August 22, 2013

Feds join tribe in lawsuit against Maine

The Penobscot Indian Nation wants to control fishing and hunting rights on the Penobscot River.

By NAOMI SCHALIT and JOHN CHRISTIE Maine Center for Public Interest Reporting

The federal government, saying "intervention is not a step the United States takes lightly," has asked a court to allow it to join the Penobscot Indian Nation in its lawsuit against the state over fishing and hunting rights on its ancestral river.

click image to enlarge

In this 2006 file photo, then-Penobscot Tribal Council member James Neptune watches an eagle fly over the Penobscot River in Orono, Maine. The federal government, saying "intervention is not a step the United States takes lightly," has asked a court to allow it to join the Penobscot Indian Nation in its lawsuit against the state over fishing and hunting rights on its ancestral river. (AP Photo/Bangor Daily News, Kevin Bennett)

"As a part of its trust obligations to the Nation, the United States has a legal interest in protecting the Nation's reservation borders and in ensuring that the Nation can fully exercise its sovereign powers without improper interference from the State and others," wrote Justice Department lawyers in the Aug. 16 filing with the U.S. District Court for Maine.

The lawsuit has its beginning in a letter written last August by then-state Attorney General William Schneider about tribal rights to police hunting and fishing on the Penobscot River adjacent to the tribal lands in northern Maine.

The letter was sent to both state and Penobscot Nation officials after the state claimed tribal officials confronted state employees and members of the public on the River "for the purpose of asserting jurisdiction over activities occurring on the river."

Attorney General Janet Mills' spokesman Tim Feeley explained in an email: "In recent years Penobscot tribal wardens and officials have demanded that nontribal duck hunters, fishermen and boaters obtain permits from the Nation to be on the river. Tribal officials also demanded that State employees who conduct water quality monitoring on the river obtain a permit from the Penobscot Nation before they set out on the river. There is no support in the law for this demand."

Schneider wrote that the tribe can control hunting and fishing only on the islands it owns in the Penobscot River, but that "the river itself is not part of the Penobscot Nation's Reservation."

The tribe says that the state's position reverses longstanding legal interpretations that they have the right to fish and hunt on the river and to regulate fishing and hunting by others.

The lawsuit they mounted in August 2012 in response to Schneider's opinion claims the Penobscots have had authority over sustenance fishing in the river's waters "from time immemorial" and that Maine and federal law allow tribal members to fish for sea-run fish like Atlantic salmon that only exist in the river, not on their islands. The lawsuit asks the court to re-affirm those rights and to rule that the state's legal interpretations are "incorrect and misstate the Nation's rights and authorities confirmed by Congress"

Penobscot Chief Kirk Francis said that the state's position threatens to cut the tribe's members off from the body of water that gives them their name and identity.

"We are a fishing culture and a river people and once that's gone, the Penobscots don't exist anymore and that's the seriousness of the case," Francis said.

The move by the federal government to intervene in the dispute, said law professor Robert Anderson, "is an indication of the strength of the tribal claims to portions of the river and associated fishing rights within the reservation."

Anderson, a professor of Indian law at both Harvard and the University of Washington, said it's unusual for the federal government to step into a case like this.

"It's well-known in the legal community that the United States is very careful when exercising its authority as the trustee to litigate in support of the tribal claims. The motion to intervene by the United States should be perceived as implementing the federal trust responsibility to protect Indian tribal rights and resources."

Feeley said Attorney General Mills feels that it is "regrettable that Washington officials are joining this effort to take control over the river away from the people of Maine."

If Judge George Singal allows the federal government to join the case, it will have company in an already crowded list of participants. Eighteen municipalities and businesses that hold state permits to dump waste into the river, from the towns of East Millinocket and Bucksport to Verso Paper and the Veazie Sewer District, are participating in the lawsuit. They say they're afraid that the Penobscots will try to limit their ability to dump waste if the tribe has regulatory power over the river.

"It is imperative to the permittees that (they) may continue to use those waters unhindered by regulation imposed or sought to be imposed by the Penobscot Nation," they wrote in documents filed with the court.

Before formally intervening in the case, the Justice Department tried to find a way to settle the case, according to a letter sent on Aug. 16 to Attorney General Mills by Ethan Shenkman, a U. S. deputy assistant attorney general.

"As I indicated to you, we remain willing to earnestly pursue alternatives to litigation," wrote Shenkman. "It has become apparent, however, that there is not a realistic short-term prospect of settlement before the United States becomes a party to the case."

The Maine Center for Public Interest Reporting is a nonpartisan, nonprofit news service based in Hallowell. It can be contacted by email at:

mainecenter@gmail.com

 

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