The Penobscot Nation has asked the U.S. Supreme Court to decide if its boundaries include the Penobscot River waters that flow near its reservation islands.
The tribe is appealing a 3-2 decision issued in July by the 1st U.S. Circuit Court of Appeals that found the 1980 Maine Indian Claims Settlement Act gave ownership of the land but not the river to the Penobscots. That ruling upheld a decision by a federal judge in Maine.
The appellate court in Boston upheld the tribe’s right to sustenance fishing in the river and authority over the nation’s islands in the river, but not the river itself. That authority belongs to the state of Maine, the courts have ruled.
The petition, filed Dec. 7, is asking Supreme Court justices to hear oral arguments in the case. The tribe’s attorneys said that the 1st Circuit’s decision this summer “strikes a devastating blow to the [Penobscot] Nation’s sovereignty.” The petition also said that the tribe refers to itself as “Pa’nawampske ’wiak,” which means “people of where the river broadens out,” a telling example of how important the river is to its culture.
“Since time immemorial, the nation has centered not only its domain, but also its economy, culture, and spiritual beliefs, on the main stem of the Penobscot River,” the lawyers said. “The decision strips the nation of the heart of its homeland, deprives its on-river hunting/trapping/fishing regulations of effect, guts its game warden service, and constricts its tribal court jurisdiction.”
The petition argues that the majority of judges in Boston ignored the dozens of decisions the Supreme Court has issued in favor of Native Americans in disputes over sovereignty.
Penobscot Chief Kirk Francis said Monday that the river is central to the tribe’s sovereignty.
“Ensuring that our namesake river continues to be a part of our reservation is central to the Penobscot Nation’s sovereignty,” he said. “We never ceded our rights to our river, and are devastated by the 1st Circuit’s evisceration of our agreement with the state, which was ratified by Congress, to protect the nation’s pre-existing reservation and our fishing rights within that reservation. We hope that the U.S. Supreme Court will right this grave injustice and provide clarity for courts when construing settlement acts affecting tribal nations throughout the land.”
Francis also said that the Biden administration supports its position.
The Maine attorney general’s office declined to comment on the tribe’s appeal to the nation’s high court.
The initial case was filed in 2012 in federal court in Bangor over a jurisdiction dispute regarding who has authority over the waters of the Penobscot River surrounding the reservation. Although the tribe has its own warden service, the court ruling said that it only has authority over the land. Other state entities such as the Maine Department of Inland Fisheries and Wildlife and the Maine Warden Service have jurisdiction over other land and waters.
Courts rejected the Penobscot Nation’s argument that it owned the water in the river.
The Wabanaki tribes in Maine have claimed for years that the 1980 federal settlement act did not grant them sovereignty over the reservations the same way it did to other tribes in treaties. Federal judges have found that the act defined the tribes’ relationships to the state as being the same as the relationships it has with municipalities.
The chances that the Supreme Court will hear oral arguments in the case are small. Justices agree to consider just one out of every 100 cases they are asked to review.
The most recent Maine case before the Supreme Court challenges the state’s ban on public funding for religious schools. Justices heard oral arguments earlier this month but are not expected to issue a decision before spring.