BOSTON (CN) — A Native American tribe that claims the right to regulate fishing, boating and other recreation on one of Maine’s most important rivers found itself paddling upstream Tuesday in the First Circuit, but it made considerable progress nonetheless.
Maine’s insistence that it owns a 60-mile stretch of the Penobscot River “makes a mockery” of its 1980 agreement defining the Penobscot tribe’s reservation, argued the tribe’s lawyer, Pratik Shah of Akin Gump in Washington, D.C.
That’s because the agreement gave the tribe the right to fish on its reservation, and there’s no place to fish other than the river, Shah said.
Several of the judges seemed irritated at their inability to pin down Maine Assistant Attorney General Kimberly Patwardhan’s response to this argument.
“We don’t think the court needs to answer the question of sustenance fishing,” Patwardhan said.
“But we do,” shot back U.S. Circuit Judge O. Rogeriee Thompson.
Tuesday’s en banc arguments mark the second time the Boston-based appeals court has waded into these murky legal waters, having elected to hold a rehearing after siding with Maine 2-1 in a 2017 panel opinion.
Henry David Thoreau wrote about the river in detail, and Stephen King has set a number of his stories in a fictional town on the river called Derry. Parts of the river offer world-class salmon and bass fishing as well as whitewater rafting.
The Penobscot tribe once claimed a legal right to two-thirds of the state of Maine but settled their dispute in 1980 in return for land. While the agreement gave the tribe the islands along the 60-mile stretch, it didn’t specifically say who controlled the river itself.
Following some incidents in which tribal members confronted people using the river, the Maine attorney general issued a 2012 opinion saying the river wasn’t part of the tribe’s lands. The tribe sued, and the U.S. intervened on behalf of the tribe. A number of local businesses and towns also intervened to support the state.
The math for the tribe is daunting. Tuesday’s en banc rehearing was heard by all three judges on the original panel, plus three other judges — all three of whom the tribe must win to obtain a majority. In the event of a 3-3 tie, the District Court ruling favoring Maine would be upheld by default.
Maine faced stiff questions this morning, however, from at least two of the additional judges, Thompson and David Barron, both Obama appointees.
“You need to give an answer to the question” about fishing rights, Barron told Patwardhan. “It would matter to me what Maine’s position is with regard to that.”
U.S. Circuit Judge Sandra Lynch, a Clinton appointee who authored the panel opinion in favor of Maine, seemed upset that Patwardhan was being evasive. “It does the state no good to try to avoid this question,” she bluntly told her.
Patwardhan suggested that the provision could be ambiguous.
“Are you conceding ambiguity?” Thompson challenged her.
Patwardhan quickly backpedaled and said the meaning of “reservation” could be different in different parts of the agreement. “That would be a matter of statutory construction,” she said.
“But what we’re doing here is statutory construction,” Thompson replied. “We’re just trying to find out what Maine’s position is.”
Barron asked: “What is Maine’s explanation for how the agreement could include the river in one provision defining the reservation and not another?”
Patwardhan said the agreement used a definition of the reservation that applied “unless the context indicates otherwise.”
“But I don’t see why the context would indicate otherwise,” Barron said.
The judges spent a great deal of time trying to figure out whether a treaty signed in 1818, two years before Maine became a state, gave the tribe ownership of the river in the first place.
“At what point did the state of Maine acquire title?” Thompson asked.
Patwardhan suggested that may have happened in 1818, or earlier when the colonists first arrived, or later as a result of state regulatory action. “It doesn’t necessarily matter,” she said.
“It would seem to me relevant,” said Barron.
Thompson added: “The problem we’re having is, because the agreement itself references the 1818 treaty, we’re trying to figure out what the baseline is for ownership at that point.”
Barron complained: “I find it not all that helpful to keep all these balls in the air and keep saying maybe it’s this or maybe it’s that.”
Mary Gabrielle Sprague of the U.S. Justice Department said the 1818 treaty had to be interpreted as the tribe would have understood it. “There is no dispute that the Penobscot were a rivering people, and the river was essential to both their sustenance and their cultural identity,” she said, meaning they would never have given up their right to it.
Shah, who has argued 15 cases before the U.S. Supreme Court and won 12 of them, said “we have mountains of evidence” that everyone assumed the 1818 treaty gave the river to the tribe.
Sprague argued that Maine’s claim that a state’s “creeping regulation” over succeeding years could gradually erode a tribal reservation had been rejected by the U.S. Supreme Court. Diminishing a reservation requires explicit language, she said.
If Thompson and Barron side with the tribe, then the deciding vote would belong to U.S. Circuit Chief Judge Jeffrey Howard, a George W. Bush appointee.
Howard gave little indication of which way he was leaning and spent most of his time trying to deal with numerous technical glitches that frequently brought the online proceeding to a standstill.