Attorneys for the Penobscot Nation and the Maine Attorney General’s Office sparred Wednesday over the boundaries of the tribe’s reservation in a closely watched case concerning tribal rights to the Penobscot River.

The case, which stems from a 2012 state interpretation of reservation boundaries, highlights the growing tensions between the state and Maine’s American Indian tribes as well as ongoing debate over a 35-year-old agreement that was supposed to resolve long-standing territorial disputes. Instead, the parties have spent more than three years – and filed thousands of pages of legal briefs – arguing in U.S. District Court over whether the Penobscot Nation’s reservation extends “from bank to bank” of the Penobscot or ends at the shorelines of the tribal islands dotting the river north of Old Town.

“That is the major question of the case: Where is the tribe’s reservation?” Penobscot Tribal Chief Kirk Francis said after the hearing in U.S. District Court.

FISHING RIGHTS, OR BROADER ISSUES?

But the parties even disagree on the scope of the tribe’s lawsuit and its implications for river users. While the tribe’s attorneys argued that the case is primarily about sustenance fishing rights, lawyers for the state and intervenors warned that the lawsuit could have implications for riverfront landowners, private industry and municipalities that discharge wastewater into the Penobscot, and for recreational users of the river.

“The Penobscot’s lawsuit would create a two-tiered system on Maine’s largest navigable river, potentially excluding non-tribal members from using the river, in violation of the state and federal Maine Indian Claims Settlement Act of 1980,” the office Maine Attorney General Janet Mills said in a statement.

During Wednesday’s two-hour hearing, U.S. District Judge George Singal peppered attorneys from both sides with questions about what he called a “very complex, difficult case.” Singal told attorneys he would begin drafting his decision but did not give a time frame for his ruling.

Penobscot leaders and attorneys for the Obama administration, which joined the case on the tribe’s behalf, said the tribe never ceded its “aboriginal rights” to sustenance fishing both from islands and in the main stem of the river under the 1980 settlement. The tribe also asserts that it has the authority to regulate hunting, trapping and taking of wildlife within the reservation, although tribal leaders said Wednesday they have no intention of attempting to change existing uses of the river.

“Our contention is (the reservation) is the Penobscot River from bank to bank,” Kaighn Smith Jr., the tribe’s attorney, told Singal.

But Maine Assistant Attorney General Jerry Reid countered that the tribe is now attempting to reinterpret the 1980 agreement by extending the boundaries of the reservation. Had the state’s intention been to include the main stem of the Penobscot within the reservation, the legislative record would be filled with objections from mill owners and dam owners, he said.

“The Maine Legislature never would have agreed to give up control of 60 miles of the Penobscot River,” Reid said.

Eighteen municipalities, town sanitary districts and industries that have permits to discharge wastewater into the river – including Bangor, Millinocket and companies such as Verso Paper and Lincoln Pulp and Tissue – filed as intervenors in the case to fight what they view as the Penobscot Nation’s overreach. Attorney Catherine Connors, who represents the intervenors, said if the tribe is able to claim the river as part of the reservation, “that means they can regulate what we do in the main stem.”

“And that is what this case is about,” Connors said.

But the Penobscot Nation’s attorney, as well as Chief Francis, dismissed such statements as “scare tactics” intended to distract from the narrow focus of the case. Such discharges are already regulated through state and federal permitting processes.

“We are not claiming the right to regulate non-member discharges,” Smith said. But upon further pressing from Singal, Smith said the question of whether the tribe has the authority to set water quality standards in the river – should the reservation include the main stem of the river – has not yet been litigated.

Another lingering question raised repeatedly Wednesday was whether the Penobscot reservation includes the riverbed or riparian areas. Smith said the tribe is not arguing that in this case. But Steven Miskinis, the U.S. Department of Justice attorney arguing the case for the federal government, said the government believes the riverbed should be included in tribal lands.

The Penobscot case drew several dozen people to the federal courthouse in Portland and is being closely watched by American Indian organizations outside of Maine.

For instance, five members of Congress who are leaders of the Congressional Native American Caucus took the unusual step of filing an amicus, or “friend of the court,” brief on behalf of the Penobscot Nation. The lawmakers said that when Congress ratified the 1980 settlement, lawmakers “did not intend to leave Maine with the discretion to ignore the Penobscot’s waterways and subsistence fishing rights, much less divest the Penobscot of their sovereign control and aboriginal rights.”

“Because the State has pointed to no clear statement – or even an ambiguous one – suggesting Congress intended to extinguish the Penobscot’s hunting, fishing, and trapping rights in the Penobscot River, this Court must interpret the statute to recognize those rights and protect them from conflicting state law,” wrote the members, U.S. Rep. Betty McCollum, D-Minn.; U.S. Rep. Tom Cole, R-Okla.; U.S. Rep. Raul Grijalva, D-Ariz.; U.S. Rep. Ron Kind, D-Wisc.; U.S. Rep. Ben Ray Lujan, D-N.M.

DISPUTE BEGAN DECADES AGO

The dispute between the Penobscot Nation and the state simmered for several decades – over the course of numerous governors and attorneys general – but boiled to the surface in August 2012. At the time, Attorney General William Schneider wrote in a letter to the heads of the Maine Warden Service and Maine Department of Inland Fisheries and Wildlife that the Penobscot reservation does not include the main stem of the river.

“Like private landowners, the Penobscot Nation may also restrict access to their lands, here islands, as it sees fit,” Schneider wrote. “However, the river itself is not part of the Penobscot Nation’s Reservation, and therefore is not subject to its regulatory authority or proprietary control. The Penobscot River is held in trust by the State for all Maine citizens, and State law, including statutes and regulations governing hunting, are fully applicable there.”

The Penobscot Nation filed suit in federal court 12 days later, claiming that any attempt to enforce state law against tribal members who are sustenance fishing in the river “threatens to violate the federal law right of the Nation’s members to be free from state authority over such activity.”

The Maine Attorney General’s Office is also suing the U.S. Environmental Protection Agency over water quality standards near Maine’s Indian tribes.

Kevin Miller can be contacted at 791-6312 or at:

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