United States District Court, D. Maine
Penobscot Nation, Plaintiff: KAIGHN SMITH, JR., LEAD
ATTORNEY, ADRIANNE E. FOUTS, JAMES T. KILBRETH, MICHAEL L.
BUESCHER, DRUMMOND WOODSUM, Portland, ME USA.
United States, Intervenor Plaintiff, Counter Defendant:
STEVEN MISKINIS, LEAD ATTORNEY, U.S. DEPARTMENT OF JUSTICE,
Environment And Natural Resources/Ees, Washington, DC USA.
Chandler Woodcock, Commissioner for the Maine Department of
Inland Fisheries and Wildlife, Joel T Wilkinson, Colonel for
the Maine Warden Service, Janet T Mills, Attorney General for
the State of Maine, State of Maine, Defendants: GERALD REID,
MAINE ATTORNEY GENERAL'S OFFICE, Augusta, ME USA; PAUL
STERN, OFFICE OF THE ATTORNEY GENERAL, Augusta, ME USA.
Veazie Sewer District, Town of East Millinocket, Town of
Lincoln, Verso Paper Corp, Great Northern Paper Company LLC,
Town of Mattawamkeag, Covanta Maine LLC, Guilford-Sangerville
Sanitary District, Lincoln Sanitary District, Lincoln Paper
And Tissue LLC, City of Brewer, Town of Millinocket, Kruger
Energy (Usa) Inc, Town of Bucksport, Town of Howland, True
Textiles Inc, Intervenor Defendants: MATTHEW D. MANAHAN, LEAD
ATTORNEY, CATHERINE R. CONNORS, PIERCE ATWOOD LLP, Portland,
Expera Old Town, Intervenor Defendant, Counter Claimant:
CATHERINE R. CONNORS, MATTHEW D. MANAHAN, LEAD ATTORNEYS,
PIERCE ATWOOD LLP, Portland, ME USA.
Chandler Woodcock, Commissioner for the Maine Department of
Inland Fisheries and Wildlife, Janet T Mills, Attorney
General for the State of Maine, Joel T Wilkinson, Colonel for
the Maine Warden Service, State of Maine, Counter Claimants:
PAUL STERN, OFFICE OF THE ATTORNEY GENERAL, Augusta, ME USA.
Penobscot Nation, Counter Defendant: KAIGHN SMITH, JR., LEAD
ATTORNEY, ADRIANNE E. FOUTS, JAMES T. KILBRETH, DRUMMOND
WOODSUM, Portland, ME USA.
Town of Millinocket, Town of East Millinocket, Covanta Maine
LLC, City of Brewer, Town of Lincoln, Lincoln Sanitary
District, Town of Mattawamkeag, Town of Howland, Counter
Claimant: MATTHEW D. MANAHAN, LEAD ATTORNEY, CATHERINE R.
CONNORS, PIERCE ATWOOD LLP, Portland, ME USA.
Guilford-Sangerville Sanitary District, Veazie Sewer
District, Verso Paper Corp, Kruger Energy (Usa) Inc, True
Textiles Inc, Great Northern Paper Company LLC, Town of
Bucksport, Lincoln Paper And Tissue LLC, Counter Claimants:
CATHERINE R. CONNORS, PIERCE ATWOOD LLP, Portland, ME USA.
Penobscot Nation, Counter Defendant: KAIGHN SMITH, JR., LEAD
ATTORNEY, ADRIANNE E. FOUTS, JAMES T. KILBRETH, MICHAEL L.
BUESCHER, DRUMMOND WOODSUM, Portland, ME USA.
Janet T Mills, Attorney General for the State of Maine,
Counter Claimant: GERALD REID, MAINE ATTORNEY GENERAL'S
OFFICE, Augusta, ME USA; PAUL STERN, OFFICE OF THE ATTORNEY
GENERAL, Augusta, ME USA.
Members of Congress, Movant: L. SCOTT GOULD, LEAD ATTORNEY,
LAW OFFICE OF L. SCOTT GOULD, Cape Elizabeth, ME USA.
ON CROSS-MOTIONS FOR SUMMARY JUDGMENT
Z. Singal, United States District Judge.
the Court are three motions for summary judgment: (1) the
State Defendants' Motion for Summary Judgment, or in the
Alternative, for Dismissal for Failure to Join Indispensable
Parties (ECF No. 117), (2) the United States' Motion for
Summary Judgment (ECF No. 120) and (3) the Motion for Summary
Judgment by Plaintiff Penobscot Nation (ECF No. 121/128-1).
As explained herein, the Court GRANTS IN PART AND DENIES IN
PART each Motion.
Generally, a party is entitled to summary judgment if, on the
record before the Court, it appears " that there is no
genuine issue as to any material fact and that the moving
party is entitled to judgment as a matter of law."
Fed.R.Civ.P. 56(c)(2). " [T]he mere existence of
some alleged factual dispute between the parties
will not defeat an otherwise properly supported motion for
summary judgment; the requirement is that there be no
genuine issue of material fact."
Anderson v. Liberty Lobby, Inc., 477 U.S. 242,
247-48, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). An issue is
" genuine" if " the evidence is such that a
reasonable jury could return a verdict for the nonmoving
party." Id. at 248. A " material
fact" is one that has " the potential to affect the
outcome of the suit under the applicable law."
Nereida-Gonzalez v. Tirado--Delgado, 990 F.2d 701,
703 (1st Cir. 1993) (citing Anderson, 477 U.S. at 248)
(additional citation omitted).
party moving for summary judgment must demonstrate an absence
of evidence to support the nonmoving party's case.
Celotex Corp. v. Catrett, 477 U.S. 317, 325, 106
S.Ct. 2548, 91 L.Ed.2d 265 (1986). In determining whether
this burden is met, the Court must view the record in the
light most favorable to the nonmoving party and give that
party the benefit of all reasonable inferences in its favor.
Santoni v. Potter, 369 F.3d 594, 598 (1st Cir.
the moving party has made this preliminary showing, the
nonmoving party must " produce specific facts, in
suitable evidentiary form, to establish the presence of a
trialworthy issue." Triangle Trading Co. v. Robroy
Indus., Inc., 200 F.3d 1, 2 (1st Cir. 1999) (citation
and internal punctuation omitted); see also Fed.R.Civ.P.
56(e). " Mere allegations, or conjecture unsupported in
the record, are insufficient." Barros-Villahermosa
v. United States, 642 F.3d 56, 58 (1st Cir. 2011)
(quoting Rivera--Marcano v. Normeat Royal Dane Quality
A/S, 998 F.2d 34, 37 (1st Cir. 1993)); see also
Wilson v. Moulison N. Corp., 639 F.3d 1, 6 (1st Cir.
2011) (" A properly supported summary judgment motion
cannot be defeated by conclusory allegations, improbable
inferences, periphrastic circumlocutions, or rank
speculation." (citations omitted)). " As to any
essential factual element of its claim on which the nonmovant
would bear the burden of proof at trial, its failure to come
forward with sufficient evidence to generate a trialworthy
issue warrants summary judgment to the moving party."
In re Spigel, 260 F.3d 27, 31 (1st Cir. 2001)
(quoting In re Ralar Distribs., Inc., 4 F.3d 62, 67
(1st Cir. 1993)).
when filed simultaneously, " [c]ross-motions for summary
judgment require the district court to consider each motion
separately, drawing all inferences in favor of each
non-moving party in turn. AJC Int'l, Inc. v. Triple-S
Propiedad, 790 F.3d 1, 3 (1st Cir. 2015) (internal
quotations and citations omitted). In short, the
above-described " standard is not affected by the
presence of cross-motions for summary judgment."
Alliance of Auto. Mfrs. v. Gwadosky, 430 F.3d 30, 34
(1st Cir. 2005) (citation omitted). " [T]he court must
mull each motion separately, drawing inferences against each
movant in turn." Cochran v. Quest Software,
Inc., 328 F.3d 1, 6 (1st Cir. 2003) (citation omitted).
Court notes that Local Rule 56 provides a detailed process by
which the parties are to place before the Court the "
material facts . . . as to which the moving party contends
there is no genuine issue of material fact." D. Me. Loc.
R. 56(b). Local Rule 56 calls for " separate, short, and
concise" statements that may be readily admitted, denied
or qualified by the opposing side. D. Me. Loc. R. 56(b)& (c).
Additionally, the rule requires each statement to be followed
by a " record citation . . . to a specific page or
paragraph of identified record material supporting the
assertion." D. Me. Loc. R. 56(f). " The court may
disregard any statement of fact not supported by a specific
citation to record material properly considered on summary
judgment. The court shall have no independent duty to search
or consider any part of the record not specifically
referenced in the parties' separate statement of
facts." Id.; see also Fed.R.Civ.P. 56(e)(2)
(" If a party fails to properly support an assertion of
fact or fails to properly address another party's
assertion of fact as required by Rule 56(c), the court may .
. . consider the fact undisputed for purposes of the
Order, the Court has endeavored to construct the facts in
accordance with the letter and spirit of Local Rule 56. Doing
so has required the Court to review 479 separately numbered
paragraphs, many of which were compound, complex, and
supported with citation to voluminous records. Additionally,
many of the numbered paragraphs were immaterial and/or
obviously disputed in the context of this
litigation. In short, in multiple instances, each
of the movants has failed to comply with the letter and
spirit of Local Rule 56, making construction of the
undisputed material facts unnecessarily difficult. However,
the parties have maintained--even after the briefing was
complete--that this matter is amenable to resolution on the
record submitted. (See 10/14/15 Transcript (ECF No. 156) at
5.) The Court concurs in that assessment.
August 20, 2012, Plaintiff Penobscot Nation, which is a
federally recognized American Indian tribe in Maine, filed
this action seeking to resolve ongoing disputes between the
tribe and the State of Maine regarding a section of the
Penobscot River. This Court allowed the United States to
intervene as a plaintiff on its own behalf and as a trustee
for the Penobscot Nation. (See generally United States'
Complaint (ECF No. 58).) The named State Defendants in this
matter are: Janet T. Mills, the current Attorney General for
the State of Maine; Chandler Woodcock, the Commissioner of
the Maine Department of Inland Fisheries and Wildlife ("
DIFW" ); and Joel T. Wilkinson, Colonel of the Maine
Warden Service. Additionally, the United States'
Complaint directly names the State of Maine as a State
Penobscot Nation asserts that it was prompted to file this
case in response to the August 8, 2012 Opinion issued by
then-Maine Attorney General William J. Schneider regarding
the respective regulatory jurisdiction of the . . . Penobscot
Nation and the State of Maine relating to hunting and fishing
on the main stem of the Penobscot River." (8/8/12 Ltr.
from Atty. Gen. Schneider to Comm. Woodcock & Col. Wilkinson
(ECF No. 8-2).) In relevant part, this Opinion concluded:
[T]he Penobscot Nation has authority to regulate hunting and
fishing on those islands [in the main stem] included in its
Reservation from Indian Island in Old Town, northward to the
confluence of the East and West branches in Medway. Like
private landowners, the Penobscot Nation may also restrict
access to their lands, here islands, as it sees fit. However,
the River itself is not part of the Penobscot Nation's
Reservation, and therefore is not subject to its regulatory
authority or proprietary control. The Penobscot River is held
in trust by the State for all Maine citizens, and State law,
including statutes and regulations governing hunting, are
fully applicable there. 30 M.R.S. § 6204. Accordingly,
members of the public engaged in hunting, fishing or other
recreational activities on the waters of the Penobscot River
are subject to Maine law as they would be elsewhere in the
State, and are not subject to any additional restrictions
from the Penobscot Nation.
To avoid friction on the Penobscot River, it is important
that state and tribal officials, as well as members of the
Penobscot Nation and the general public, have a clear
understanding of the regulatory jurisdictions of the
Penobscot Nation and the State of Maine. Both the State and
the Penobscot Nation must encourage citizens to respond
civilly to uniformed tribal and state game wardens performing
their official duties. All citizens must heed and comply with
ordinances promulgated by the Penobscot Nation governing the
islands it owns, as well as State laws and regulations
covering the River.
Id. The Penobscot Nation and the United States
(together, " Plaintiffs" ) maintain that this 2012
Attorney General Opinion reflects a misinterpretation of the
law governing the boundaries of their reservation and their
rights to engage in sustenance fishing. Thus, Plaintiffs
seek a declaratory judgment clarifying both those boundaries
and tribal fishing rights within the Penobscot River. In
responding to Plaintiffs' multi-part requests for
declaratory relief, State Defendants have asserted their own
claim for declaratory relief regarding these same issues.
(See State Defs. Amended Answer (ECF No. 59) at 11-14 & State
Defs. Mot. for Summ. J. (ECF No. 117) at 1, 30-31 n. 36.)
purposes of this litigation, the parties agree that the
" Main Stem" is a portion of the Penobscot River
and stretches from Indian Island north to the confluence of
the East and West Branches of the Penobscot River.
(Stipulations (ECF No. 111) ¶¶ 3 & 4.) At present, the Main
Stem is a non-tidal, navigable stretch of river that is
approximately sixty miles long. (Id. & Penobscot
Chem. Fibre Co., 30 F.P.C. 1465, 1466 (Dec. 9, 1963).) There
are at least 146 islands located in the Main Stem. (Jt. Ex.
568 (ECF No. 108-68) at PageID # 5522; J. Banks. Decl. (ECF
No. 140-1) ¶ 4.) These islands total between 4446 and 5000
acres. (Jt. Ex. 593 (ECF No. 108-93) at PageID # 5631; Jt.
Ex. 568 (ECF No. 108-68) at PageID # 5522.) None of those
islands contains a body of water in which fish live. (Barry
Dana Decl. (ECF No 124-2) ¶ 12.) Within the Main Stem, there
are stretches of river that contain no islands. (See, e.g.,
Jt. Exs. 301, 304, 309 & 310.) All told, the Main Stem
islands, together with the bank-to-bank water surface of the
Main Stem, cover approximately 13,760 acres. (State Defs. Ex.
8 (ECF No. 118-8) at PageID # 7090.)
wading into the depths of the factual record the parties have
placed before the Court, the Court first reviews the history
of the key treaties and legislation that led to the present
relationship between the State of Maine and the Penobscot
Nation concerning the Main Stem.
Legislative Background of Penobscot Nation Land in
1790, when Maine was still part of the Commonwealth of
Massachusetts, Congress passed the Indian Nonintercourse Act
(" ITIA" ), 1 Stat. 137, which provided that "
no sale of lands made by any Indians, or nation or tribe of
Indians within the United States, shall be valid to any
person or persons, or to any state, whether having the right
of preemption to such lands or not, unless the same shall be
made and duly executed at some public treaty, held under the
authority of the United States." 1 Stat.
The 1796 and 1818 Treaties
the language of ITIA, Massachusetts proceeded to negotiate
two treaties with the Penobscot Nation that are relevant to
the present case. The first treaty was negotiated in 1796
(the " 1796 Treaty" ). The subject of the 1796
Treaty was a six mile wide strip of land on each side of the
Penobscot River stretching for thirty miles of the Main Stem.
(Jt. Ex. 294 at PageID # 3858-59 (Transcription of 1796
Treaty).) After the execution of the 1796 Treaty,
Massachusetts directed that the subject land be surveyed and
laid out into townships and quarter townships, as follows:
Whereas this Commonwealth in August one thousand, seven
hundred and ninety six, obtained of the Penobscot tribe of
Indians their relinquishment of their claims to the lands six
miles wide on each side of Penobscot River, extending from
Nicholas Rock, so called, near the head of the tide in the
said river, up the same river thirty miles, on a direct line,
according to the general course thereof: and whereas ... it
is necessary to have a survey of said land, and information
of the quality and situation there Resolved that Salem Town
Esqr. be vested with full power to have all the said Lands
surveyed and laid out into Townships as near the contents of
six miles square as the land will admit, and also into
quarters of Townships as soon as may be, according to his
discretion, & a plan thereof returned to him with a true
description of the quantity and situation of each Township,
and quarter parts thereof, as also of the streams and waters
therein and of the number of Settlers thereon, who may have
settled prior to the first day of August one thousand, seven
hundred and ninety six, with the number of acres each Settler
has under improvement, and the particular time of his
(P.D. Ex.1 at 202-203.) Park Holland, John Maynard, and John
Chamberlain were engaged by Salem Town to survey the
Penobscot tract and created a map reflecting their survey.
(Jt. Ex. (ECF No. 110-32) at Page ID # 6384.) The tract
surveyed by Holland, Maynard, and Chamberlain, comprised of
189,426 acres, became known as the Old Indian
Purchase. (P.D. Ex. 21 at 209; Jt. Ex. 732 (Map
1).) After accounting for land sold, in 1817, Massachusetts
asserted it was " still the proprietor of 161,815 1/2
acres of land in the Old Indian Purchase."
 (State Defs. Ex. 15 (ECF No. 118-15)
at PageID # 7168.)
29, 1818, Massachusetts entered into another treaty with the
Penobscot Nation. In this " 1818 Treaty," the
Penobscot Nation ceded " all the lands [the Penobscot
Nation possesses] on both sides of the Penobscot river, and
the branches thereof, above the tract of thirty miles in
length on both sides of said river, which said tribe [ceded
in the 1796 Treaty]" but reserved four townships as well
as " all the islands in the Penobscot river above
Oldtown and including said Oldtown island." (P.D. Exs. 7
& 8 (1818 Treaty & Transcription of 1818 Treaty) at 45-46.)
The 1818 Treaty also explicitly granted to the citizens of
the Commonwealth of Massachusetts a right to " pass and
repass" in any river, stream or pond that " runs
through any of the lands hereby reserved [for the Penobscot
Nation] for the purpose of transporting timber and other
articles." (P.D. Ex. 8 at 46.)
Maine became a state in 1820, the unsold public
lands in Maine that were obtained under the treaties of 1796
and 1818 were divided between Maine and Massachusetts by
Commissioners appointed for that purpose; this division
included townships or unsold acreage located along the
Penobscot River. (Jt. Ex. 667 (ECF No. 109-67) at PageID #s
5944-48, 5956; see also Jt. Ex. 732 (Map 2).) The December
28, 1822 report by the Commissioners assigns lands to each
state. (Id. at PageID # 5943, 5945-46, 5947.)) From
the Old Indian Purchase, the following unsold lands were
assigned to Maine: Townships No. 1, 2, and 4, east of the
Penobscot River, which townships later became Passadumkeag,
Greenbush, and Bradley, respectively. (Id. at
PageID # 5947-5948; Jt. Ex. 757 (ECF No. 110-57) at PageID #
6587 (map dated 1829).)
a deed dated June 10, 1833 documents a sale of the Penobscot
Nation's four reserved townships from the 1818 Treaty to
the State of Maine (the " 1833 Deed" ):
Know all men by these present that, we the Governor,
Councillors and principal head men of the Penobscot Tribe of
Indians in council assembled after mature deliberation and
upon full consideration of a proposition made to us in behalf
of said Tribe, by the State of Maine . . . do cede grant,
bargain, sell and convey to said State, all the right, title
and interest of said Tribe in and to their four townships of
land lying north of the mouth of Piscataquis River . . . . To
have and to hold to said State the above granted premises,
with all the privileges and appurtenances thereto belonging
And we do covenant with said State that we are authorized by
the Laws and usage of said Tribe to convey as aforesaid and
that we for ourselves and in behalf of said Tribe will
forever warrant and defend the premises against the claims of
all the members of said Tribe.
(PD Ex. 131 at 592.) The sale price was
2. United States v. Maine: The Land Claims
1970s, the Penobscot Nation claimed that Maine and
Massachusetts had failed to have the 1796 and 1818 Treaties
and the 1833 Deed confirmed by Congress in accordance with
ITIA. The Penobscot Nation claimed that it consequently
retained title to all of these lands. See, e.g., Maine v.
Johnson, 498 F.3d 37, 41 (1st Cir. 2007) (citing
Bottomly v. Passamaquoddy Tribe, 599 F.2d 1061, 1065
(1st Cir. 1979)); see also Passamaquoddy Tribe v.
Maine, 75 F.3d 784, 787 (1st Cir. 1996) (explaining that
the tribes then pursued claims to " nearly two-thirds of
Maine's land mass" ). The land claims of the
Penobscot Nation were ultimately pressed by the United States
in a 1972 case titled United States v. Maine, D. Me.
Civil No. 1969-ND (P.D. Ex. 223 (Complaint)). Other
Maine Indian tribes asserted similar claims involving similar
land transactions that had occurred since 1790.
discussions in these cases began in March 1977 and were
concluded with a stipulation of dismissal in August 1981.
(See, e.g., P.D. Ex. 282 at 5941 (describing history of
settlement discussions) & P.D. Ex. 233 at 3241-47
(stipulation of dismissal.) The tribes were represented at
these negotiations in part by a committee of tribal
representatives, including Rueben Phillips, Andrew Akins,
James Sappier, and Timothy Love on behalf of the Penobscot
Nation. (Phillips Decl. (ECF No. 124) ¶¶ 7-9.) The proposed
settlement was presented to the members of the Penobscot
Nation in early March 1980. (Phillips Decl. ¶¶ 12-17.) A
tribal referendum vote on March 15, 1980 resulted in 320
votes in favor of the settlement and 128 opposed. (See P.D.
Ex. 260 at 3940-42.)
of the Stipulation of Dismissal in United States v.
Maine, on April 17, 1981, the Penobscot Nation Tribal
Council authorized then-Governor Timothy Love to execute a
Release and Relinquishment. (Jt. Ex. 612 (ECF No 109-12) at
PageID # 5742.) In accordance with this authorization, on
April 21, 1981, Governor Timothy Love authorized the United
States to stipulate to the final dismissal with prejudice of
the claims the United States had brought on behalf of the
Penobscot Nation and also explicitly released and
relinquished the Penobscot Nation's claims to the extent
provided in the related acts passed by Congress and the Maine
Legislature. (Jt. Ex. 612 (ECF No 109-12) at PageID # 5743.)
This Release and Relinquishment was reviewed by the
Department of Justice. (Jt. Ex. 612 (ECF No. 109-12) at
PageID # 5736.)
The Passage of the Settlement Acts 
the stipulation of dismissal in United States v. Maine
(P.D. Ex. 233) was the culmination of the passage of two
pieces of legislation: the Maine Implementing Act, 30
M.R.S.A. § § 6201-6214 (" MIA" ), and the
Maine Indian Claims Settlement Act, 25 U.S.C. § §
1721-1735 (" MICSA" ). Throughout this Order, the
Court will refer to MICSA and MIA collectively as " the
Settlement Acts." While the Settlement Acts operate in
tandem, each act has its own legislative history, and the
parties have drawn extensively from those legislative
histories in constructing the factual record now before the
MIA: 30 M.R.S.A. § § 6201-6214
on the premise that this particular legislative action needed
to occur " as soon as possible," L.D. 2037, the
negotiated proposal that was thereafter enacted as MIA, was
presented to the Maine Legislature in mid-March 1980. (Hull
Decl. (ECF No. 119-32) ¶ 7.) On March 28, 1980, the Maine
Legislature's Joint Select Committee on Indian Land
Claims held a public hearing on L.D. 2037. (See P.D. Ex. 258
at 3738.) In his opening remarks at the hearing, Attorney
General Cohen described " the Settlement Proposal"
and his reasons for recommending " this Settlement to
the people of the State of Maine." (P.D. Ex. 258 at
3740.) While acknowledging that " [i]t would be an
overstatement to say that there would be no difference
between Indians' Lands and non-Indians' Lands"
under terms of L.D. 2037, he described the proposed
legislation as " generally consistent with [his] belief
that all people in the State should be subject to the same
laws. While there are some exceptions which recognize
historical Indian concerns, in all instances the State's
essential interest is protected." (Id. at
Tureen, appearing at the hearing as counsel on behalf of the
Penobscot Nation and the Passamaquoddy Tribe, explained that
the negotiations that led to the current proposal occurred
only because " feelings of mistrust began to break down
and a spirit of reconciliation made itself felt."
(Id. at 3763.) Tureen flagged the exercise of "
tribal powers in certain areas of particular cultural
importance such as hunting and fishing" as an issue that
had been important for the State to understand.
(Id.) Mr. Aikens, Chair of the
Passamaquoddy-Penobscot Land Claims Committee, also spoke and
indicated that part of the negotiation with the State had
been " that neither side would make any changes or
amendment to the package. We have not and we expect the same
in return from the Maine Senate or House." (Id.
Committee heard concerns about the hunting and fishing
provisions of the proposed settlement. By way of example, Joe
Floyd, a Public Member of the Atlantic Seamen's Salmon
Commission, expressed concern that " critical parts of
the Penobscot River" would " fall within the
confines of the Settlement," which he said " could
spell danger to the salmon." (Id. at 3855-56.)
In response to expressed concerns about the sustenance
fishing rights contemplated under L.D. 2037, Deputy Attorney
General Patterson explained:
Currently under Maine Law, the Indians can hunt and fish on
their existing reservation for their own sustenance without
regulation of the State. That's a right which the State
gave to the Maine Indians on their reservations a number of
years ago and the contemplation of this draft was to keep in
place that same kind of right and provide that the Indians
could continue to sustenance hunt and fish and that that
would provide a legitimate basis for distinction between
Indian and non-Indian hunting and fishing.
(Id. at 3793-94.) In response to later questions,
Deputy Attorney General Patterson similarly explained:
[T]he State currently lets Indians and the Legislature
currently lets Indians engage and regulate their own hunting
and fishing on their on reservations. That's a current
state law. That's in Title 12, § 7076. That was a
right which the State gave to the Indians on their
reservations some years ago. So in large measure, the policy
embodied here was long ago recognized by the Legislature of
the State. That's why the right to sustenance hunt and
fish on reservations which is found in Sub-§ 4 on Page
9, is not such a major departure from current policy.
(Id. at 3894.)
this hearing, additional memoranda were drafted and
distributed suggesting clarifications that might be made to
L.D. 2037. The March 31, 1980 Preliminary Bill Analysis by
John Hull, who was then working as a staff attorney for the
Maine Legislature, noted, in relevant part, that the
definition of the Penobscot Indian Reservation in L.D. 2037
" is unclear" with respect to whether " the
boundaries extend to high or low water mark on tidal waters,
or beyond that on marine waters." (P.D. Ex. 262 at
from then-Attorney General Richard S. Cohen, dated April 1,
1980, was provided to the Joint Select Committee on Indian
Land Claims. It included a section, titled " Boundaries
of the Reservation and Territory," that read in relevant
The external boundaries of the Reservations are limited to
those areas described in the bill including any riparian or
littoral rights expressly reserved by the original treaties
with Massachusetts or which are included by the operation of
law. . . .
.... In any event the Tribes will not own the bed of any
Great Pond or any waters of a Great Pond or river or stream,
all of which are owned by the State in trust for all
citizens. Jurisdiction of the Tribes (i.e. ordinance powers,
law enforcement) will be coextensive and coterminous with
(P.D. Ex. 263 at 3965-66.) The first portion of this section
of the memo became part of the April 2, 1980 Report of the
Joint Select Committee on Indian Land Claims Relating to L.D.
2037, " An Act to Provide for Implementation of the
Settlement of Claims by Indians in the State of Maine and to
create the Passamaquoddy Indian Territory and Penobscot
Indian Territory," with minimal changes:
The boundaries of the Reservations are limited to those areas
described in the bill, but include any riparian or littoral
rights expressly reserved by the original treaties with
Massachusetts or by operation of State law.
(P.D. Ex. 264 at 3971 (changes noted by added emphasis).)
This was one of fourteen specific interpretations that the
Joint Select Committee on Indian Land Claims announced as
part of its understanding of MIA at the time of its
passage. (See P.D. Ex. 272 at 4023
(Representative Post explaining that " as we vote on
this particular piece of legislation, we accept the
understanding that is reflected" in the 4/2/1980 Joint
introducing L.D. 2037 to the Maine Senate on April 2, 1980,
Senator Samuel Collins acknowledged some technical amendments
had been made at the committee level but stated that "
[t]he amending process is not open to the Legislature in the
manner of our usual legislation, because this is the
settlement of a law suit [sic]. Just as with a negotiated
labor contract we cannot make the changes." (P.D. Ex.
271 at 4016.) He explained that, if enacted, the bill would
be " a unique document" that would not " take
effect unless Congress adopts it and finances it" and
could not be readily amended once ratified by Congress.
(Id.) He further stated, however, " It is the
expectation of the committee . . . that at the time of
enactment, we will have before you a further report of the
committee in which we express some of our understandings of
various words and provisions of this very complicated
document, so that you may have them as a part of the
legislative history of the act. No act of this complexity
will be free from question marks. There will be
interpretations necessary through the years just as there are
interpretations necessary of all the statutes that we
pass." (P.D. Ex. 271 at 4016.) Senator Collins also
noted that L.D. 2037 " [w]ill be extending some hunting,
fishing and trapping rights to about 800 Indian people in
300,000 acres." (Id.)
on April 2, 1980, the Maine Senate voted to approve L.D.
2037. (P.D. Ex. 271 at 4020.) On April 3, 1980, the Maine
House voted to approve it. (P.D. Ex. 272 at 4025.)
Thereafter, it was signed by Governor Brennan. On April 3,
1980, the Maine House of Representatives passed an order
(H.P. 2055) to place documents in the Legislative Files, as
did the Maine Senate (the " Legislative Files
Order" ). (P.D. Ex. 274 at 4031.) The Legislative Files
Order directed that the following documents " be placed
in the Legislative files" : (1) " The report of the
Joint Select Committee on Indian Land Claims," which
included a memorandum to the Committee from Attorney General
Richard S. Cohen, dated April 2, 1980 (" Report of
Maine's Joint Committee" ); and (2) " The
transcript of the hearing of the Joint Select Committee on
Indian Land Claims, including the statement of the Honorable
James B. Longley and the memorandum to the committee from
Maine Attorney General Richard S. Cohen, dated March 28,
declaration dated June 16, 2014, Michael Pearson, a member of
the Maine Legislature and the Joint Select Committee in 1980,
stated that he believes the sustenance fishing provisions of
MIA were " 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" and were "
not intended to confine members of the Penobscot Nation to
seek out fish for their sustenance on the surfaces of the
islands or within restricted zones of the River next to the
islands." (Pearson Decl. (ECF No. 119-37) at PageID #
7363.) Likewise, Bennett Katz, then-Chair of the Maine Indian
Tribal-State Commission, which was created by MIA, and
previously a member of the Maine Senate at the time of
MIA's passage, stated in a 1995 letter to the Federal
Energy Regulatory Commission that he could not imagine that
his colleagues intended MIA to be interpreted to mean that
" [t]he sustenance fishing right granted to the
Penobscot Nation is not on the Penobscot River" and that
" [o]nly the islands and none of the waters in the
Penobscot River constitute the Penobscot Reservation."
(Jt. Ex. 161 (ECF No. 104-61) at PageID # 2200.) Katz went on
to state that he was " certain 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" and that it would have " been assumed that
the right [to sustenance fish] would be exercised in the
waters of the Penobscot River" because any other
interpretation would not " make sense."
MICSA: 25 U.S.C. § § 1721-1735
the State's enactment of MIA, attention shifted to
Congress. The Senate Select Committee on Indian Affairs held
hearings on July 1 and 2, 1980 (P.D. Ex. 278), hearing
testimony from tribal members and non-tribal Maine residents
as well as state officials. A map that was
presented to Congress during the sessions on ratifying MIA
showed the Passamaquoddy and Penobscot Reservations as shaded
in red. (Sproul Decl. (ECF No. 141-2) at PageID # 8185
(referencing Jt. Ex. 732 (ECF No. 110-32) Map 30).) On this
map, " river and lakes adjacent to settlement
lands" are shaded white. (Jt. Ex. 732 (ECF No. 110-32)
Senate Committee hearing, the Committee requested that
Maine's Governor and other state officials provide
written responses to certain questions, including whether MIA
and the proposed federal statute contain "
jurisdictional language [that] bestow[s] preferential
treatment upon the tribes." In his August 12, 1980
" joint response" letter, Attorney General Cohen
responded to that question as follows:
Under [MIA], the Penobscot Nation and Passamaquoddy Tribe are
given certain rights and authority within the 300,000 acres
of " Indian Territory." To the extent that these
rights and authority exceed that given any Maine
municipality, they do so only to a limited extent and in
recognition of traditional Indian activities. . . . The most
significant aspect of this limited expansion of authority is
in the area of hunting and trapping and, to a limited extent,
fishing in Indian Territory. Even in this area, the Indian
Tribes must treat Indians and non-Indians alike, except for
subsistence provisions, and Tribal authority can be
overridden by the State if it begins to affect hunting,
trapping or fishing outside the Indian Territory. Generally
the Act does not provide Indians with preferential treatment.
To the contrary, we believe the Implementing Act establishes
a measure of equality between Indian and non-Indian citizens
normally not existing in other States. Indeed, the Act
recovers back for the State almost all of the jurisdiction
that had been lost as a result of recent Court decisions.
Obviously no one can guarantee that there will be no
litigation in the future over the meaning of certain
provisions in the Maine Implementing Act or S.2829. However,
the provisions of S. 2829 and the Implementing Act have been
carefully drafted and reviewed to eliminate insofar as
possible any future legal disputes. Particular care was taken
to insure that S. 2829 is adequate to finally extinguish the
land claims, and as to those provisions we are satisfied that
they have been drafted as carefully as possible.
Nevertheless, litigation over this and other provisions is
always possible and we cannot prevent the filing of future
suits. Any contract, agreement or legislation always contains
unanticipated ambiguities that sometimes can only be resolved
through the courts. In our judgment, however, should
questions arise in the future over the legal status of
Indians and Indian lands in Maine, those questions can be
answered in the context of the Maine Implementing Act and S.
2829 rather than using general principles of Indian law.
(P.D. Ex. 278 at 4436-4437.)
final House and Senate committee reports (" Committee
Reports" ) on the federal act ratifying the terms of
MIA, Congress confirmed in its " Summary of Major
Provisions" that " the settlement . . . 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." (P.D. Ex. 282 at 5946; P.D. Ex. 283 at
6008.) Congress also addressed as " Special Issues"
concerns raised in testimony and written materials to the
House and Senate Committees, all of which the committees said
were " unfounded." (P.D. Ex. 282 at 5942; P.D. Ex.
283 at 6004.) In response to the concern " [t]hat the
settlement amounts to a 'destruction of the sovereign
rights and jurisdiction of the . . . Penobscot Nation,"
the Committee Reports stated, in identical language, that the
settlement " protects the sovereignty of . . . the
Penobscot Nation" and that " hunting and fishing
provisions discussed in paragraph 7" of the "
Special Issues" were " examples of expressly
retained sovereign activities." (P.D. Ex. 282 at
5942-43; P.D. Ex. 283 at 6004-05.) The Committee Reports then
indicate in paragraph 7: " Prior to the settlement,
Maine law recognized . . . the Penobscot Nation's right
to control Indian subsistence hunting and fishing within
[its] reservation, but the State of Maine claimed the right
to alter or terminate these rights at any time." (P.D.
Ex. 282 at 5944-45; P.D. Ex. 283 at 6006-07.) In identical
language, each report continued, " Under Title 30, Sec.
6207 as established by the Maine Implementing Act . . . the
Penobscot Nation [has] the permanent right to control hunting
and fishing . . . within [its] reservation. The power of the
State of Maine to alter such rights without the consent of
the [Tribe] is ended. . . . The State has only a residual
right to prevent the [Tribe] from exercising [its] hunting
and fishing rights in a manner which has a substantially
adverse effect on stocks in or on adjacent lands or waters .
. . not unlike that which other states have been found to
have in connection with federal Indian treaty hunting and
fishing rights." (P.D. Ex. 282 at 5944-45; P.D. Ex. 283
the passage of MICSA, Congress approved and ratified all
earlier transfers of land and natural resources by or on
behalf of the Penobscot Nation. See 25 U.S.C. § 1723.
This ratification by its express terms included not only
" any voluntary or involuntary sale, grant, lease,
allotment, partition, or other conveyance," but also
" any act, event, or circumstance that resulted in a
change in title to, possession of, dominion over, or control
of land or natural resources." 25 U.S.C. § 1722(n).
Before the end of 1980, the Settlement Acts were in effect.
Post-Settlement Acts: The State and the Penobscot Nation
Chart a New Course 
The slate is effectively wiped clean," stated Penobscot
Nation counsel Thomas Tureen after Maine's passage of
MIA. (Jt. Ex. 580 (ECF No. 108-80) at PageID # 5563.)
Likewise, the Native American Rights Fund, whose lawyers
represented the Penobscot Nation in the land claims case,
celebrated the 1980 Acts by declaring: " The Maine
settlement is far and away the greatest Indian victory of its
kind in the history of the United States." (Jt. Ex. 582
(ECF No. 108-82) at PageID # 5566.)
January 9, 1981, the Department of the Interior (the "
DOI" ) published a notice in the Federal Register
announcing the " extinguishment of all land and related
claims of the Maine Indians" and, in relevant part,
stating that MICSA " extinguishes any claims of
aboriginal title of the Maine Indians anywhere in the United
States and bars all claims based on such title. This section
also extinguishes any land claims in the State of Maine
arising under federal law by any Indian tribe . . . ."
(P.D. Ex. 288 at 6063 (46 Fed.Reg. 2390 (Dep't of
Interior Jan. 9, 1981)).)
1980, the Penobscot Nation has posted signs on certain
islands in the Main Stem. (State Defs. Ex. 8 (ECF No. 118-8)
at PageID # 7083.) Specifically, since at least 1983, the
Penobscot Nation has posted signs on some (but not all) of
the islands in the Main Stem that state: " PENOBSCOT
INDIAN RESERVATION. NO TRESPASSING WITHOUT PERMISSION.
VIOLATORS WILL BE PROSECUTED." (State Defs. Ex. 8 at
PageID # 7083-84.) Similar postings do not appear at the
public boat launches or on the banks of the Main Stem, nor
have such postings appeared in the past at these locations.
(Id. at PageID # 7084.) Notably, non-tribal hunters
and trappers generally access the Main Stem from these river
banks, especially the public boat launches. (Id. at
PageID # 7084-85 & Ring Aff. (ECF No 52-3).)
Penobscot Nation has posted a three-panel informational kiosk
at the Costigan Boat Launch in Milford, which was funded by
the DOI. (Id. at PageID # 7083; Jt. Ex. 705 (ECF No.
110-5) at PageID # 6156.) With respect to permits, the panel
states: " To obtain fiddleheads or duck hunting permits
for the islands, for information regarding other allowable
uses of the reservation or to report water quality problems,
contact the Penobscot Nation Department of Natural Resources
at 12 Wabanaki Way, Indian Island, Old Town, Me. 04468 or
call (207) 827-7776." (Jt. Ex. 705 (ECF No. 110-5) at
PageID # 6156.)
the Penobscot Nation's woodland territory beyond the Main
Stem contains postings. (State Defs. Ex. 8 at PageID # 7084.)
Generally, these posting signs read: " NOTICE Penobscot
Nation Indian Territory Hunting, trapping, and other taking
of wildlife under exclusive authority of the Penobscot
Nation. Special restrictions may apply. Violators will be
prosecuted. PERMIT MAY BE REQUIRED Contact: Wildlife & Parks
Community Bldg. Indian Is., Me. 04465 1-207-827-777."
(State Defs. Ex. 8. at PageID # 7084; Georgia Decl. Ex. E
(ECF No. 118-4) at PageID # 7037.) These postings are not
visible from the Main Stem, nor do the signs notify the
public that the Penobscot Nation regulates activities on the
Main Stem. (State Defs. Ex. 8 at PageID # 7084.)
the passage of the Settlement Acts, the Penobscot Nation does
not and has not required non-tribal members to purchase
" access permits" in order to be on the waters of
the Main Stem for navigating, fishing, or sampling. (Banks
Decl. (ECF No. 140-1) ¶ 5; Kirk Loring Decl. (ECF No. 140-21)
¶ 12 (regarding 1976-2001 when Loring was Chief Game Warden
for tribe).) However, the Penobscot Nation Warden Service has
patrolled the Main Stem when it is not ice-bound, as it has
done since it began operating its own warden service in 1976.
(Kirk Loring Aff. (ECF No. 119-12) ¶¶ 8 & 9; Gould Decl. (ECF
No. 140-2) ¶ 5.) The Penobscot Nation Warden Service
historically has employed approximately four wardens who have
patrolled in the Main Stem. (Kirk Loring Aff. (ECF No.
119-12) ¶ 4.) Under various Maine state laws, Penobscot
Nation wardens are cross-deputized to enforce state laws
within Penobscot Indian territory and have been granted the
powers of a game warden outside said territory. See,
e.g., 12 M.R.S.A. § 10401.
the early years following the passage of the Settlement Acts,
the game wardens for Penobscot Nation and Maine occasionally
collaborated on patrols and enforcement actions in the Main
Stem. (See, e.g., Dunham Decl. (ECF No. 118-2) P2; Georgia
Decl. (ECF NO. 118-4) ¶¶ 5, 6-8; Georgia Decl. (ECF NO.
148-2) ¶¶ 4, 12; Wilkinson Aff. (ECF No. 118-6) at PageID #
7052; see also Jt. Exs. 85-87 (ECF Nos. 103-35-103-37) at
PageID # 1697-1700 (documenting game warden collaboration on
the summonsing of Kirk Francis).) More recently, the Main
Stem patrol and enforcement actions by the wardens employed
by the Penobscot Nation and the State have become
contentious. (See, e.g., Wilkinson Aff. (ECF No. 118-6) at
PageID # 7052-53.) In a May 2005 memo from DIFW, Dunham
expressed his concerns that non-tribal trappers were being
advised by tribal game wardens that their trapping activities
violated tribal law and that the Penobscot Nation "
claimed" the River " bank-to-bank." (See,
e.g., Dunham Decl. (ECF No. 118-2) at PageID # 3310.) Dunham
complained about the lack of clarity regarding the boundaries
of the reservation lands but asserted that " [t]he rule
of thumb has always been the halfway point between the island
and the mainland" but " [t]he water belongs to the
State."  (Id.)
record contains dueling declarations regarding a November 12,
2011 interaction between Penobscot Nation Game Warden Richard
Adams and a four-person duck hunting party. Jennifer Davis
Dykstra was a member of the duck hunting party that was
hunting from a boat on the Main Stem. As the party approached
the Costigan boat landing, Penobscot Nation game warden
Richard Adams approached the party and asked to see their
hunting permits. The group did not have any permits from the
Penobscot Nation and Adams indicated that they would need a
Penobscot hunting permit to hunt in the Main Stem, even if