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”)
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
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


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





“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)

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.


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

Maine to sue EPA over tribal water pollution decision

Link to Original Article

The state contests the agency’s authority to order stricter pollution limits to ensure sustenance fishing is safe.

By Colin Woodard Staff Writer | Portland Press Herald

Maine plans to sue the U.S. Environmental Protection Agency over a ruling intended to ensure that members of Maine’s Indian tribes can safely eat large quantities of fish for sustenance.

The move, disclosed in a letter this week from Attorney General Janet Mills to EPA Administrator Gina McCarthy, opens a new front in an escalating, decades-long power struggle between the state and tribes over the latter’s rights and authority under the 1980 Settlement Acts, the federally brokered compromise agreement that extinguished the tribe’s claim to two-thirds of the state.


Chief Kirk Francis of the Penobscot Nation.

Chief Kirk Francis of the Penobscot Nation.

In Tuesday’s letter, Mills charged that the EPA has acted unlawfully, usurping Maine’s regulatory powers in violation of federal law and court rulings. She advised the agency that she was giving 60-day notice of her intention to sue.

The Penobscot Nation expressed concern with the move. “While not surprising, it is disappointing that we can’t get the state to recognize or acknowledge our sustenance fishing right,” said the tribe’s chief, Kirk Francis. “We have a right to clean water so that sustenance fishing is conducive to the health of our people.”

The dispute is over the LePage administration’s proposed water quality standards, which are subject to review by the federal agency. The EPA informed state authorities on Feb. 2 that their proposed standards are inadequate to protect sustenance fishermen on the reservations from certain toxins, because they eat much greater volumes of fish than the average Mainer.

The agency, acting in consultation with the federal Bureau of Indian Affairs and the U.S. Department of Justice, asserted such fishing rights were granted to the tribes under the Settlement Acts. It ordered the state to come up with more restrictive standards for certain toxins in Indian waters within 90 days. The EPA ruling did not suggest eating fish from the state’s waters is unsafe for most Mainers.

Gov. Paul LePage subsequently blasted the EPA decision, calling it “outrageous” and an act of “retribution” against the state Department of Environmental Protection for having previously crossed the agency. The DEP won a 2007 federal appeals court case that confirmed the state’s authority to establish environmental regulations on Indian lands and in July 2014 filed another suit to force the agency to honor that decision.


In her letter, Mills said the Settlement Act only permits “certain Maine tribes to take fish without restriction within their reservations provided that such fish takings are for individual sustenance only” and does not provide a tribal right to sustenance fish.

Penobscot Chief Francis said the tribes, not the state, are trying to properly enforce the Settlement Acts. “It’s very clear that there is no acknowledgment at all of the rights of the tribe to fish and for those fish to be conducive to eating,” he said. “It’s very clear this is about wiping that out for the tribes, not about promulgating water standards.”

In a statement, the EPA said it was committed to upholding both the Clean Water Act and the Settlement Acts in Maine. “EPA must ensure that water quality standards in Maine protect the health and environment for all populations, including the Indian tribes in Maine who practice sustenance fishing as provided for by the Indian Settlement Acts,” the agency said, adding that it and the Department of Justice would respond to the state’s allegations in detail if a suit is filed.

The Department of Environmental Protection did not respond to interview requests, and the Attorney General’s Office declined to comment.

The EPA on Monday rejected other proposed state water pollution standards in Indian territory, including ammonia and arsenic. The agency also rejected a DEP proposal to downgrade the water quality target standard for a 0.3-mile section of Long Creek in Westbrook.

The EPA rulings on tribal waters, which could substantially tighten water standards in certain sections of the Penobscot and St. Croix rivers and other water bodies, have alarmed paper companies and riverside municipalities, which fear they may result in added pollution control expenses.

Maine’s largest tribes, the Penobscot Nation and Passamaquoddy Tribe, are already locked in disputes with the state over saltwater fishing rights, tribal jurisdiction over domestic violence cases by non-Indians on their reservations, and land use regulation on the tribe’s extensive, off-reservation trust lands. The Penobscot Nation have sued Mills in federal court over the state’s assertion that the tribe has no special rights in the main stem of the river that bears its name.


Penobscot River Case and recent related programs from WERU

LTE: Maine has no grounds to take river from Penobscots

February 23, 2015 | Portland Press Herald | Letter to the Editor

Link to Original Article

Thank you for publishing Nickie Sekera’s column regarding the Penobscots’ fight to retain their authority over the Penobscot River (“Maine Voices: State should drop lawsuit that would grab river from Penobscot Nation,” Feb. 17).

Her column points out a number of problems with the state’s claims to have jurisdiction, and it also notes important flaws in the historical understandings of the state’s expert witness, Bruce Bourque.

Like Professor Bourque, I teach American Indian history at Bates College, and, like him, I respect the rights of my colleagues to hold contrary views. Unlike him, I do not see the grounds for the state’s case.

My reasoning is simple. Every American Indian reservation in the United States consists of aboriginal territory that a tribe did not sell to a state or federal government. The Penobscots never sold the river, and by retaining the islands in its channel, they made very clear that they did not intend to do so.

Maine Attorney General Janet Mills has earned my respect in the past by refusing to pursue cases that she does not believe to have legal merit. She would do well to follow her own example in this particular case as well. The Penobscots and all Mainers deserve no less.

Joe Hall 


EPA Decision: Maine Water Quality Standards Inadequate for Tribal Waters

Link to Original Article and Radio Program

  FEB 5, 2015 | Maine Public Broadcasting Network

Download audio file: 

      1. 02052015spsmix.mp3

AUGUSTA, Maine – In a decision that is being welcomed as “historic” by Maine Indian tribes, the U.S. Environmental Protection Agency has asked the state of Maine to revise some water quality standards for tribal waters.

The decision comes during ongoing litigation brought by the state against the EPA. Maine’s chief of environmental protection says it could have far-reaching consequences for discharge license holders.

In a communique to Maine Department of Environmental Protection Commissioner Patty Aho this week, EPA Regional Administrator Curt Spalding delivered the news:  that federal regulators disapprove of some state water quality standards established by Maine more than a decade ago.

Aho says she was stunned by the announcement that the standards could not be used on tribal waters because they’re not protective enough of human health, and of the tribes’ sustenance fishing practices.

“It is, in some cases, work that we thought had been approved and had been in place for many, many years,” Aho says. “So it is just simply, as I stated, breathtaking in the scope and the sweep.”

Breathtaking in its scope, Aho says, because of its wide implications for sewer districts, paper companies and other discharge licensees.  She says the EPA has not defined what it means by waters in Indian territory.  Nor, she says, has the agency indicated how it wants the state to revise the standards and on what scientific  basis.

“It’s asking us to redo something, but not telling us to what standards,” she says. “They’re not telling us which waters in the state, or what parts of those waters, we are to redo these standards.”

“We’re talking only about the waters within tribal reservations and trust lands,” says Ken Moraff. “We’re not talking about the waters upstream or downstream, although there could possibly be an effect on upstream dischargers.”

Moraff is the director of the Office of Ecosystem Protection for EPA. He says existing permit holders will not be affected by the decision. But when new water quality standards are adopted in the future, any new or re-issued permits would have to meet the new standards, which have yet to be established.

Moraff says the decision is significant from the EPA’s point of view, too. That’s because this is the first time the EPA has determined that state standards are inadequate for uses in tribal waters, including sustenance fishing.

Chief Kirk Francis of the Penobscot Indian Nation couldn’t be happier.

“For the first time ever, what the EPA has said is that tribal subsistence and sustenance-based rights are a determinant factor under the Clean Water Act,” Francis says. “So you have to acknowledge those differences while setting your standards within Indian territory. You have to respect those practices. You have to respect the human health issues and the cultural identity of the tribes within those areas where the standards are being set.”

As part of an ongoing lawsuit brought by the state against the EPA over jurisdiction to set water quality standards, the EPA has concluded that the 1980 Maine Indian Land Claims Settlement Act, which extinguished certain tribal rights, allows the state authority to set water quality standards in tribal waters.

But Matt Manahan, an attorney representing discharge license holders along the Penobscot River, says what the EPA is also doing is setting up a two-tiered system for the tribe.

“What this is saying is, notwithstanding the fact that the Settlement Act treats them just like any other citizens of the state, we’re going to carve them out and say because they would like to have standards that are more stringent than the standards that apply to everyone else in the state, even though the science doesn’t support that, we’re going to basically carve that out and give them special treatment for purposes of water quality standards,” Manahan says.

The EPA has given the state 90 days to establish new standards for tribal waters. Commissioner Aho says she’s working with the Attorney General’s Office to determine a response.

Indigenous People in “Maine” are under attack by the State

The indigenous peoples who have lived in what is now called “Maine” for over 10,000 years, are under attack by the State of Maine.  The fishing rights of the Passamaquoddy and the Penobscots, and agreements recognizing the tribes as sovereign nations, are being attacked or denied by lawmakers in the Maine State Legislature, Maine Attorney General Janet Mills, and the Maine Department of Environmental Protection Commissioner Patricia Aho.  This is what genocide looks like today.

Perhaps not coincidentally, the land and waters that the tribes use for sustenance, and the foundation of their identities, is still being eyed for various types of development, and polluting discharge.  Briefly, the Passamaquoddy and the State of Maine are at loggerheads because the state refuses to acknowledge the Passamaquoddy’s inherent right to manage their ancient fisheries.  The Penobscot Nation is surrounded by threats, including: a new solid waste facility proposed by MRC to sit on a freshwater aquifer and wetland that is the source of freshwater for the Indian Island reservation, as well as the traditional hunting and fishing grounds for the tribe; the East-West Corridor that threatens to cross the Penobscot River just north of Indian Island; the Old Town Fuel and Fiber mill located South of Indian Island and sits directly on the Penobscot River, which recently requested a change in the air emissions, essentially legalizing the toxic air emissions that they are dumping into the environment; the denial of the Penobscot River as their territory; and the worn out railroad tracks that run right along the East side of the Penobscot River, carrying explosive Baaken Crude oil from North Dakota.  A train derailed last year in Mattawamkeag, miraculously spilling just a few gallons of oil.

In a multi-tiered approach, the State of Maine is refusing to acknowledge the tribes sovereignty, forcing these indigenous people to be wards of the State, which they clearly are not.  Last week, Attorney General Mills and DEP Commissioner Aho sued the federal Environmental Protection Agency for acknowledging the sovereignty of our First Nation’s people, accusing the EPA of not being consistent in its application of the Clean Water Act, and seeking clarity about jurisdiction over Maine’s waters.  There are several articles about this available:

Also last week, the Maine Indian and Tribal State Commission (MITSC) released a report that found that the Maine legislature erred in passing laws on tribal fishing rights that were outside of the State’s jurisdiction.  Here is the report, and here is the article about the release.

When will the genocide of indigenous people end?  We are witnessing the genocide of people, right here, right now.  Please act, however you can!

If you are interested in becoming involved with other people who want to help, please contact the author by emailing: chris(at)defendingwater(dot)net