If you have lived in Maine for any length of time, you remember that in 1979, the Maine Indians claimed 2/3s of the State of Maine. The end result was a settlement, embodied in federal and state statutes, that among other things, gave the tribes federal recognition and $80 million, and set forth reservation boundaries. In an action in which we represented a coalition of municipalities and other users of the Penobscot River, the federal district court confirmed that the Penobscot Reservation does not include, as the Tribe recently claimed, the 60-mile main stem of the Penobscot River. (Order on Cross-Motions for Summary Judgment, Order on the Pending Motions of State Intervenors)
Although the matter was pending in the trial court for three years, and lots of historical materials were filed by the Tribe, the United States and the defending State, and one of the district court’s decisions goes through that history at length, in the end, the issue was resolved, as the State and coalition argued it should be, by the plain language of the statute.
The relevant statutory language defines the Penobscot Reservation as “the islands in the Penobscot River … consisting solely of Indian Island … and all islands in that river northward ….” (30 MRS § 6203(8).) The Penobscot Nation, with the support of the U.S. Department of Justice, sought a court ruling that this language meant that the Reservation also included the River itself and its waters, bank to bank. The court said no.
In a word, “island” means island:
the Court concludes that the plain language of the Settlement Acts is not ambiguous. The Settlement Acts clearly define the Penobscot Indian Reservation to include the delineated islands of the Main Stem, but do not suggest that any of the waters of the Main Stem fall within the Penobscot Indian Reservation. That clear statutory language provides no opportunity to suggest that any of the waters of the Main Stem are also included within the boundaries of the Penobscot Indian Reservation. Further, even if the Court were to deem the language of MIA and MICSA ambiguous on this point, the Court finds that the available intrinsic evidence as well as the extrinsic evidence in the legislative history similarly supports a finding that the legislative intent of MIA and MICSA was to set the borders of the islands in the Main Stem as the boundaries of the Penobscot Indian Reservation in this portion of the Penobscot River.
Why is this ruling important? The Penobscot Nation was claiming jurisdiction over the main stem – which would mean that it would regulate its use by tribe members – and everyone else. So whether anyone could discharge, or canoe, or fish, or hunt, or would have to pay a fee to the Tribe to do so, and how much, would be up to the Tribe.
Kudos to Janet Mills, Gerald Reid and the whole crew at the Maine Attorney General’s office who fought hard, as the State did thirty years ago, to protect the River, held in trust by the State, for the use and benefit of all.