The below is excerpted from an article originally published on SCOTUSblog.com on December 24, 2021.
Control over the Penobscot River in Maine
In Penobscot Nation v. Frey and United States v. Frey, two cases ask the Supreme Court to review an en banc decision of the U.S. Court of Appeals for the 1st Circuit concerning authority over the Penobscot River in Maine. Both petitions detail the history of relationships between the Penobscot Nation and various governments, from Massachusetts colonists to the Maine Indian Claims Settlement Act and the Maine Implementing Act in the 1970s. The MIA refers to the “Penobscot Indian Reservation” in terms of “the islands in the Penobscot River.” The MIA also provides for fishing, hunting, and trapping rights “within the boundaries of their respective Indian reservations,” any Maine laws notwithstanding.
In the petitions, the Penobscot Nation and the U.S. solicitor general indicate that the nation under the acts has regulatory authority over the Penobscot River, demonstrated in practice for example by the fact that Penobscot game wardens, not state game wardens, patrolled the river. In 2012, Maine claimed authority over the river on the ground that the nation’s fishing, hunting, and trapping rights related specifically to the “islands” in the river, not the river itself. The 1st Circuit agreed with Maine that “islands” in the MIA encompassed only land, not water. The petitions maintain, among the arguments, that the 1st Circuit erred in interpreting “islands” in isolation, without addressing history or context. Though not presenting a circuit split, the petitions suggest the issue could affect other Maine tribes.
Andrew Hamm, The Penobscot River and claims against military subcontractors, SCOTUSblog (Dec. 24, 2021, 4:31 PM), https://www.scotusblog.com/2021/12/the-penobscot-river-and-claims-against-military-subcontractors/