Penobscot Nation, allies protest federal ruling on river rights

Posted July 10, 2017, at 8:02 a.m.

A little more than a week after a federal appeals court ruled that the Penobscot Indian Reservation includes Indian Island and all the islands north of it but not the river itself, an estimated 200 tribal members and elders and their supporters gathered at the Bangor Waterfront to say their fight for sovereignty is not over.

Sunday’s Penobscot River Sovereignty Rally was held in response to the June 30 U.S. Court of Appeals’ 2-1 decision in favor of the state of Maine in which the three-judge panel ruled the river surrounding the tribe’s reservation islands, including Indian Island, is not part of the tribe’s territory, according to the 1980 Maine Indian Claims Settlement Act.

The rally drew roughly 200 Penobscot tribal members and elders and allies to Bangor Waterfront Park, which overlooks the river at the heart of the matter.

“While we’re all devastated and hurt and, quite frankly, confused by a lot of the decision, we do take a lot of strength from the dissenting voice in that opinion that basically said that we have a treaty fishing right tribe here, and that obviously was reaffirmed in 1980,” Penobscot Nation Chief Kirk Francis said during the rally.

“And it makes no sense to me why the tribe wouldn’t have a right to water to do that,” he said.

Standing in front of a banner reading “It’s called the Penobscot for a reason” Francis expressed the tribe’s thanks for the support it has seen from the people of Maine.

“To have state citizens by the hundreds supporting our cause, coalitions, everybody realizing the rhetoric that we’re different, that we have different agendas, that all of these things that we hear out of Augusta, just are not true,” he said.

“We all want the same things. We want a healthy environment. We want prosperity for our children. We want to be who we are, and that’s it,” he said.

Francis said that as he sees it, the tribe’s sustenance-based fishing rights and its subsistence culture connected to the river are among the most important issues its members face and that the Penobscots have an ancestral mandate to take care of it.

But the issue is about “more than just fishing. It’s an identity issue for the Penobscot people, and it’s about the right of the unborn to be a Penobscot,” he said. “That’s the seriousness of it.”

He asked those who have shown their support for the tribe’s position regarding the river to stay engaged.

“We’re going to do whatever we have to do. As long as there’s Penobscots on that river there, I don’t see this fight going away.”

Francis and other tribal members disputed Attorney General Janet Mills’ claim that the case was about the Penobscots’ trying to police the entire river.

“The attorney general will tell you that the case was all about exclusion, this was all about protecting the Penobscots’ rights to the river. It was about making sure that everyone had equal access to the river,” he said.

But that was not the case, he said.

“The tribe has never excluded anyone from the Penobscot River and never will. We appreciate our coexisting partnerships up and down the Penobscot. … This was about protecting the cultural identity of the Penobscot people,” he said.

“It was about control for the state, quite frankly. It was about extinguishing tribal rights within the state and that’s evidenced in multiple ways,” he said.

In the appeals court decision, the majority ruled that the language of the Maine Indian Land Claims Settlement Act supports their decision and that the federal Indian law canons of construction, which require that treaty ambiguities be interpreted “liberally in favor of tribes,” do not apply.

However, Circuit Judge Juan Torruella said in a strongly worded dissenting opinion that the tribe did not cede its rights to the part of the river surrounding their islands in the 1796, 1818 and 1833 treaties with Massachusetts and later Maine, and that the 1980 Maine Indian Land Claims Settlement Act reserved what was retained in those treaties.

He said the treaties “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.

Sherri Mitchell, a Penobscot and indigenous rights attorney, said she was outraged by the level of dishonesty she has seen coming out of the Maine attorney general’s office.

She said the news release it issued immediately after the June 30 decision claimed the appeal involved the tribe’s trying to police the entire river, which she said is “a bold-faced lie.”

“As an attorney it appalls me to know that the attorney general for the state of Maine is able to put out in a public statement such boldy inaccurate information to the people of the state of Maine. This was never about the Penobscot Nation trying to take control over the entire river,” she said. “This is about the watershed area that surrounds our reservation. This has to do with waterways that have always been within our relationship to that water. It is acknowledged in countless treaties.”

Other speakers at the rally were Penobscot Dawn Neptune Adams, an environmental activist who spoke about the tribe’s relationship with the river and why it must be protected for future generations; Darren Ranco, a Penobscot and chairman of the University of Maine’s Native American Programs, who pointed out that the majority opinion in the appeal relied heavily on the opinions of Mills, who is “not an objective observer”; and Nicki Sekera, a community water rights activist.

 

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