BOSTON (CN) — A Native American tribe that claimed the right to regulate fishing, boating and other recreation on one of Maine’s most important rivers lost Thursday in a contentious 3-2 decision by the en banc First Circuit.
The Penobscot Nation owns a number of islands in a key 60-mile stretch of the main stem of the Penobscot River near Bangor. But it also claimed to own the river itself — an assertion that the court tossed out in a mammoth 136-page decision that sifted through the history of Native American treaties going back to 1715.
Henry David Thoreau wrote about the Penobscot River in detail, and Stephen King set a number of his stories in a fictional town on the river called Derry. Parts of the waterway 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 it settled its dispute in 1980 in return for land, federal recognition and some $40 million in trust funds. 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 reservation. The tribe sued, and the U.S. intervened on its behalf. A number of local businesses and towns also intervened to support the state.
In 2017 the First Circuit sided with the state in a 2-1 panel decision, but it later agreed to reconsider the issue en banc.
Thursday’s en banc majority said the 1980 agreement gave the tribe the right to the islands in the river and the plain meaning of “islands” is the land itself and not the waters surrounding them.
Because the 1980 agreement was unambiguous, it wasn’t necessary to consider whether the tribe had any other historical claim to the waters, wrote U.S. Circuit Judge Sandra Lynch, a Clinton appointee.
But U.S. Circuit Judge David Barron dissented and said the 1980 agreement had to be read in light of a treaty it referenced from 1818, two years before Maine became a state.
“There is no dispute that the Penobscot were a rivering people and the river was essential to both their sustenance and their cultural identity,” Mary Gabrielle Sprague of the U.S. Justice Department claimed at oral argument. They would never have given up their right to it in 1818, she insisted.
The tribe’s lawyer, Pratik Shah of Akin Gump in Washington, D.C., told the court that “we have mountains of evidence” that everyone assumed the 1818 treaty gave the river to the tribe.
But Lynch said that didn’t matter.
“It is implausible” that the drafters of the 1980 agreement “intended to give the Nation exclusive control of the Main Stem … through a reference (which serves a different purpose) to long-since-replaced historic treaties,” she wrote. “We presume that the drafters did not hide elephants in mouseholes."
Barron, an Obama appointee, complained that this was a “landlocked construction” of the agreement and ridiculed the majority by imagining an advertisement for "a tour of the U.S. Virgin Islands” that included the islands but not the water around them.
Barron also cited a Supreme Court case that interpreted somewhat similar language in favor of a Native American tribe in Alaska.
But Lynch said that case didn’t apply. “The fact that the Supreme Court interpreted different language in a different statute … to reach a different result cannot be used to create ambiguity in this statute,” she explained.
Lynch was joined by U.S. Circuit Chief Judge Jeffery Howard, who was appointed by President George W. Bush, and by U.S. Circuit Judge Bruce Selya, a Reagan appointee who at age 87 is the court’s second-oldest member.
Barron was joined by U.S. Circuit Judge O. Rogeriee Thompson, a fellow Obama appointee.
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