PORTLAND, Maine — More than a hundred people filled a courtroom in U.S. District Court here Wednesday morning to hear arguments in a lawsuit brought by the Penobscot Nation against the state.
At issue are the boundaries of the tribe's reservation and whether those boundaries extend to the main stem of the Penobscot River for the purpose of protecting ancestral sustenance fishing rights.
According to the state's version of events, the case arose after Penobscot Nation wardens began confronting non-tribal members at public boat launches and demanding payment for access permits to the main stem of the river. At the same time several non-tribal members were also summoned to Tribal Court for alleged hunting violations.
Tensions increased, especially after the tribe announced it had exclusive jurisdiction over the main stem.
So in 2012, former Attorney General William Schneider issued an opinion that said the Penobscot Nation reservation consists of the island but not the waters. He also said the state has regulatory jurisdiction over fishing, hunting and other recreational activities on the river.
Eight days later the Penobscot Nation filed suit.
"We're focusing on, where does our right to sustenance-based fish exist? That's it." says Penobscot Nation Chief Kirk Francis. "It has nothing to do with ownership."
Francis sat in on oral arguments in federal court. He says essentially what the state is arguing is that the river isn't part of the reservation boundary.
"And I think what you're seeing here is not just an argument over where fishing can take place and who can regulate that, you're seeing a territorial removal of the Penobscot people and a separation from their cultural identity which is why we're here to begin with," he says.
In a written statement released after the hearing, the Maine attorney general's office says the Penobscots are asserting ownership and exclusive jurisdiction over 60 miles 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," the state says, and that would be "in violation of the state and federal Maine Indian Claim Settlement Acts of 1980."
Sherri Mitchell, a member of the Penobscot Nation and an indigenous rights attorney who is not directly involved with the case, says the state's position that the tribe doesn't have any rights in the waterway is absurd.
"They couldn't even — the state wouldn't even refer to the tribe as the Penobscot Nation," she says. "They kept referring to the tribe as 'the Indians.' And I think that that was strategic because if you kept saying the Penobscot in relation to the Penobscot River it weakens their position because it's obvious."
The tribe believes the reservation boundary goes bank to bank and includes the main stem. Francis says it's a position that's backed up by the Department of Interior and Congress.
The state argues that the plain language of the Settlement Acts limits the reservation to the "islands" in the river.
"To accept the Penobscot's argument would mean they own dams, boat launches and other private property along the river between Old Town and Medway," the state says.
Catherine Connors, an attorney representing municipal dischargers along the river, says the case could have broader implications for the permit process.
"For our folks, the issue is who is regulating us and another regulator would just pin over the top these people who are working on very thin margins in the first place — more costs, more regulations and that's not what was meant to happen under the Act," she says.
Francis says the tribe has no interest in interrupting any existing uses within the Penobscot River.
Dozens of people turned out to show their support for the tribe in court.
"They've always been river people," says Doug Bowen of Porter. "They've always depended on the river and they have rights to sustenance fishing and that's being taken away by the state."
Francis says the Penobscot Nation is thankful that other people care about the issue.
Judge George Singal gave no indication when he might have a decision in the case.
