Penobscot River Sovereignty Rally
Media Contacts: Dawn Neptune Adams (207-907-0460) and Meredith DeFrancesco (207-266-6846), Sunlight Action Network
When: Sunday, July 9, 2017- Noon-3pm
Where: Bangor Waterfront Park
What: Rally Response to Appeals Court Decision on Penobscot Nation vs Janet Mills, Attorney General for the State of Maine, et al.
Speakers: Chief Kirk Francis, Penobscot Nation, and other members of the Penobscot Tribe and allies
Background on Decision:
Penobscot Tribal members and allies will gather to oppose the June 30th US Court of Appeals decision in favor of the State of Maine.
In a vote of 2 to 1, the three judge panel ruled that the Penobscot River surrounding the Penobscot Nation’s reservation islands are not part of Penobscot territory. The majority ruled that the language of the Maine Indian Land Claims Settlement Act supports their decision and that the federal Indian law canons of construction do not apply, which requires treaty ambiguities to be construed liberally in favor of the Tribe.
In a strong 37 page dissenting opinion, Judge Juan Torruella opposed the majority’s reasoning and conclusions, and supported the position of the Penobscot Nation, and United States Department of the Interior, that the Penobscot Tribe did not relinquish rights to the Main Stem of the Penobscot River surrounding their islands in the 1796, 1818 and 1833 treaties with Massachusetts, and subsequently Maine, and that the 1980 Maine Indian Land Claims Settlement Act reserved what was retained in those treaties. Furthermore, the Settlement Act provides for the tribe’s sustenance fishing rights “within” the boundaries of the reservation, which only could include the Penobscot River. (Torruella, pg 61: “ The fact that the Indians can fish “within” their Reservation implies that there is a place to do so…there is no place to fish on the uplands of the Nation’s islands—which implies that some part of the River has to be part of the Reservation”) Even if this was not the case, Torruella states, Maine common law regarding the riparian rights of private land would apply.
In his dissent, Torruella also lays out a number of times when the State of Maine, the Maine Indian Tribal State Commission, and the United States government have recognized river waters to be part of Penobscot territory, including in 1995 and 1997 filings before the Federal Energy Regulatory Commission (FERC), (Torruella, pg 40: “..the Department of Interior took the position that the Main Stem is part of the Reservation, principally because the 1818 Treaty did not cede the Penobscot River to Massachusetts”.) (Torruella, pg 41: “ In a 1997 filing before FERC, Maine’s then Solicitor General Warren stated that ”the boundaries of the Penobscot Reservation ..include the islands of the Penobscot River…and a portion of the riverbed between any reservation island and the opposite shore”). Maine eel permits have advised the public: “the portions of the Penobscot River and submerged lands surrounding the islands in the river are part of the Penobscot Indian Reservation.” Most recently, in the 2007 case Maine vs Johnson, the State acknowledged, and the courts affirmed , the Penobscot Nation’s legal standing to proceed in the case. (Torruella (pg 58): “..in order for the Nation to have standing in a case concerning waste discharges into water , its Reservation had to include at least some part of the Penobscot River”).
Besides these reasons, Judge Torruella underscores the Supreme Court precedent in Alaska Pacific Fisheries v Alaska, which addressed similar ambiguities concerning the referencing of water in treaty language, and the language of the Settlement Act. (Torruella (pg 65) “..the Supreme Court’s binding precedent , especially in Alaska Pacific Fisheries, establishes that the words “lands” and “islands” can include contiguous waters and submerged lands. On the facts of the present case, there is no question that they do include the waters and submerged lands of the Main Stem.”)
The Penobscot Nation has stated, supported by the United States government and Torruella’s dissenting opinion, that the context within which the Settlement Act was drawn up must be recognized when interpreting intent. The Penobscot Nation states they did not give up the River surrounding the reservation islands in the Settlement Act negotiations. (Toruella, pg 48: “…a major purpose of the Nation in entering into the Settlement Acts—in addition to the fishing—was an increased sovereignty over its territory, and the regaining of some of the territory it had lost… Thus, surrendering the River upon which its aboriginal lands were centered was plainly not part of the Nation’s purpose—retaining the Main Stem was.”)
Quotes from Penobscot Tribal Members:
Lee Francis, Penobscot Tribal Council and educator: “I think it’s absurd to think the water is not part of our reservation. This is our homeland. Homeland does not include just the land that you see above the line of water. Our people come from this homeland and regardless of anyone’s interpretation of that—we are a people of this water. Everything about this water defines who my people are. We are a people of this place. We are a people of this River. This battle for us is about protecting our sovereign, inherent sustenance rights and maintaining the relationship between our people and this river that has existed for thousands of years.”
Sherri Mitchell, Penobscot , Indigenous Rights Attorney: I think it is important for people to recognize the dishonesty that is being displayed by the Maine Attorney General’s office. As an attorney, I have been appalled by the level of dishonesty that has been coming out of that office. In fact, in the press release that they issued immediately following the decision, they claimed that this involved the Penobscot Nation trying to police the entire river. This about the watershed area that surrounds Nation lands. This never has included the entire River. This has never been a case about policing. It has been about a territorial taking and maintaining our ancestral relationship with these waterways and our granted and acknowledged sustenance and subsistence hunting and fishing rights.”
Darren Ranco, Penobscot, Chair of Native American Programs, University of Maine, Orono:
“I believe as an educator and researcher that sharing our story in a very clear way, contextualizing it culturally, historically and legally, the more our fellow citizens will rise up, share our story, demand something that is much closer to justice and fairness, and really preserves natural resources for all of us into the future. And the work that so many people have been doing to build allies, to bring different groups around this incredibly important resource cannot be underestimated.”
Chief Kirk Francis, Penobscot Nation: ( excerpt from open letter)
“We know that for the State this is about power and control, but for us it is about so much more including our very identity as a people and the right of future generations to be Penobscot in the way the Creator intended. This action by the State is a continuation of their termination policies intended to strip away our identity as an Indian tribe…as Penobscots. We must not allow them to succeed.
In his dissent, Judge Torruella correctly asserts that this case is just another attempt to take rights away from native people. He stated that the fish, waterfowl and other animals have been utilized by the Nation since time immemorial and not solely on the Islands but in the waters of the Penobscot River. We are factually, morally, and spiritually on the right side of this issue. Our right to our practices and culture within our territory is inherent and not something anyone has given to us or can take away, as is our responsibility.
I am confident that we will all live up to this responsibility, we will never give up this fight. This is not something we can ignore or walk away from. We have an obligation to our ancestors and our descendants to continue the struggle to maintain our culture and our identity just as our ancestors have for hundreds of years. We have already started to strategize about next steps and this effort will require us all to work together in a united way with all the resources and energy we have.”