Island Means Island: Pierce Atwood Successfully Defends Against Tribal Claim to Control State Waters
In 1980, the State of Maine, Congress, and Maine tribes entered into Settlement Acts to resolve claims that the tribes owned two-thirds of the State. In return for, among other things, federal recognition and money, the tribes agreed to a settlement that included far less land, and unique State regulatory control over most of that land.
Since 1980, however, the Maine tribes have litigated, seeking to establish that the state-tribal relationship under the Settlement Acts more closely approaches that of most federally recognized tribes (which generally are not subject to state laws or regulation). June 30, 2017 marks the latest leg in this apparently never-ending succession of lawsuits, with the U.S. First Circuit Court of Appeals’ ruling in Penobscot Nation v. Mills.
This particular round of litigation relates to the boundaries of the Penobscot Nation’s reservation, and their related ability to regulate within those boundaries. The decision is of potentially great import, given that the Penobscot Nation claimed that at least 60 miles of the Penobscot River, the Main Stem, fell within its reservation boundaries, and the arguments it advanced could apply to far more Maine territory.
The Court of Appeals affirmed the Maine District Court in declaring that the Penobscot Reservation consists only of the islands in the Main Stem, and not any of the bed of or waters in the River. The Court vacated the District Court’s second ruling, which held that individual tribal members can sustenance fish anywhere in the River, on the basis that the issue was not ripe because the State of Maine has never prevented any member from sustenance fishing. These two positions were those advanced by the State of Maine, supported by a coalition (represented by Pierce Atwood) of municipalities and other River users that could have found their territorial boundaries changed and their River uses (including wastewater discharges) directly or indirectly regulated by the Penobscot Nation, had the decision gone the other way.
Given that the litigation costs of Maine tribes are typically underwritten by federal authorities, historically they have often pursued every avenue before judicial finality, such as motions for rehearing and further appellate review. Hence, the decision in Mills is likely not the last, either within this litigation or future actions. Given the rarity of the First Circuit granting rehearings and the fact that the United States Supreme Court has not previously been willing to hear disputes involving the interpretation of the Maine Settlement Acts, however, odds are good that this is the last ruling on the merits as to these particular issues.
In the past, when the State and/or Pierce Atwood has defended, the tribes have lost in pursuing their litigation positions. E.g., State of Maine v. Johnson, 498 F.3d 37 (1st Cir. 2007); Houlton Band of Maliseet Indians v. Ryan, 484 F.3d 73 (1st Cir.), cert. denied, 552 U.S. 1039 (2007); Aroostook Band of Micmacs v. Ryan, 484 F.3d 41 (1st Cir.), cert. denied, 552 U.S. 1039 (2007); Penobscot Nation v. Georgia-Pacific Corp., 254 F.3d 317 (1st Cir. 2001), cert. denied, 534 U.S. 1127 (2002); Great Northern Paper, Inc. v. Penobscot Nation, 2001 ME 68, cert. denied, 534 U.S. 1009 (2002); Passamaquoddy Tribe v. Maine, 75 F.3d 784 (1st Cir. 1996).
This type of litigation comes at significant cost to Maine taxpayers, who can essentially end up paying the bill for all the lawyers involved in the case: (1) to pay the tribe’s lawyers for suing the State; (2) to pay the salaries of U.S. Department of Justice lawyers (who intervened in this action to support the Penobscot Nation); (3) to pay the State lawyers’ salaries, who had to defend the State against the tribe’s complaint; and, (4) to the extent municipalities are involved, to pay that portion of their budgets contributing to defending against the tribal claims.
It will be interesting to see if the Trump Administration continues to support this and future tribal litigation, both financially and on the merits.