May 24, 2018
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Indian sustenance fishing rights in the Penobscot River must continue

By Paul J. Bisulca, Special to the BDN

I read the Sept. 18 article, “Penobscot Nation lawsuit could have broad effects for river communities, businesses, says attorney,” and as Yogi Berra might say, “It was deja vu all over again.”

I say that because this article is about the same attorney, Matthew Manahan, the same river and the same issue as 17 years ago. And the same tactic was employed by Manahan to spread fear among communities and businesses, while raising protection money from those communities and businesses. You know what? The hypothetical danger that the Indians were poised to take over the Penobscot River, voiced by this attorney, never materialized. The sky did not fall, and Indian sustenance fishing rights were respected.

The issue springs from the 1980 Indian Land Claims Settlement, codified by the federal government, in which Maine agreed that its laws and regulations could not prohibit the Penobscot and Passamaquoddy people from taking fish for sustenance within the boundaries of their respective Indian reservations. The Penobscots understood that the Penobscot River was part of their reservation and that they could fish unmolested in that river. They have done so for more than 30 years.

Shortly after the settlement, a complaint by the Maine Department of Inland Fisheries and Wildlife caused Maine’s attorney general on Feb. 16, 1988, to issue an opinion in which he affirmed Indian fishing rights in the Penobscot River within the boundaries of the Penobscot Reservation.

In June 1995, Manahan, in his defense of pulp and paper interests in several hydroelectric permitting actions, advanced in a letter to the Federal Energy Regulatory Commission the theory that the Penobscot Nation’s reservation included only the tops of the islands in the Penobscot River. This is what I termed the “nullity theory” because it nullified the Indian sustenance fishing right to which Maine had agreed in 1980. For those who are not familiar with the islands in the Penobscot River, there are no fishing opportunities on the islands.

Bennett Katz, then chairman of the Maine Indian Tribal-State Commission, wrote in a Nov. 1, 1995, letter to the regulatory commission, “This is the first time these particular arguments have come to the attention of the Commission. I was the Majority Leader of the Maine Senate at the time of the enactment of the Maine Indian Claims Settlement Act. I cannot imagine that this meaning was intended by my colleagues in the Legislature who voted in support of the Settlement. Furthermore, I am certain that the Penobscots never would have agreed to the Settlement had it been understood that their fishing rights extended only to the tops of their islands.”

In the end, the commission continued to support Indian sustenance fishing rights in the Penobscot River.

Manahan’s argument is that Indian ownership of the river bed “could have significant consequences for non-Indian waste discharge licensees discharging into the river or its tributaries.” When I started as a volunteer in the 1990s, working on the problem of consumption advisories issued by Maine not to eat Penobscot River fish, it turns out that Manahan was correct. There were significant consequences, and we can now eat the fish.

And now it seems likely that there will be sea-run fish in the river once again. If these are the consequences to which Manahan refers, I think we can all benefit from them.

So, why is there now a problem leading to the Penobscot’s lawsuit? It is my understanding that IF&W, armed with a new attorney general’s opinion issued on Aug. 8 which adopts the Manahan “top of the islands” argument and, in the attorney general’s view, extinguishes Penobscot fishing rights, has aggressively asserted its belief that it has jurisdiction over all lands under the Penobscot River.

Why the IF&W and the attorney general’s office chose to do this, I do not know. But I am informed that appeals by the Penobscots to the LePage administration to maintain the jurisdictional arrangement reached with IF&W two decades ago apparently were unsuccessful. So the apple cart turned over.

Blame whom you wish, but save your money, and talk to your Indian neighbors. I am certain the situation is not as grim as some of you may have been led to believe in the BDN article.

Paul J. Bisulca is a former Penobscot Nation representative to the Maine Legislature and the former chairman of the Maine Indian Tribal-State Commission.

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