BELFAST — I am grateful to Judge Juan Torruella for his eloquent dissent in Penobscot Nation v. Mills, in which the 1st U.S. Circuit Court of Appeals ruled that the state of Maine has the right to regulate hunters, fishermen and paddlers on the Penobscot River.

Torruella establishes the many clear and compelling legal precedents – both in Maine law and at the level of the U.S. Supreme Court – that recognize and affirm that the traditional territory of the Penobscot Nation includes both land and waters. These waters encompass the natural resource of the main stem of the river, which, in fact:

• Was never ceded by the Penobscot Nation.

• Has often been guaranteed by state representatives in perpetuity.

• Is now protected by the U.N. Declaration on the Rights of Indigenous Peoples as an inalienable aboriginal right.

That the two other judges in this case upheld the position defended in court by Maine Attorney General Janet Mills and granted the state sole control over the Penobscot River would be cause for maddening frustration and despair, if it were not true that increasing numbers of Maine’s people understand the history of the state’s rapacious seizure of Wabanaki territory, whether by brute force or conscious deceit.

Our patience is wearing thin: There is a debt to be paid, and power to be shared, and we know it. There will come a time when such a lopsided policy will not be tolerated by a majority of decent citizens.

In his dissent, Torruella explains this history, citing the treaties of 1796, 1818 and 1833 and the fact that when the Penobscot Nation was persuaded to trade away portions of land on the opposite shore, the common understanding was that a “thread line” extended up the middle of the river. Submerged land between the reservation islands and that thread line was always retained by the nation.

If you talk with Penobscot people, you will hear many different opinions, but one idea will be unanimous: The water in the Penobscot River is indistinguishable from the blood that flows through Penobscot veins. The people know and respect the river that has sustained their lives for 12,000 years, until recent pollution jeopardized it.

The U.S. Department of the Interior as recently as 2015 underscored the importance of the Penobscot people’s collaboration with the state, as an equal partner in stewardship of this life source. And last December, the Environmental Protection Agency established once and for all the criteria for a healthy river. Without clean, unpolluted water, the nation’s “right to sustenance fishing” is rendered meaningless – a cruel joke.

Yet in an appalling perpetuation of Colonial behavior, the federal appeals court has run roughshod over the interests of the Penobscot Nation, artificially divorced the nation from its lifeblood and arbitrarily handed over total control of the river – and the quality of its water – to the state. It will not stand: When the law ceases to do justice, it is the law that must be changed. The elevated cancer rate among Penobscot people, whose diet is based primarily on fish, remains a stark rebuttal to the attorney general’s assertion that she respects the nation’s sustenance fishing rights.

We need to walk this earth and ply these waters together, to exercise power with one another, not power over one another. We need to let the legally defined borders evaporate and recognize that we are living side by side with people who, in many ways, have shown a superior understanding of reality (and one sustained by hard science) to our own non-native understanding, with its worship of property and profit, of I-me-mine. “Those people” over there have come very close to losing everything – their language, their children, their life expectancy. Yet here they are, patiently teaching us the wisdom of removing dams, of cleaning up the water and restoring fish runs.

Mainers are paying attention, and in growing numbers trust the stewardship of the Penobscot Nation over the state’s capacity to protect our environment. So this latest court decision, while a thorn in our sides and an ache in our hearts, is only temporary. We will prevail, and together, because we must.

 

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