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Role reversal: How the Penobscot Nation is suing Maine — and has the upper hand

Posted Aug. 06, 2014, at 3:24 p.m.

If you lived in Maine in 1980, then you remember that, after a huge controversy, the state of Maine entered into a historic settlement resolving Indian claims to ownership of more than half the state. In return for extinguishing all aboriginal title and claims, the Indians received, among other things, $81.5 million — about $235 million in 2014 dollars. The laws memorializing the settlement identified the Penobscot Reservation as specific islands in the Penobscot River and set up a unique state-tribe relationship, with the Maine tribes — unlike Indians in other states — subject to state laws and jurisdiction.

Or so we thought.

According to the Penobscot Nation, the settlement acts, from both state and federal law, apparently didn’t settle either the boundaries of its reservation or what or whom it can regulate. The Penobscots now claim their reservation includes at least the entire 60-mile Main Stem of the Penobscot River, from Indian Island northward to Medway, and claim they can regulate Indian and non-Indian use of the river and many of its tributaries and branches. The Penobscot Nation is pursuing this position through a lawsuit pending against the state of Maine in federal court and in water quality standards the Penobscot Nation has proposed for those waterways.

According to the Penobscots, the settlement didn’t settle things after all.

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Here’s the best part: You are paying for the Penobscot Nation to do this. Your federal tax dollars fund their pursuit of these claims to unravel the settlement acts you previously paid for in 1980. The federal government has given the tribe the money to sue the state, to the tune of about $146,000, so far. To add to that, the tribe recently requested $170,000 more from the federal Bureau of Indian Affairs to cover legal expenses. The exact amount the tribe has received to date is unclear because the federal government is not forthcoming with this kind of information or in revealing any other communications it has with Maine Indian tribes.

The state has, for years, unsuccessfully been pursuing Freedom of Information Act claims. One tidbit that eventually was revealed is the fact the federal government and the Penobscot and Passamaquoddy tribes have entered into secret pacts — secret from, among others, the state — to support these tribes’ positions.

In that vein, aside from this direct funding of the Penobscots’ lawsuit against the state to unravel the settlement acts, your federal tax dollars are also paying for the federal government to act as a party in supporting the tribe’s position in the pending litigation, which includes paying for professors’ testimony as to what was in the minds of the Penobscots when they entered into treaties in the 18th century, which they say is somehow relevant, because apparently the 1980 settlement acts don’t count.

What does it mean for you if the Penobscots prevail? They will regulate your hunting, trapping and fishing on the river. They will regulate municipal and other discharges into the river and some of its branches and tributaries, even though such discharges are already carefully controlled by the state and federal governments. If you live in a town that borders the river and thought your town ran to the middle of the river in accordance with Maine law — surprise! If you paddle, fish or otherwise use the Penobscot River in any way, you will now confront a new regulator telling you what you can or can’t do and how much it will cost you to do it. And, unlike state regulators, the Penobscots won’t even be obligated to listen to your concerns about the impact of their regulations; you will have no control or influence over those regulations. The Penobscots have even announced they intend to close the river to trapping and require a permit to access the river for any reason, making it their exclusive domain.

We represent a coalition of municipalities and other entities that have state and federal permits to use the river. As towns and companies with thin profit margins, the coalition members don’t have the endless federal resources the Penobscot Nation has. But they see the critical issues at stake here — issues we all thought were resolved decades ago. The state attorney general alone is battling against all the resources of the federal government, and she needs all the support she can get.

There’s no question the history of the treatment of Indians in this country includes tragic episodes of overwhelming resources used to renege on commitments previously made. It’s ironic the same scenario is happening again, with roles reversed.

Matt Manahan is the chair of the Environmental and Land Use Practice Group at Pierce Atwood LLP. He is a former member of the Maine Indian Tribal-State Commission.

 

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