Attorney For State Of #Maine Claims Penobscot People Never Used Boats To Fish In The River

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:

Sunlight  Media Collective Releases Documentary on the Battle Over Contested Penobscot River Territory

Indian Island, ME: On Friday, Sunlight Media Collective released The Penobscot: Ancestral River, Contested Territory, a documentary film that explores the conflict between the state of Maine and the Penobscot Nation over contested river territory. 

Spanning from the 1700's to the present-day legal battle of Penobscot Nation v. Mills, the film illustrates the Penobscots' centuries-long fight to retain their territory and their inherent, treaty-reserved sustenance fishing rights for future generations. Featuring first-person accounts, thefilm tells the urgent, inspiring story of a struggle for justice and cultural survival in the face of an astonishingly open abuse of state power.

The documentary release closely follows a meeting between Penobscot Chief Kirk Francis and President Obama, where they discussed the Penobscot Nation v. Mills case. The Penobscot Nation is suing the state of Maine in response to a decision by former Attorney General William Schneider that the Penobscot Indian reservation, which includes more than 200 islands in the Penobscot River, does not include any portion of the water— a decision that amounts to territorial theft by the state. Oral arguments for the case are scheduled for October 14th at the US District Court in Portland, ME.

The case is taking place in the context of a larger state battle over river jurisdiction and water quality standards. In February, the federal EPA ruled that Maine must improve its water quality standards to protect Penobscot sustenance fishing rights. Governor Paul LePage has called the ruling “outrageous” and threatened to relinquish state regulatory responsibilities to the federal EPA if they did not reverse the ruling.

The Penobscot: Ancestral River, Contested Territory chronicles the Penobscot’s struggle to maintain their centuries-long stewardship to ensure a healthy ecosystem for all of Maine, a struggle exemplified by these contemporary legal battles. According to Penobscot Chief Kirk Francis, the Penobscot v. Mills case “is really not about controlling the river system, or controlling individuals within the system. It’s really about our ability to manage a subsistence resource that we have a responsibility for, for multiple generations.”

Funded by Broad Reach Fund of the Maine Community Foundation, The Penobscot: Ancestral River, Contested Territory is available for free on the Sunlight Media Collective website (www.sunlightmediacollective.org), and DVDs are available by order. To schedule a screening, please email sunlightmediacollective@gmail.com.

The Sunlight Media Collective is a collaboration between Penobscot and non-native filmmakers. The film is just one example of an up-swell of activism and work on issues affecting the Wabanaki tribes. In October, Upstander Productions will also release a short documentary entitled First Light, on the recently completed Maine Wabanaki-State Child Welfare Truth and Reconciliation Commission.

Screenings of The Penobscot: Ancestral River, Contested Territory currently scheduled:

October 21st, Belfast Free Library, Belfast, 6:00PM

October 24th, Gates Auditorium, College of the Atlantic, Bar Harbor, 1:30PM

For more information, contact Sunlight Media Collective Co-Founders Maria Girouard & Meredith DeFrancesco: sunlightmediacollective@gmail.com