Saturday, December 7, 2013
BY NAOMI SCHALIT
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 their lawsuit against the state about fishing and hunting rights on the tribe's ancestral river.
"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 it 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 such as Atlantic salmon that exist only 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 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, law professor Robert Anderson said, "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," Anderson said.
Feeley said Attorney General Mills thinks it is "regrettable that Washington officials are joining this effort to take control over the river away from the people of Maine."
(Continued on page 2)