In December, the U.S. District Court in Portland ruled on the case Penobscot Nation v. Mills. The court ruled that the Penobscot River between Medway and Indian Island was not part of the Penobscot Nation’s reservation but that the Penobscot Indian Nation retained its sustenance fishing rights. In January, Maine Attorney General Janet Mills wrote an OpEd on these pages, claiming that the December ruling resolved the dispute, and it is now time “to move on to achieve higher goals.”
I applaud any goals that promote cooperation between Indians and the state government. I hope Mills and others in the state realize, however, that Penobscots cannot simply “move on” from this case. At the risk of stating the obvious, the Penobscots’ ties to the river predate the founding of this country. To pretend that they will “move on” from a fundamental tie to the river is akin to asking any citizen of this country to “move on” from the much younger rights to life, liberty and the pursuit of happiness. Whatever the law says, I hope future conversations about the river begin by acknowledging that the Penobscots more than anyone depend on it for their survival.
At the least, the Penobscots and the state should build on their shared respect for sustenance fishing rights. As Mills notes, “the state has never prevented a tribal member from engaging in sustenance fishing. The tribe therefore should be pleased with the outcome, and we should put this litigation behind us.”
The Penobscots are pleased with this part of the ruling, but they will not put questions regarding sustenance fishing rights “behind” them as long as it is a right that has no meaning.
Currently, Penobscots and the federal Environmental Protection Agency define Penobscot sustenance fishing practices to include eating roughly a half-pound of fish per day. Current guidelines from the state, which the EPA has endorsed, recommend that people should eat no more than a half-pound per month. Mills is right: the state does not interfere with sustenance fishing. Poisonous chemicals in the river already do.
And sustenance fishing rights depend on more than making sure fish will not kill you. Those rights also depend on basic water quality standards for oxygen levels and habitat protection that ensure adequate populations of fish can survive in the river.
Fortunately, the EPA has proposed new regulations that will address some of these problems. One set of rules will reduce power plants’ emissions of mercury, a neurotoxin that ends up in the waters of Maine and the fish we eat. Mills strongly supports these tighter rules. This is the kind of common ground on which I hope Maine and the Penobscots can build.
Mills’ support for a cleaner river is curiously incomplete, however. Last year, when the EPA proposed stricter water quality standards so that Penobscots could safely exercise their right to sustenance fishing, her office balked. She opposed the rules, according to a spokesperson, because they would create “a possible double standard for Maine waters.”
But a separate standard is the whole point. Only Penobscots have sustenance fishing rights to the river. The regulations, in short, affirm that Penobscots have a right to live from their river, and that that right should not be construed as a right to die slowly.
Mills and the state need to do more than not interfere with sustenance fishing rights; they need to help make those rights safe to exercise. Doing that work will not be easy. It begins with recognizing that we cannot put the past behind us. The past is what has filled the river with dams, laced it with toxins, and reduced the fish populations. It also involves recognizing that the river means many things to many people. Penobscots, as people who have fished, hunted, made paper, logged, and lived on the river, know as well as anyone that there are many ways to make livings from the river. Talking about the ways that they and all Mainers can live from it will require the state and the tribe to talk candidly about the past as a way for charting the future.
Joseph Hall is an associate professor in the Department of History at Bates College.