April 27, 2018
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Duck hunting revives question of who owns Penobscot River bed

John Dieffenbacher-Krall (BANGOR DAILY NEWS PHOTO BY BRIDGET BROWN) CAPTION John Dieffenbacher-Krall, Executive Director of Maine Indian Tribal-State Commission
By Eric Russell, BDN Staff

BANGOR, Maine — A well-worn issue dealing with ownership of the Penobscot River bed near Indian Island has resurfaced in recent months, which could threaten what already is a tenuous relationship between the Penobscot Indian Nation and the state.

The discussion came up this week at a meeting of the Maine Indian Tribal State Commission but wasn’t resolved, executive director John Dieffenbacher-Krall said Thursday.

“What we’re trying to do is help resolve this before it goes to litigation, which takes a big toll on the relationship between the tribe and state,” he said. “I think the matter was referred to [MITSC] so we can help avoid that.”

A handful of recent incidents involving duck hunters using the riverbed to hunt has brought the ownership discussion back to the forefront. The Penobscots believe they own the riverbed from Indian Island north, based on a nearly 200-year-old treaty with Massachusetts, Dieffenbacher-Krall said. The state, however, said the Penobscots cannot claim ownership because that land was not addressed in the state’s land claim settlement act with the tribes in 1980.

Attempts to reach Penobscot Nation Chief Kirk Francis were unsuccessful.

The hunting issue has to do with permitting. Does a hunter have to purchase a state permit or go directly through the Penobscots, who are sovereign? Or does a hunter have to buy both?

Those questions haven’t really been answered, although Dieffenbacher-Krall said a ruling in Penobscot Tribal Court involving lumber at the bottom of the river did settle the matter. Unfortunately, he said, the Maine Attorney General’s Office does not recognize that decision.

Paul Jacques, deputy commissioner for the Department of Inland Fisheries and Wildlife and a liaison to MITSC, had been asked to discuss the issue with key people in Augusta, but Jacques declined to comment Thursday.

Kate Simmons, spokeswoman for the Attorney General’s Office, said from the state’s perspective, duck hunting on the river requires a license from the state of Maine, while hunting on Penobscot tribal lands requires tribal permission or a tribal license.

That doesn’t answer the question of who owns the riverbed, though. For that, Simmons said real estate questions are better answered in specific contexts, but, in general, the riparian, or shore, owner owns to the middle of a riverbed.

Simmons said her office is not involved in any current negotiations with anyone regarding the Penobscot River and was careful in describing the state’s relationship with the tribes.

“Issues pertaining to ‘sovereignty’ were a major focus of the talks that [led] to the state and federal Settlement Acts of 1980, and the resolution of those issues is clearly and carefully described in those federal and state statutes,” she said in an e-mail.

Duck hunting season generally begins in October and continues into November in some parts of the state. Dieffenbacher-Krall said there is some urgency to resolve the matter before then, but he was unsure whether that would happen.

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