed in our constitution,” he said.

Bear said he learned of the situation from reading “Unsettled,” a 2014 Press Herald/Sunday Telegram series.

The measure is of symbolic importance to Maine’s four federally recognized Indian tribes, some of whom were adversely affected for a century by the suppression of the contents of the article enumerating Maine’s obligations to them.

It is not known why publication of Section 5 was suppressed. Several other sections of Article X also were stricken, but they were no longer relevant, having prescribed how Maine should convene its first legislature and other one-time procedures. By contrast, the treaty obligations in Section 5 were still in force in 1876, although the state was violating many of them, sometimes flagrantly.

Forgotten text, forgotten duties 

The redacted section is the text of the 1816 Act of Separation, the Massachusetts law that allowed the District of Maine to become an independent state. The text includes a section obligating Maine to “assume and perform all the duties of (Massachusetts) towards the Indians within said District of Maine, whether the same arise from treaties or otherwise.” It directs Maine to set aside land valued at $30,000 for tribal use, at a time when undeveloped land in Maine sold for between 3 and 4 cents an acre.

In 1967, Maine’s first Indian affairs commissioner, anthropologist Edward Hinckley, discovered Maine had received $30,000 from Massachusetts in compensation, but the state never actually set aside new land for the tribes. In a letter to the NAACP, Hinckley argued for a public education campaign to promote “the ideas that Indians are people; that Massachusetts considered them so; that Massachusetts’ obligations to Indians were important enough to be a condition of Maine’s becoming a state and to therefore be included in the constitution.”

Hinckley, who went on to a career in child mental health and died in 2012, also called for a constitutional amendment similar to that envisioned by L.D. 893 “for neatness’s sake and educational value, if nothing else.” The suggestion went nowhere.

By implication, the redacted constitutional passages also required that Maine honor the terms of a 1794 treaty between Massachusetts and the Passamaquoddy tribe, including the management of a trust fund that the Bay State turned over to Maine to manage for the tribe’s benefit. In 1968, the Passamaquoddy’s attorney, Don Gellers, sued Maine for looting this trust fund, which had been worth $37,471 in 1822, or about $150 million with interest by the mid-1960s.

The day after filing the suit, Gellers was arrested on marijuana possession charges as part of an elaborate conspiracy orchestrated by the state Attorney General’s Office; he eventually fled the country, and the tribe’s suit collapsed.

If the constitutional commissioners who proposed the 1875 suppression of Section 5 intended to ensure the state’s obligations were forgotten, they were successful. Rather than protecting the Indians’ trust lands, Maine authorized some tracts to be flooded by dams, others to be annexed for the laying out of highways, and thousands more acres transferred to white owners. In no case was compensation given to the Indians, in violation of treaty obligations. In 1893, Maine courts even ruled that the Passamaquoddy tribe didn’t exist because it lacked sovereign powers.

“Maine’s attitude towards not recognizing treaties and tribal rights is legendary and it just doesn’t shock me that they’ve been buried somewhere,” said the chief of the Penobscot Nation, Kirk Francis. “Those were huge conditions to becoming a state. And so they should be prominently displayed. I think Rep. Bear is right in wanting to get attention to that.”

Today: symbolic significance

In testimony before legislators, Penobscot historian Maria Girouard and the executive director of the Maine Indian Tribal-State Commission, John Dieffenbacher-Krall, both asserted that the treaties referenced in the text were still in force. They said that the 1980 settlement acts – the result of a compromise agreement by which the tribes agreed to drop a land claims suit for more than half the state in exchange for a cash settlement – did not contain language eliminating the treaties.

Attorney General Janet Mills’ office disagreed, citing Section 1731 of the federal settlement act, which states that Maine will enjoy “a general discharge and release of all obligations … arising from any treaty or agreement with, or on behalf of any Indian nation, or tribe or band of Indians or the United States as trustee” to the tribes.

Either way, allowing publication of Article X, Section 5 will have no legal consequence, as the section has always remained in force, even if its contents were hidden from view.

Zach Heiden, legal director of the American Civil Liberties Union of Maine, said he supports the printing of the section. “Maine cannot hope to live up to its historical responsibilities if it does not know its history,” he said.

Colin Woodard can be contacted at 791-6317 or at:

cwoodard@pressherald.com

Twitter: WoodardColin

Tribes pull Reps. from Maine Legislature and go their own way

Photo by A.J. Higgins MPBN

Photo by A.J. Higgins MPBN

On Tuesday, May 26, Penobscot and Passamaquoddy leaders pulled their representatives from the Maine Legislature as part of a decision to work together, and follow their own leadership within their territories from here on out. It was an historic moment of bravery and leadership by the Tribes.

Here are two articles:
MPBN, Tribes Pull Reps from Maine Legislature as Sovereignty Issues Come to Boil

and

The Guardian, Two Native American tribes withdraw from ‘paternalistic’ Maine legislature

There was a press conference Wednesday afternoon as well and we will continue to post info here.

Flotilla on Penobscot River to Support Tribal Territory and Rights

flotilla 5-23-15

On May 23, 2015, people converged on the Penobscot River in Bangor to show their support of the Penobscot Nation’s rights over its ancestral territory- the waters of the Penobscot River.  The State of Maine issued a letter to the tribe in 2012, redefining the Penobscot’s territory to NOT include the River itself, a direct departure from historical treaties and previous interpretation of treaties and the Land Claims Settlement Act of 1980 by the State of Maine.

Around 150 people were present in boats or on shore to demonstrate their support.  Following is a video, news coverage, and photos of the event:

WABI-TV 5

BDN

3 minute video by Sass Linneken

photos by the Maine Paparazzi (including photo above)

Congress Members Support Penobscot v. Maine in Unprecedented Court Filing

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.”
Gale Courey Toensing |5/5/15 | Indian Country Today
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 CaucusBetty 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 Nisquallyleader 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.

PenobscotChief 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 Millsand 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

RELATED: Ceremony – and Eagles – Mark Beginning of Veazie Dam Removal

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.”

Read more at http://indiancountrytodaymedianetwork.com/2015/05/05/congress-members-support-penobscot-v-maine-unprecedented-court-filing-160253
 
 

LePage action abrupt, hurtful to tribes

Link to Original Article

The governor’s recission of the 2011 executive order that had put the state and Maine’s tribes on equal footing is disturbing.

INDIAN ISLAND — I am a Native person. I was born into the Penobscot Nation and the Passamaquoddy Tribe, and take an affirmed pride in my culture and my people.

I have lived in Maine for 29 years and eternally love this state. Until recently, I hadn’t shared many people’s outrage at Gov. LePage and the way he has taken to running it.

I have time and again defended the governor to people who have spoken out against him in my presence, even though I consider myself to be a very liberal-minded person after living in the Portland area for several years.

I defended him because he had done several things to help better the relations between the tribes and the state, including issuing the August 2011 executive order that states “the unique relationship between the State of Maine and the individual Tribes is a relationship between equals.”

The governor’s actions these past few days seem abrupt, like those of an angry child so quick to take away something that was given. The reasoning appears to be because he can’t handle that our nations are trying to push for conditions to be met, and our voices to be heard.

This rescission of the 2011 executive order comes at a very critical time. Maine tribes have just met with the Skowhegan school board to try to convince the people of the town to change the mascot of Skowhegan Area High School. And there’s also the ongoing fight with the Washington National Football League team.

I am proud to be who I am, but alone, without my tribe, I feel vulnerable. I grew up on the Penobscot reservation and was afraid to leave it because of the way I thought I would be treated. Off the reservation from a very young age, I have experienced a considerable amount of racism directed toward myself and my people. Luckily I am light-skinned and am able to assimilate very easily into white society.

I shouldn’t have to. As I travel, if I go to an area where there are no tribes and where people haven’t met a Native person before, if they find out that I am, almost instantly the first question they ask is “How much are you?” This may be because of my lighter skin tone, but I know many darker Natives who have received the same question.

The question isn’t “What tribe are you from?” Instead, they want to know my percentage of Native American blood. I have lived in several states, and as I travel throughout the U.S., this seems to be one of the universal reactions toward me when others realize my race.

At this point, I become a novelty for them. I am suddenly being asked questions I don’t want to answer, things that a normal person would never ask a person of color. But the sad truth is that we are not considered people.

If I travel to a place nearer to reservations I am even more reluctant to be found out, because in most cases there is a hostility toward Native people. In these areas we aren’t a novelty; we are a problem, something to be dealt with – “some thing,” not someone.

In these cases we are not people, we are a nuisance. Like with the Washington football team and many other mascots where Natives are depicted, we lose our humanity. I am so very tired of not feeling like a person, feeling like I am apart from everyone else in this nation.

Native people are uniquely treated, because for most people we either only exist in poorly informed textbooks, or as a small group that needs to be handled. It seems as though there aren’t enough of us to make an impact and have our voices heard.

In a time when people are shouting that black lives matter, we are still shoved aside and told to shut up and deal with things like the rescission of the governor’s order. When will we matter? When will we be considered someone and not some thing?

What the state of Maine needs is to avoid severing this relationship that we have finally been able build. It has taken hundreds of years to be able for us to finally be treated as we should be and only three to be taken away. I don’t think that I can express enough how hurt I feel about this entire situation.

ABOUT THE AUTHOR

Carter E. Cates of Indian Island is a member of the Passamaquoddy Tribe and the Penobscot Nation.