Penobscots lose appeal over policing river

Posted June 30, 2017, at 6:38 p.m.
Last modified July 05, 2017, at 8:45 p.m.

A federal appeals court on Friday rejected arguments made by the Penobscot Indian Nation in a dispute over whether wardens for the state or the tribe have the authority to stop or regulate paddlers, hunters or anglers on the river.

The 1st U.S. Circuit Court of Appeals in Boston sided by a 2-to-1 majority with a 2015 ruling by U.S. District Judge George Singal that the Penobscot Indian Reservation includes the islands “consisting solely of Indian Island, also known as Old Town Island, and all islands in that river northward,” but not the river itself, based on the 1980 Maine Indian Claims Settlement Act.

The tribe sued the state in 2012 in U.S. District Court in Bangor after then Attorney General William Schneider told the nation that only the state of Maine had the authority to police the river.

Attorneys for the tribe claimed ownership of the entire river and the riverbed. They also expressed concern that its sustenance fishing rights were in danger.

Both sides appealed Singal’s ruling last year.

The 1st Circuit’s decision also found that the state has not interfered and does not intend to interfere with the nation’s sustenance fishing rights, according to the Maine attorney general’s office.

The 1st Circuit dismissed a claim that the Penobscot Indian Nation’s sustenance fishing rights were threatened. Two of three judges found the issue was not ripe for consideration because the tribe had not cited examples of tribal members who had been injured because they had not been allowed to fish in the Penobscot River.

“We are gratified by the court’s ruling and we look forward to working with the Penobscot Nation on areas of mutual interest,” Attorney General Janet Mills said Friday in a press release. “We respect and honor the Penobscot Nation’s deep historical and cultural ties with the river and look forward to working with them to preserve the health and vibrancy of this major watershed which is so critical to all the people of Maine.”

Tribal Chief Kirk Francis said Friday evening that while the ruling was a setback, the tribe will continue the fight for jurisdiction of the river, which he said is inextricably linked to the very identity of the Penobscot people.

He also said that the tribe had never ceded its rights to regulate the river, on which its members depend for the sustenance of fish.

“We’ll never walk away from this. It’s our ancestral obligation,” Francis said.

“Obviously, it’s a split decision,” Francis said of the ruling, adding that the tribe and its legal team are encouraged by a strong dissenting opinion issued by one of the three judges who weighed in on the issue.

In his opinion, Circuit Judge Juan Torruella noted that treaties signed in 1796, 1818 and 1833 giving the Penobscots sustenance fishing rights “only make sense and can only be exercised” if their reservation includes at least part of the water of the river.

He also cited a legal precedent in which the U.S. Supreme Court ruled that land and islands can include contiguous water and submerged land.

Efforts to reach lawyers for the tribe were unsuccessful late Friday afternoon.

Bangor Daily News writer Dawn Gagnon contributed to this report.

 

 

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