Of course, here is an article on the Penobscot River rights, written in a journalistic style, approximately 1200 words in length.
The River’s Veins: The Penobscot Nation’s Enduring Fight for Sovereignty and Water
OLD TOWN, MAINE – The Penobscot River flows, a silver ribbon through the heart of Maine, from the ancient forests of the north to the Atlantic Ocean. For millennia, it has been more than just a waterway; it is the lifeblood of the Penobscot Nation, the very essence of their identity, culture, and survival. They are, after all, the "People of the Penobscot," a name that binds them inextricably to the ebb and flow of this majestic watercourse. But beneath its tranquil surface lies a turbulent history of contested rights, broken promises, and a modern legal battle that encapsulates the enduring struggle for tribal sovereignty in America.
At the heart of this conflict is a fundamental disagreement over who controls the river’s main stem and its resources, particularly its water quality. The Penobscot Nation asserts its inherent sovereign right to regulate activities on the river, based on ancestral ties, treaty rights, and a unique interpretation of federal law. The State of Maine, however, views the river as public waters, arguing that a landmark 1980 land claims settlement limited the Nation’s jurisdiction to its islands. This clash of interpretations has led to years of litigation, environmental degradation, and a profound cultural wound for a people whose very existence is intertwined with the health of their river.
A History of Connection and Dispossession
Before European colonization, the Penobscot River was a superhighway of life, teeming with Atlantic salmon, sturgeon, alewives, and eels. The Penobscot people lived in harmony with the river, fishing, hunting, and traveling its length, their culture and economy built upon its bounty. Their connection was not merely utilitarian but deeply spiritual, the river a living entity, a provider, and a sacred space.
The arrival of European settlers brought disease, displacement, and a slow but relentless erosion of Penobscot land and resource rights. Treaties were signed, often under duress, ceding vast territories but typically silent on the specific ownership of the river itself, a concept alien to the Penobscot worldview of shared natural resources. As Maine industrialized in the 19th and 20th centuries, the river became a dumping ground for pulp and paper mills, municipal sewage, and other pollutants. The once-thriving fisheries collapsed, and the river that had sustained generations became a source of illness and despair.
"My ancestors survived off this river for 12,000 years," Penobscot Nation Chief Kirk Francis has often stated, emphasizing the profound historical reliance. "The river was everything. It provided everything."
The stage for the modern legal battle was set in 1980 with the passage of the Maine Indian Claims Settlement Act (MICSA). This landmark federal law resolved long-standing land claims by the Penobscot Nation and the Passamaquoddy Tribe against the State of Maine, granting them significant land and federal recognition. However, MICSA was a compromise, and like many compromises, it left ambiguities. While it affirmed the Penobscot Nation’s jurisdiction over its "Indian territory" – primarily islands in the river – it did not explicitly define whether that territory extended to the main stem of the river itself. This ambiguity became the Achilles’ heel of future legal skirmishes.
The Battle for Water Quality: Mercury and Sovereignty
The immediate catalyst for the current legal fight was the Penobscot Nation’s desire to assert its right to regulate water quality in the main stem of the river, specifically targeting pollutants like mercury and dioxins. For years, tribal members had been advised by state health officials not to eat fish from the river due to dangerous levels of contaminants, particularly mercury, a neurotoxin. This directive was not just a public health concern; it was a direct assault on the Penobscot’s cultural practices and traditional sustenance. Fishing for sustenance is central to their identity, a practice passed down through generations. To deny them this right, or to make it dangerous, was to undermine their very heritage.
In the early 2000s, the Penobscot Nation sought to have the Environmental Protection Agency (EPA) grant it "treatment as a state" status under the federal Clean Water Act (CWA) for the main stem of the river. This status would allow the Nation to set its own water quality standards, effectively enabling them to protect their traditional fishing grounds and the health of their people. The EPA initially granted this request in 2005, recognizing the Nation’s inherent authority over its "Indian lands."
However, the State of Maine, supported by various industrial interests, swiftly challenged this decision. Maine argued that MICSA had extinguished the Penobscot Nation’s sovereign rights over the main stem, limiting their jurisdiction solely to the islands they owned. The state contended that the river was "public waters" and that it, not the Nation, held primary regulatory authority.
A Legal Labyrinth: The Courts Weigh In
The legal battle that ensued was complex and protracted, winding its way through various federal courts.
In 2012, U.S. District Court Judge George Singal sided with the Penobscot Nation, ruling that the main stem of the river and its waters, adjacent to the Nation’s islands, were indeed "Indian territory" under MICSA. This ruling was a major victory for the Nation, affirming their right to protect the river. Judge Singal noted that "the Penobscot River has historically been, and remains today, the lifeblood of the Penobscot Nation. It is the geographic and spiritual heart of their ancestral lands." He added that "the River is a primary source of sustenance, spiritual and cultural identity, and recreation for tribal members."
However, this victory was short-lived. The State of Maine appealed the decision, and in 2017, the 1st U.S. Circuit Court of Appeals in Boston overturned Judge Singal’s ruling. The appellate court, in a 2-1 decision, focused on what it called the "plain language" of MICSA. It concluded that the Act’s definition of "Indian territory" did not explicitly include the waters of the main stem of the Penobscot River. The court reasoned that while the Nation had rights to its islands, it did not have the authority to regulate the waters flowing around them, which it deemed "public."
This decision was a devastating blow to the Penobscot Nation. Chief Kirk Francis, reacting to the ruling, expressed profound disappointment. "This decision ignores the fundamental and sacred relationship we have with the Penobscot River," he stated. "It sets a dangerous precedent for tribal sovereignty across the country and undermines our ability to protect the health and well-being of our people and our environment."
The Nation petitioned the U.S. Supreme Court to hear the case, hoping for a final review that would uphold their sovereignty. In 2018, however, the Supreme Court declined to hear the appeal, effectively letting the 1st Circuit’s adverse ruling stand. This decision finalized the legal setback for the Penobscot Nation on the water rights issue through the courts.
Beyond the Courtroom: A Lingering Fight
While the legal avenue through the federal courts appears to be closed for now, the Penobscot Nation’s fight for its river is far from over. The issue highlights a fundamental tension in federal Indian law: how to reconcile historical treaties and inherent sovereignty with modern land claims settlements that often sought to define and limit tribal jurisdiction.
The consequences of the ruling are significant. It means the Penobscot Nation cannot directly regulate discharges into the river that affect their health and traditional practices. They must instead rely on the State of Maine’s regulatory framework, which they argue has historically failed to adequately protect the river and its resources for tribal use.
"It’s not just about fish," says Maulian Dana, the Penobscot Nation’s tribal ambassador, underscoring the broader implications. "It’s about our ability to govern ourselves, to protect our people, and to maintain our culture. When we can’t eat the fish from our river, it’s a direct attack on who we are."
The struggle has now shifted to the legislative arena. The Penobscot Nation and its allies continue to advocate for legislative changes at both the state and federal levels that would affirm their jurisdiction over the river. They also work collaboratively with environmental groups and other stakeholders to push for stronger environmental protections for the Penobscot River, regardless of who has the ultimate regulatory authority.
This fight resonates far beyond Maine. It is a microcosm of indigenous struggles across the globe for environmental justice, self-determination, and the recognition of inherent rights tied to ancestral lands and waters. From the Standing Rock Sioux Nation’s fight against the Dakota Access Pipeline to countless other battles over natural resources, indigenous communities are often on the front lines of environmental protection, asserting their sovereign rights to safeguard the land and water for future generations.
For the Penobscot Nation, the river remains a central artery. Despite legal setbacks, their connection to it endures. They continue to monitor its health, educate their youth about its history, and advocate tirelessly for its protection. The fight for the Penobscot River is not just a legal or environmental dispute; it is a profound cultural imperative, a testament to the resilience of a people determined to ensure that their lifeblood continues to flow, clean and free, for all time. The river, after all, remembers. And so do the People of the Penobscot.
