Over the past six years, the Maine Indian Tribal-State Commission, or MITSC, has studied and articulated the effects of the implementation of the Settlement Acts on the federally recognized Wabanaki tribes in Maine. While striving to be fully cognizant of the impact of these laws, the commission has focused on the development of mutually beneficial solutions to the multitude of problems resulting from these acts.
The recent mixed decision in Penobscot Nation v. Mills resolves the conflict over the interpretation of reserved aboriginal rights of sustenance in favor of the Penobscot Nation. In deciding for the Penobscots, upholding their ancient, never-relinquished sustenance rights in the main stem of the Penobscot River, the court rejected the state’s narrow notion that sustenance fishing within the Nation’s reservation could only be done from the Nation’s islands — read, “not in boats.” In fact, the court acknowledges, “sustenance fishing is outside the regulation of the state.” This is the same position taken by the MITSC in its recent special report on the saltwater fishing rights of Passamaquoddy.
In fully upholding broad sustenance practices guaranteed to all Wabanaki tribes in many historic treaties and by applying the canons of construction of federal Indian law that require a court to construe “ambiguities [like the scope of sustenance rights] in the favor of the Indians,” the court laid the foundation for significant remedies to some of the most troubling problems presented by the settlement acts.
Still, there is much in the decision that is concerning. At one point, the court quotes an opinion issued by the office of Maine’s attorney general in 1997 that reads, in part, “The Tribe’s sustenance fishing rights under the Settlement Act did not guarantee a particular quantity or quality of fish.” This quote comes midway in a description of the many steps the Penobscot Nation has undertaken in the past 35 years to return the river to health. The attorney general’s lack of concern for the quantity and quality of the fish in the face of the Nation’s program to educate its citizens about the danger of consuming the fish they catch in the river should give all of us pause. And it should make us ask, why is the reservation of Aboriginal sustenance rights so important to all who live and vacation in Maine?
Most of the waters in Maine compromise “legacy pollution” and water quality standards that do not go far enough to improve fish stock so they may safely be consumed. Last winter, this came to a head when the federal EPA found that Maine has authority to promulgate water quality standards within the Penobscots’ reservation sustenance fishery but disapproved a number of those standards because they do not adequately protect the quality of fish for tribal sustenance — read, “they eat the fish” — and the proposed standards were not sufficient to preserve the health of sustenance fishers who regularly consume the fresh water fish they catch.
The court’s summary judgment rulings in Penobscot Nation v. Mills were made in the context of challenges we all face in addressing the huge environmental legacy we have inherited and will pass on to our children. We also must determine the extent of our humanitarian concerns and the actions we will undertake in an effort to do the “good” or “right” thing. But more than anything, the Penobscot Indian Nation has challenged us to see the Penobscot River — maybe all rivers — from the perspective of a people who do not differentiate between the water in the the river and the blood in their veins. The legacy of the Penobscot People and the Penobscot River is one of shared DNA.
What would you do to save the life of a relative? To insure a healthy and life-preserving legacy for your children? To make sure the water is clean and that fish is food? Consider these questions as you consider your resolutions for this new year.
Jamie Bissonette Lewey is chair of the Maine Indian Tribal-State Commission.