Nos. 2016-1424, 2016-1435, 2016-1474, 2016-1482 …...Nos. 2016-1424, 2016-1435, 2016-1474, 2016-1482 IN THE UNITED STATES COURT OF APPEALS FOR THE FIRST CIRCUIT PENOBSCOT NATION;

Nos. 2016-1424, 2016-1435, 2016-1474, 2016-1482

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIRST CIRCUIT

PENOBSCOT NATION; UNITED STATES, on its own behalf,

and for the benefit of the Penobscot Nation, Plaintiffs-Appellants/Cross-Appellees,

v.

AARON M. FREY, Attorney General for the State of Maine; JUDY A. CAMUSO,

Commissioner for the Maine Department of Inland Fisheries and Wildlife; JOEL T.

WILKINSON, Colonel for the Maine Warden Service; STATE OF MAINE;

TOWN OF HOWLAND; TRUE TEXTILES, INC.; GUILFORD-SANGERVILLE

SANITARY DISTRICT; CITY OF BREWER; TOWN OF MILLINOCKET;

KRUGER ENERGY (USA) INC.; VEAZIE SEWER DISTRICT; TOWN OF

MATTAWAMKEAG; COVANTA MAINE LLC; LINCOLN SANITARY

DISTRICT; TOWN OF EAST MILLINOCKET; TOWN OF LINCOLN; VERSO

PAPER CORPORATION, Defendants-Appellees/Cross-Appellants,

EXPERA OLD TOWN; TOWN OF BUCKSPORT; LINCOLN PAPER AND

TISSUE LLC; GREAT NORTHERN PAPER COMPANY LLC, Defendants-Appellees.

TOWN OF ORONO, Defendant.

Appeal from the United States District Court for the District of Maine

AMICUS BRIEF OF MAINE INDIAN TRIBAL-STATE COMMISSION

IN SUPPORT OF PENOBSCOT NATION AND THE UNITED STATES

SEEKING REVERSAL

Counsel for Maine Indian Tribal State Commission

ROBERT CHECKOWAY

Member, MITSC

SIX BROAD SOUND LANE

FREEPORT ME 04032

Phone: (207) 272-0389

[email protected]

Case: 16-1424 Document: 00117614763 Page: 1 Date Filed: 07/14/2020 Entry ID: 6352622

ii

TABLE OF CONTENTS

TABLE OF AUTHORITIES ................................................................................... iii

IDENTITY, INTEREST, AND AUTHORITY OF AMICUS;

CONSENT TO FILING ...................................................................................... v

NO PARTY AUTHORSHIP .................................................................................. vii

ARGUMENT ............................................................................................................. 1

I. MITSC HAS CONSISTENTLY SUPPORTED THE NATION’S CLAIM TO

ON-RESERVATION SUSTENANCE FISHING RIGHTS IN THE MAIN

STEM ............................................................................................................ 1

Dispute over Drift Gillnets .................................................................... 2

Dispute Over Hydro-electric Dam Licensing ....................................... 3

Current (2012) Dispute over Hunting and Fishing

in the Main Stem of the Penobscot River ....................................... 5

II. PRINCIPLES OF FEDERAL INDIAN LAW AND INTERNATIONAL LAW,

AS RECOGNIZED BY THE STATE OF MAINE, REINFORCE MITSC’S

INTERPRETATION OF THE PENOBSCOT RESERVATION AS

ENCOMPASSING THE MAIN STEM OF THE RIVER ....................................... 6

A. Principles of American Indian Law Require that the

Main Stem be Recognized as Part of the Reservation .................... 6

B. Principles of International law, expressly adopted by Maine,

and the Governor’s Executive Order also require that the

Reservation be interpreted to include the Main Stem. ..................12

United Nations Declaration on the Rights of Indigenous

Peoples: Free, Prior and Informed Consent ..............................13

Effect of Declaration in United States Courts ..........................14

Executive Orders Requiring Prior Consultation .......................16

CONCLUSION ........................................................................................................18

CERTIFICATE OF COMPLIANCE .......................................................................19

CERTIFICATE OF SERVICE ................................................................................20


iii

TABLE OF AUTHORITIES

Cases

Choctaw Nation v. U.S., 318 U.S. 423 (1943)................................................. 7

DeBartolo Corp. v. Fla. Gulf Coast Bldg. & Constr.,

485 U.S. 568 (1988) ................................................................................15

Kansas v. Colorado, 206 U.S. 46 (1907) ......................................................15

McGirt v. Oklahoma, 591 U.S. ___ (July 9, 2020) .......................................12

Minnesota v. Mille Lacs Band of Chippewa Indians,

526 U.S. 172 (1999) .................................................................................. 7

Murray v. The Schooner Charming Betsy,

6 U.S. 64, 2 L. Ed. 208 (1804) ................................................................15

Penobscot Nation v. Fellencer, 164 F.3d 706 (1st Cir. 1999) ......................... 6

United States v. Postal, 589 F.2d 862, (5th Cir. 1979) .................................15

United States v. Schiffer,

836 F. Supp. 1164 (U.S. Dist. Ct., E.D. Pa. 1993) ..................................14

Statutes

12 M.R.S.A. § 6203(8) .................................................................................... 7

12 M.R.S.A. §12763(2) ................................................................................... 2

25 U.S.C. §§ 1721-1735 .................................................................................. v

30 M.R.S.A. § 6205(2)(A) ............................................................................... 2

30 M.R.S.A. § 6205(5) .................................................................................... v

30 M.R.S.A. § 6207(3) ................................................................................v, 1

30 M.R.S.A. § 6207(4) ................................................................................1, 6

30 M.R.S.A. § 6212 ......................................................................................... v

30 M.R.S.A. § 6212(3) .................................................................................. vi


iv

Other Authorities

C. Routel & J. Holth, Toward Genuine Tribal Consultation in the 21st

Century, 46 U. MICH. J. L. REFORM 417 (2013) ......................................16

Executive Order 21 FY 11/12, August 26, 2011 ...........................................16

F. Cohen, HANDBOOK OF FEDERAL INDIAN LAW,

§ 2.02[1] 114 [(2012]) ............................................................................... 7

H. Rep. No. 96-1353 ........................................................................................ 7

J. Hughes, The Charming Betsy Canon, American Legal Doctrine,

and Global Rule of Law, https://ssrn.com /abstract=2946483 ................15

J. Little Doe Baird, N. Lewey, G. Paul, & R. Paul, Working Paper,

Some Considerations of the Shape of Meaning: Algonquian

Understandings of the Expression of Self (June 19, 2020). ........... 8, 9, 10

N. Friederichs, et. al., The Drafting and Enactment of the Maine

Indian Claims Settlement Act, Report on Research Findings and

Initial Observations (Feb. 2017) ..........................................................7, 11

Note, The Charming Betsy Canon, Separation of Powers, and

Customary International Law, 121 HARV. L. REV. 1215 (2008) ............15

R. Steinhardt, The Role of International Law as a Canon of Domestic

Statutory Construction, 43 VAND. L. REV. 1103 (1990) .........................15

S. Rep. No. 96-957 .......................................................................................... 7

Task Force on Tribal-State Relations, At Loggerheads—the State of

Maine and the Wabanaki: The Final Report of the Task Force on

Tribal-State Relations, 117th Me. Legis., (January 15, 1997) ..... 1, 2, 3, 4

U.S. Department of State, Announcement of U.S. Support for the

United Nations Declaration on the Rights of Indigenous Peoples .........13

UNITED NATIONS DECLARATION ON THE RIGHTS OF INDIGENOUS

PEOPLES, Doc. A/RES/61/295 (Sept. 13, 2007) ......................................13


v

IDENTITY, INTEREST, AND AUTHORITY OF AMICUS;

CONSENT TO FILING

The Maine Indian Tribal-State Commission (MITSC) is a multilateral

tribalstate entity created in 1980 by the Maine Implementing Act ("MIA"), 30

M.R.S.A. § 6212, upon Congressional enactment of the Maine Indian Claims

Settlement Act ("MICSA"), 25 U.S.C. §§ 1721-1735. (References to MIA, now

codified at M.R.S.A. Title 30, are typically cited hereafter only by section numbers.

For more complete information please see www.mitsc.org.) It is not a corporation

required to make the disclosure under Rule 26.1.

Under section 6212, MITSC is composed of 13 members. Twelve members

in combination are appointed by four sovereign entities: the Penobscot Nation,

Passamaquoddy Tribe and Houlton Band of Maliseet Indians each appoint two

members and the State of Maine appoints six. The 12 members so appointed elect a

Chair who serves as the 13th full voting member.

MITSC has three primary areas of responsibility under MIA: to regulate

fishing on certain waters within or bordering Indian Territory, § 6207(3), to evaluate

applications to add to Indian holdings after enactment, § 6205(5), and to

“continuously review the effectiveness of [the MIA] and the social, economic and

legal relationship between" the three Tribes and the State, making such reports and

recommendations to the Maine Legislature and the three participating Tribes “as it


vi

determines appropriate,” § 6212(3). MITSC’s general powers are set forth in the

MIA, cited throughout, and more specifically regulated in its bylaws.

MITSC has been authorized to file this brief, specifically, to support the result

urged by the United States and the Penobscot Nation, with respect to the boundary

of the Reservation and the scope of the Nation’s sustenance fishing rights in the

river, by the unanimous vote of its members then serving1 at a duly noticed public

meeting held June 3, 2020.2

MITSC appreciates the consent given by counsel to all parties to allow the

filing of this brief without leave of court.

1 One of the six members appointed by the state, Michael Pearson of Bangor, had

died without being replaced. The other members and Chair of the Commission

acknowledge his service in the last year of his life and honor his memory.

2 Held during a period when most public meetings were prevented by emergency

public health orders, the meeting was conducted by Zoom with video available to

members and livestream audio to the general public.


vii

NO PARTY AUTHORSHIP

This brief was not authored in whole or in part by counsel for any party. No

party or party counsel contributed money that was intended to fund preparing or

submitting the brief. No person, other than this amicus curiae, contributed money

that was intended to fund preparing or submitting the brief.3

3 This brief has been prepared without compensation by a MITSC member, pro

bono publico. The Commission, including counsel, gratefully acknowledge the

contributions of Chair Jamie Bissonette Lewey; Managing Director Paul Thibeault,

Esq.; Rachel Hampson, J.D. candidate, 2021, Univ. of St. Thomas; and the MITSC

Amicus Committee.


1

ARGUMENT

I. MITSC has Consistently Supported the Nation’s Claim to On-Reservation

Sustenance Fishing Rights in the Main Stem

MITSC has exclusive authority over some fishing regulations in waters in or

bordering Indian territory. (30 M.R.S.A. § 6207(3)). The Penobscot Nation has

exclusive authority over sustenance fishing on the Penobscot Reservation, 30

M.R.S.A. § 6207(4). The MITSC record shows that conflicts over fishing on the

Penobscot River were frequently addressed at MITSC meetings.4 When these

conflicts arose over the acknowledged sustenance fishing rights of the Penobscot

Nation, MITSC was the logical forum for discussion.

The MITSC records show that each time a dispute arose with respect to the

Penobscot Nation’s sustenance fishing rights in the Penobscot River, MITSC

supported the Penobscot Nation’s exclusive authority over sustenance fishing on the

Penobscot Reservation. In fact, it is clear from the record that until the State took

its current position in 2012, MITSC, the State, and the Penobscot Nation understood

the Nation’s on-reservation sustenance rights and authority were on the Main Stem

of the Penobscot River. Id.

4 See Task Force on Tribal-State Relations, At Loggerheads—the State of Maine and

the Wabanaki: The Final Report of the Task Force on Tribal-State Relations, 117th

Me. Legis. (January 15, 1997), available at https://www.mitsc.org/amicus-brief-

resources; hereafter referred to as “At Loggerheads.” Addendum #5 to that report

is a summary of the minutes from all MITSC meetings from April 21, 1991 until

January 17, 1996; hereafter cited as “AL #5”.


2

Dispute over Drift Gillnets

In the late 1980’s and early 1990’s there was growing conflict over the

Penobscot Nation’s use of gillnets on the Penobscot River to catch salmon for

ceremonial purposes and to conduct research by the Penobscot Nation Natural

Resources Department. Ultimately, the Maine Department of Inland Fisheries and

Wildlife requested an opinion from James Tierney, then Attorney General of the

State of Maine. In a letter dated February 16, 1988, Tierney affirmed the Penobscot

Nation’s right to use gill nets “in the Penobscot River within the boundaries of the

Penobscot Reservation.” (Jt. Ex. 80 (ECF No. 103-30) at PageID # 1652

(2/16/1998)).

As concerns about water quality in the Penobscot River grew, in 1991 the

Penobscot Nation sought legislation excluding the Nation and its members from

state regulation limiting the use of gill nets for scientific purposes. At the MITSC

meeting on January 22, 1991, MITSC unanimously agreed to provide supportive

testimony (AL #5-11). Title 12 M.R.S.A. §12763(2) provides,

2. Penobscot Nation Research. Under the direction of its director, the staff

of the Department of Natural Resources of the Penobscot Nation may use gill

nets for the purpose of scientific fisheries research and management on any

waters within, flowing through or adjacent to Penobscot Indian territory as

defined in Title 30, section 6205, subsection 2.

Section 6205(2)(A) defines the Penobscot Indian territory as including the Penobscot

Indian reservation. Since 12 M.R.S.A. § 12763(2) was a solution to the dispute over


3

the placement of gillnets in the Penobscot River, it is further evidence of the

widespread understanding that the Penobscot River is within and flows through the

Penobscot Nation’s reservation.

Dispute Over Hydro-electric Dam Licensing

By 1994 issues relating to the relicensing of hydro-electric dams on the

Penobscot River were brought to MITSC. On May 12, 1994, MITSC minutes state,

“Department of Environmental Protection (DEP) are not sure how to better balance

the Settlement Act with the Maine Rivers Law and the hydro relicensing laws.” (AL

#5-18.) In response, MITSC formed a fishing subcommittee including MITSC

Commissioner and Department of Inland Fish and Wildlife biologist Fred Hurley.

This committee reported to MITSC on June 29, 1994, where MITSC accepted

Recommendation #3:

It appears that the Bureau of Environmental Protection in the Basin Mills

hydro-electric project may have breached the Maine Indian Claims Settlement

Act. The BEP’s decision could adversely affect the fishing stocks and

therefore, could prevent the members of the Penobscot Nation from fully

recognizing their reserved fishing rights.

(AL #5-19.)

At the September 12, 1995 MITSC meeting, Paul Bisulca (at the time the

Penobscot Representative to the Maine State Legislature) requested that the

Commission:


4

[S]end a letter to the Federal Energy Regulatory Commission (FERC), stating

that the Commission does not share the views about the meaning of the

Settlement expressed by Bangor Hydro and that the Penobscot Indian

Reservation does include waters. Mr. Banks noted that a 1988 letter from then

Attorney General Jim Tierney5 addresses this issue.6

The At Loggerheads report summarizes:

The Penobscot Nation is asking the MITSC to make a statement to FERC. The

Chair said he could write a letter over his signature after seeing a 1988

Attorney General ruling about sustenance fishing rights of the Penobscot

Nation.

(AL #5-22; emphasis in the original).

The letter from MITSC Chair Bennett Katz reflects MITSC’s understanding

that the Penobscot River was “within the boundaries of the Penobscot Reservation,”

as stated in the 1988 AG Tierney letter. (J.A. 817). Former Chair Katz rejected the

extreme interpretations the papermaking companies and Bangor Hydro had asserted,

including that “[o]nly the islands and none of the waters in the Penobscot River

constitute the Penobscot Nation” and that “[t]he sustenance fishing right granted to

the Penobscot Indian Nation is not on the Penobscot River, because the river is

outside the boundaries of the Reservation.” Explaining that it was “the first time

these particular arguments ha[d] come to the attention of the Commission,” he

5 Jt. Ex. 181 (ECF No. 104-81) at PageID # 2297-98.

6 MITSC Meeting Minutes, September 12, 1995 are available at

https://www.mitsc.org/s/MITSC-Minutes-Sept12-1995.pdf


5

expressed that, “[t]o [his] knowledge, the State ha[d] never questioned the existence

of the right of the Penobscot Indian Nation to sustenance fishing in the Penobscot

River.” Former Chair Katz went on to state:

I was Majority Leader of the Maine Senate at the time of enactment of the

Maine Indian Claims Settlement Act. I cannot imagine that [such a restrictive]

meaning was intended by my colleagues in the Legislature who voted in

support of the Settlement. Furthermore, I am certain that the Penobscots never

would have agreed to the Settlement had it been understood that their fishing

right extended only to the tops of their islands. 7

Ultimately, “FERC did not endeavor to resolve the issues regarding whether

the Penobscot Indian Reservation encompassed some or all of the Main Stem

waters.” (Order on Cross-Motions for Summary Judgment 39).

Current (2012) Dispute over Hunting and Fishing

in the Main Stem of the Penobscot River

In 2012, the Office of the Attorney General adopted the definition of the

Penobscot Reservation sought by the power and papermaking companies, limiting

the reservation to the tops of the islands. MITSC remained consistent in the positions

taken by former Attorney General Tierney and confirmed in the above quoted Katz

letter of 1995, and subsequently issued a letter from two former and the current

MITSC chairs that referred to the Commission’s position that the Penobscot

Reservation included the main stem of the Penobscot River, writing “the River

7 Letter from Bernard Katz to Lois Cashell, Secretary of FERC, November 1, 1995,

attached as Ex. 2 to Declaration of Diana Scully dated June 15, 2015, District

Court Doc. 140-13, J.A. 1045.


6

inclusive of and north of Indian Island [is] recognized as Penobscot Reservation

waters.” 8

Consistent with its longstanding application of 30 M.R.S.A. § 6207(4),

MITSC concludes that the State’s claim in this case conflicts with the historical

position MITSC has taken since the enactment of the Settlement Acts, and also

conflicts with all of the State’s own prior positions.

II. PRINCIPLES OF FEDERAL INDIAN LAW AND INTERNATIONAL LAW,

AS RECOGNIZED BY THE STATE OF MAINE, REINFORCE MITSC’S

INTERPRETATION OF THE PENOBSCOT RESERVATION

AS ENCOMPASSING THE MAIN STEM OF THE RIVER

MITSC’s consistent position on the Penobscot Nation’s exclusive authority to

regulate sustenance fishing on their reservation that encompasses the Penobscot

River is rooted in federal principles of statutory interpretation and international law.

A. Principles of American Indian Law Require that the Main Stem be

Recognized as Part of the Reservation

The Indian Law Canons require that the courts interpret the Settlement Acts

in light of their historical context. In carrying out its statutory responsibilities,

MITSC follows Federal Indian law guidance in interpreting a settlement that is

governed by Federal Indian law. Penobscot Nation v. Fellencer, 164 F.3d 706 (1st

Cir. 1999). To better understand how to apply those interpretive principles to the

8 Ex. 1 to Declaration of Diana Scully, U.S. Dist. Ct. Doc. 140-12, filed 06/22/15

Page 7886.


7

Settlement Act, the Joint Standing Committee on Judiciary of the Maine Legislature

requested that MITSC commission a report by the Suffolk University School of Law

Indigenous Peoples Rights Clinic exploring certain aspects of the legislative history.

The report found:

Congress stated that subsistence hunting and fishing is regarded as falling

within the “expressly retained sovereign activities of the Tribes.” Later, it

noted that “[t]he settlement also provides that … the Penobscot Nation will

retain as reservations those lands and natural resources which were reserved

to them in their treaties with Massachusetts and not subsequently transferred

by them.”9

The report goes on to conclude that two principles of federal Indian law apply

to these statements; the reserved rights doctrine and the Indian law canons of

construction. Of particular interest to MITSC is the canon that “treaties and

agreements are to be construed as the Indians would have understood them.”10

The boundaries of the reservation are predicated on the 1818 Penobscot Treaty

with Massachusetts, 30 M.R.S.A. § 6203(8)). The treaty conference notes reflect that

Lieutenant Governor John Neptune negotiated on behalf of the Penobscot Tribe,

9 N. Friederichs, et. al., The Drafting and Enactment of the Maine Indian Claims

Settlement Act, Report on Research Findings and Initial Observations, 20 (Feb.

2017) (quoting H. Rep. No. 96-1353, at 15; S. Rep. No. 96-957, at 15; S. Rep. No.

96-957, at 18). 10 F. Cohen, HANDBOOK OF FEDERAL INDIAN LAW, § 2.02[1] 114 [(2012]), citing

Choctaw Nation v. U.S., 318 U.S. 423, 431-32 (1943). The U.S. Supreme Court

affirmed these canons in Minnesota v. Mille Lacs Band of Chippewa Indians, 526

U.S. 172 (1999).


8

speaking through a translator.11 Because he negotiated the treaty in his native

language, to understand the interpretation of the boundaries of the lands and natural

resources “as the Indians would have understood them” MITSC relies upon an

Algonquian linguistic study, Some Considerations of the Shape of Meaning:

Algonquian Understandings of the Expression of Self.12 The study states:

Algonquian speakers understand that “self” is an inalienable component of

lands and waters. Water is considered inalienable and part of one’s physical

self, by extension, because of water’s contact with the earth below it.

Id. at 2. This relationship is denoted with an “M-marker” appearing at the end or in

the middle of a word:

Seepuw [m], river nuseepuwmunônash, ‘our rivers’; nu, my; seepuw, (lit.

something stretched out long) river; m, inalienable; unôn, our; ash, plural;

‘our inalienable rivers.’ Munahan [m], island; umunahanum, ‘his/her

island’u, his/her; munahan, island; um, inalienable; ‘his/her island that is

part of him/her.’ Non-relational forms; munah, island; munahanash, islands.

Passamaquoddy is similar as “sip” is the word for river and when it is

possessed it becomes, for example, “ntosipum” for my river. This shows the

same use of M, river being equal to self… In Penobscot the words are

nəsipom, ‘my river’ and nənəpim, ‘my water.’

Water bodies’ relationship to self is derived from the self’s relationship to the

land beneath the water and once this relationship is acknowledged, that self

11 M. Pawling, ed., WABANAKI HOMELAND AND THE NEW STATE OF MAINE: THE

1820 JOURNAL AND PLANS OF SURVEY OF JOSEPH TREAT, 279–300 (Univ. of

Massachusetts, 2007).

12 The paper is authored by Jessie Little Doe Baird, an Indigenous Language

Preservationist and Algonquian linguists Newell Lewey, Gabe Paul, and Roger Paul;

available at https://www.mitsc.org/s/WORKING-PAPER-Some-Considerations-of-

the-Shape-of-Meaning-6-2020.pdf.


9

also includes the water. We can see this because whenever an item touches

the land this M-marker is attached because the marker indicates relationship

to the land. Since the water and the self are inseparable because the water

covers the land, when bodies of water are considered boundaries, the

totality of that water feature (water and the land beneath) are reflected

in the possessed phrase. The relationship is so primary that once the

relationship is acknowledged, the ‘self’ is inclusive of the boundary and

all of the waters upon the land below. Thus, rivers derive their intimate

relationship solely because they touch the land beneath.

Id. at 5 (emphasis added and citations omitted).

Because Algonquian peoples inhabited a heavily forested area, their

sustenance came from, and their transportation by canoe depended on, the water.

Many Penobscot place names describe the site as seen from the water. The place

name “Penobscot” from which the Penobscot Nation takes its name is such a

descriptor.

Waponahki place names are often descriptors of the riverine world they

inhabited. The Penobscot River [pαnawαhpskewtəkʷ] is not a village, not a

spot on the land, it is a river. The entire river, its shores, and its people are

named in reference to the river. In Penobscot this is pαnáwαhpske, the rocks

widen, spread out, there is a widening or opening rocky terrain; conj.

pαnáwαhpskek where the rocks widen, spread out … Pαnawαhpskewtəkʷ

INAN Penobscot River [lit: river of rocks opening or spreading out], loc.

pαnawαhpskewtəkok. The river is described from the perspective of someone

who is sitting in a canoe in the middle of the River travelling North.

Id. at 6 (citations omitted).

The language connection between the people, the river and the central activity

demonstrate that the Main Stem, the only place on the reservation where they can

fish, is of utmost importance to the Penobscot people.


10

Because Lt. Governor John Neptune negotiated the 1818 treaty in the

Penobscot language, we are compelled by the canons to understand what was

transferred as he understood it, and as all Penobscot would have understood it. With

their comprehensive study of the M-marker, the Algonquian linguists remind us that

“when bodies of water are considered boundaries, the totality of that water feature

(water and the land beneath) are reflected in the possessed phrase.” Id. at 5. Thus,

when the Penobscot negotiated the treaty they would have understood then—as they

do now—one’s “‘self’ is inclusive of the boundary and all of the waters upon the

land below.” Id.

Michael Pearson, a former state legislator who served on the State

Legislature’s Joint Select Committee on the Maine Indian Land Claims, and a local

historian and history teacher from Old Town, Maine, was a MITSC commissioner

from 2019 until his death in 2020. In his 2015 Declaration in this case he stated:

5. In my capacity as a Representative in the Maine Legislature and as a

member of the Joint Select Committee, I recall the provision of the Maine

Implementing Act that provided that, notwithstanding any law of the State of

Maine, members of the Penobscot Nation may take fish within the boundaries

of the Penobscot Indian Reservation for their individual sustenance.

6. This provision was intended to allow members of the Penobscot Nation to

take fish for their sustenance from the Penobscot River in waters from Indian

Island, near Old Town, at least as far up the River to Medway, where members

of the Tribe had always taken fish for their subsistence.13

13 Declaration of Michael Pearson, June 16, 2014, attached as Ex. 1 to Declaration

of Diana Scully, dated June 15, 2015, District Court Doc. 140-11, J.A. 1045.


11

This analysis is reflected in the Suffolk University Report’s conclusion:

It is almost unimaginable to think that Congress’s use of the words, “retained”

and “reserved” are by chance. Such words hold such an important position in

the body of federal Indian law and Congress must have used them to ensure

the applicability of federal Indian law to this settlement, especially as it related

to the Tribes’ sustenance hunting and fishing rights.14

In both the 1818 and the 1820 treaties the Penobscot Nation transferred only

a right to “pass and repass” on the river, reserving the Main Stem of the Penobscot

River to their reservation.15 This is consistent with the letter written by Bennett Katz,

MITSC Chair and Majority leader of the Maine Senate at the time of the Maine

Indian Claims Settlement Act referenced above:

Furthermore, I am certain that the Penobscots never would have agreed to the

Settlement had it been understood that their fishing right extended only to the

tops of their islands. It simply does not make sense to me that the Settlement

would have provided the Penobscot Indian Nation with the right to sustenance

fishing, had it not been assumed that the right would be exercised in the waters

of the Penobscot River.16

Therefore, the positions taken by the Penobscot Nation, United States, and

MITSC are consistent with the conclusion reached by the Algonquian linguists and

14 The Drafting and Enactment of the Maine Indian Claims Settlement Act, Report

on Research Findings and Initial Observations, supra n. 9, at 21. 15 Brief of Penobscot Nation, p. 4. 16 Letter from Bernard Katz to Lois Cashell, supra n. 7.


12

the 1988 opinion of Maine Attorney General James Tierney that the Penobscot

Nation’s Reservation includes the Main Stem of the Penobscot River.

As the U.S. Supreme Court reminds us, divestment of Indian reservation

rights “may not be lightly inferred.” McGirt v. Oklahoma, 591 U.S. ___ (July 9,

2020) (citation and footnote omitted).

B. Principles of International law, expressly adopted by Maine,

and the Governor’s Executive Order also require that the

Reservation be interpreted to include the Main Stem.

Modern nations have begun to adopt standards controlling their dealing with

Indigenous peoples. The two emerging principles are the requirement that the “free,

prior and informed consent” of any Native people be obtained before adopting and

implementing legislative or administrative measures that may affect them, especially

any transfer of territorial rights; and the lesser constraint that no action be taken

affecting the Indigenous group without at least first consulting them. Maine had

expressly committed itself to both levels of assurance at the time this dispute arose,

but its new position dishonors both. While these breached promises are not strictly

actionable, we urge the Court to accept the basic standards created by these

developing world and national customs and apply them to the legal issues raised

here.


13

United Nations Declaration on the Rights of Indigenous Peoples:

Free, Prior and Informed Consent

The greatest advance in international acceptance of rights of Indigenous

peoples has come with the United Nations Declaration on the Rights of Indigenous

People (UNDRIP or the Declaration), the product of thirty years of effort by and on

behalf of Indigenous people and their representatives.17 The Declaration takes

special relevance here because Maine is the only state to have adopted it.

UNDRIP, adopted by the U.N. General Assembly on September 13, 2007,

affirms an array of rights which support self-determination. The crucial standard of

“free, prior and informed consent” is established by Article 19:

States shall consult and cooperate in good faith with the indigenous peoples

concerned through their own representative institutions in order to obtain their

free, prior and informed consent before adopting and implementing legislative

or administrative measures that may affect them.

The Declaration is not a treaty obligation of the United States but has been

adopted by the federal Executive, 18 and by Joint Resolution of the Maine Legislature

17 UNITED NATIONS DECLARATION ON THE RIGHTS OF INDIGENOUS PEOPLES, Doc.

A/RES/61/295 (Sept. 13, 2007), available at http://www.un.org/esa/socdev/

unpfii/en/declaration.html.

18 See U.S. Department of State, Announcement of U.S. Support for the United

Nations Declaration on the Rights of Indigenous Peoples, https://2009-

2017.state.gov/s/ srgia/154553.htm.


14

dated April 15, 2008, Maine became the first state in the country to expressly adopt

its terms.19

The simple principle of free, prior and informed consent, if observed by the

State of Maine rather than merely proclaimed, would have prevented it from taking

unilateral control of the River and may well have avoided the resulting litigation.

Effect of Declaration in United States Courts

While the Declaration does not have the binding effect of state or federal

statutes, even among signatory countries, and does not create a private right of

action, it is nevertheless an expression of world custom and opinion, and evidence

of international common law.20 In the early years of the Republic the Supreme Court

recognized that the laws of the new federal government were set against the

backdrop of the laws of nations. Although most often remembered in the field of

Indian law for the trilogy of opinions which carved out a special niche in American

law for “domestic dependent nations,” the Court led by Chef Justice Marshall had

by the time of those decisions already recognized the place of local or domestic law

in the international setting: “An act of Congress ought never to be construed to

19 Available through https://www.mitsc.org/amicus-brief-resources.

20 Even without reduction to a treaty, the earlier but comparable United Nations

Universal Declaration of Human Rights may be considered evidence of

‘international common law’ or customary international law. United States v.

Schiffer, 836 F. Supp. 1164, 1170 (U.S. Dist. Ct., E.D. Pa. 1993) (citations omitted).


15

violate the law of nations if any other possible construction remains….” Murray v.

The Schooner Charming Betsy, 6 U.S. 64, 2 L. Ed. 208 (1804).

That doctrine has long played a significant role when courts’ constructions of

statutes involve considerations of international law:

Arguably the most felicitously named doctrine in an American judge’s

toolbox, the 1804 Charming Betsy canon says that federal statutes “ought

never to be construed to violate the law of nations if any other possible

construction remains.” For over two centuries, this principle for the interplay

of domestic and international law has been “a rule of statutory construction

sustained by an unbroken line of authority”; a canon “deeply embedded in

American jurisprudence,” and “the bedrock for a series of later decisions

involving international law and judicial construction.” In the words of the

Supreme Court, Charming Betsy “has for so long been applied by this Court

that it is beyond debate.”21

“The law of nations … has always been a part of federal common law,” United States

v. Postal, 589 F.2d 862, 873-74 (5th Cir. 1979). We urge the Court to consider the

effect of UNDRIP and the Maine proclamation adopting it in assessing the meaning

and application of the Acts, and the sudden 2012 turn by the State of Maine in taking

control of the Penobscot River.

21 J. Hughes, The Charming Betsy Canon, American Legal Doctrine, and Global

Rule of Law, https://ssrn.com /abstract=2946483 (footnotes omitted). The doctrine

is still sound. See, e.g., DeBartolo Corp. v. Fla. Gulf Coast Bldg. & Constr., 485

U.S. 568, 575 (1988); Kansas v. Colorado, 206 U.S. 46, 97 (1907); The Paquete

Habana, 175 U.S. 677, 700 (1900). See also R. Steinhardt, The Role of International

Law as a Canon of Domestic Statutory Construction, 43 VAND. L. REV. 1103 (1990);

Note, The Charming Betsy Canon, Separation of Powers, and Customary

International Law, 121 HARV. L. REV. 1215 (2008).


16

Executive Orders Requiring Prior Consultation

Apart from UNDRIP, a number of nations and the State of Maine – at least

for a period of time – pledged to consult with Native Tribes before taking any

legislative or administrative action affecting their interests. The United States

developed such a policy through a series of Executive Orders requiring federal

departments and agencies to consult with Indian tribal governments when

considering policies that would impact tribal communities.22 By proclamation dated

August 26, 2011, Maine’s then-Governor Paul LePage similarly directed state

executive agencies to consult with the Tribes regarding “matters that significantly or

uniquely affect those Tribes.” 23 That proclamation was in effect when Maine

unilaterally adopted its new interpretation of the Reservation, which gave rise to this

dispute. The State rescinded the proclamation after this case began, underscoring

that its new position conflicts with the federal policy and the Governor’s prior order

requiring consideration of impacts on tribal communities.

22 See generally C. Routel & J. Holth, Toward Genuine Tribal Consultation in the

21st Century, 46 U. MICH. J. L. REFORM 417 (2013), available at https:// repository.

law.umich.edu/mjlr/vol46/ iss2/2

23 Executive Order 21 FY 11/12, August 26, 2011, https://www.maine.gov/tools/

whatsnew/index.php?topic=Gov_Executive_Orders&id=306288&v=article2018.

Although the rescinding order is not readily available, its issuance was reported in

the Portland Press-Herald, April 21, 2015.


17

Both fundamental principles—international requirements for free, prior and

informed consent, as adopted in Maine, and the national executive policy of prior

consultation, similarly adopted—were disregarded when the State of Maine, through

its Department of Inland Fisheries & Wildlife, acted to take exclusive enforcement

jurisdiction over the Main Stem.

The trial court and original Panel opinion holding that the “plain language” of

the statute limits the Indians to the tops of the islands ignores the Indian view of the

relations between the State and the Penobscot Nation under the Acts as well as

Treaties of 1818 and 1820, and would complete a taking of the primary source of

their means of sustenance and the ecosystem of which they have been a part for

millennia. If not reversed, the federal courts will have consummated the divestment

imposed by the state’s 2012 diktat, contrary to UNDRIP principles as well as the

State’s own Executive Order requiring at least advance consultation before acting to

affect substantial concerns of the Penobscot Nation.


18

CONCLUSION

Your amicus, MITSC, urges this Court to hold that the Penobscot Reservation

includes, and the Penobscot Nation’s right to fish for sustenance extends to, the Main

Stem of the Penobscot River.

Respectfully submitted,

Dated: July 14, 2020 /s/ Robert Checkoway

ROBERT CHECKOWAY

Member, MITSC

1st Cir. Bar No. 1194831

Me. Bar No. 1007

SIX BROAD SOUND LANE

FREEPORT, ME 04032

(207) 272-0389

[email protected]

Counsel to the Maine Indian Tribal-State Commission


19

CERTIFICATE OF COMPLIANCE

I certify that: (i) this supplemental brief complies with the type-volume limitation

prescribed by Federal Rules of Appellate Procedure 28.1(e)(2) because it contains

5,677 words, including the parts of the supplemental brief exempted by Federal Rule

of Appellate Procedure 32(f); and (ii) this supplemental brief complies with the

typeface requirements of Federal Rule of Appellate Procedure 32(a)(5) and the type

style requirements of Federal Rule of Appellate Procedure 32(a)(6) because this

reply has been prepared using Microsoft Word in 14-point Times New Roman.

DATED: July 14, 2020 /s/ Robert Checkoway


20

CERTIFICATE OF SERVICE

I hereby certify that on this 14th day of July, 2020, I electronically filed the

foregoing Brief with the Clerk of the Court using the appellate CM/ECF system.

Counsel for all parties to the case are registered CM/ECF users and so will be served

by the appellate CM/ECF system.

DATED: July 14, 2020 /s/ Robert Checkoway


Documents

Nos. 2016-1424, 2016-1435, 2016-1474, 2016-1482 …...Nos. 2016-1424, 2016-1435, 2016-1474, 2016-1482 IN THE UNITED STATES COURT OF APPEALS FOR THE FIRST CIRCUIT PENOBSCOT NATION;