A federal appeals court has again ruled that the boundaries of the Penobscot Nation do not extend to the waters of the Penobscot River near its reservation lands. It’s the latest setback for the tribe, which has argued in court for nearly a decade over its authority over the river.
The case began in 2012, when the Penobscot Nation took the state to court over asserting its authority over about 60 miles of the river near the tribe’s reservation lands. The tribe sought control over hunting, fishing and other activities. Penobscot Nation Chief Kirk Francis said that the tribe never ceded its rights to the river and has long had a cultural connection to it.
“It was about much more than simply fishing, or who controls what,” Francis said. “This is really about the tribe really trying to maintain its inherent identity, its ancient identity, and continuing to be Penobscot.”
In 2017, a federal appeals court ruled that the tribe did have sustenance fishing rights in the Penobscot River, and authority over islands within the river — but not the river itself.
In the years since, the Penobscot Nation and the U.S. government successfully petitioned the court to vacate that decision and grant an “en banc” review, which allowed the case to be reheard by a panel made up of old and new judges from the First Circuit Court of Appeals.
In a 3-2 decision released on Thursday, Justice Sandra Lynch largely affirmed the appeals court’s original ruling. Lynch wrote for the court’s majority that according to multiple statutes, the Penobscot reservation “plainly and unambiguously includes certain islands” in the main stem of the Penobscot River — but not the river itself. Lynch even quoted the dictionary definition of an island as a “piece of land completely surrounded by water.”
“We also hold that even if there were some arguable ambiguity as to the language at issue, the context, history, and clear legislative intent require rejection of the Nation’s claim,” Lynch wrote.
In a dissent, First Circuit Justices David Barron and O. Rogeriee Thompson challenged that interpretation, noting the influence of the river on the tribe’s culture and language, and the nation’s “historic sovereign rights” to fishing and trapping.
Penobscot Nation Chief Kirk Francis says the tribe plans to “pursue all legal avenues” — including a possible petition to the U.S. Supreme Court — to keep fighting a decision he fears could threaten the tribe’s ability to protect the river and practice traditions and ceremonies.
“What’s at risk here, really, is the inability to protect those sustenance-based resources, in a way that recognizes a subsistence lifestyle. And a people that obtain and consume those resources at a far higher level than anyone else in the state,” Francis said.
A spokesperson for the Maine Attorney General’s office did not return a request for comment.
This article appears through a media partnership with Maine Public.