In September, Portland followed Bangor, Brunswick, and Belfast and voted to replace Columbus Day with Indigenous People's Day. While the holiday recognition — which lands on October 9 this year — is informal (it's not federally recognized), we think it’s a useful time to reflect on Maine’s contentious relationship with some of its indigenous residents, specifically the Penobscot Nation.
About 150 miles north of Portland on a reservation called Indian Island, a long-simmering conflict between the native residents and the State intensified this summer prompting Kirk Francis, the tribal chief of Penobscot Nation, to decry it as “cultural genocide.”
During the summer, the First Circuit Court of Appeals in Boston ruled against the Penobscot after a four-year-long dispute over who has jurisdiction and full fishing rights over a crucial section of territory: a 61-mile stretch of the Penobscot River.
At the center of the dispute are differing interpretations of Maine’s 1980 Indian Claims Settlement Act., which says the Penobscot Indian Reservation consists “solely of Indian Island, also known as Old Town Island, and all islands in that river northward.”
The state of Maine and Attorney General Janet Mills interpret this line literally, while the Penobscot claim their ancestral right as the islands, the riverbank, and the waterways connecting them, citing a Supreme Court precedent that defined islands as including submerged land.
Here’s what Mills had to say about the Supreme Court's decision in August: “We are gratified by the court’s ruling and we look forward to working with the Penobscot Nation on areas of mutual interest. We respect and honor the Penobscot Nation’s deep historical and cultural ties with the river and look forward to working with them to preserve the health and vibrancy of this major watershed which is so critical to all the people of Maine.”
Representatives for General Mills declined to comment further, because the case may still be ongoing, as the plaintiffs “may still request an en banc review" a session of court where it's is heard before all judges instead of a select panel, something that's typically reserved for unusual and/or complex cases.
The Penobscot people are not deterred by the ruling and are currently discussing political strategies internally which will determine their next step.
“The entire community and all of our people who have been active in the fight are very upset but still motivated to continue our stewardship and protection of the river,” said Nick Bear, a Penobscot resident on the reservation. “It's not over yet. We are still here and we will still fight.”
Setting the Record Straight
Some members of the Penobscot Nation worry that Mainers consumed a “damaging misleading narrative” on the case earlier this year when news broke about the Supreme Court’s decision. Chief Francis says the state refused to mention critical facts.
“I have concerns with the way the state has tried to report the facts of the case, and the way it’s been printed, because it runs contrary to what the case really means for the tribe,” said Francis. “Some of the reporting has been flat out wrong. Our goal was never to regulate the river. The tribe just wants to protect its cultural identity.”
The mainstream narrative, Francis says, is one built on animosity and fear-mongering, despite the fact that many Maine citizens support the rights of the Penobscot, as evidenced by the typically large turnout of people from Old Town, Orono, and Bangor to Penobscot rallies around the issue, and communal, respectful encounters between non natives and Penobscot people on the river.
Tribal Chief Kirk Francis of the Penobscot Nation. Photo by: Bob Nichols
According to Francis, the state has painted the Penobscot as a tribe that wants to “police” the river and exclude non-natives from using its resources. Mills expressed this concern back in 2015 in a statement to the Press Herald, which has helped uphold the narrative that the Penobscot are trying to take over control of the entire river.
This divisive sentiment was also expressed earlier than that by Pierce Atwood lawyer Matt Manahan, when he wrote to the Bangor Daily News in 2014 that the Penobscot were using “your tax dollars" for "testimony as to what was in the minds of the Penobscots when they entered into treaties in the 18th century, which is somehow relevant” and that the Penobscot people had formed “secret pacts” with other tribes to decide who can or can’t use the river’s resources.
“There’s no question the history of the treatment of Indians in this country includes tragic episodes of overwhelming resources used to renege on commitments previously made,” wrote Manahan. “It’s ironic the same scenario is happening again, with roles reversed.”
Chief Francis says this couldn’t be further from the truth.
“They’re trying to create controversy. You won’t find one person in the state that said that the tribe ever tried to exclude them from the river,” he said. “We agree that the river is a resource for all Maine people, but the state is saying it’s for everyone except the Penobscot.”
It’s time to revisit this case, explore its nuances, and dispel some myths attached to it, because they have important implications for not just the environmental sustainability of the river, but the Penobscot’s cultural integrity, relationship with the state, and overall health and wellbeing.
Myth 1: The Penobscot Were Looking For a Dispute
What’s been reported in most the stories around this case is technically true: the Penobscot Nation did sue the state of Maine. But what’s often glossed over is why they sued in the first place.
Think of it this way. Imagine you’re a homeowner and one day you get mail from the state government stating that their opinion is that the land that your house is on is actually owned by the state. Wouldn’t you sue?
That’s essentially what happened in 2012, when then-Attorney General William Schneider presented a memo to the Penobscot tribe, stating their opinion that “the River itself is not part of the Penobscot Nation’s Reservation, and therefore is not subject to its regulatory authority or proprietary control.”
According to Francis, this was a departure from all previous state and federally held positions. In the 2007 Maine Supreme Court case Maine vs. Johnson, the highest court recognized the waters as part of the Penobscot territory, as did the Bureau of Census in their 2010 census report. The U.N. Declaration on the Rights of Indigenous Peoples labeled both the land and water as an inalienable aboriginal right. Once the lawsuit kicked off, the federal Department of Interior and the Department of Justice backed the Penobscot in this case, and called it an “unlawful taking.”
Schneider’s memo itself read, “if you disagree, this matter should be settled in the appropriate forum,” basically baiting the Penobscot into filing a lawsuit.
“They were very clear that they wanted to litigate this; we had no choice but to file,” said Francis. “The case got turned into something we never wanted. It’s a forced land-taking, a genocidal act in my mind.”
Myth 2: The Penobscot Don’t Have a Historical Claim to the River That Bears Their Name
A European map of New England before it was colonized. Photo from the Osher Map Library.
According to Francis, the state said that the Penobscot don’t have a historical presence on the river, which to him is “a ludicrous statement” easily refuted by picking up a history book.
The Penobscot tribe is part of the Wabanaki Confederacy, a coalition of five tribes — the Penobscot, the Passamaquoddy, the Abenaki, the Maliseet, and the Mi’kmaq — all of which have lived, hunted, and fished in New England since pre-colonial times.
Centuries ago, the entire 109-mile long river belonged to the Penobscot. Today, they are just fighting for jurisdiction and regulatory authority over hunting and fishing in just the 61-mile “main stem” of the river.
“The state of Maine has taken the Settlement Act and interpreted it so narrowly to continue the institutionalized oppression against us,” said Francis.
The Penobscot’s rights to these waterways are analyzed thoroughly (and sourced extremely well) in Maria L. Girouard’s 2012 University of Maine master's thesis on the topic: "The Original Meaning and Intent of the Maine Indian Land Claims: Penobscot Perspectives." In it, Girouard — who is a historian, Penobscot native, and Health and Wellness Coordinator for the advocacy group Maine-Wabanaki REACH — writes that the language in the Settlement Act “does not accurately reflect their original meaning and intent in settling the land claims.” It contained ambiguities that could be exploited by Maine’s courts. Because of this, Girouard argues, it’s necessary to interpret the act with the historical context of previous treaties — which the state has not done.
“The Maine Indian Claims Settlement Act (MICSA) was more than an attempt to get back land. The tribes were adamant that in order to survive they needed to be in control of their own affairs. The Maine Indian Claims Settlement Act was intended to be the vehicle the tribes needed to move themselves away from dependency and into prosperity,” writes Girouard. “MICSA was initially framed as victorious, the “Biggest Indian Victory Since the Little Big Horn,” but it soon became apparent that the tribes’ interpretation of the legal pact differed from state government interpretation. The urgency in which the complex settlement was negotiated increased the likelihood that the Act would contain ambiguities or grey areas that were expected to be worked out later. Tribal negotiators state that their understanding when they negotiated the settlement was that it was intended to be fluid and dynamic, changing over the years, rather than fixed and rigid.”
Judge Juan Torruella, who was the only judge to rule in favor of the Penobscot in the First Circuit Court of Appeals, said that “statutes are to be construed liberally in favor of the Indians, with ambiguous provisions interpreted to their benefit.” He concluded that the bed of the Penobscot River is submerged land, and, because that river is non-tidal, this submerged land is not owned by the state, but rather privately owned.
One of the main reasons why the Penobscot interpret MICSA to include the river as part of their territory is because they rely on the river to travel to and from their islands. Just as it’s illegal to sell landlocked land, the Penobscot argue that it’s illegal to take away their rights to the connective waterways in between their land.
Myth 3: The Penobscot Want Dominance Over the Entire River
Chief Francis argues that perhaps the biggest misconception surrounding the lawsuit deals with the Penobscot’s motivations behind it.
The tribal seal of the Penobscot Nation.
“It’s not about taking the river back,” he said. “We recognize where we live today, a co-existing society with non-natives. We value the great relationships we have, like with the town of Old Town.”
Although the Penobscot want to be free to control their own fishing practices, this doesn’t mean they aren’t willing to work with non-natives who already use the river’s resources. They’ve been working collaboratively with Mainers for decades, from duck hunters and kayakers to campers and recreational fishers.
Tribal game wardens have a "cross-deputization agreement" with the state of Maine. Penobscot’s wardens go to the same school as the non-native wardens and enforce the same laws. When one of their wardens pulls up on a boat with non-natives, they are treated the exact same way as when a state warden approaches them. The same questions are asked: “Do you have life jackets? Can I see your fishing license?” And if non-natives are found in violation of their laws, they aren’t sent to some special tribal court, they’re summoned to the court in Bangor.
The Penobscot say they don’t want to exert dominance over the surrounding population and just want to be able to govern themselves, and subsistence fish and hunt in and along the river. Certain species of fish, like brown trout and largemouth bass, are outlined in MICSA as fair game for the Penobscot to harvest, but are mostly found in the disputed “main stem” section of the river.
And therein lies the problem: how can the Penobscot subsistence fish — most of their diet comes from fish in the river — if they aren’t entitled to regulate the quality and quantity of the catch?
While the First Circuit’s decision found that the state does not intend to interfere with the nation’s sustenance fishing rights, the tribe believes this promise is merely symbolic.
Indeed, under the ruling, the Nation's "fishing" will only take place in the uplands of their islands, on dry land where there are hardly any fish and or places to fish.
“If we don’t have the rights to be in the waters, then essentially we don’t have those fishing rights,” said Sherri Mitchell, a member of Penobscot Nation and an indigenous rights attorney. “It’s a constructive eviction to our ability to access those waterways.”
Mitchell, who accused the state of fabricating the law, sees this case as part of a pattern in America where indigenous rights are ignored in favor of courting corporate financial interests.
“It’s completely egregious, but it’s nothing new,” said Mitchell.
What’s Really At Play Here: Paving the Way For Dirty Energy
Now that we’ve outlined the Penobscot’s intentions behind their failed lawsuit, let’s explore the state’s reasons for triggering it.
Mitchell traces the state’s side of the story back to July of 2012, when Gov. LePage met with Canadian officials and representatives of Exxonmobil immediately after the Canadian government approved of Enbridge 9, a controversial pipeline project that seeks to pump tar sands (a sludgy deposit used to make synthetic oil, often considered to be the dirtiest energy source) from the West of Canada to the Atlantic ocean.
“They needed a way to get from Canada to the coast so they could ship it out to foreign markets,” said Mitchell. “Immediately after that meeting the state attorney generals office issued a memorandum stating that the tribe did not have jurisdiction over any of its territorial waters.”
The Portland/Montreal section of the pipeline — separate from Enbridge 9 but connected to it — already crosses through one Maine river, the Androscoggin, and officials want to reverse its flow, which would send 100,000 barrels of crude oil from Montreal to South Portland daily.
“This is clearly because the Governor of the State of Maine in collusion with the Attorney General's office was working to benefit industry to allow them to cross the Penobscot river unimpeded by tribal rights,” said Mitchell. “They’re trying to pave the way for dirty industry to come through there.”
In the years since, LePage has advocated for mountaintop mining, hydro-fracking, and the construction of the East-West corridor, a 220-mile long, private highway running from Coburn Gore to Calais to be used for trucking energy sources. The proposed corridor would cut through both the Penobscot and Kennebec rivers, potentially jeopardizing the fisheries and water quality there while consuming 13,500 acres of land.
The Penobscot River is a critical focal point for these energy projects, and Mitchell believes that the state sought to take away the Nation’s rights to the river so they’d be able to launch these long disputed energy projects unobstructed. She says this poses major concerns for both natives and non-natives in the area, as all the proposed construction, mining, fracking, and truck traffic, not to mention potential oil spills (of which Exxonmobil does not have a good track record of avoiding or cleaning up) could tarnish the health of Penobscot River Watershed, Maine largest at 8,750 square miles.
The Penobscot is New England's second largest river system. Map courtesy of the Penobscot River Restoration Trust.
“There are grave environmental concerns at play here,” said Mitchell. “There’s a lot of industry pressure to cross that river.”
Mitchell says that anyone who doubts there's a lot of industry interest in the river should note some the defendants in the appeals case who sided alongside Janet Mills: True Textiles Inc., Guilford-Sangerville Sanitary District, Kruger Energy Inc., Veazie Sewer District, Covanta Maine LLC., and the Verson Paper Corporation. (Power and Industrial companies operating within the Penobscot river watershed.)
Water Is Life: Environmental Concerns
For the most part, the Penobscot people have done a good job cleaning up “a century of degradation” in the river. In collaboration with state and federal agencies as well as seven conservation groups, the Penobscot Nation launched the Penobscot River Restoration Project. This 16-year effort cleaned up sections of the river, and by constructing a “natural fish bypass” at the Howland Dam, provided 11 species of fish full access to the river for the first time in 200 years, bringing their populations back to more sustainable numbers.
Today, the Penobscot Nation’s water monitoring and quality standards are compliant with the EPAs. But the river is still polluted in some areas. The now-defunct HoltraChem Manufacturing Co. had dumped chemicals in the Penobscot for over four decades, and currently, Maine’s struggling to figure out how to clean up the nine tons of mercury deposits sitting at the bottom of it. Chief Francis mentioned other environmental concerns, like phosphorous overloads which are leading to toxic algal blooms, and high levels of dioxin in the water from the bleaching process of the adjacent paper mills.
“Industry is not as a prevalent as it was before, so we have an opportunity to really make a difference and clean up the river,” said Francis. “But we’re worried about future development.”
Nickie Sekera, a non-native Fryeburg resident and water rights activist who’s been following this case since its inception, described the Penobscot people as natural stewards of the river.
Photo Courtesy of Nickie Sekera.
“We need to follow their leadership and example on clean water standards,” said Sekera. “The extent of the records they keep on water monitoring are better than the states are doing.”
Like many involved in this water war, Sekera is "deeply troubled" by the state’s actions and was quick to define them as instances of "environmental racism."
She noted that the river’s not just the core of the Penobscot nation’s cultural identity, it’s their literal lifeblood, meaning that the health of the river will dictate the health of the people that depend on it.
“How much pollution and toxins can these native peoples handle?” said Sekera. “Their bodies are on the front lines of this.”
Sekera also said that non-natives should mobilize around this issue too, because the health of the Penobscot watershed affects everyone living in Maine.
“If we compromise our water, we compromise ourselves,” she said. “Maine needs to consider the long view of water security in the state.”
Healing the Wounds of Colonization
In June, an ancient ceremony was held at Nibezun Farm, located on the Penobscot River in Passadumkeag. Dozens of indigenous elders from around the world gathered with Wabanaki tribes for a weekend of events dubbed “Healing the Wounds of Turtle Island,” a time for singing and dancing, prayer, and reflection. (Turtle Island is what natives called Maine before it was settled by Europeans.)
"Water rights were undoubtedly on people’s minds," says Sekera who was in attendance, but the ceremony was about “healing from all wounds brought by colonization.”
“We do live on occupied territory,” said Sekera. “Native people are not pointing fingers. They want to heal and work together with non-natives.”
Sekera and Mitchell kayaking alongside dozens of others in a floating protest on the Penobscot earlier this year. Photo courtesy of Nickie Sekera.
But unfortunately, as old wounds heal, corporate interests often don’t mind ripping open new ones. Indigenous people across the country have experienced this injustice for decades. From proposed pipeline projects cutting through sacred lands in Standing Rock, North Dakota, and the Arctic Wildlife Refuge in Alaska (just to name two), America continues its history of trampling over the indigenous rights of many to favor the financial interests of few.
“Maine has its very own Standing Rock,” said Sekera. “The state relies on racial tensions for these type of takeovers to happen. This should be a huge alarm bell for us to wake up and pay attention to what’s really going on.”
| Penobscot Nation v. Janet Mills: A Case of Cultural Identity and Tribal Stewardship, A Lecture By Kirk Francis | University of New England, 11 Hills Beach Rd., Biddeford Maine | October 30th, 10:00 am | https://www.une.edu/calendar/2017/ |
Francis Flisiuk can be reached at: firstname.lastname@example.org