|Sherri Mitchell (center) being interviewed following the court hearing of Penobscot Nation v. Mills, |
October 14, 2015 photo credit: Lee DeCora Francis
Report from Sherri Mitchell of the Penobscot Nation, an attorney in her own right:
"Overview of today's court proceedings - Penobscot Nation v. Mills - A case to protect the ancestral fishing rights of the Penobscot Nation.
The State's position failed to pass the straight face test. They asserted that the Tribe does not have any retained water rights, despite the fact that they have clearly delineated sustenance fishing rights. The Judge asked the State's Attorney how they reconciled their position with the fact that the Tribe clearly has retained sustenance fishing rights? They had no logical response, since no logical response exists. Instead, they claimed that the Tribe only had the right to fish from shore, in accordance to their "traditional practices, since time immemorial."
The Judge responded by saying "So, what you're saying is that since time immemorial Indians didn't use boats, and they never fished from the river"? The Attorney for the State said "Yes." to that ridiculous conclusion. They then claimed that tribal members could fish with one foot on the land and one foot in the water. The absurdity of the State's argument was an embarrassment. Had I been the Attorney that had to argue that position, I would have resigned.
It is also noteworthy that neither the Attorney for the State nor the Interveners referred to the Tribe by name throughout the proceedings. They kept saying "the Indians" or "those Indians." Of course, this was strategic. To refer to the tribe by name - The Penobscot Nation - would have drawn too close a tie between the Tribe and the river that bears its name. Afterall, they wouldn't want to confuse the court by using the name of the Tribe, or the name of the river in their oral arguments, due to the fact that the name of the Tribe and the name of the river are interchangeable. The court might get the wrong idea if they realized that the Penobscot River and the Penobscot Nation bear the name of the same Penobscot people claiming these rights.
The Attorney for the State and the Attorney for the Interveners also claimed that their position was a protective (preemptive) one. They were simply trying to avoid a scenario where the Tribe might one day decide to try to take control of the river and prevent others from using it, or they might try to regulate non-native industry from discharging into the river. This came after the Tribe clearly stated that they did not believe that it was their right to prevent usage by others or to regulate non-native industrial landowners. Unsurprisingly, the State and the Interveners could not point to one example where this "fear" had any basis in fact, or reality.
The Judge pointed out that the Tribe had clearly stated that this case was only about retaining their ancestral fishing rights, and had asserted no claims to expand their reach beyond that position. Then, the Attorney for the Tribe wisely reminded the Judge that the court could only decide the issue that was presently before the court, not a speculative scenario that had been manufactured out of whole cloth by the State or the Interveners.
The State also claimed that the Tribe does not possess the riparian rights afforded to all other owners along the same waterway. Overall, the State's case is weak and the Intervener's case is nonexistent. In my opinion, the Tribe's position was clearly supported by the law and the legislative history. Now, we wait for the Judge's order, to see how he interpreted this case."
To learn more about this historic battle to defend indigenous territory and rights, you can see a new documentary by the Sunlight Media Collective. Here's their press release about it: