Federal Appeals Court Finds Penobscot Nation’s Namesake River Not Part of Its Reservation

Disclaimer: “This blog seeks to provide a brief summary of a ruling and opinion by a U.S. federal court. As such, the legal concepts and terminology discussed reflect language used in the practice of federal American Indian law.”

Nearly a decade ago, the Penobscot Nation (the Nation), an American Indian Tribe, brought suit in federal court to affirm its asserted right to ownership over the “Main Stem” of the Penobscot River in Maine. After years of litigation and multiple adverse judgments, the U.S. Court of Appeals for the First Circuit recently delivered yet another unfavorable ruling for the Nation. Penobscot Nation v. Frey, No. 16-1424, 2021 WL 2850139 (1st Cir. July 8, 2021).

In 2012, the Penobscot Nation sued the state of Maine in the U.S. District Court for the District of Maine, alleging a right to ownership over the Main Stem under the “Settlement Acts”—a pair of federal and state statutes created through a settlement between the Nation and Maine intended to clarify title to land in Maine. 25 U.S.C. § 1721(a)(7), (b)(1)-(2) (purpose of the acts); Supp. Brief for Penobscot Nation, Penobscot Nation, 2021 WL 2850139 at *1. The “Maine Implementing Act” (MIA), the state law component of the Settlement Acts, contains the statutory language at issue in this case. The relevant language of the MIA reads: “‘Penobscot Indian Reservation’ means the islands in the Penobscot River reserved to the Penobscot Nation by agreement with [Maine] consisting solely of [specific islands].” Me. Rev. Stat. Ann. tit. 30, § 6203(8).

The Nation sued the state in response to a Maine Attorney General (AG) legal opinion that interpreted the Settlement Acts as limiting the Nation’s reservation, and thus its regulatory authority, only to lands within the Main Stem, but not to the water in the Penobscot River. The Nation was supported in its litigation by the federal government, which participated as a named plaintiff “on its own behalf and for the benefit of the Penobscot Nation.” The federal government was represented by the U.S. Department of Interior and the U.S. Department of Justice. The Nation and the federal government asked the federal district court for a declaratory judgment acknowledging that the Nation’s reservation extends over the water in the Main Stem. The district court refused, instead granting Maine’s counterclaim for declaratory judgment in support of the AG opinion. However, the district court granted the Nation’s second request for relief, declaring that the Nation’s sustenance fishing rights under the Acts include the right to use the entire Main Stem.

On the parties’ cross-appeal of the district court ruling, the United States First Circuit Court of Appeals affirmed on the issue of the Nation’s limited regulatory jurisdiction but vacated the district court’s holding on the sustenance fishing rights issue. The Nation then successfully petitioned for a rehearing en banc, which refers to a hearing before all of the judges sitting on the court. In its brief for the en banc session, the Penobscot Nation argued that treaties between the Nation and Maine signed in 1796 and 1818, which ceded to the state lands on “both sides of the Penobscot River,” must be considered to accurately discern the meaning of “Reservation” in the MIA. Supp. Brief for Penobscot Nation, at *4. In those treaties, the Nation never gave up its aboriginal title to the submerged lands in the Penobscot River; therefore, the Nation argued, the river’s water was necessarily reserved to the Nation. Id.

Nevertheless, in its en banc ruling, the First Circuit again ruled against the Nation. The court refused to consider external sources to inform its interpretation of “Reservation” in the MIA. The court also rejected the Nation’s argument that its subsistence fishing rights under the statute alter the definition of “Reservation” and demonstrate that the Nation owns the water around its islands. According to the court, the statutory definition of “Reservation”—specifically, “islands in the Penobscot River”—is plain and unambiguous under the MIA.

The court relied on several dictionary definitions to derive the ordinary meaning of an “island”: a piece of land completely surrounded by water. The court also pointed to the fact that submerged lands and waters are referenced elsewhere in the MIA. If the reference to “islands” was supposed to include the surrounding waters, the court reasoned, the MIA would have mentioned that in the definition for “Reservation.” The court bolstered its interpretation by pointing to the MIA’s federal counterpart in the Settlement Acts—the Maine Indian Claims Settlement Act (MICSA)—which defines the Penobscot Indian Reservation as “those lands defined [in the MIA].” 25 U.S.C. § 1722(i).

Likewise, because the majority found the word “island” to be unambiguous, it declined to apply the canons of statutory construction that are used in federal American Indian law. One such canon instructs federal courts to construe statutes “liberally in favor of Indians, with ambiguous provisions interpreted to their benefit.” See, e.g., Montana v. Blackfeet Tribe, 471 U.S. 759, 766 (1985). But, sitting en banc, the First Circuit abstained from using these canons of construction proposed by the Nation and once again affirmed the district court’s decision regarding the Reservation’s uplands-only jurisdiction under the Settlement Acts.

It is important to note that a dissenting circuit judge thought the majority unjustifiably ignored important context and hastily reached the conclusion that the word “island” should be given its ordinary meaning. Penobscot Nation, 2021 WL 2850139, at *21 (Barron, J., dissenting). Relying on U.S. Supreme Court precedent about Indian reservation boundaries, the dissent would have found the MIA’s reference to a group of islands to be water-inclusive. Id. at *22-24 (Barron, J., dissenting).

The First Circuit ultimately found the Nation’s reservation to extend only to the upland part of the specified islands within the MIA definition of “Reservation,” not to the water or submerged lands of the Main Stem. The court also vacated the lower court’s opinion with respect to the Nation’s sustenance fishing rights claim on the basis that the court lacked jurisdiction. According to the appellate court, the Nation lacks standing—i.e., the ability to bring a lawsuit because of actual or imminent harm caused by the adverse party—to bring this claim because the AG opinion did not prevent tribal members from engaging in subsistence fishing. The Penobscot Nation has indicated its intention to petition the United States Supreme Court for another day in court.