Date: 07-05-2017

Case Style:

Case Number: 16-1424

Judge: Lynch

Court: United States Court of Appeals for the First Circuit on appeal from the District of Maine

Plaintiff's Attorney: Kaighn Smith, Jim Kilbreth, David M. Kallin, Drummond Woodsum and Mark A. Chavaree for Appellant

Mary Gabrielle Sprague, Attorney, Environment and Natural
Resources Division, U.S. Department of Justice, with whom John C.
Cruden, Assistant Attorney General, Bella Sewall Wolitz, Office of
the Solicitor, U.S. Department of the Interior, Steven Miskinis,
Attorney, Environment and Natural Resources Division, U.S.
Department of Justice, and Elizabeth Ann Peterson, Attorney,
Environment and Natural Resources Division, U.S. Department of
Justice, were on brief, for appellant United States.

Defendant's Attorney: Gerald D. Reid, Assistant Attorney General, Chief, Natural
Resources Division, with whom Janet T. Mills, Attorney General,
Kimberly L. Patwardhan, Assistant Attorney General, Susan P.
Herman, Deputy Attorney General, Chief, Litigation Division, and
Christopher C. Taub, Assistant Attorney General, Senior Litigation
Counsel, were on brief, for state defendants appellees.

Catherine R. Connors, with whom Matthew D. Manahan and Pierce
Atwood LLP were on brief, for state intervenors appellees.

Description: The Penobscot Nation (the
"Nation") filed suit in federal court against the State of Maine
and various state officials (the "State Defendants"), claiming
rights as to a 60-mile stretch of the Penobscot River, commonly
known as the "Main Stem." The United States intervened in support
of the Nation. Private interests, towns, and other political
entities, whom we shall call the "State Intervenors," intervened
in support of the State Defendants' position.
The district court, on cross-motions for summary
judgment, made two rulings: (1) "[T]he Penobscot Indian
Reservation as defined in [the Maine Implementing Act ("MIA"), Me.
Rev. Stat. Ann. tit. 30 ("30 M.R.S.A."),] § 6203(8) and [the Maine
Indian Claims Settlement Act ("MICSA")], 25 U.S.C. § 1722(i),
includes the islands of the Main Stem, but not the waters of the
Main Stem," Penobscot Nation v. Mills, 151 F. Supp. 3d 181, 222
(D. Me. 2015); and (2) "[T]he sustenance fishing rights provided
in . . . 30 M.R.S.A. § 6207(4) allows the Penobscot Nation to take
fish for individual sustenance in the entirety of the Main Stem
section of the Penobscot River," id. at 222–23. The court issued
declaratory relief to that effect on both points. Id.
In these cross-appeals, we affirm the first ruling and
hold that the plain text of the definition of "Penobscot Indian
Reservation" in the MIA and the MICSA (together, the "Settlement
Acts"), includes the specified islands in the Main Stem, but not
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the Main Stem itself. As to the second ruling on sustenance
fishing, we vacate and order dismissal. That claim is not ripe,
and under these circumstances, the Nation lacks standing to pursue
it.
Those interested in further details of this dispute will
find them in the district court opinion. See Penobscot Nation,
151 F. Supp. 3d at 185–212. Given that the plain text of the
statutes resolves the first issue and that there is no Article III
jurisdiction as to the second, we do not and may not consider that
history. Instead, we get directly to the point on both issues.
I.
This litigation began shortly after the Maine Warden
Service and the Maine Department of Inland Fisheries and Wildlife
requested a legal opinion from Maine's then-Attorney General
William Schneider "regarding the respective regulatory
jurisdictions of the . . . Nation and the State of Maine . . .
relating to hunting and fishing on the [M]ain [S]tem of the
Penobscot River." Attorney General Schneider issued his opinion
(the "Schneider Opinion" or "Opinion") on August 8, 2012. On the
same day, Attorney General Schneider sent a copy of the Opinion to
the Governor of the Nation and noted in a cover letter: "I also
understand that there have been several incidents in recent years
in which . . . Nation representatives have confronted state
employees, including game wardens, as well as members of [the]
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public, on the River for the purpose of asserting jurisdiction
over activities occurring on the River."
The Schneider Opinion states that "the . . . Nation may
lawfully regulate hunting on, and restrict access to, the islands
within the River from Medway to Old Town that comprise its
Reservation, but may not regulate activities occurring on, nor
restrict public access to, the River itself" and that "the State
of Maine has exclusive regulatory jurisdiction over activities
taking place on the River."
The Nation filed suit in federal court against the State
Defendants on August 20, 2012. In its second amended complaint,
the Nation sought a declaratory judgment that the Schneider Opinion
misinterprets federal law -- namely, MISCA --and that both the
Nation's regulatory authority and its sustenance fishing rights
extend to and include the Main Stem of the Penobscot River. The
State Defendants answered the Nation's complaint and filed
counterclaims. The State Defendants sought a declaratory judgment
that, among other things, "[t]he waters and bed of the [M]ain
[S]tem of the Penobscot River are not within the Penobscot Nation
reservation." All parties agree that the State Defendants'
declaratory judgment claim on this point is ripe.
The United States, through the Department of Justice,
filed a motion to intervene on behalf of the Nation on August 16,
2013, and the district court granted the United States intervenor
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status on February 4, 2014.1 The State Intervenors filed their
motion to intervene in support of the State Defendants on February
18, 2013, which the district court granted on June 18, 2013. The
parties engaged in discovery and further procedural sparring,
after which the Nation, the State Defendants, and the United States
each moved for summary judgment, and the State Intervenors moved
for judgment on the pleadings.
The positions of the Nation and the United States
differed slightly. The Nation defined the term "Reservation" to
include the entire Main Stem, bank-to-bank, and its submerged
lands. The United States said that that was its preferred reading,
but it offered as another possible reading that the "Reservation"
reaches the "thread" or centerline of the River. This alternative
reading would create "halos" around each of the Nation's islands,
in which the Nation could engage in sustenance fishing.
1 The State Defendants objected to the United States'
motion to intervene on the ground that it was barred by 25 U.S.C.
§ 1723(a)(2), and they continue that objection on appeal.
The State Defendants filed an amended answer and
counterclaims against the United States on November 3, 2014,
asserting affirmative defenses that, among other things, the
United States' complaint should be dismissed for failure to join
indispensable parties and as barred by 25 U.S.C. § 1723(a)(2), and
seeking declaratory relief along the lines of what they requested
in their counterclaims against the Nation. Given our disposition,
we do not reach these questions.
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After oral argument, the district court issued its
opinion.2 The Nation and the United States then filed motions to
amend the judgment, seeking to "clarify" that the Penobscot Indian
Reservation includes submerged lands on each side of the Nation's
islands to the thread of the Penobscot River, or alternatively
"clarify" that the court had not decided the issue. The State
Defendants opposed the motions, and the court summarily denied the
motions.
These cross-appeals followed.
II.
We review orders granting summary judgment de novo.
McGrath v. Tavares, 757 F.3d 20, 25 (1st Cir. 2014). The parties
agreed before the district court that the record was "amenable to
resolution" by summary judgment, and the court agreed, concluding
that it could "disregard as immaterial many factual disputes
appearing in the record." Penobscot Nation, 151 F. Supp. 3d at
185 & n.4. All of the issues here are ones of law, which we review
2 On the same day that it issued its opinion, the court,
in a separate order, granted in part and denied in part the State
Intervenors' motion for judgment on the pleadings for the same
reasons and also granted in part and denied in part the State
Intervenors' motion to exclude expert testimony submitted by the
plaintiffs. The expert testimony ruling is not at issue in this
appeal.
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de novo. Franceschi v. U.S. Dep't of Veterans Affairs, 514 F.3d
81, 84–85 (1st Cir. 2008).
A. Construction of 30 M.R.S.A. § 6203(8)
Section 6203(8) of the MIA, which sets out what
"Penobscot Indian Reservation" "means" under the MIA, in turn
controls what "Penobscot Indian Reservation" "means" for federal
law purposes, 25 U.S.C. § 1722(i) ("'Penobscot Indian Reservation'
means those lands as defined in the [the MIA]."). "As a rule, [a]
definition which declares what a term 'means' . . . excludes any
meaning that is not stated." Burgess v. United States, 553 U.S.
124, 130 (2008) (alterations in original) (quoting Colautti v.
Franklin, 439 U.S. 379, 392-93 n.10 (1979)).
The interpretation of section 6203(8) presents a
question of statutory construction. We apply traditional rules of
statutory construction to the Settlement Acts. See Maine v.
Johnson, 498 F.3d 37, 41–47 (1st Cir. 2007); Aroostook Band of
Micmacs v. Ryan, 484 F.3d 41, 50, 56 (1st Cir. 2007). The canon
construing statutory ambiguities in favor of Indian tribes does
not apply when the statutory language is unambiguous. South
Carolina v. Catawba Indian Tribe, Inc., 476 U.S. 498, 506 (1986);
see also, e.g., Carcieri v. Salazar, 555 U.S. 379, 387 (2009)
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(holding that where the language of the Indian Reorganization Act
is unambiguous, the court must enforce its plain meaning).3
"As in any statutory construction case, '[w]e start, of
course, with the statutory text . . . .'" Sebelius v. Cloer, 133
S. Ct. 1886, 1893 (2013) (alteration in original) (quoting BP Am.
Prod. Co. v. Burton, 549 U.S. 84, 91 (2006)). The MIA states that
"Penobscot Indian Reservation" means the islands in the
Penobscot River reserved to the Penobscot Nation by
agreement with the States of Massachusetts and Maine
consisting solely of Indian Island, also known as Old
Town Island, and all islands in that river northward
thereof that existed on June 29, 1818, excepting any
island transferred to a person or entity other than a
member of the Penobscot Nation subsequent to June 29,
1818, and prior to the effective date of this Act.
30 M.R.S.A. § 6203(8). Where the meaning of the statutory text is
plain and works no absurd result, the plain meaning controls. See
Lamie v. U.S. Trustee, 540 U.S. 526, 534 (2004) ("It is well
3 We reject the plaintiffs' and dissent's argument that we
must apply the Indian canon of construction resolving ambiguities
in favor of Indian tribes. In fact, it would be an error of law
to apply the canon here, under Catawaba Indian Tribe. 476 U.S. at
506 ("The canon of construction regarding the resolution of
ambiguities in favor of Indians, however, does not permit reliance
on ambiguities that do not exist; nor does it permit disregard of
the clearly expressed intent of Congress."). Because the plain
meaning of the Settlement Acts resolves the question of the scope
of the Reservation, there are no ambiguities to resolve in favor
of the Nation. Carcieri, 555 U.S. at 387.
The reference to the canon in Penobscot Nation v.
Fellencer, 164 F.3d 706, 709 (1st Cir. 1999), noted by the dissent,
does not apply here. That case concerned whether a decision by
the Nation's Tribal Council to terminate a community health nurse's
employment was an "internal tribal matter" within the meaning of
the Settlement Acts. Id. at 707. Whatever ambiguities may have
been presented by that question, there are none here, and so the
canon cannot apply.
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established that 'when the statute's language is plain, the sole
function of the courts -- at least where the disposition required
by the text is not absurd -- is to enforce it according to its
terms.'" (quoting Hartford Underwriters Ins. Co. v. Union Planters
Bank, N.A., 530 U.S. 1, 6 (2000))). Such is the case here.4
The analysis turns on what "the islands in the Penobscot
River" means. "Island" is not given a special definition in the
MIA, and so we "construe [it] in accordance with its ordinary or
natural meaning." FDIC v. Meyer, 510 U.S. 471, 476 (1994).5 In
its ordinary use, "island" refers to a piece of land that is
completely surrounded by water. See, e.g., Island, Oxford English
Dictionary Online, http://www.oed.com/view/Entry/99986 (last
visited June 20, 2017) (first definition) ("A piece of land
completely surrounded by water."); Island, Merriam-Webster's
Dictionary Online, https://www.merriam-webster.com/dictionary
/island (last visited June 20, 2017) (first definition) ("[A] tract
4 We do not reach the defendants' argument that the terms
of the MICSA itself, in 25 U.S.C. §§ 1725(h) and 1735(b), bar the
application of the Indian canons of construction to the MIA. And
we do not reach the defendants' argument that any ambiguities in
the Settlement Acts should be construed with a presumption against
finding that a state has conveyed its navigable waters.
5 Because we find that the plain meaning of section 6203(8)
resolves the issue of the meaning of the "Reservation," we do not
reach several of the defendants' alternative arguments that the
Main Stem has been "transfer[red]" from the Nation to Maine under
the Settlement Acts, see 25 U.S.C. §§ 1722(b),(n), 1723; 30
M.R.S.A. §§ 6203(13), 6213, and that the doctrines of laches,
acquiescence, and impossibility bar the Nation's claims.
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of land surrounded by water and smaller than a continent[.]");
Island, Dictionary.com, http://www.dictionary.com/browse/island
(last visited June 20, 2017) (first definition) ("[A] tract of
land completely surrounded by water, and not large enough to be
called a continent.").6 Its ordinary meaning is clear and
6 The dissent argues that if "island" is to be understood
in terms of "land," then we should look to dictionary definitions
of "land" that the dissent claims include water. What the dissent
does not reveal is that the primary definitions of "land" in all
the sources it cites exclude water. The only definitions arguably
helpful to the dissent are subordinate to these primary
definitions. See Land, Webster's 1913 Dictionary,
http://www.webster-dictionary.org/definition/land (last visited
June 19, 2017) (listing as first definition "[t]he solid part of
the surface of the earth; - opposed to water as constituting a
part of such surface, especially to oceans and seas; as, to sight
land after a long voyage," and listing the definition offered by
the dissent eighth); Wordreference.com, Land,
http://www.wordreference.com/definition/land (last visited June
19, 2017) (listing as first definition "any part of the earth's
surface, as a continent or an island, not covered by a body of
water," and listing the definitions arguably most helpful to the
dissent -- "an area of ground with specific boundaries" and "any
part of the earth's surface that can be owned as property, and
everything connected to it" -- third and fifth, respectively);
Dictionary.com, Land, http://www.dictionary.com/browse/land (last
visited June 19, 2017) (listing as first definition "any part of
the earth's surface not covered by a body of water; the part of
the earth's surface occupied by continents and islands," and
listing the definition arguably most helpful to the dissent --
"any part of the earth's surface that can be owned as property,
and everything annexed to it, whether by nature or by the human
hand" -- fifth).
We do not, as the dissent suggests, contend that a
subordinate definition can never supply the operative meaning of
a term. But as a general rule, a term's "most common[,] . . .
ordinary and natural" meaning controls, Mallard v. U.S. Dist. Court
for S. Dist. of Iowa, 490 U.S. 296, 301 (1989), and "[a]ny
definition of a word that is absent from many dictionaries" or
consistently subordinate where included is "hardly a common or
ordinary meaning," Taniguchi v. Kan Pac. Saipan, Ltd., 132 S. Ct.
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unambiguous. See also Carcieri, 555 U.S. at 388–90 (interpreting
the use of "now" in 25 U.S.C. § 479 through its ordinary meaning
and use in the statute, and finding the term unambiguous).
To add emphasis to the limits of this definitional term,
the statute further states that the Reservation "islands"
"consist[] solely" of the enumerated islands. 30 M.R.S.A.
§ 6203(8) (emphasis added). "'Solely' leaves no leeway."
Helvering v. Sw. Consol. Corp., 315 U.S. 194, 198 (1942).
Our holding that the term "island" does not refer to the
surrounding water itself or to the land submerged by the
surrounding water is also compelled by other text within the
Settlement Acts. See, e.g., Henson v. Santander Consumer USA Inc.,
No. 16-349, 2017 WL 2507342, at *4 (U.S. June 12, 2017) (confirming
plain meaning reading by "[l]ooking to other neighboring
provisions in the [statute]"). When the Settlement Acts mean to
address the various topics of water, water rights, or submerged
land, they do so explicitly and use different language. See, e.g.,
25 U.S.C. § 1721(b)(2) ("It is the purpose of this subchapter . . .
to clarify the status of . . . natural resources in the State of
Maine."); id. § 1722(b) (defining the phrase "land or natural
1997, 2003 (2012). It is clear what the ordinary meaning of "land"
is from the fact that all of the dictionaries cited above define
it primarily as excluding water, while none ranks a definition
inclusive of water higher than third. See id. "Were the meaning
of ['land'] that [the dissent] advocates truly common or ordinary,
we would expect to see more support for that meaning." Id.
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resources" in the MICSA as "any real property or natural resources
. . . including . . . water and water rights"); 30 M.R.S.A.
§ 6203(3) (defining the phrase "land or other natural resources"
in the MIA as "any real property or other natural resources . . .
including . . . water and water rights"); 25 U.S.C. § 1722(n) and
30 M.R.S.A. § 6203(13) (including "natural resources" as things
that can be "transferred" as that word is used in the Settlement
Acts); 30 M.R.S.A. § 6207 (discussing regulation of "waters"); id.
§ 6207(1)(B) (addressing regulation of "[t]aking of fish on any
pond in which all the shoreline and all submerged lands are wholly
within Indian territory," and using the term "territory" rather
than "Reservation" (emphasis added)).
Further, section 6205(3)(A), which deals with purchases
of land to compensate for regulatory takings within Indian
reservations, states that "[f]or purposes of this section, land
along and adjacent to the Penobscot River shall be deemed to be
contiguous to the Penobscot Indian Reservation," thus implying
that otherwise the "Reservation" is not contiguous to land along
and adjacent to the Penobscot River. 30 M.R.S.A. § 6205(3)(A).
The Nation's and United States' construction of "Penobscot Indian
Reservation" would render that language superfluous, a result
forbidden by the canons of construction. See In re Montreal, Me.
& Atl. Ry., Ltd., 799 F.3d 1, 9 (1st Cir. 2015) ("[C]ourts should
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construe statutes to avoid rendering superfluous any words or
phrases therein.").
The MICSA's definitional provision for "Penobscot Indian
Reservation" itself reinforces this plain-meaning reading of the
MIA. Section 1722(i) of the MICSA provides that "'Penobscot Indian
Reservation' means those lands as defined in [the MIA]." 25 U.S.C.
1722(i) (emphasis added). In its ordinary meaning, the unadorned
term "land" does not mean water. It means land, as distinct from
water.7 The MICSA does not say waters are included within the
boundaries of the "Penobscot Indian Reservation." Taken together,
the Settlement Acts unambiguously define "Penobscot Indian
Reservation" as specified islands in the Main Stem of the Penobscot
River, and not the Main Stem itself or any portion of the Main
Stem. The plain meaning of "islands in the Penobscot River" is
7 See, e.g., Land, Oxford English Dictionary Online,
http://www.oed.com/view/Entry/105432 (last visited June 20, 2017)
(first definition) ("The solid portion of the earth's surface, as
opposed to sea, water."); Land, Merriam-Webster's Dictionary
Online, https://www.merriam-webster.com/dictionary/land (last
visited June 20, 2017) (first definition) ("[T]he solid part of
the surface of the earth[.]"); Land, Dictionary.com,
http://www.dictionary.com/browse/land (last visited June 20, 2017)
(first definition) ("[A]ny part of the earth's surface not covered
by a body of water; the part of the earth's surface occupied by
continents and islands.").
As we have shown at note 6, supra, the dissent's attempt
to argue that "land" includes water by reference to subordinate
definitions of "land" from dictionaries that primarily define
"land" as excluding water is unconvincing. The ordinary meaning
of land, as even the sources cited by the dissent make clear,
obviously excludes water.
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the islands in the River, not the islands and the River or the
riverbed.
The Nation and the United States agree that a plainmeaning
reading must control. They offer a different reading of
what that plain meaning is. They argue that the definition of
"Penobscot Indian Reservation" in section 6203(8) is modified by
section 6207(4)'s grant of sustenance fishing rights to the Nation
"within the boundaries of [the Nation's] Indian reservation[]."
30 M.R.S.A. § 6207(4).8 They contend that because section 6207(4)
was meant to protect the Nation's sustenance fishing rights in the
Penobscot River, a reading of section 6203(8) based on the
otherwise plain meaning of the term "islands" must be rejected
because it would lead to the absurd result of nullifying section
6207(4).
Not so. The two provisions -- sections 6203(8) and
6207(4) -- are not in tension. The Nation's and United States'
argument selectively omits relevant text and also ignores the
differences in text between the two sections. Section 6203 itself
specifically articulates that definitions in its subsections do
8 The Nation also makes similar contentions based on
section 6207's provisions for sustenance hunting and trapping and
"related authorities." These arguments are even less persuasive
than those based on section 6207(4), as the provisions of section
6207 at issue reference the Nation's "territor[y]," a distinct
term encompassing both the Reservation and over 130,000 acres of
trust lands acquired by the United States on behalf of the Nation.
See 30 M.R.S.A. §§ 6205(2), 6207(1).
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not apply when "the context indicates otherwise," 30 M.R.S.A.
§ 6203, which governs section 6207(4). This clause avoids any
supposed conflict between section 6203(8) and section 6207(4)
through the statute's own provisions. There is no need to distort
the plain meaning of "islands" in section 6203(8).
Also, the sustenance fishing provision refers to "Indian
reservations," not just the "Penobscot Indian Reservation," as it
applies "within the boundaries" of both the Passamaquoddy Tribe's
and the Nation's respective reservations. Id. § 6207(4). If the
term "island" in section 6203(8) was meant to include all or any
portion of the surrounding waters, the text would have said so.
As Justice Scalia observed in a Chevron case, see Chevron, U.S.A.,
Inc. v. Nat. Res. Def. Council, Inc., 467 U.S. 837 (1984),
legislatures do not "hide elephants in mouseholes." Whitman v.
Am. Trucking Ass'ns, Inc., 531 U.S. 457, 468 (2001). The ancillary
reference to "Indian reservations" referring to both the
Passamaquoddy Tribe and the Nation in section 6207(4) cannot
dramatically alter the plain meaning of section 6203(8)'s
definition of "Penobscot Indian Reservation."
The Nation and the United States also point to the
reference to previous "agreement[s]" in section 6203(8): "the
islands in the Penobscot River reserved to the Penobscot Nation by
agreement with the States of Massachusetts and Maine consisting
solely of Indian Island . . . and all islands in that river
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northward thereof that existed on June 29, 1818, excepting any
island transferred [after] June 29, 1818." 30 M.R.S.A. § 6203(8).
They argue that the reference to the previous treaties found in
the "by agreement" clause means that the definition of "Penobscot
Indian Reservation" incorporates the Nation's understanding of the
treaties and state common law. Again, not so. The reference to
the treaties is merely language specifying which "islands" are
involved, not language modifying the meaning of "islands." The
treaties no longer have meaning independent of the Maine Settlement
Acts. Rather, upon the passage of the Acts, the treaties were
subsumed within the Acts, and we look only to the statutory text
to understand the reservation's boundaries.
The Nation and the United States further argue that,
regardless of text, the district court's reading of section 6203(8)
must be incorrect because it contradicts the Supreme Court's
holding in Alaska Pacific Fisheries v. United States, 248 U.S. 78
(1918). It does not. Alaska Pacific concerned the interpretation
of a distinct phrase, "the body of lands known as Annette Islands,
situated in Alexander Archipelago in Southeastern Alaska," in an
unrelated congressional statute that was enacted in 1891 before
Alaska became a state. Id. at 86 (quoting Act of March 3, 1891,
ch. 561, § 15, 26 Stat. 1095, 1101). The Court considered not only
the statute's plain text but also the legislative history of the
statute and the "general rule that statutes passed for the benefit
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of dependent Indian tribes . . . are to be liberally construed,
doubtful expression resolved in favor of the Indians." Id. at 78.
In light of those considerations, the Court held that Congress
"did not reserve merely the site of [the Metlakahtlans'] village,
or the island on which they were dwelling, but the whole of what
is known as Annette Islands, and referred to it as a single body
of lands." Id. at 89.
Alaska Pacific's holding does not affect the question
before us. Despite the superficial similarities between the
definition of the Penobscot reservation and the statute at issue
in Alaska Pacific, they differ materially. The Alaska Pacific
Court found it "important," if not "essential," to consider "the
circumstances in which the reservation was created." Id. at 87.
Not so here: the definition of the Penobscot reservation lacks any
comparable ambiguity, and any resort to "the circumstances in which
the reservation was created" would be neither important nor
essential but, rather, wholly unnecessary. The definition of the
Penobscot Indian Reservation specifies that it consists "solely of
Indian Island . . . and all islands in that river." 30 M.R.S.A.
§ 6203(8) (emphasis added). The definition in Alaska Pacific has
no limiting term comparable to the adverb "solely." Moreover, the
definition of the Penobscot reservation refers only to "islands in
the Penobscot River" and "islands in that river." Id. (emphases
added). As discussed above, this forms a clear distinction between
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uplands and the river itself. In contrast, the definition in
Alaska Pacific uses a much vaguer phrase: "the body of lands known
as Annette Islands, situated in Alexander Archipelago." 248 U.S.
at 86. Unlike the Alaska Pacific Court, we have no need to consider
legislative history or the Indian canons of construction, see supra
note 3, because the plain text of the definition of the Penobscot
reservation is unambiguous.9
We are forbidden by law from varying from the plain text
based on arguments made as to the nature of the Agreement reached.
We do not look to either side's understanding of the Agreement
when the meaning of the text of the Settlement Acts is plain.10
See Star Athletica, L.L.C. v. Varsity Brands, Inc., 137 S. Ct.
9 Hynes v. Grimes Packing Co., 337 U.S. 86 (1949), and
Choctaw Nation v. Oklahoma, 397 U.S. 620 (1970), cited by the
dissent as applying Alaska Pacific, are inapposite for the same
reasons. Those cases also interpreted materially distinct
language in enactments unrelated to the Settlement Acts.
10 We reject the position of the United States that we
should not use normal canons of statutory construction and should
instead use Maine's state law rules for the construction of deeds.
We are not construing a deed.
We also reject the United States' arguments more
generally that state common law informs the definition of
Reservation. Nothing in the text of the Settlement Acts permits
the use of state common law to construe the statutes' definitional
provisions. The meaning of Reservation in the Settlement Acts is
plain, and we cannot use state common law to alter that plain
meaning.
Finally, we reject the United States' argument that the
Settlement Acts grant to the Nation "halos" of riparian rights
around each island. Nothing in the plain language of the statutes
supports this position.
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1002, 1010 (2017) ("The controlling principle in this case is the
basic and unexceptional rule that courts must give effect to the
clear meaning of statutes as written." (quoting Estate of Cowart
v. Nicklos Drilling Co., 505 U.S. 469, 476 (1992))); Puerto Rico
v. Franklin Cal. Tax-Free Tr., 136 S. Ct. 1938, 1946 (2016)
(question of statutory interpretation "begins 'with the language
of the statute itself,' and that 'is also where the inquiry should
end,' for 'the statute's language is plain'" (quoting United States
v. Ron Pair Enters., Inc., 489 U.S. 235, 241 (1989))).
The Nation's and United States' arguments from history
and each party's intent would be relevant only if the statutory
language were ambiguous. See Matal v. Tam, No. 15-1293, 2017 WL
2621315, at *10 (U.S. June 19, 2017) ("These arguments are
unpersuasive. As always, our inquiry into the meaning of the
statute's text ceases when 'the statutory language is unambiguous
and the statutory scheme is coherent and consistent.'" (quoting
Barnhart v. Sigmon Coal Co., 534 U.S. 438, 450 (2002))); Milner v.
Dep't of the Navy, 562 U.S. 562, 572 (2011) ("Those of us who make
use of legislative history believe that clear evidence of
congressional intent may illuminate ambiguous text. We will not
take the opposite tack of allowing ambiguous legislative history
to muddy clear statutory language."). The language is not
ambiguous.
- 21 -
The district court was correct to hold that the
Settlement Acts mean what they plainly say. The Penobscot Indian
Reservation consists of the specified "islands in" the Main Stem
of the Penobscot River. It does not include the Main Stem itself,
any portion thereof, or the submerged lands underneath.
As to the dissent's three reasons to reach the opposite
conclusion, as explained, the Alaska Pacific opinion does not
provide the rule for decision because it concerned an entirely
different provision in a different statute. The dissent departs
from the Supreme Court's mandate that courts must interpret
statutes according to their plain text. See Tam, 2017 WL 2621315,
at *10 (noting that a party's "argument is refuted by the plain
terms of the [statute]"); Henson, 2017 WL 2507342, at *6 ("And
while it is of course our job to apply faithfully the law Congress
has written, it is never our job to rewrite a constitutionally
valid statutory text under the banner of speculation about
[congressional intent]."); Star Athletica, LLC, 137 S. Ct. at 1010
("We . . . begin and end our inquiry with the text . . . .");
Samsung Elecs. Co. v. Apple Inc., 137 S. Ct. 429, 434 (2016) ("The
text resolves this case."). Second, the statute is clear that the
role of the treaties is simply to define which "islands" are
included in the Reservation, not to alter the plain meaning of the
term Reservation itself.
- 22 -
Third, the question of the definition of Reservation is
not the same as the unripe question of sustenance fishing. The
MIA itself provides for how to resolve tensions between the
definition of Reservation and the use of that term in the
sustenance fishing provision.
Maine v. Johnson, 498 F.3d 37 (1st Cir. 2007), cited
heavily by the dissent, concerned an entirely different issue and
did not present the issue of the meaning of Penobscot Indian
Reservation in the Settlement Acts. Footnote 11 of Johnson, which
the dissent suggests controls this case, merely distinguishes
between Reservation lands and land later acquired in trust. Id.
at 47 n.11. It is simply not true that this court has held in
Johnson that the definition of Reservation embraced the waters of
the Penobscot River. Johnson addressed a distinct question and,
in doing so, explicitly bypassed any territorial dispute that might
have been implicated by that question. See id. at 40 n.3 ("The
territorial boundaries are disputed but, for purposes of this case,
we assume (without deciding) that each of the disputed . . . points
lies within the tribes' territories."); see also id. at 47. It
has no bearing on the precise boundaries of the Nation's
Reservation as that term is used in the Settlement Acts.
Moreover, while the Nation and the United States
referred glancingly in their briefing to footnote 11 in Johnson,
they did not argue that the issue presented in this case was
- 23 -
already decided by Johnson. The dissent has made this argument
for them.11 The dissent's version of history does not illuminate
the plain meaning of the text and is impermissible to consider.12
We affirm the entry of declaratory judgment for the
defendants on this point.
B. Sustenance Fishing Rights
We hold that the federal courts lack jurisdiction in the
circumstances of this case to adjudicate the question of the
Nation's sustenance fishing rights. The district court erred in
reaching this issue because the issue is not ripe and the
plaintiffs presently lack standing. As a result, we vacate the
district court's ruling on this issue, without adjudicating the
11 The dissent, but not the United States or the Nation,
argues that Maine -- in its briefing in Johnson -- has been
inconsistent as to whether the term "islands" includes waters.
Maine has had no notice of this argument or an opportunity to
respond. Further, we see no necessary contradiction, especially
since the issue here was not at issue in Johnson.
Similarly, as to the 1988 letter from the Maine Attorney
General, the question was whether Maine law prohibited the use of
gill nets to take about 20 Atlantic salmon, for the sole use of
tribal members for their individual consumption, and not to be
sold or processed for sale. The Attorney General's answer was
there was no prohibition, under section 6207(4) of the MIA (the
sustenance fishing clause). The Attorney General did not purport
to address whether any portion of the River was a part of the
Reservation. Me. Op. Atty. Gen. No. 13 88-2 (Me. A.G.), 1988 WL
483316.
12 Similarly, the dissent invokes an argument regarding the
views expressed in a report commissioned by the Maine Indian
Tribal-State Commission. We do not read that report as the dissent
does and, in any event, the Commission's views do not displace the
rules of construction courts must follow.
- 24 -
merits of the sustenance fishing issue, and order dismissal of
this claim for relief.
The Constitution limits the jurisdiction of the federal
courts to "Cases" and "Controversies." U.S. Const. art. III, § 2.
Two "interrelated" "manifestations" of that limitation "are the
justiciability doctrines of standing and ripeness." Reddy v.
Foster, 845 F.3d 493, 499, 505 (1st Cir. 2017) (affirming dismissal
of challenge to never-implemented statute). The plaintiffs cannot
satisfy either doctrine as to the sustenance fishing issue.
The standing doctrine requires, inter alia, that a
plaintiff show an "injury in fact," which is "'an invasion of a
legally protected interest' that is 'concrete and particularized'
and 'actual or imminent, not conjectural or hypothetical.'"
Spokeo, Inc. v. Robins, 136 S. Ct. 1540, 1548 (2016) (quoting Lujan
v. Defs. of Wildlife, 504 U.S. 555, 560 (1992)).
The Nation alleges that the Schneider Opinion poses a
"threat" to its sustenance fishing rights. We see no such threat.
Allegations of future injury confer standing only "under
circumstances that render the threatened enforcement sufficiently
imminent." Susan B. Anthony List v. Driehaus, 134 S. Ct. 2334,
2342 (2014). That test is not met.
The Schneider Opinion does not confer standing on the
Nation now to obtain relief as to the sustenance fishing issue.
The Opinion itself does not address or even mention the scope of
- 25 -
the Nation's fishing rights. Nothing about the Opinion evidences
that Maine threatens an injury -- imminent or otherwise -- to the
Nation's sustenance fishing activities. See Blum v. Holder, 744
F.3d 790, 792 (1st Cir. 2014) (holding that animal rights activists
lacked standing to challenge the Animal Enterprise Terrorism Act
where they had not been prosecuted or threatened with prosecution
under the statute).
On the contrary, Maine has affirmatively represented
that it has a "longstanding, informal policy" not to "interfere[]
with [Nation] members engaged in sustenance fishing on the Maine
Stem." In Reddy, where we held there was neither standing nor
ripeness, we found that the challenged unimplemented legislation
did not presently interfere with the plaintiffs' relevant
activities and that the government had "affirmatively disavowed
prosecution . . . unless and until" certain absent preconditions
were met. 845 F.3d at 502; see also Blum, 744 F.3d at 798
("Particular weight must be given to the Government disavowal of
any intention to prosecute . . . ."). The Nation's claims that
the Schneider Opinion presently threatens the Tribe's "exclusive
sovereign authority to govern [sustenance fishing]" or "tribal
self-government" have no support in the record.
Nor can the Nation generate standing or ripeness by its
own actions. The Nation points to an Internet "alert" from a
Nation official to Nation members stating that they are "at risk
- 26 -
of prosecution by Maine law enforcement officers" if they practice
sustenance fishing in the Main Stem. The State of Maine has said
no such thing.
These kinds of general and hypothetical allegations of
injury cannot succeed at the summary judgment stage, where the
plaintiffs must do more than merely allege legal injury and must
instead provide a factual basis for the alleged injury. See Lujan,
504 U.S. at 561. The Nation and the United States have not even
attempted to show that any member of the Nation has suffered any
injury related to sustenance fishing practices in response to the
Schneider Opinion. See Reddy, 845 F.3d at 503 (rejecting
"conjectural fear" as sufficient for standing); see also Wittman
v. Personhuballah, 136 S. Ct. 1732, 1737 (2016) ("When challenged
by a court (or by an opposing party) concerned about standing, the
party invoking the court’s jurisdiction cannot simply allege a
nonobvious harm, without more.").
The Nation and the United States also attempt to create
standing by arguing that the State Defendants' own counterclaims
in this lawsuit "necessarily place in controversy the location of
the Penobscot Nation's sustenance fishery." The counterclaims do
not do so. The State Defendants' counterclaims referenced
allegations from Maine officials and recreational users of the
Main Stem that the Nation had attempted to assert exclusive control
over the Main Stem by, inter alia, demanding payment for access
- 27 -
permits. While this may establish standing as to the issue about
the meaning of "Penobscot Indian Reservation" (for which standing
has not been contested), it does not go to the issue of sustenance
fishing rights. The allegations do not show there has been any
injury to the Nation's sustenance fishing activities. The
plaintiffs cannot bootstrap the justiciability of their own claims
by use of the State Defendants' counterclaims. Cf. DaimlerChrysler
Corp. v. Cuno, 547 U.S. 332, 352 (2006) ("[A] plaintiff must
demonstrate standing for each claim he seeks to press.").
The sustenance fishing claim is also not ripe.
Plaintiffs must show both "fitness" and "hardship" to satisfy the
ripeness analysis. Reddy, 845 F.3d at 501. The fitness prong
asks "whether the claim involves uncertain and contingent events
that may not occur as anticipated or may not occur at all," Town
of Barnstable v. O'Connor, 786 F.3d 130, 143 (1st Cir. 2015)
(quoting Ernst & Young v. Depositors Econ. Prot. Corp., 45 F.3d
530, 536 (1st Cir. 1995)), and the hardship prong "concerns the
harm to the parties seeking relief that would come to those parties
from our 'withholding of a decision' at this time," Reddy, 845
F.3d at 501 (quoting Labor Relations Div. of Constr. Indus. of
Mass., Inc. v. Healey, 844 F.3d 318, 330 (1st Cir. 2016)).
Both prongs of the ripeness analysis prevent
justiciability here. The sustenance fishing claim on this record
is merely speculative. There is no evidence in this record that
- 28 -
Maine has interfered with or threatened to interfere with the
Nation's sustenance fishing in the Main Stem, and there is not
even an allegation that the State plans to change its informal
policy of not interfering with sustenance fishing. We have no
concrete dispute before us and so have no facts to frame the
appropriate inquiry, or even any relief. See Reddy, 845 F.3d at
497.
As to hardship, "there is no apparent prejudice to the
plaintiffs if they must wait until their claims ripen to sue,"
because "[t]hey are 'not required to engage in, or to refrain from,
any conduct, unless and until'" Maine actually takes some step to
interfere with or at least officially proposes to interfere with
sustenance fishing in the Main Stem. Id. at 505 (quoting Texas v.
United States, 523 U.S. 296, 301 (1998)). The claim is not ripe
for adjudication and the district court lacked jurisdiction to
review it.13
III.
The judgment of the district court is affirmed as to the
declaratory judgment regarding the definition of "Penobscot Indian
Reservation" under 30 M.R.S.A. § 6203(8) and 25 U.S.C. § 1722(i),
and vacated with instructions to dismiss for want of jurisdiction
13 In response to the defendants' ripeness arguments,
Penobscot Nation cites case law on the requirements for the Ex
Parte Young exception to the Eleventh Amendment. These citations
are inapposite and add nothing to the ripeness analysis.
- 29 -
as to the declaratory judgment regarding the sustenance fishing
rights under 30 M.R.S.A. § 6207(4). No costs are awarded.
-Dissenting Opinion Follows-
30 -
TORRUELLA, Circuit Judge (dissenting). "Everything in
US history is about the land—[including] who . . . fished its
waters . . . ."14 This statement is particularly relevant in the
dealings by the U.S. majority with the indigenous Indian
population, and lies at the heart of the present appeal. Although
the United States has ratified over 370 treaties with Indian
nations15 -- it unfortunately "has a long and appalling history of
breaking treaties with Indian nations whenever it was convenient
. . . to do so."16 In the present case, the United States is on
the right side of history and the law, but regrettably the same
cannot be said of the State of Maine and its co-parties.
As will be presently detailed, the Reservation of the
Penobscot Indian Nation includes the Main Stem of the Penobscot
River, bank-to-bank, for three principal reasons.17 First, the
Supreme Court has held that a grant of "lands" and "islands" to
Indians includes "submerged lands"18 and "surrounding waters,"
14 Roxanne Dunbar-Ortiz, An Indigenous Peoples' History of
the United States 1, (2014).
15 The interested reader may find a complete database of
these treaties at:
http://digital.library.okstate.edu/kappler/vol2/ tocy1.htm.
16 Singer, Joseph, Legal Theory: Sovereignty and Property,
86 Nw. U.L. Rev. 1, 2 (1991).
17 For the sake of clarity, I here refer to the Penobscot
Indian Nation as the "Nation" or the "Penobscots"; to its
reservation as the "Reservation"; and to the "the Main Stem of the
Penobscot River, bank-to-bank," as "the Main Stem."
18 As a matter of both Maine and Massachusetts law, the river
- 31 -
Alaska Pacific Fisheries v. United States, 248 U.S. 78, 87-89
(1918). See infra Section II. Second, the Settlement Acts reserve
to the Nation what it retained in its treaties with Massachusetts
and Maine, see 30 M.R.S.A. § 6203(8) -- including the Main Stem.
See infra Section III. Third, in a carefully negotiated key
provision, the Settlement Acts provide for the Penobscot Nation to
have the right to fish within its Reservation, 30 M.R.S.A.
§ 6207(4) -- yet if the majority view prevails, the Nation's
"fishing" will only take place in the uplands of their islands, on
dry land where there are no fish and no places to fish. See infra
Section IV. These three reasons render the definition of the
Reservation in the Settlement Acts ambiguous to say the least, and
are therefore individually and collectively bolstered by the
Indian canon of construction, "a principle deeply rooted in this
Court's Indian jurisprudence [whereby] 'Statutes are to be
construed liberally in favor of the Indians, with ambiguous
provisions interpreted to their benefit.'"19 This clearly defeats
the majority's dictionary-driven conclusion to the contrary.
bed of the Penobscot River is submerged land, and, because that
river is non-tidal, this submerged land is not owned by the state,
but rather privately owned. See infra Section III.
19 Cty. of Yakima v. Confederated Tribes & Bands of Yakima
Indian Nation, 502 U.S. 251, 269 (1992) (quoting Montana v.
Blackfeet Tribe, 471 U.S. 759, 766 (1985)).
- 32 -
The majority opinion "doth protest too much"20 that the
Settlement Acts define the Reservation unambiguously, and that
considerations such as history and purpose are therefore
irrelevant. Not only is the statute equivocal for the three
reasons just stated, but as this court has cogently ruled
[although] [t]he usual maxim is that courts do
not go beyond the text of the statute if the
meaning is plain. . . . [T]hat maxim has
inherent flexibility. Even seemingly
straightforward text should be informed by the
purpose and context of the statute. Both this
court and the Supreme Court have checked a
sense of a statute's plain meaning against
undisputed legislative history as a guard
against judicial error.
Greebel v. FTP Software, Inc., 194 F.3d 185, 192 (1st Cir. 1999)
(Lynch, J.) (emphasis added). Yet the majority ignores this
precedent and -- elevating the dictionary above the law -- bypasses
the Supreme Court's warning (made in the context of Indian law)
that "one may not fully comprehend the statute's scope by
extracting from it a single phrase, such as 'public lands' and
getting the phrase's meaning from the dictionary," Hynes v. Grimes
Packing Co., 337 U.S. 86, 115-16 (1949).21
20 William Shakespeare, Hamlet act 3, sc. 2 137 (T.J.B.
Spencer Ed., Penguin Books 1996) (1603).
21 Even if the majority were correct to rely solely on
dictionaries here -- and it is not -- its methodology is
fallacious. The majority acknowledges that dictionaries offer
multiple definitions of "land," but asserts that the definition
listed first must govern, and that it unambiguously establishes
the meaning of "land." Yet the existence of multiple,
contradictory definitions is a textbook example of ambiguity. See
- 33 -
Further relying on its erroneous conclusion that the
Settlement Acts are unambiguous, the majority claims that the
Indian canon of construction does not apply. As stated, the
majority is wrong on both counts. But even if the Settlement Acts
were not ambiguous, the Indian canon would still apply, because it
mandates that "treaties 'must . . . be construed . . . in the sense
in which they would naturally be understood by the Indians.'"
South Dakota v. Bourland, 508 U.S. 679, 701 (1993) (quoting
e.g., Watt v. Western Nuclear, Inc., 462 U.S. 36, 41-42 (1983)
("As this Court observed . . . the word 'minerals' is 'used in so
many senses, dependent upon the context, that the ordinary
definitions of the dictionary throw but little light upon its
signification in a given case.'") (quoting Northern Pacific R. Co.
v. Soderberg, 188 U.S. 526, 530 (1903)). See also United States
v. Williams, 553 U.S. 285, 294-95 (2008) (Scalia, J.) (relying on
the fourth dictionary definition of "promotes" and dictionary
definition 3a of "presents.")
A good example of a definition of "land" that does include
water can be found in the very dictionary that Maine relies on in
its brief: "Any ground, soil, or earth whatsoever, as meadows,
pastures, woods, etc., and everything annexed to it, whether by
nature, as trees, water, etc., or by the hand of man, as buildings,
fences, etc.; real estate." http://www.websterdictionary.
org/definition/land (eighth definition) (last visited
June 23, 2017) (emphasis added). Similar definitions can be found
in other dictionaries. See, e.g.,
http://www.wordreference.com/definition/land (last visited June
23, 2017)(fifth definition) ("any part of the earth's surface that
can be owned as property, and everything connected to it");
http://www.dictionary.com/browse/land (last visited June 23, 2017)
(definition 5a) ("any part of the earth's surface that can be owned
as property, and everything annexed to it, whether by nature or by
the human hand.") See also http://www.dictionary.com/browse/land
(last visited June 23, 2017) (seventh definition) ("A part of the
surface of the earth marked off by natural or political boundaries
or the like; a region or country" -- which plainly can include
water.")
- 34 -
Washington v. Wash. State Commercial Passenger Fishing Vessel
Assn., 443 U.S. 658, 676 (1979); Jones v. Meehan, 175 U.S. 1, 11
(1899)). As the record establishes, the natural understanding of
the Penobscots is that the River and the Islands are one and the
same; to the Nation, the waters and the bed of the River are so
intimately connected to the uplands of the islands, that no
distinction between the two is made. Indeed, the Penobscot
locution "to fish my islands" means to fish the waters surrounding
the uplands of those islands. The majority, however, believes
that the Nation, negotiating the Settlement Agreements from a
position of strength -- having just established before this court
that it had a claim to approximately two-thirds of Maine, see,
e.g., Joint Passamaquoddy Tribal Council v. Morton, 528 F.2d 370,
370 (1st Cir. 1975) -- ceded the Penobscot River that it has fished
since time immemorial and values so greatly.
Indeed, at the urging of none other than Maine itself,
this court previously had no difficulty in accepting that both the
Penobscot and Passamaquoddy reservation "lands" embraced "waters."
See Maine v. Johnson, 498 F.3d 37, 47 (1st Cir. 2007). 22 But
22 Clutching at straws the majority claims that, in the
present dispute, Maine was not on notice of its own position in
Johnson. Supra at 22 n.10. The majority also claims that Johnson
"concerned an entirely different issue;" that "[i]t is simply not
true that this court has held in Johnson that the definition of
Reservation embraced the waters of the Penobscot River;" that this
dissent relies merely on a footnote in Johnson; that the Nation
and the United States refer only "glancingly" to that footnote;
- 35 -
today, the majority gives short shrift to our holding in Johnson.
The majority also "see[s] no necessary contradiction" between
Maine's position in Johnson that the Reservation includes a part
of the Penobscot River, and its present position (and the
majority's holding) that no part of the River is included. But
there is a clear contradiction -- for which Johnson's words speak
the loudest and clearest.
and that this dissent therefore makes the argument for them that
Johnson decides the present case. Supra at 22.
I have difficulty accepting that Maine must be put on notice
of its own position. In any event, both the Nation and the United
States have extensively argued that Maine (until its sudden change
of heart in 2012) had consistently taken the position that the
Reservation includes at least some of the waters of the Penobscot
River, citing various documents which I lay out in Section I infra.
Maine was thus on notice that its present position is in conflict
with its prior position. As I will explain in further detail, the
majority's decision is in fact in direct contradiction with the
holding of Johnson, and that holding is based on much more than a
single footnote. See infra Section III. Furthermore, the Nation
and the United States have both referred to Johnson much more that
"glancingly" in their arguments. For instance, in a section of
its brief dedicated to showing that the Nation has retained as its
reservation that which it has not ceded in its treaties with
Massachusetts and Maine, the Nation writes that
this Court has said that the question of
whether the boundaries of the Penobscot Indian
Reservation include the waters of the River
turns on whether those waters were "retained
by the tribe[] . . . based on earlier [treaty]
agreements between the tribe[] and
Massachusetts and Maine." Johnson, 498 F.3d
at 47 (emphasis in original)
Both the Nation and the United States also rely on Johnson in
their reply briefs; indeed, the United States does so on the very
first page of its reply brief.
- 36 -
I. Context and History
Contrary to the majority's myopic view, it is necessary
to understand the "unique history" of the Settlement Acts to decide
the present case. Johnson, 498 F.3d at 47. Supreme Court
precedent and the Settlement Acts require that we look at that
history.23 See infra Sections II and III.
What the majority terms "the dissent's version of
history," supra at 23, is principally drawn from primary sources,
such as the 1796, 1818, and 1833 treaties between Massachusetts or
Maine and the Nation, from Congressional Reports, and from letters
and filings by Maine's own attorneys general and one of its
solicitors general. The history here is also drawn from our own
case law.
The relevant history commences with the epoch of the
American Revolution, a time when the Nation had aboriginal title
to land which was "centered on the Penobscot River," located in
the then-Massachusetts territory of Maine. H.R. Rep. No. 96-1353,
at 11 (1980). As the Revolution began, General George Washington
sought the assistance of the Native American tribes in Maine,
including the Penobscots. Id. Colonel John Allan of the
23 I summarize only the most relevant history here. The
interested reader may find more extensive descriptions of the
history in, among others: Penobscot Nation v. Stilphen, 461 A.2d
478 (Me. 1983), and Passamaquoddy Tribe v. Maine, 75 F.3d 784 (1st
Cir. 1996).
- 37 -
Massachusetts militia negotiated a treaty with the Penobscots and
the other tribes, promising the protection of their lands in
exchange for their assistance in the war. Id. at 11-12.
Unfortunately, this promise did not last much past the
birth of the United States. Id. at 12. Massachusetts (which then
still included the territory of Maine), cash-strapped at the time,
sought to buy land from the Indians to resell at a profit. Id.
After the Penobscots successfully rebuffed numerous such attempts,
they eventually yielded, and entered into two treaties ceding some
of their lands. In the first treaty, in 1796, the Nation ceded,
within a 30-mile tract, "all the lands on both sides of the
Penobscot River." Vine Deloria, Jr. et al., Documents of American
Indian Diplomacy: Treaties, Agreements, and Conventions 1094 (1st
Ed. 1999). These lands were six miles wide. Id. The bargain was
typically one-sided. The Nation received no money, but rather
specified quantities of "blue cloth for blankets," "shot,"
"[gun][p]owder," "hats," "[s]alt," "New England Rum," and "corn."
Id. In the second treaty, in 1818, the Nation ceded the remainder
of its lands on both sides of the river, reserving only four
townships on those lands for the Nation's "perpetual use." Treaty
Made by the Commonwealth of Massachusetts with the Penobscot Tribe
of Indians, 1843, Me. Acts 243 (1818). In exchange, the Nation
again received tokens, inter alia, a "cannon," "knives," and
"drums." Id.
- 38 -
When Maine obtained statehood in 1820, it assumed
Massachusetts's treaty obligations to the Indians. In 1833, Maine
purchased, for $50,000, the four townships on the shore of the
Penobscot River that had been euphemistically reserved for the
Nation's "perpetual use."
As it turned out, however, in all these dealings with
the Nation, both Massachusetts and Maine had proceeded in violation
of the Indian Nonintercourse Act, 25 U.S.C. § 177, which prohibited
any transfer of land from Indians without Congressional approval.
See Joint Tribal Council of the Passamaquoddy Tribe v. Morton, 528
F.2d 370, 377 (1st Cir. 1975). These two states neither sought
nor obtained Congressional ratification of their treaties with the
Nation. H.R. Rep. No. 96-1353, at 11 (1980).
When this violation surfaced in the 1970s, the Penobscot
Nation initiated litigation claiming that, because neither Maine
nor Massachusetts ever sought the required approval from Congress
the treaties with Congress, the land transfers were void ab initio
and the Nation had therefore retained legal title to its aboriginal
lands, which amounted to nearly two-thirds of Maine's land mass.
Other tribes initiated several similar claims. These litigations
led to settlement discussions, and resulted in the passage of the
Settlement Acts in 1980.
The Settlement Acts embodied a compromise, the core of
which was that the Nation received increased sovereignty (previous
- 39 -
to the Settlement Acts, Maine did not consider the Nation to have
any sovereignty24) and a fund was provided by the federal government
to reacquire some of the Nation's lost lands. To the benefit of
Maine, Congress retroactively ratified the land transfers of 1796,
1818, and 1833, and provided that the Nation would be generally
subject to Maine law. See 25 U.S.C. § 1723; 30 M.R.S.A. § 6204. In
essence, the Nation became akin to a municipality under Maine law,
but one with additional sovereignty over, inter alia, "internal
tribal matters," "sustenance fishing," and "hunting and trapping."
See 30 M.R.S.A. §§ 6206, 6207.
Congress -- House and Senate alike -- ratified the MIA
on the understanding that the Nation's rights to hunt and to fish
were both "expressly retained sovereign activities," and that the
tribes had the "permanent right to control hunting and fishing
within . . . their Reservations," whereas the State had only a
"residual right to prevent the two tribes from exercising their
hunting and fishing rights in a manner which has a substantially
24 See, e.g., Great Northern Paper v. Penobscot Nation, 770
A.2d 574, 581 (Me. 2001) ("[Prior to the Settlement Acts] Indians
residing within Maine's borders were subjected to the general laws
of the state like 'any other inhabitants' of Maine. Although the
Tribes were recognized in a cultural sense, they were simply not
recognized by the state or the federal government in an official
or 'political sense.'") (quoting State v. Newell, 24 A. 943, 944
(1892); United States v. Levesque, 681 F.2d 75 (1st Cir. 1982)
(Criminal cases committed in Indian country still outstanding
after passage of the Settlement Acts were tried in the United
States District Court for the District of Maine).
- 40 -
adverse effect on stock in or on adjacent lands or waters." S.
Rep. No. 96-957, at 15, 17 (1980); H.R. Rep. No. 96-1353, at 15,
17 (1980). That these provisions would receive such importance is
only natural, given that Congress understood that the Penobscots
were a "riverine" people, whose "aboriginal territory . . . is
centered on the Penobscot River." H.R. Rep. 96-1353 at 11 (1980).
In fact, the sustenance fishing provision was amended several times
to accommodate the concerns of the parties.
Indeed, the Penobscots have fished, hunted, and trapped
on the River since time immemorial. The River is the only place
within their Reservation where the Penobscots can fish, because
the uplands of their islands have no surface water where this
activity can be conducted. Fishing is central to Penobscot
culture, because fish is not only a major traditional source of
sustenance, but is also central to many of the Nation's rituals
and traditions.
It is not only the Penobscots who have understood the
Main Stem to be part of their Reservation since the Settlement
Acts came into force; the United States has consistently taken
this position as well (and does so once more in the present case).
Thus, in 1995 and 1997 filings before the Federal Energy Regulatory
Commission ("FERC"), the Department of the Interior ("DOI"), took
the position that the Main Stem is part of the Reservation,
principally because the 1818 Treaty did not cede the Penobscot
- 41 -
River to Massachusetts. The federal government has also repeatedly
granted the Nation funding for water resources planning, fisheries
management, and water-quality monitoring of the River.
The Maine Indian Tribal-State Commission -- an entity
created by the Settlement Acts for the purpose of, inter alia,
"continually review[ing] the effectiveness of this Act and the
social, economic and legal relationship between the Houlton Band
of Maliseet Indians, the Passamaquoddy Tribe and the Penobscot
Nation . . . ," 30 M.R.S.A. § 6212(3) -- has also consistently
taken the position that the Main Stem is within the Nation's
Reservation. See Friederichs, Zyl-Navarro, and Bertino, The
Drafting and Enactment of the Maine Indian Claims Settlement Act,
(February 2017) (commissioned by the Maine Indian Tribal-State
Commission), available at http://www.mitsc.org/.
Maine has also understood the Main Stem, or at least a
portion thereof, to fall within the Reservation. Thus, in a 1988
letter, Maine's then-Attorney General Tierney stated that the
Nation could "place gill nets in the Penobscot River within the
boundaries of the Penobscot Reservation." Me. Op. Atty. Gen. No.
88-2 (Me.A.G.), 1988 WL 483316 (emphasis added). In a 1997 filing
before the FERC, Maine's then-Solicitor General Warren stated that
"the boundaries of the Penobscot Reservation . . . includ[e] the
islands in the Penobscot River . . . and a portion of the riverbed
between any reservation island and the opposite shore." (emphasis
- 42 -
added). In fact, Maine's eel permits advised the public that
"[t]he portions of the Penobscot River and submerged lands
surrounding the islands in the river are part of the Penobscot
Indian Reservation." Maine reaffirmed its position before this
court in 2006, when it argued in its brief that:
To be clear, it is the State's position that
the Penobscot Reservation includes those
islands in the main stem above and including
Indian Island that have not otherwise been
transferred, as well as the usual accompanying
riparian rights that likewise have not been
transferred . . . . 25
Brief of State of Maine as Intervenor-Respondent, at 3 n.2, Maine
v. Johnson, 498 F.3d 37 (1st Cir. 2007) (Nos. 04-1363, 04-1375)
(emphasis added). In the same litigation, Maine insisted that in
order to determine the exact boundaries of the Reservation, it was
necessary to analyze "the relevant treaties referenced in the
Reservation definitions in the [MIA] including historical
transfers of Reservation lands and natural resources (30 M.R.S.A.
§§ 6203(5) and (8)), and aspects of Maine property law." Brief
for Petitioner State of Maine at 58, Johnson, 498 F.3d (Nos. 04-
1363, 04-1375).
In that same litigation, this court accepted that the
Penobscot Reservation included at least a part of the Penobscot
25 The usual riparian rights include ownership of the
submerged lands (i.e. the river bed) around the islands. See infra
Section III.
- 43 -
River, but did not resolve what part that was. The court had no
difficulty in referring to Indian "lands" as encompassing
"waters." See Johnson, 498 F.3d at 47.
Yet, thereafter in 2012, only five years after Maine had
argued to this court that the Penobscot Indian Reservation included
a part of the Penobscot River -- and more than 30 years after the
Settlement Acts came into force -- Maine's then-Attorney General
William Schneider wrote to the Nation informing it that no part of
the River is within its Reservation. This sudden change in Maine's
position, embodying an attempt to breach the agreement contained
in the Settlement Acts, sparked the present litigation.
II. Supreme Court Precedent is Dispositive
Alaska Pacific Fisheries definitively established the
rule of law that determines that the Penobscot Indian Reservation
includes the Main Stem. Although the majority acknowledges that
there are "superficial similarities" between Alaska Pacific
Fisheries and the present case, it tries to downgrade the holding.
Supra at 18. In fact, the similarities are not "superficial," they
are profound.
In Alaska Pacific Fisheries,
[t]he principal question for decision [was]
whether the reservation created by the Act of
1891 embraces only the upland of the islands
or includes as well the adjacent waters and
submerged land. The question is one of
construction -- of determining what Congress
- 44 -
intended by the words 'the body of lands known
as Annette Islands.'
248 U.S. at 87 (quoting Comp. St. 1916, § 5096a) (emphasis added).
The Supreme Court unmistakably held that the reservation included
the adjacent waters and submerged land. Id. at 89.
To arrive at this conclusion, the Supreme Court looked
not to a dictionary, but rather observed that
As an appreciation of the circumstances in
which words are used usually is conducive and
at times is essential to a right understanding
of them, it is important, in approaching a
solution of the question stated, to have in
mind the circumstances in which the
reservation was created -- the power of
Congress in the premises, the location and
character of the islands, the situation and
needs of the Indians and the object to be
attained.
Id. at 87 (emphasis added).
If one follows the Supreme Court's analysis step-bystep,
the majority's grievous errors become clearly apparent. At
the threshold, a comparison between the language at issue in Alaska
Pacific Fisheries and the language at issue here is in order.
In Alaska Pacific Fisheries, the relevant phrase was
"the body of lands known as Annette Islands, situated in Alexander
Archipelago in Southeastern Alaska," Id. at 86 (quoting Act of
March 3, 1891, c. 561, § 15, 26 Stat. 1095, 1101). In the present
case, there is a two-part relevant text. First, the MICSA defines
- 45 -
the Reservation as "those lands as defined in the [the MIA]." 25
U.S.C. § 1722(i). Second, the MIA defines the Reservation as
the islands in the Penobscot River reserved to
the Penobscot Nation by agreement with the
States of Massachusetts and Maine consisting
solely of Indian Island, also known as Old
Town Island, and all islands in that river
northward thereof that existed on June 29,
1818, excepting any island transferred to a
person or entity other than a member of the
Penobscot Nation subsequent to June 29, 1818,
and prior to the effective date of this Act.
30 M.R.S.A. § 6203(8). The definition in Alaska Pacific Fisheries
and the definition here are highly similar. Neither definition
mentions waters or submerged lands, but refers only to "lands" and
"islands." Both definitions specify which islands are included in
the reservations. One definition does this by using the name the
islands are known under ("Annette Islands"); the other definition
does this by referring back to previous treaties in which the
Nation retained islands, then using the name of one island ("Indian
Island, also known as Old Town Island"), and then detailing which
other islands are intended ("all islands in that river northward
thereof"). Finally, both definitions also specify where these
islands are located: one is "situated in Alexander Archipelago in
Southeastern Alaska" and the other "in the Penobscot River."
Rather than being "superficial[ly] similar[]," Alaska Pacific
Fisheries unquestionably establishes the proper methodology for
- 46 -
determining the demarcation of the Nation's Reservation in the
present case.
Alaska Pacific Fisheries mandates an approach to
interpreting statutes that do not expressly grant waters or
submerged lands to the Indians -- an approach that looks not to a
dictionary, but rather places the statute in its context, and looks
to Congressional intent. If the Supreme Court had applied the
majority's approach to the definition at issue in Alaska Pacific
Fisheries, then it would not have held that the reservation at
issue included waters or submerged lands. But the Supreme Court
did not apply the majority's approach, and concluded that the
reservation did include waters and submerged lands. The majority's
approach is thus precluded by binding Supreme Court precedent.26
26 Based on the language of the respective statutes, the
majority attempts to distinguish Alaska Pacific Fisheries from the
present case. This attempt fails. The majority cites the word
"solely" in the MIA. But the majority fails to see that "solely"
serves to specify which islands in the Penobscot River are included
in the Reservation, and which are not -- not whether the Main Stem
is excluded from the Reservation. Specifically, there are islands
in the Penobscot River south of Indian Island (such as Marsh Island
which is on the west side of Indian Island), and also islands north
of Indian Island that were created after 1818, such as Gero Island.
The legislative history reveals that Maine was particularly
concerned that those post-1818 islands might be deemed included in
the Reservation. The majority also argues that the phrase "in the
Penobscot River" means that no part of the River is included in
the Reservation. But the reference to the Penobscot River, like
the reference to the "Alexander Archipelago" in Alaska Pacific
Fisheries, serves to situate the Reservation. In addition, the
words "in the Penobscot River" limit the size of the Reservation
-- without these words, the Nation could claim all islands
northward of Indian Island, regardless of which body of water they
- 47 -
Returning to the approach that Alaska Pacific Fisheries
sets out, I commence with the statement in Alaska Pacific
Fisheries, "[t]hat Congress had power to make the reservation
inclusive of the adjacent waters and submerged land as well as the
upland needs little more than statement." Id. Similarly, in the
present case, Congress had the power to ratify -- or to decline to
ratify -- any territorial arrangement between the Nation and Maine.
Next, it can easily be concluded that the analysis of
the location and character of the islands in the present case is
clearly in line with Alaska Pacific Fisheries. The Annette Islands
are "separated from other islands by well-known bodies of water."
Id. at 88. In the present case, the islands that are part of the
Penobscot Indian Reservation are separated from other islands
(such as those to the south of Indian Island), as well as from the
banks of the Penobscot River, by a well-known body of water: the
Main Stem of that very Penobscot River. The Supreme Court also
remarked that the "salmon and other fish," that passed through the
waters of the Annette Islands Reservation, gave "to the islands a
value for settlement and inhabitance which otherwise they would
not have." Id. Again, this applies in the present case. The
Penobscots are a riverine people who have fished in the Main Stem
since time immemorial, and for whom fishing is not only a key means
are in.
- 48 -
of sustenance, but also an inextricable part of their culture.
The fish in the Main Stem thus give the Reservation islands a
"value for settlement and inhabitance which otherwise they would
not have."
Turning to the final step of the analysis, a major
purpose of the Nation in entering into the Settlement Acts -- in
addition to the fishing -- was increased sovereignty over its
territory, and the regaining of some of the territory it had lost
to Massachusetts and Maine in 1796, 1818, and 1833. Thus,
surrendering the River upon which its aboriginal lands were
centered was plainly not part of the Nation's purpose -- retaining
the Main Stem was. Indeed, just like the Indians in Alaska Pacific
Fisheries, "[t]he Indians naturally looked on the fishing grounds
as part of the islands and proceeded on that theory in soliciting
the reservation." Alaska Pacific Fisheries, 248 U.S. at 89.
The Supreme Court in Alaska Pacific Fisheries bolstered
its holding by noting that, pursuant to the Indian canon of
construction, "statutes passed for the benefit of dependent Indian
tribes or communities are to be liberally construed, doubtful
expressions being resolved in favor of the Indians." Id. at 89.
Most assuredly, this applies in the present case as well. See
Penobscot Nation, 164 F.3d at 709 (1st Cir. 1999) (applying the
Indian canon of construction to the Settlement Acts). In Alaska
Pacific Fisheries, the Court found further support for its holding
- 49 -
in the fact that, following enactment, the statute was treated by
the Indians, the public, and the Secretary of the Interior as
including the adjacent waters in the reservation. As previously
stated, this situation also exists in the present case. Since the
enactment of the Settlement Acts, the Nation and the United States
have understood that the Reservation included the Main Stem. Supra
Section I. Even Maine, until it recently reversed course, and the
public it informed, understood that at least a part of the Main
Stem was within the Nation's Reservation. Id.
Alaska Pacific Fisheries has been applied in other cases
that are instructive for present purposes. Two cases -- which the
majority addresses only in a conclusory footnote -- are
particularly so. First, in Hynes v. Grimes Packing Co., the
Supreme Court applied Alaska Pacific Fisheries to conclude that
"any other public lands which are actually occupied by Indians or
Eskimos within said Territory [Alaska]," included "waters." 337
U.S. 86, 110-11 (1949) (emphasis added). The Supreme Court
observed that "one may not fully comprehend the statute's scope by
extracting from it a single phrase, such as 'public lands' and
getting the phrase's meaning from the dictionary," rather, the
statute "must 'be taken as intended to fit into the existing
system' and interpreted in that aspect." Id. at 115-116. Second,
in Choctaw Nation v. Oklahoma, the Supreme Court had to determine
whether a grant of "land" to the Choctaw Indians included submerged
- 50 -
lands in the Arkansas River. 397 U.S. 620, 621, 625 (1970). The
relevant boundary was described simply as "'up the Arkansas' and
'down the Arkansas,'" and there was no reference in the grant to
conveying that river or any submerged lands to the Indians. Id.
at 631. Citing Alaska Pacific Fisheries, the Supreme Court noted
that "the question is whether the United States intended to convey
title to the river bed to petitioners," id. at 633, and concluded
that the grant of "land" bounded by the Arkansas River included
the submerged lands of that river. Id. at 635.
In light of Alaska Pacific Fisheries, the proposition
that the words "lands" and "islands" refer only to land above the
waters of the Penobscot River can very well be put to rest.27
Additionally, the notion that one can resort to dictionary
definition to resolve the present case can similarly rest in peace.
The Reservation includes the Main Stem.
I continue, however, because the Nation and the United
States have both presented arguments that, even without Alaska
Pacific Fisheries, demonstrate that the Penobscot Indian
Reservation includes the Main Stem.
27 The majority never specifies at what water level the
boundaries of the Penobscot Indian Reservation are to be
determined. Indeed, according to the majority's interpretation,
it would appear that the Penobscot Indian Reservation shrinks when
the water levels in the River rise, and then expands when those
levels fall.
- 51 -
III. The Nation Never Ceded the Main Stem to Massachusetts
[T]he Indians are acknowledged to have the
unquestionable right to the lands they occupy,
until it shall be extinguished by a voluntary
cession to the government; and . . . that right
was declared to be as sacred as the title of
the United States to the fee.
Leavenworth v. United States, 92 U.S. 733, 742 (1876). The
Settlement Acts were enacted against the backdrop of an
unextinguished and "sacred" right of the Indians inhabiting Maine
to approximately two-thirds of that state's landmass. I commence
with the uncontested proposition that this aboriginal title
included the Penobscot River and its bed. Congress enacted the
Settlement Acts on the understanding that the tribes would
surrender their aboriginal title, but "would retain as
reservations those lands and natural resources which were reserved
to them in their treaties with Massachusetts." S. Rep. No. 96-
957, at 18 (1980); H.R. Rep. No. 96-1353, at 18 (1980).
This understanding is reflected in the language of both
MICSA and the MIA. Thus, MICSA retroactively ratified the transfer
of lands in the 1796, 1818, and 1833 treaties: "Any transfer of
land or natural resources located anywhere within the United States
from, by, or on behalf of . . . the Penobscot Nation . . . shall
be deemed to have been made in accordance with the Constitution
and all laws of the United States . . . ." 25 U.S.C. § 1723(a)(1).
MICSA then extinguishes the Nation's aboriginal claim as to the
- 52 -
lands or natural resources transferred in the 1796, 1818, and 1833
treaties. 25 U.S.C. § 1723(b). But the Nation did not transfer
the Main Stem in those treaties.
The language of the MIA also reflects Congress's
understanding that the Nation would retain what it had not ceded
in its treaties with Massachusetts and Maine. The MIA refers those
treaties in the very definition of the Penobscot Indian
Reservation: "'Penobscot Indian Reservation' means the islands in
the Penobscot River reserved to the Penobscot Nation by agreement
with the States of Massachusetts and Maine . . . ." 30 M.R.S. §
6203(8). The majority effectively reads this language out of the
MIA. By taking this language as "merely language specifying which
'islands' are involved," supra at 16, the majority renders the
language superfluous -- because the MIA already specifies which
islands are included in the Reservation: "solely . . . Indian
Island, also known as Old Town Island, and all islands in [the
Penobscot R]iver northward thereof that existed on June 29,
1818 . . . ." 30 M.R.S. § 6203(8). The majority's reading "is
thus at odds with one of the most basic interpretive canons, that
'"[a] statute should be construed so that effect is given to all
its provisions, so that no part will be inoperative or superfluous,
- 53 -
void or insignificant . . . ."'" Corley v. United States, 556
U.S. 303, 314 (2009).28
Admittedly, if one relies on the text of the MIA standing
alone, the majority's reading -- that the reference to the 1796,
1818, and 1833 treaties merely serves to specify which islands are
part of the Reservation -- is not impossible. However, "[w]hen we
are faced with these two possible constructions, our choice between
them must be dictated by a principle deeply rooted in this Court's
Indian jurisprudence: 'Statutes are to be construed liberally in
favor of the Indians, with ambiguous provisions interpreted to
their benefit.'" Cty. of Yakima v. Confederated Tribes & Bands of
Yakima Indian Nation, 502 U.S. 251, 269 (1992) (quoting Montana v.
Blackfeet Tribe, 471 U.S. 759, 766 (1985)).
Thus, not only do the purpose and legislative history of
the Settlement Acts lead to the conclusion that the Nation has
28 The majority attempts a similar argument with respect to
section 6205(3)(A) of the MIA, which states that "[f]or purposes
of this section, land along and adjacent to the Penobscot River
shall be deemed to be contiguous to the Penobscot Indian
Reservation." 30 M.R.S.A. § 6205(3)(A). The majority argues that
this implies "that otherwise the 'Reservation' is not contiguous
to land along and adjacent to the Penobscot River;" and that
including the Main Stem in the Reservation "would render that
language superfluous." Supra at 13. What the majority apparently
fails to take into account is that the Penobscot River also runs
for approximately 30 miles south of the Main Stem. Thus, section
6205(3)(A), far from being redundant, serves the purpose of
rendering land along and adjacent to any part of the Penobscot
River (including south of the Reservation) contiguous to the
Reservation.
- 54 -
retained what it has not ceded -- but the Indian canon of
construction mandates that conclusion, for the Indians never ceded
the Penobscot River in the 1796, 1818, and 1833 treaties. To
understand why this is the case, it is essential to examine those
treaties.
In the 1796 and 1818 treaties, the Nation ceded its
"land" on both sides of the Penobscot River -- but Old Town Island,
and all the islands in the River northward thereof, were reserved
for the Tribe; the 1818 treaty also reserved four townships to the
Nation, which were then sold to Maine in the 1833 treaty. None of
these treaties explicitly mention the River being conveyed to
Massachusetts or to Maine, nor do they mention it being reserved
for the Indians.
[W]e will construe a treaty with the Indians
as 'that unlettered people' understood it, and
'as justice and reason demand, in all cases
where power is exerted by the strong over
those to whom they owe care and protection,'
and counterpoise the inequality 'by the
superior justice which looks only to the
substance of the right, without regard to
technical rules.'
United States v. Winans, 198 U.S. 371, 380-81 (1905). The Nation
views the Penobscot River as part of the islands, and in the 1796,
1818, and 1833 treaties, the Nation retained those islands, and
thus naturally understood that it retained the River as well. The
Nation ceded only "land" on both sides of the River, which it
naturally understood to refer only to the uplands on both sides of
- 55 -
the River. Thus, the Nation retained the River in the 1796, 1818,
and 1833 treaties.
But even reading the treaties technically leads to the
conclusion that the Nation retained the Main Stem. Under
Massachusetts, as well as Maine, common law,29 the river beds of
non-tidal rivers are considers submerged lands, and are privately
owned,30 presumptively by the owner of the abutting uplands, who
may be referred to as a riparian owner. McFarlin v. Essex Co., 64
Mass. 304, 309-10 (Mass. 1852); In re Opinion of the Justices, 106
A. 865, 868-69 (Me. 1919). The Penobscot River, in relevant part,
is non-tidal. Veazie v. Dwinel, 50 Me. 479, 479 (Me. 1862). When
two different persons own land on opposite sides of the River,
each presumptively owns the submerged land to the "thread" (i.e.
midline) of the river; the same holds true for owners of islands
-- they, too, presumptively own the submerged lands to the thread
of the river between the island upland and the upland on the river
bank. See Warren v. Westbrook Mfg. Co., 86 Me. 32, 40 (Me. 1893).
Ownership of submerged lands brings with it certain rights, such
as the exclusive right to fish in the waters above the submerged
29 Because Massachusetts and Maine common law are identical
in all respects that are material here, I here cite to both,
leaving to the side the question of whether Maine or Massachusetts
law should apply to a given treaty or issue.
30 Unlike the beds of tidal rivers, which cannot be privately
owned, but are rather owned by the state for the benefit of all
citizens. Storer v. Freeman, 6 Mass. 435, 438 (Mass. 1810).
- 56 -
lands; it also brings with it certain obligations, such as allowing
the public passage through the waters above the submerged lands.
McFarlin, 64 Mass. at 309-10; In re Opinion of the Justices, 106
A. at 868-69.
In an arm's-length transaction, the presumption would be
that the Nation ceded its submerged lands until the thread between
its retained islands and the banks of the River. But
Massachusetts, as well as Maine, law recognizes that the
presumption is defeated where the transaction was not at arm's
length, especially where, as here, the grantor does not understand
that he or she is relinquishing title to the submerged lands. See
Hatch v. Dwight, 17 Mass. 289, 298 (Mass. 1821); Hines v. Robinson,
57 Me. 324, 330 (Me. 1869).
Note that, even if (as the majority) one reads the 1796,
1818, and 1833 treaties out of the Settlement Acts, state law still
informs the meaning of those Acts. Varity v. Howe, 516 U.S. 489,
502 (1996) ("The dissent looks to the dictionary for interpretive
assistance. Though dictionaries sometimes help in such matters,
we believe it more important here to look to the common law
. . . .") (citing Nationwide Mut. Ins. Co. v. Darden, 503 U.S.
318, 322 (1992)). This is especially true in this case, because
Maine insisted that Maine law apply to the Penobscots. Supra
Section I; 30 M.R.S.A. §§ 6202, 6204. Section 6204 of the MIA is
- 57 -
even entitled "Laws of the State to apply to Indian Lands."31 "Laws
of the State," in turn, is defined to include "common law." 30
M.R.S.A. § 6203(4). And if islands include submerged lands, and
the Nation's Reservation includes islands, then, by simple
deduction, the Nation's Reservation includes submerged lands.32
The United States, the Nation, and Maine (until Maine
suddenly changed its mind in 2012) have consistently taken the
position that the Reservation was defined with reference to the
1796, 1818, and 1833 treaties and state common law. Supra Section
I. In fact, it was Maine who -- before this court in Johnson --
was adamant that the boundary issue "involves analysis of the
relevant treaties referenced in the Reservation definitions in the
[MIA] including the historical transfers of Reservation lands and
natural resources (30 M.R.S.A. §§ 6203(5) and (8)), and aspects of
Maine property law." Brief for Petitioner State of Maine at 58,
Maine v. Johnson, 498 F.3d 37 (1st Cir. 2007) (Nos. 04-1363, 04-
1375) (emphasis added).
31 Although the Penobscots did negotiate a few exceptions to
the general rule that they are subject to Maine law, none of those
exceptions could support the proposition that the Indians somehow
surrendered their property rights under Maine law. See, e.g., 30
M.R.S.A. §§ 6206, 6207.
32 Citing no authority, the majority, however, asserts that
state common law, including law for the construction of deeds,
should not figure in our construction of the Settlement Acts.
Supra at 19 n.9.
- 58 -
Contrary to the majority's protestation that Johnson
"did not present the issue of the meaning of Penobscot Indian
Reservation in the Settlement Acts," Johnson did just that.
Johnson concerned a dispute over the allocation of regulatory
authority over waste discharges into water between Maine, the EPA,
and the Indians (specifically, the Nation and the Passamaquoddy
Tribe). In order to resolve that dispute, this court had to
address the meaning of the Reservation.33 For in order to determine
that the Nation did not have regulatory authority as to two
discharge facilities, this court had to decide whether those
facilities discharged into territory "acquired by the Secretary
[of the Interior] in trust" for the Nation, or whether it
discharged into the Reservation.34 Johnson, 498 F.3d at 47. As
the majority itself puts it, in Johnson, we "distinguishe[d]
between Reservation lands and land later acquired in trust." Supra
at 22. We made that distinction by observing that the Reservation,
33 Note that in order for the Nation to have standing in a
case concerning waste discharges into water, its Reservation had
to include at least some part of the Penobscot River. We decided
the Nation's claims in Johnson on the merits, thus determining
that the Nation had standing and, implicitly, that the Reservation
included some part of the River. Restoration Pres. Masonry, Inc.
v. Grove Eur. Ltd., 325 F.3d 54, 59 (1st Cir. 2003) (We do not
assume the existence of Article III jurisdiction).
34 The Nation's Territory is comprised of its Reservation
plus any lands acquired by the Secretary of the Interior for the
benefit of the Nation. 30 M.R.S.A. § 6205(2). The Nation's
regulatory authority is different in its territory and its
reservation. See, e.g., 30 M.R.S.A. § 1724(h).
- 59 -
unlike the Territory, contained "reservation waters retained by
the [Penobscot and Passamaquoddy] tribes under the [MIA], based on
earlier agreements between the tribes and Massachusetts and
Maine." Johnson, 498 F.3d at 47 (original emphasis). We then
clarified that we arrived at this conclusion because we read the
MIA as "defin[ing] [the Nation's] reservation lands as those
reserved to the tribe[] by agreement with Massachusetts and Maine
and not subsequently transferred." Id. at 47 n.11 (citing 30
M.R.S.A. § 6203(5), (8)) (emphasis added).35 The majority is
correct insofar as it notes that, in Johnson, we bypassed the issue
of the Reservation's exact boundaries. But we did hold that the
Reservation was defined in terms of what the Nation retained, and
that the Reservation included some part of the Penobscot River --
which directly conflicts with the majority's view that the
Reservation is defined by the dictionary, and includes no part of
River.
It is therefore nothing short of stunning that the
majority today holds that the 1796, 1818, and 1833 treaties are
unambiguously excluded from the Settlement Acts. Apparently, the
majority believes that this court in Johnson was not merely wrong,
35 The majority seeks to characterize my reliance on Johnson
as being based merely on footnote 11 in that case. Supra at 22.
As this discussion makes clear, I am not relying merely on that
footnote, although it does provide useful clarification. As for
the majority's other attempts to argue that reliance on Johnson is
not proper, I have addressed those in footnote 22, supra.
- 60 -
but that it completely misread an unambiguous provision.
Notwithstanding the majority's protestations, in Johnson, this
Court had no difficulty in referring to Indian "lands" as including
"waters." Id. at 45 ("[T]wo source points . . . drain into
navigable waters within what we assume to be tribal land.")
(emphasis added); Id. at 47 ("[T]he facilities . . . discharge
onto reservation waters . . . . That such lands may be subject to
. . . .") (emphasis added).
IV. The Nation's Right to Fish "within" its Reservation
In a section entitled "Sustenance fishing within the
Indian reservations," the MIA provides that
Notwithstanding any rule or regulation
promulgated by the commission[36] or any other
law of the State, the members of the
Passamaquoddy Tribe and the Penobscot Nation
may take fish, within the boundaries of their
respective Indian reservations, for their
individual sustenance . . . .
30 M.R.S.A. § 6207(4) (emphasis added).
This provision was carefully negotiated and was amended
several times to accommodate the concerns of the parties. The
provision was understood by all involved to be central to the
Nation's position -- and indeed to its very existence and culture
36 Referring to the Maine Indian Tribal-State Commission.
See supra Section I.
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-- and was one of the very few exclusions in the MIA to the
applicability of Maine law to the Nation and its lands.37
The fact that the Indians can fish "within" their
Reservation implies that there is a place to do so. Unless the
majority is of the view that one can fish where there is no water,
there is no place to fish on the uplands of the Nation's islands
-- which implies that some part of the River has to be a part of
the Reservation. The previous two sections of this dissent have
already explained why that part of the River is the Main Stem, so
I will not belabor that point here.
What is worth repeating, however, is just how strongly
the sustenance fishing provision implies that the Nation's
Reservation embraces a part of the River. Given the attention
paid to this provision and to the importance of sustenance fishing
to the Nation, the grant of fishing rights within the boundaries
of the Reservation was not accidental. This is especially so given
that Congress knows how to grant fishing or others rights to
Indians outside of their reservations. See, e.g., Washington v.
37 The majority appears to believe, however, that this
provision (or at least the reference to the Reservation therein)
is "ancillary," because the provision applies to both the
Passamaquoddy and the Penobscot Reservations. Supra at 16. I
fail to see how a provision that grants additional rights not only
to the Penobscots, but also to the Passamaquoddy, is thereby
rendered less significant to the Nation's position -- if anything,
because the provision applies to two distinct reservations, rather
than only to one, it carries more weight, not less.
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Wash. State Commercial Passenger Fishing Vessel Ass'n, 443 U.S.
658, 674 and n.21 (1979) (holding that six treaties granted Indians
off-reservation fishing rights, through the following language (or
language materially identical thereto): "The right of taking fish,
at all usual and accustomed grounds and stations, is further
secured to said Indians, in common with all citizens of the
Territory . . . .").
The majority correctly points out that the Nation has
hunting and trapping rights as well within its territory, which is
much larger than its Reservation. Supra at 14 n.6, 15; 30 M.R.S.A.
§§ 6207(1)(A), 6205(2), 6207(1). However, the majority --
incorrectly -- views this hunting and trapping provision as
providing only weak support for the position of the United States
and the Nation. What the majority fails to see is that section
6207 sets up a detailed scheme allocating authority over fishing
between the Nation, the Maine Indian Tribal State Commission,38 and
the state. Thus, section 6207(1)(A) (which gives the Indians
hunting and trapping rights) is part of section 6207(1), which
gives Indians the "exclusive authority within their respective
Indian territories to promulgate and enact ordinances regulating"
not only "[h]unting, trapping or other taking of wildlife," but
also "[t]aking of fish on any pond in which all the shoreline and
38 Referring to the Maine Indian Tribal-State Commission.
See supra Section I.
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all submerged lands are wholly within Indian territory and which
is less than 10 acres in surface area." 30 M.R.S.A. §§ 6207(1).
Section 6207(3) then goes on, in painstaking detail, to delineate
the areas in which the commission shall have "exclusive authority
to promulgate fishing rules or regulations," again with reference
to "Indian territory."39 30 M.R.S.A. §§ 6207(3). Section 6207(6)
then lays out what authorities and duties Maine's Commissioner of
Inland Fisheries and Wildlife has within Indian territories.
Given this meticulous delineation of who has what
authority over fishing -- and where, exactly, that authority
applies -- a provision that gives Indians sustenance fishing rights
within their reservations "[n]otwithstanding any rule or
regulation promulgated by the commission or any other law of the
State" is highly significant. 30 M.R.S.A. § 6207(4). This
provision plainly implies that those reservations include places
39 To wit, the commission has such authority in:
A. Any pond other than those specified in
subsection 1, paragraph B, 50% or more of the
linear shoreline of which is within Indian
territory;
B. Any section of a river or stream both
sides of which are within Indian territory;
and
C. Any section of a river or stream one
side of which is within Indian territory for
a continuous length of ½ mile or more.
30 M.R.S.A. § 6207(3).
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in which to fish. In the case of the Penobscot Reservation, that
means that the Main Stem is part of the Reservation.
The majority, however, argues against this necessary
implication by relying on the boilerplate phrase "unless the
context indicates otherwise" that applies to the definitions
section of the MIA. 30 M.R.S.A. § 6203; supra at 15. But the
majority never explains in what way the "context indicates
otherwise." In fact, as I have just explained, the context
indicates that "reservations" in the sustenance fishing provision
was used to mean exactly that -- reservations, as including the
Main Stem. 30 M.R.S.A. § 6207(4). It is only through the
majority's forced reading of the definition of the Nation's
Reservation that a tension is even created between that definition
and the sustenance fishing provision. But even assuming that this
tension exists, that the Settlement Acts somehow offer two
definitions of the Reservation, I am forced to repeat that "[w]hen
we are faced with these two possible constructions, our choice
between them must be dictated by a principle deeply rooted in this
Court's Indian jurisprudence: 'Statutes are to be construed
liberally in favor of the Indians, with ambiguous provisions
interpreted to their benefit.'" Cty. of Yakima, 502 U.S. at 269
(quoting Montana, 471 U.S. at 766).40
40 Because the Main Stem is part of the Reservation, there
is no need for this court to reach the second issue, namely whether
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V. Conclusion
As previously elaborated, there are at least three
reasons -- each of which is sufficient by itself -- why the
Penobscot Indian Reservation includes the Main Stem of the
Penobscot River. First, the Supreme Court's binding precedent,
especially Alaska Pacific Fisheries, establishes that the words
"lands" and "islands" can include contiguous waters and submerged
the Nation has standing to sue for a declaratory judgment that it
has a right to sustenance fishing in the Main Stem. Plainly,
section 6207(4) of the MIA gives the Nation this right. The 2012
letter from Maine's then-Attorney General Schneider (the letter
that has given rise to this dispute) acknowledges that "the
Penobscot Nation has authority to regulate hunting and fishing on
those islands included in its Reservation . . . ." The letter
proceeds to explain that "[t]he River itself is not part of the
Penobscot Nation's Reservation, and therefore is not subject to
its regulatory authority or proprietary control." But the Main
Stem of the River is, in fact, part of the Reservation, and the
question of whether the Penobscots can fish in the Main Stem is
therefore moot.
If I were to reach the issue of standing and ripeness,
however, I would still find that the Indians have standing and
that their claim is ripe. An Indian Nation or Tribe has the
standing to seek declaratory and injunctive relief where its
sovereignty is put in question, even absent any other concrete
harm. See Moe v. Confederated Salish & Kootenai Tribes of Flathead
Reservation, 425 U.S. 463, 468 n.7 (1976). As already amply
elaborated upon herein, the Nation views its right to sustenance
fishing as an essential element of its sovereignty, and Congress
understood the hunting and fishing provision as recognizing the
Nation's exercise of "inherent sovereignty," and considered
hunting and fishing "expressly retained sovereign activities." S.
Rep. No. 96-957, at 14-15 (1980); H.R. Rep. No. 96-1353, at 14-15
(1980). A declaration from Maine, therefore, that the Nation has
no such right (even if Maine does not, at present, intend to
interfere with the Nation's sustenance fishing) is calling the
Nation's sovereignty into question.
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lands. On the facts of the present case, there is no question
that they do include the waters and submerged lands of the Main
Stem. Second, in the 1796, 1818, and 1833 treaties -- with
reference to which the Reservation is defined -- the Nation
retained the Main Stem; this is true even if we interpret the
treaties technically in light of Maine and Massachusetts common
law. Third, the Settlement Acts provide the Nation with sustenance
fishing rights within its Reservation -- a right that only makes
sense and can only be exercised if the Reservation includes at
least a part of the waters of the Penobscot River.
These three reasons are also mutually reinforcing. For
instance, Alaska Pacific Fisheries calls for an appraisal of, inter
alia, the purposes which the Settlement Acts sought to attain; the
sustenance fishing provision underscores that one of those
purposes was to guarantee to the Nation sustenance fishing rights
within its Reservation, without otherwise disturbing the carefully
crafted regulatory balance of the Settlement Acts. Alaska Pacific
Fisheries also calls for an appraisal of the situation of the
Nation -- which situation is clarified by the 1796, 1818, and 1833
treaties and state common law establishing that the Nation was in
possession of the Main Stem when it entered into the Settlement
Acts.
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I cannot join in the majority's overreliance on
dictionaries, to the exclusion of far more persuasive and common
sense authority.
[I]t is one of the surest indexes of a mature
and developed jurisprudence not to make a
fortress out of the dictionary; but to
remember that statutes always have some
purpose or object to accomplish, whose
sympathetic and imaginative discovery is the
surest guide to their meaning.
Watt v. Alaska, 451 U.S. 259, 266 n.9 (1981) (quoting Cabell v.
Markham, 148 F.2d 737, 739 (L. Hand, J.), aff'd, 326 U.S. 404
(1945)).
Respectfully, but most emphatically, I dissent.

Outcome: Affirmed in part and vacated with instructions of vacate for want of jurisdiction as to the declaratory judgment regarding the sustenance fishing
rights under 30 M.R.S.A. § 6207(4). No costs are awarded.

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