There are some unfortunate myths and mistruths being spread about the Penobscot River and about the recent ruling of Judge George Singal in the United States District Court.
One commentator even claimed that the state has tried to “remove territory from indigenous people” and taken “confrontational” or “oppressive” actions against Penobscot tribal members.
In fact, the state has never sued a tribe or taken any action against a tribe. The state merely has defended itself in lawsuits brought by various tribes at various times, most recently the Penobscot Nation’s lawsuit over rights to the Penobscot River.
What started this suit?
In August 2012, Attorney General William Schneider learned that tribal officials had stopped nontribal duck hunters on the river and told them a tribal permit was required to hunt anywhere on the river. The state later learned the tribe summoned hunters to tribal court — summonses the tribe admitted were unlawful. Schneider issued an opinion regarding jurisdiction on the Penobscot River and invited the tribe to meet with him. Instead, the Penobscot Nation filed suit in federal court, claiming its reservation included the entire river from Old Town to Medway, including the submerged lands, and that it had exclusive jurisdiction over the waterway — presumably including dams, boat ramps and private properties along the River.
Our office and the Maine Department of Inland Fisheries and Wildlife defended the lawsuit, arguing the Penobscot River, the state’s largest navigable waterway, has always been held in trust for the benefit of all people. The court agreed with the state that the plain language of the 1980 Settlement Acts defines the Penobscot Indian Reservation as consisting solely of the islands and not the river.
The 1980 Settlement Acts brought Maine’s tribes federal recognition and a stream of revenue amounting to at least $60 million per year in federal funds for health care, law enforcement, courts, education and administration, in addition to substantial state funds for education and other programs.
The tribes also received more than $80 million — approximately $230 million in today’s dollars — to acquire approximately 300,000 acres of land. In exchange, the tribes agreed their claims would be extinguished and the state would retain regulatory jurisdiction over all the state’s natural resources.
Public access to Maine’s magnificent rivers and Great Ponds has always been protected by law. When the federal government, the tribes and the State of Maine negotiated the 1980 Settlement Acts, no one ever suggested the state would not continue to hold the river in trust for the benefit of all people.
After more than two years of litigation and thousands of pages of court filings, Judge Singal last month agreed with the state that the statutes unambiguously state the Penobscot reservation does not include the waters of the Penobscot River.
Singal also ruled that Penobscot tribal members have a right of individual sustenance fishing in the Penobscot River under a separate provision of law.
The tribe has said the lawsuit was all about sustenance fishing rights, though the state has never prevented a tribal member from engaging in sustenance fishing. The tribe therefore should be pleased with the outcome, and we should put this litigation behind us.
Thanks to Maine Sens. Edmund Muskie and George Mitchell, Maine has strict water quality standards, and the recovery of the Penobscot River in recent decades is one of our state’s greatest environmental success stories. We constantly are working to address the effects of historical pollution and to restore populations of sea-run fish. Maine’s attorneys general from Jon Lund to Steve Rowe and Janet Mills have all taken this trust responsibility very seriously.
That is why I support the Obama administration’s Clean Power Plan and other regulations to curb dirty power generation in western states. The mercury pollution from those sources, brought here by weather systems, is one of the biggest causes of Maine’s fish consumption warnings.
We should all work toward a healthy and vibrant Penobscot River that benefits all our citizens while honoring the Penobscot Nation’s historic bond with the river. Judge Singal thoughtfully answered the questions the tribe presented to the court. Now we should move on to achieve higher goals.
Janet T. Mills is Maine’s attorney general.