Termination or Extermination for Penobscot Indian Nation?
Tanya H. Lee
On June 30, a federal appeals court upheld a lower court ruling that severs the Penobscot Indian Nationfrom the waters of the Penobscot River, a ruling that Penobscot Indian Nation Chief Kirk Francis says is reminiscent of federal termination policy—or worse.
“The river and our relationship to it and the 200 islands [that form the reservation] are the core of our cultural identity. If our ability to protect the river is taken away, we lose a big part of who we are,” Francis told ICMN.
For decades, the tribe has been monitoring the quality of the water in the river and working with state and federal agencies, power companies and conservation groups to stop the industrial and municipal pollution that has led to unacceptably high levels of mercury, dioxin, PCPs and other toxins in the river.
A 2014 public health assessment by the federal Agency for Toxic Substances and Disease Registry recommended that “the general population of PIN members eat only 1-2 Penobscot River freshwater fish meals per month.” The agency also recommended that children under 8, and pregnant and breastfeeding women, eat no Penobscot River fish at all.
Dawn Neptune Adams said, “Fishing is something that we do as part of our culture; it’s been part of our culture for thousands of years. I myself am a single parent. If I could eat fish out of that river every night for dinner, that’s what I would do. I would not be at the grocery store trying to figure out how to make a small amount of food stamps stretch for the entire month. I would be eating fish out of that river just like my ancestors did, first because it’s healthy and secondly because it’s our culture.”
She added, “We have treaty-reserved fishing rights, but those fishing rights don’t do any good if we can’t eat the fish.”
Cancer rates on the reservation are two to five times higher than in the rest of the state, according to Darren Ranco, Penobscot, chairman of the University of Maine’s Native American Programs.
In 2012 Maine Attorney General William Schneider denied the tribe’s right to protect the waters on which it has relied for untold generations. In a letter, Schneider said the state had sole jurisdiction over hunting, fishing and other activities in the 60-mile stretch of the Penobscot River surrounding the islands of the tribe’s reservation. The river was no longer understood by the state to be part of the tribe’s territory.
Schneider’s stance conflicted directly with a 1988 opinion from AG James Tierney saying that the tribe had the right to take fish within the boundaries of their reservation for sustenance purposes, basing his statement on the Maine Indian Claims Settlement Act (MICSA) which was passed by Congress in 1980 to settle the claims of the Penobscot Nation, the Passamaquoddy Tribe, and the Houlton Band of Maliseet Indians to two-thirds of the state.
“Attorney General Schneider’s letter was shocking,” said Ranco, “completely different from the way the state had been seeing the river in the past.”
The tribe filed a lawsuit in federal court, alleging the state’s position violated its sustenance fishing rights. MICSA, noted the tribe, provided that members of the tribe “may take fish, within the boundaries of their…Indian reservation, for their individual sustenance.” The U.S. Departments and Justice and Interior intervened on the side of the tribe.
In 2015 the U.S. District Court for the District of Maine ruled that while the tribe did have the right to take fish from the river, the reservation included only the islands, not the water in the river. The tribe appealed and on June 30, two judges for the U.S. Court of Appeals for the First Circuit affirmed the lower court’s finding regarding the water and declined to rule on the tribe’s fishing rights.
The third appeals court judge, Juan R. Torruella, wrote a strongly-worded dissent, arguing in part that since MICSA granted the tribe the right to fish within the boundaries of its reservation, the reservation must include the waters surrounding the tribal islands; otherwise, fishing would be permitted only on dry land, a clear absurdity.
The State of Maine, said Francis, has been telling the public that the Penobscot Indian Nation wants sole control of the river. In its June 30 statement on the appeals court decision, Maine Attorney General Janet T. Mills’ office said, “The Nation filed suit to assert ownership of the entire river.…”
Francis said this is simply not true. “The narrative put forward by the state is just wrong. We’re not trying to control anyone or anything, just to make sure we can protect our distinct and unique culture for future generations. It has nothing to do with power and control.”
Ranco and Sherri Mitchell, a member of the tribe and an attorney, suggested there is another reason the state is trying to separate the tribe from the river. “I and some other scholars feel it’s a territorial taking to enable certain forms of resource extraction in the state, different mining interests, pipeline interests that would be more easily served if there were no tribal waters to contend with,” said Ranco.
According to Mitchell, one reason for the 2012 letter is that the state wants to build a half-mile wide east-west energy-transportation corridor that would include a four-lane divided highway and energy, communications, and utility infrastructure, not the least of which could be a pipeline to bring tar sands from Alberta to eastern ports. According to the Natural Resources Council of Maine, such a corridor would have to cross the Penobscot and Kennebec rivers. Crossing Maine and dealing with the Penobscot Nation would be easier than running a pipeline across southeastern Canada where several indigenous groups would have to be consulted, said Mitchell.
Francis said the tribe is considering its options, which could include asking the appeals court for an en banc hearing or appealing the case to the Supreme Court.
Mitchell said in a video on the issue produced by Sunlight Media Collective, “These rights aren’t something that we’re asking for. They’re inherent; we’ve had them forever. We did not abrogate those rights with the Maine Indian Claims Settlement Act…. There’s no separation between us and the river. We are part of the river.”
Francis, in the same video, said, “When you talk about attempted removal from territory, nullifying over a third of your reservation as you understand it, your ancestral ties to this river, it’s really concerning because you’re really moving into a termination action, an extermination action.”
The Maine Attorney General’s office declined to comment for this story and instead referred ICMN to itsJune 30 statement on the appeals court decision in which Mills said, “We are gratified by the court’s ruling and we look forward to working with the Penobscot Nation on areas of mutual interest. We respect and honor the Penobscot Nation’s deep historical and cultural ties with the river and look forward to working with them to preserve the health and vibrancy of this major watershed which is so critical to all the people of Maine.”
2014 EPA case
In a separate case that is frequently confused with this one, the State of Maine in 2014 filed suit in U.S. District Court against the U.S. EPA, alleging that EPA’s effort to impose water quality standards on waters it recognizes as being within Indian territories and lands such that the fish in those waters would be fit for human consumption, is illegal because all Maine waters are under the state’s jurisdiction and EPA’s action would create a double standard. The EPA has argued that water quality standards that do not keep the fish healthy enough to be consumed in large quantities violate the Penobscot’s Indian Nation’s sustenance fishing rights. The case is State of Maine v. McCarthy, in the U.S. District Court for the District of Maine.