United States v. Frey ( 2021 )

United States Court of Appeals
For the First Circuit
Nos. 16-1424
16-1435
16-1474
16-1482
PENOBSCOT NATION; UNITED STATES, on its own behalf, and for the
benefit of the Penobscot Nation,
Plaintiffs, Appellants/Cross-Appellees,
v.
AARON M. FREY, Attorney General for the State of Maine; JUDY A.
CAMUSO, Commissioner for the Maine Department of Inland
Fisheries and Wildlife; DAN SCOTT, Colonel for the Maine Warden
Service; STATE OF MAINE; TOWN OF HOWLAND; TRUE TEXTILES, INC.;
GUILFORD-SANGERVILLE SANITARY DISTRICT; CITY OF BREWER; TOWN OF
MILLINOCKET; KRUGER ENERGY (USA) INC.; VEAZIE SEWER DISTRICT;
TOWN OF MATTAWAMKEAG; COVANTA MAINE LLC; LINCOLN SANITARY
DISTRICT; TOWN OF EAST MILLINOCKET; TOWN OF LINCOLN; VERSO PAPER
CORPORATION,
Defendants, Appellees/Cross-Appellants,
EXPERA OLD TOWN; TOWN OF BUCKSPORT; LINCOLN PAPER AND TISSUE
LLC; GREAT NORTHERN PAPER COMPANY LLC,
Defendants, Appellees,
TOWN OF ORONO,
Defendant.
APPEALS FROM THE UNITED STATE DISTRICT COURT
FOR THE DISTRICT OF MAINE
[Hon. George Z. Singal, U.S. District Judge]
Before
Howard, Chief Judge,
Selya, Lynch, Thompson, and Barron,
Circuit Judges.
Pratik A. Shah, with whom Lide E. Paterno, Akin Gump Strauss
Hauer & Feld LLP, Kaighn Smith, Jr., David M. Kallin, and Drummond
Woodsum were on brief, for appellant/cross-appellee Penobscot
Nation.
Mary Gabrielle Sprague, Attorney, Environment and Natural
Resources Division, United States Department of Justice, with whom
Jeffrey Bossert Clark, Assistant Attorney General, and Eric Grant,
Deputy Assistant Attorney General, were on brief, for
appellant/cross-appellee United States.
Kimberly Leehaug Patwardhan, Assistant Attorney General for
the State of Maine, with whom Aaron M. Frey, Attorney General for
the State of Maine, and Christopher C. Taub, Deputy Attorney
General for the State of Maine, were on brief, for state defendant
appellees/cross-appellants.
Joshua D. Dunlap, with whom Matthew D. Manahan and Pierce
Atwood LLP were on brief, for state intervenor appellees/cross-
appellants.
Opinion En Banc
July 8, 2021
 Judge Torruella heard oral argument in this matter and
participated in the semble, but he did not participate in the
issuance of the opinion in this case.
LYNCH, Circuit Judge. On August 20, 2012, the Penobscot
Nation (the "Nation") brought suit against the State of Maine and
various state officials (the "State Defendants"). The Nation
stated in its original complaint, later amended, that when it
entered into an agreement with Maine to settle its land claims in
the state, "the Nation never intended to relinquish its ownership
rights" to a 60-mile stretch of the Penobscot River (the "River")
known as the Main Stem and that Congress intended "that the
Nation's reservation encompass ownership rights within and
attending" the Main Stem. The complaint sought (1) a declaratory
judgment that the Nation had exclusive regulatory authority over
the Main Stem; and (2) a declaratory judgment that the Nation had
sustenance fishing rights in the Main Stem. The United States
intervened in support of the Nation. Private interests, towns,
and other political entities (the "State Intervenors") intervened
in support of the State Defendants.
"Penobscot Indian Reservation" (the "Reservation") is
defined in a pair of statutes -- the Maine Implementing Act ("MIA")
and the Maine Indian Claims Settlement Act ("MICSA") --
collectively known as the Settlement Acts. See Me. Rev. Stat.
Ann. tit. 30; 25 U.S.C. § 1721 et seq. The district court, on
cross-motions for summary judgment, issued declaratory relief
saying that the Reservation does not include the waters of the
Main Stem or the submerged lands of the riverbed underneath it but
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holding that the Nation has sustenance fishing rights in the Main
Stem. See Penobscot Nation v. Mills, 151 F. Supp. 3d 181, 222-23
(D. Me. 2015). A divided panel of this court affirmed the district
court's holding as to the definition of Reservation and vacated
its holding as to the Nation's sustenance fishing rights. The
Nation and the United States petitioned for rehearing en banc. We
vacated the panel opinion and dissent and granted the petition.
Penobscot Nation v. Frey, 954 F.3d 453, 453 (1st Cir. 2020).
In this en banc decision, we hold that the Reservation
does not include the waters and submerged lands constituting the
riverbed of the Main Stem. The plain text of the definition of
Reservation in MIA and MICSA plainly and unambiguously includes
certain islands in the Main Stem but not the Main Stem itself. We
also hold that even if there were some arguable ambiguity as to
the language at issue, the context, history, and clear legislative
intent require rejection of the Nation's claim. As to the Nation's
sustenance fishing claim, we do not accept the Nation's argument
that its sustenance fishing rights alter the meaning of
Reservation. We disagree that they have anything to do with the
definition of Reservation. Such fishing rights do not alter or
call into question the clear definition of Reservation. As to the
Nation's claim that Maine has infringed those fishing rights, that
claim is not ripe and the Nation lacks standing.
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I. Facts and Procedural History
The Penobscot River runs through the state of Maine.
Its East and West Branches meet at the River's Main Stem, and the
Main Stem stretches south for 60 miles. Within the Main Stem are
a number of islands, including Indian Island, the Nation's
headquarters.
Going back centuries, various iterations of the Indian
Nonintercourse Act, 25 U.S.C. § 177, along with a series of
treaties and transactions between the Nation and Massachusetts1
and the Nation and Maine, clouded title to certain land and natural
resources in Maine. See id. § 1721(a)(1). In 1980, the United
States, Maine, the Nation, and other Indian tribes in Maine reached
an agreement which "represent[ed] a good faith effort . . . to
achieve a fair and just resolution of those claims which, in the
absence of agreement, would be pursued through the courts for many
years to the ultimate detriment of [Maine] and all its citizens,
including the Indians." Me. Rev. Stat. Ann. tit. 30, § 6202; see
25 U.S.C. § 1721(7). To implement this agreement, Maine passed
MIA, Me. Rev. Stat. Ann. tit. 30, § 6201 et seq., and Congress
passed MICSA, 25 U.S.C. § 1721 et seq.
1 Present-day Maine was part of Massachusetts until 1820.
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MICSA defines "Penobscot Indian Reservation" as "those
lands as defined in [MIA]." 25 U.S.C. § 1722(i). MIA defines the
Reservation as:
[T]he 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.
Me. Rev. Stat. Ann. tit. 30, § 6203(8).2
MIA also addresses the Nation's sustenance fishing
rights, saying:
Notwithstanding any rule or regulation promulgated by the
[Maine Indian Tribal-State Commission] 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 subject to the limitations of subsection 6.
Id. § 6207(4).3
On August 8, 2012, Maine's then-Attorney General,
William Schneider, issued a legal opinion (the "Schneider
Opinion") interpreting MIA and MICSA. This opinion said that the
River is not part of the Nation's Reservation and that Maine has
2 The Reservation also includes a few other parcels not at
issue here. See Me. Rev. Stat. Ann. tit. 30, § 6203(8).
3 Subsection 6 gives Maine's Commissioner of Inland
Fisheries and Wildlife the right "to conduct fish and wildlife
surveys within Indian territories." Me. Rev. Stat. Ann. tit. 30,
§ 6207(6).
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"exclusive regulatory jurisdiction over activities taking place on
the River." The Schneider Opinion did not mention § 6207(4) of
MIA or the Nation's sustenance fishing rights.
Twelve days later, on August 20, 2012, the Nation filed
suit against the State Defendants. In its second amended
complaint, it disputed the Schneider Opinion's interpretation of
federal law. It sought a declaratory judgment that the Nation has
exclusive regulatory authority over the Main Stem and that the
Nation's members have the right to take fish for their individual
sustenance from the Main Stem which Maine has infringed.
On February 15, 2013, the State Defendants answered the
Nation's complaint and filed a counterclaim for declaratory
relief. They sought a declaratory judgment that "[t]he waters of
the main stem of the Penobscot River are not within the Penobscot
Nation reservation."
The State Intervenors -- a group of eighteen private
parties, municipalities, and related entities that border the
River and use it for discharges or other purposes -- moved to
intervene in support of the State Defendants. The district court
granted this motion on June 18, 2013. It also granted the United
States' motion to intervene in support of the Nation on February
4, 2014.
In 2015, the State Defendants, the Nation, and the United
States moved for summary judgment. The State Intervenors filed a
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motion for judgment on the pleadings. After holding oral argument
on these motions, the district court declared that (1) "the
Penobscot Indian Reservation as defined in [MIA and MICSA] includes
the islands of the Main Stem, but not the waters of the Main Stem"
and (2) "the sustenance fishing rights provided in [MIA] allows
the Penobscot Nation to take fish for individual sustenance in the
entirety of the Main Stem." Penobscot Nation, 151 F. Supp. 3d at
222-23.4 The parties cross-appealed.
On June 30, 2017, a divided panel affirmed the district
court's declaratory judgment regarding the definition of
"Penobscot Indian Reservation" under MIA and MICSA and vacated
with instructions to dismiss for want of jurisdiction its
declaratory judgment regarding the Nation's sustenance fishing
rights under MIA. Penobscot Nation v. Mills, 861 F.3d 324, 338
(1st Cir. 2017). The Nation and the United States petitioned for
rehearing en banc. We granted these petitions on April 8, 2020,
and vacated the panel opinion and dissent. Penobscot Nation, 954
F.3d at 453. We heard oral argument on September 22, 2020.
II. Analysis
We review grants of summary judgment de novo including
when, as here, there were cross-motions for summary judgment before
4 On the same day, in a separate order, the district court
granted in part and denied in part the State Intervenors' motion
for judgment on the pleadings for the same reasons the court gave
in its order on the other parties' summary judgment motions.
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the district court. Signs for Jesus v. Town of Pembroke, 977 F.3d
93, 99 (1st Cir. 2020).
A. The "Penobscot Indian Reservation" Does Not Include the Waters
or Submerged Lands of the Main Stem.
The State Defendants and the State Intervenors argue
that the Reservation includes only the islands identified in
§ 6203(8) of MIA, not the water or bed of the Main Stem. In
contrast, the Nation says that the Reservation includes both the
islands referred to in § 6203(8) of MIA and the entire Main Stem,
bank-to-bank, including its submerged lands. The United States
agrees with the Nation. Alternatively, it says that the
Reservation extends, at the very least, from the islands referenced
in § 6203(8) to the "thread," or centerline, of the River. Under
this interpretation, the Reservation would include portions of the
River that surround each of its islands.
1. "Penobscot Indian Reservation" is Unambiguously Defined in
the Settlement Acts to Exclude the Main Stem.
To determine whether "Penobscot Indian Reservation"
includes the River's waters and submerged lands, we must interpret
that term as it is defined in the text of the Settlement Acts. We
begin with the text itself. See, e.g., Barnhart v. Sigmon Coal
Co., 534 U.S. 438, 450 (2002) ("As in all statutory construction
cases, we begin with the language of the statute."); United States
v. Alvarez-Sanchez, 511 U.S. 350, 356 (1994) ("When interpreting
a statute, we look first and foremost to its text."). When
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interpreting the Settlement Acts, we use ordinary tools of
statutory construction. See Maine v. Johnson, 498 F.3d 37, 44–45
(1st Cir. 2007) (treating the Settlement Acts "as a matter of
federal law" and using "ordinary statutory construction" when
interpreting them). As we discuss later, none of the Indian canons
of construction alter the Settlement Acts' definition of
Reservation.
Our "first step 'is to determine whether the language at
issue has a plain and unambiguous meaning with regard to the
particular dispute in the case.'" Barnhart, 534 U.S. at 450(quoting Robinson v. Shell Oil Co., 519 U.S. 337, 340 (1997)).
"[I]f the statutory language is unambiguous and 'the statutory
scheme is coherent and consistent,'" Robinson, 519 U.S. at 340(quoting United States v. Ron Pair Enters., Inc., 489 U.S. 235,
240 (1989)), then "[o]ur inquiry must cease," id.; see Niz-Chavez
v. Garland, 141 S. Ct. 1474, 1480 (2021); Babb v. Wilkie, 140 S.
Ct. 1168, 1172 (2020); Aroostook Band of Micmacs v. Ryan, 484 F.3d
41, 50-51, 53 (1st Cir. 2007) (following MICSA's plain meaning
when "MICSA is clear" and the "statutory scheme is a consistent
whole on the issue in question"); see also id. at 64 n.28. When
the text is unambiguous and the statutory scheme is coherent and
consistent, we do not look to legislative history or Congressional
intent. Carcieri v. Salazar, 555 U.S. 379, 392 (2009) ("We need
not consider [arguments about Congress's intent behind the Indian
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Reorganization Act] because Congress' use of the word 'now' . . .
speaks for itself and 'courts must presume that a legislature says
in a statute what it means and means in a statute what it says
there.'" (quoting Conn. Nat'l Bank v. Germain, 503 U.S. 249, 253–
54 (1992))).
In relevant part, § 6203(8) of MIA says: "'Penobscot
Indian Reservation' means the islands in the Penobscot River
reserved to the Penobscot Nation by agreement with [Massachusetts
and Maine] consisting solely of Indian Island . . . and all islands
in that river northward thereof that existed on June 29,
1818 . . . ." It is clear from MIA's text that the Reservation
includes "islands." Because "islands" is an undefined term, we
"construe it 'in accordance with [its] ordinary meaning.'" See
Octane Fitness, LLC v. ICON Health & Fitness, Inc., 572 U.S. 545,
553 (2014) (alteration in original) (quoting Sebelius v. Cloer,
569 U.S. 369, 376 (2013)). Dictionaries are useful aids in
determining a word's ordinary meaning.5 See, e.g., id. at 553-54
5 We interpret a statute's language in accordance with its
ordinary meaning at the time of its enactment. See Niz-Chavez,
141 S. Ct. at 1480; Bostock v. Clayton County, 140 S. Ct. 1731,
1750 (2020). The Settlement Acts were enacted in 1980. The
meaning of the word "island" has not changed over the past few
decades. See Oxford English Dictionary (2d ed. 1989),
https://www.oed.com/oed2/00121797 (defining "island" as "[a] piece
of land completely surrounded by water," the same definition as in
the most recent version of the dictionary). "Island" has had the
same meaning for at least the past few centuries. See Noah
Webster, Compendious Dictionary of the English Language 166 (1806)
(defining "island" as "land surrounded by water"); Samuel Johnson,
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(citing dictionary definitions of "exceptional" to determine its
ordinary meaning); Kellogg Brown & Root Servs., Inc. v. United
States ex rel. Carter, 575 U.S. 650, 662 (2015) (citing dictionary
definitions of "pending" to determine its ordinary meaning).
An "island" is "[a] piece of land completely surrounded
by water." Oxford English Dictionary Online,
https://www.oed.com/view/Entry/99986 (last visited Jan. 14, 2021)
(first definition). Other dictionaries confirm this ordinary
meaning. See Merriam-Webster Online Dictionary,
https://www.merriam-webster.com/dictionary/island (last visited
Jan. 14, 2021) (first definition) ("An island is a piece of land
that is completely surrounded by water."); Black's Law Dictionary
(11th ed. 2019) (first and only definition) (defining "island" as
"[a] tract of land surrounded by water and smaller than a
continent").
These definitions make two things clear. First, an
island is "a piece of land." Land does not ordinarily mean land
and water. Indeed, land is ordinarily defined in opposition to
water. Oxford English Dictionary Online,
https://www.oed.com/view/Entry/105432 (last visited Jan. 14, 2021)
(first definition) (defining "land" as "[t]he solid portion of the
earth's surface, as opposed to sea, water" (emphasis added)).
Dictionary of the English Language (6th ed. 1785) (defining island
as "[a] tract of land surrounded by water").
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MICSA incorporates MIA's definition of "Penobscot Indian
Reservation" by saying that that Reservation means "those lands as
defined [in MIA]," 25 U.S.C. § 1722(i) (emphasis added),
reinforcing that the Reservation consists of land only. MICSA
does not say "lands and waters" or "land or other natural
resources."6 Second, the piece of land constituting an island is
"surrounded by water." Water is important to the definition of
"island" because the presence of water around a piece of land is
what makes that piece of land an island. The surrounding water is
not itself part of an island. Indeed, Black's Law Dictionary goes
on to say that the word island is used "esp[ecially]" to mean "land
that is continually surrounded by water and not submerged except
during abnormal circumstances." Black's Law Dictionary (11th ed.
2019) (emphasis added).
The plain meaning of "island" is reinforced by
§ 6023(8)'s use of the phrase "in the Penobscot River" (emphasis
added). The definition references the Penobscot River to tell us
where the islands are located and which body of water surrounds
them. That is what the preposition "in" means. Oxford English
Dictionary Online, https://www.oed.com/view/Entry/92970 (last
6 "Land or other natural resources" is a defined term in
both MIA and MICSA that explicitly includes water. See Me. Rev.
Stat. Ann. tit. 30, § 6203(3); 25 U.S.C. § 1722(b).
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visited Jan. 14, 2021) (defining "in" to mean "[o]f position or
location").
MIA's use of the word "solely" in the Reservation's
definition also precludes any interpretation of § 6203(8) that
includes the River's submerged lands or its waters. The
Reservation includes "solely . . . Indian Island . . . and all
islands in [the River] northward thereof . . . ." Me. Rev. Stat.
Ann. tit. 30, § 6203(8). We have already explained why an "island"
plainly does not include its surrounding waters or submerged lands.
Because the Reservation's definition excludes any definition that
is not stated, see Burgess v. United States, 553 U.S. 124, 130
(2008), because it does not say that it includes the River or its
submerged lands, and because the Supreme Court has said that
"'[s]olely' means 'alone,'" Husted v. A. Philip Randolph Inst.,
138 S. Ct. 1833, 1842 (2018), and that "'[s]olely' leaves no
leeway" for anything more, Helvering v. Sw. Consol. Corp., 315
U.S. 194, 198 (1942), the Reservation includes only the specified
islands and not the Main Stem of the River or its submerged lands.7
7 Because MIA's definition of Reservation clearly includes
only the islands, we reject the United States' alternative argument
that that the Reservation extends from the islands to the thread
of the River. There is no support in the text for this reading.
We also reject the Nation and United States' argument that
state common law informs the definition of Reservation. The text
of the Settlement Acts does not allow us to use state common law
in interpreting the Acts' definitional provisions.
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The Nation and the United States argue that Alaska
Pacific Fisheries v. United States, 248 U.S. 78 (1918), controls
this case. More than a century ago, in Alaska Pacific, the Supreme
Court interpreted the phrase "the body of lands known as Annette
Islands, situated in Alexander Archipelago in Southeastern Alaska"
used in an 1891 statute establishing an Indian reservation. Id.
at 86 (quoting Act of March 3, 1891, ch. 561, § 15, 26 Stat. 1095,
1101). It held that "the geographical name was used, as is
sometimes done, in a sense embracing the intervening and
surrounding waters as well as the upland -- in other words, as
descriptive of the area comprising the islands." Id. at 89. In
reaching this conclusion, the Court relied on the statute's plain
text, legislative history, and the Indian canon of construction
that "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.The Court found that the phrase "body of lands known as
the Annette Islands" at issue in Alaska Pacific was ambiguous and
had no plain meaning. See Amoco Prod. Co. v. Village of Gambell,
480 U.S. 531, 548 n.14 (1987) ("There is no plain meaning to 'the
body of lands' of an island group." (citing Alaska Pacific, 248
U.S. at 89)). As the Court explained in a later case, "body of
lands" is ambiguous because it has no precise geographic meaning.
Id. (stating that "body of lands" "did not have [a] precise
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geographic/political meaning[] which would have been commonly
understood[] without further inquiry" (citing Alaska Pacific, 248
U.S. at 89)). It was unclear if the water between the lands was
part of the "body." To resolve the ambiguity, the Court relied on
legislative history. Alaska Pacific, 248 U.S. at 89.
There is no ambiguity here, and so for that and other
reasons Alaska Pacific does not help the Nation, the United States,
or the dissent. A recent ruling by the Supreme Court involving
the boundaries of an Indian reservation has confirmed that reliance
on legislative history is only appropriate when a statute is
ambiguous. McGirt v. Oklahoma, 140 S. Ct. 2452, 2469 (2020)
("There is no need to consult extratextual sources when the meaning
of a statute's terms is clear."). Similarly, Alaska Pacific only
relied on an Indian canon that resolves "doubtful expressions" in
favor of Indian tribes because there was an ambiguity. 248 U.S.
at 89. When it was decided in 1918, Alaska Pacific did not
establish a special rule of construction when tribes' claims
involve water rights. It certainly did not establish a special
rule of construction meant to govern a different statute enacted
for a different purpose a century later. Indeed, the Court has
repeatedly recognized that in its past cases "address[ing] the
unique circumstances of Alaska and its indigenous population,"
"[t]he 'simple truth' . . . is that 'Alaska is often the exception,
not the rule.'" Yellen v. Confederated Tribes of Chehalis Rsrv.,
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No. 20-543, 2021 WL 2599432, at *3 (U.S. June 25, 2021) (quoting
Sturgeon v. Frost, 577 U.S. 424, 440 (2016)). The general rule
applicable to statutes is, as the Supreme Court recently
reinforced, that the "inquiry into the meaning of [a] statute's
text ceases when 'the statutory language is unambiguous and the
statutory scheme is coherent and consistent.'" Matal v. Tam, 137
S. Ct. 1744, 1756 (2017) (quoting Barnhart, 534 U.S. at 450).
As we have explained, the definition of Reservation in
the Settlement Acts is not ambiguous. It does not refer to a
nebulous "body of lands." Instead, it says the Reservation
consists "solely" of islands "in the Penobscot River." Me. Rev.
Stat. Ann. tit. 30, § 6203(8). The word "islands" has a plain and
precise geographic meaning, "solely" tells us that the Reservation
includes nothing else, and the phrase "in the Penobscot River"
specifies where the islands are. The fact that the Supreme Court
interpreted different language in a different statute that was not
a settlement act to reach a different result cannot be used to
create ambiguity in this statute. See McGirt, 140 S. Ct. at 2469
("The only role [extratextual sources] can properly play is to
help 'clear up . . . not create' ambiguity about a statute's
original meaning." (quoting Milner v. Dep't of Navy, 562 U.S. 562,
574 (2011))). For similar reasons, the Nation and United States'
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citations to Hynes v. Grimes Packing Co., 337 U.S. 86 (1949),8
Choctaw Nation v. Oklahoma, 397 U.S. 620 (1970),9 and other cases
interpreting different language in different treaties or statutes
in different contexts are also unconvincing.
The Nation and the United States next argue that our
holding in Maine v. Johnson conflicts with our reading of
Reservation. Johnson addressed whether the Settlement Acts
8 The dissent relies on Hynes to muddy the waters. There,
the Supreme Court interpreted the statutory phrase "any other
public lands which are actually occupied by Indians or Eskimos
within [the Territory of Alaska]" to include coastal waters for
purposes of authorizing the Secretary of the Interior to designate
such territory as part of an Indian reservation. 337 U.S. at 110-
16. It considered a number of extratextual factors in reaching
that conclusion. Id. As the Court later clarified, it did so
because that statutory phrase "did not have [a] precise
geographic/political meaning[] which would have been commonly
understood, without further inquiry, to exclude the waters," nor
did the narrower phrase "'public lands,' in and of itself, ha[ve]
a precise meaning." Amoco Prod., 480 U.S. at 548 nn.14-15. Hynes
does nothing to dispel the fact that the term "lands" in isolation
ordinarily excludes water, see, e.g., Hynes, 337 U.S. at 102(referring to the "lands or waters" of a reservation), and that
additional definitional or qualifying language is required for it
to encompass water. The term "lands" in the context of MICSA's
definition of the Reservation stands alone, and its incorporation
by reference of MIA's definition of the Reservation as consisting
"solely" of specified islands "in" water indicates that it should
retain its ordinary meaning.
9 In Choctaw Nation, the language at issue was very
different from the language in the definition of Reservation. The
Court found the language ambiguous because it granted the Choctaw
Nation land "up the Arkansas [River]" and "down the Arkansas
[River]." 397 U.S. at 631. Additionally, unlike here, the Court
was interpreting a treaty and applied the canon of construction
interpreting "treaties with the Indians . . . as they would have
understood them." Id.- 18 -
reserved to the Nation and the Passamaquoddy Tribe "authority (vis-
à-vis the State) to regulate pollution by non-Indians within the
tribes' territories." 498 F.3d at 41. The court held that they
did not. Id. at 45-47. In doing so, it explicitly refused to
decide the boundaries of the tribes' territories. 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
discharge points lies within the tribes' territories."); id. at 45(describing "navigable waters within what we assume to be tribal
land"). The Nation and United States point to dicta in Johnson
where the court said "the facilities appear . . . to discharge
onto reservation waters retained by the tribes under the Settlement
Act." But in citing this dicta, they ellipt the court's
parenthetical explaining that it was not resolving any boundary
disputes. Id. at 47 ("[T]he facilities appear (even assuming the
tribes' boundary claims) to discharge onto reservation waters
retained by the tribes under the Settlement Act." (first emphasis
added)). Any dicta about boundaries in Johnson cannot alter the
plain meaning of Reservation and does not bind us. See
Municipality of San Juan v. Rullan, 318 F.3d 26, 28 n.3 (1st Cir.
2003) ("Dicta -- as opposed to a court's holdings -- have no
binding effect in subsequent proceedings in the same (or any other)
case.").
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The Nation, United States, and dissent also say that
Maine's arguments to us in its brief in Johnson are a concession
that the Nation's Reservation contains the Main Stem in its
entirety. Not so, either on a reading of that brief or under the
law. In a recent dispute related to the boundaries of an Indian
reservation, the Supreme Court confirmed that a party's prior
litigation position on a reservation's boundaries in a single case
does not concede the point in future cases. See McGirt, 140 S.
Ct. at 2473 n.14 (rejecting the dissent's reliance on "a single
instance in which the Creek Nation disclaimed reservation
boundaries for purposes of litigation"); see also Alt. Sys.
Concepts, Inc. v. Synopsys, Inc., 374 F.3d 23, 33 (1st Cir. 2004)
(outlining the doctrine of judicial estoppel, which requires that
"the estopping position and the estopped position . . . be directly
inconsistent" and that "the responsible party . . . have succeeded
in persuading a court to accept its prior position"). In a
footnote of a brief that it submitted in Johnson, Maine stated
that it was its "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, and that those riparian rights are subject to state
regulation." Brief of State of Maine as Intervenor-Respondent at
3 n.2, 498 F.3d 37 (Nos. 04-1363, 04-1375). It went no further
- 20 -
than this. Maine did not explain what it understood to be the
sort of riparian rights that would "usual[ly] accompany[]" an
island reservation, and it is unclear whether it was asserting
that none of those rights had "been transferred" or that the
Reservation retained only those rights that had not been
transferred. Nor did it explain to what extent those rights were
"subject to state regulation." In any case, the Johnson court did
not adopt any version of Maine's statement and that issue was not
before it. Maine's past arguments in Johnson cannot override the
Settlement Acts' plain text.
2. The Definition of Reservation Is Not Altered by the
Limitation of the Reservation to Islands as Earlier
Described in Historic Treaties Between the Nation and
Massachusetts and Maine.
The Nation, United States, and dissent argue that, when
construing the definition of Reservation in the Settlement Acts,
we must look to the Nation's past treaties with Massachusetts and
Maine. They say that because § 6203(8) describes the islands in
the Reservation as those "reserved to the Penobscot Nation by
agreement with the States of Massachusetts and Maine," Me. Rev.
Stat. Ann. tit. 30, § 6203(8), these past treaties govern what
"island" means in the Settlement Acts.10 They argue that "island"
10 The 1796 treaty between the Nation and Massachusetts
says that the Nation gave up their rights to "all the lands on
both sides of the River Penobscot" but reserved "all the Islands
in said River, above Old Town, including said Old Town island."
The 1818 treaty reaffirmed the Nation's 1796 surrender of land on
- 21 -
does not carry its ordinary meaning but instead is a term of art
that means "anything reserved to the Nation by the 1796 and 1818
treaties." They make the disputed assertion that the Nation never
gave up any rights to the River in those treaties and from this
they conclude that the term Reservation must include the River.
To support this reading of § 6203(8), the Nation cites § 1723 of
MICSA, which it says extinguished the Nation's aboriginal title
only to lands it transferred, and the House and Senate Reports,
which say that "[t]he Penobscot Nation will retain as reservations
those lands and natural resources which were reserved to them in
their treaties with Massachusetts and not subsequently transferred
by them." S. Rep. No. 96-957 at 18 ("Senate Report"); H.R. Rep.
No. 96-1353 at 18 ("House Report").
MIA's reference to these treaties does not alter the
plain meaning of "islands" and creates no ambiguity. The phrase
"islands in the Penobscot River reserved to the Penobscot Nation
by agreement with the States of Massachusetts and Maine" is not a
term of art. See Confederated Tribes of Chehalis Rsrv., 2021 WL
2599432, at *7 (refusing to "discard the plain meaning of [a
statute's] 'Indian tribe' definition in favor of a term-of-art
both sides of the River and the reservation of certain islands in
the River to the Nation. It also gave the citizens of
Massachusetts "a right to pass and repass any of the rivers,
streams, and ponds which run through any of the lands hereby
reserved."
- 22 -
construction" because the statutory context did not support such
a reading). MIA mentions the treaties to identify which islands
in the River are part of the Reservation. The Reservation includes
the "islands in the Penobscot River," minus any islands that were
not "reserved to the Penobscot Nation by agreement with
[Massachusetts and Maine]." Me. Rev. Stat. Ann. tit.
30, § 6203(8). Within this subset of islands, MIA further limits
the Reservation: it "consist[s] solely of Indian Island" and the
islands north of Indian Island "that existed on June 29, 1818,"
minus 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." Id.The dissent states that this interpretation of
Reservation treats the phrase "reserved to the Penobscot Nation by
agreement" "as if it were superfluous." Not so. The phrase
"reserved to the Penobscot Nation by agreement" serves an important
purpose: it makes the definition of Reservation consistent with
§ 1723 of MICSA. If the phrase "reserved . . . by agreement" were
removed from the definition, then the Reservation would plainly
include any islands in the River north of Indian Island that were
transferred before June 29, 1818 but never reserved by agreement.11
11 This is so because § 6203(8) only excludes islands
transferred "subsequent to June 29, 1818" (emphasis added), the
date of a treaty between the Nation and Massachusetts, from the
Reservation. Without the reference to islands "reserved . . . by
- 23 -
Such a definition would conflict with 25 U.S.C. § 1723, which
ratified all transfers the Nation made before December 1, 1873.
See Van Buren v. United States, 141 S. Ct. 1648, 1656 (2021)
(holding that statutory text is not superfluous where removing it
changes a statute's meaning).
The dissent's interpretation of § 6203(8), independent
of its flawed account of the history and meaning of the treaties,
is inconsistent with the applicable rules of statutory
interpretation. Its reading of Reservation would render
superfluous other language in the definition. If the dissent were
correct that the Nation reserved "all the islands in the Penobscot
[R]iver above Oldtown and including . . . Oldtown [I]sland" in its
1818 treaty with Massachusetts and that the Settlement Acts
intended to import this meaning into the definition, then the
statutory phrase "consisting solely of Indian Island, also known
as Old Town Island, and all islands in that river northward
thereof" would serve no purpose. The canon against surplusage
counsels against such an interpretation.12 See City of Chicago v.
agreement," the definition would say nothing about pre-1818
transfers.
12 Removing the superfluous language, the statutory
definition would read: "'Penobscot Indian Reservation' means the
islands in the Penobscot River reserved to the Penobscot Nation by
agreement with the States of Massachusetts and Maine that existed
on June 29, 1818 . . . ." Even after almost all of the "consisting"
phrase is removed, the definition would still make clear that post-
1818 islands are not part of the Reservation.
- 24 -
Fulton, 141 S. Ct. 585, 591 (2021) ("The canon against surplusage
is strongest when an interpretation would render superfluous
another part of the same statutory scheme." (quoting Yates v.
United States, 574 U.S. 528, 543 (2015))).
The dissent's proposed reading would also make other
parts of § 6203(8) inoperative. The definition says that the
Reservation includes "all islands" north of Indian Island "that
existed on June 29, 1818." If, as the dissent posits, the
Settlement Acts intended the Reservation to include the entire
Main Stem by referencing the treaties, then anything in the Main
Stem north of Indian Island would be read to be part of the
Reservation. Under the dissent's reading, this would be true
regardless of whether the land was submerged on June 29, 1818.
The phrase "that existed on June 29, 1818" would be redundant and
would have no meaning under the dissent's interpretation. Further,
the inclusion of the phrase reinforces that "islands" means only
the uplands.
In attempt to avoid these evident problems with its
interpretation, the dissent proposes that the "consisting solely
of . . ." phrase was included to clarify that the Reservation
includes the entire Main Stem, including Indian Island and all of
the islands north of Indian Island, minus any uplands in the river
that did not exist on June 29, 1818. This proposed reading by the
dissent is impermissible for a different reason: it requires the
- 25 -
word "islands" to have two different meanings within the definition
of Reservation. Under the dissent's proposed reading, when
"islands" is used in the phrase "islands in the Penobscot River,"
it must mean "an area that includes waters." Then, when "islands"
is used later in the same sentence in the nearly identical phrase
"all islands in that river," it must mean "uplands alone."13 That
proposed reading is flatly at odds with the text. It also would
violate the "normal rule of statutory construction that 'identical
words used in different parts of the same act are intended to have
the same meaning.'" See Sullivan v. Stroop, 496 U.S. 478, 484
(1990) (quoting Sorenson v. Sec'y of Treasury, 475 U.S. 851, 860
(1986)). This rule is "surely at its most vigorous when a term is
repeated within a given sentence." Brown v. Gardner, 513 U.S.
115, 118 (1994) (stating that, given the "presumption that a given
term is used to mean the same thing throughout a statute," it would
be "virtually impossible" to read a statute in a way that would
give a word two different meanings in the same sentence); cf.
Mohamad v. Palestinian Auth., 566 U.S. 449, 456 (2012) ("[I]t is
difficult indeed to conclude that Congress employed the term
'individual' four times in one sentence to refer to a natural
person and once to refer to a natural person and any nonsovereign
13 The dissent does not appear to dispute that, in the
phrase "all islands in that river" in § 6203(8), the word "islands"
must mean "uplands only."
- 26 -
organization."). The dissent's reading is "implausible in
context." Confederated Tribes of Chehalis Rsrv., 2021 WL 2599432,
at *11.
Our reading of § 6203(8)'s reference to the treaties is
also consistent with how MIA defines the Passamaquoddy Indian
Reservation. That definition similarly begins by referencing a
treaty, saying that the Passamaquoddy Indian Reservation "means
those lands reserved to the Passamaquoddy Tribe by agreement with
the State of Massachusetts dated September 19, 1794." Me. Rev.
Stat. Ann. tit. 30, § 6203(5). It then says that "[f]or the
purposes of this subsection, the lands reserved to the
Passamaquoddy Tribe by the aforesaid agreement shall be limited
to" various islands and parcels. Id. (emphasis added). Like in
the definition of Penobscot Indian Reservation, the agreement is
referenced to limit which islands the reservation includes. Also
like in the definition of Penobscot Indian Reservation, the islands
referenced in the treaty are then further restricted to mean less
than what the treaty reserved for the tribe. The definition of
Reservation accomplishes this restriction by using the word
"solely," while the definition of Passamaquoddy Indian Reservation
does so by saying "shall be limited to." The fact that the drafters
clearly intended the Passamaquoddy Indian Reservation to cover
less than what was reserved to the Passamaquoddy Tribe in its
agreement with Massachusetts undercuts the dissent's theory that,
- 27 -
when defining Penobscot Indian Reservation, "the drafters of the
Settlement Acts intended in defining the 'Reservation' to preserve
what had been 'reserved . . . by agreement' prior to the Acts'
passage."
There is no plausible argument that the historic
treaties referenced in § 6203(8) govern the interpretation of the
Settlement Acts. The treaties no longer have any meaning
independent of the Settlement Acts, and MICSA is clear that Maine
no longer has any responsibilities to the Nation under the
treaties. 25 U.S.C. § 1731 ("[This Act] shall constitute a general
discharge and release of all obligations of the State of Maine
. . . arising from any treaty or agreement with, or on behalf of
any Indian nation.").
Even if the treaties could arguably be thought to induce
any ambiguity in § 6203(8), we reach the same conclusion. When
the text of a statute is ambiguous, we resolve the ambiguity by
looking to other evidence of the drafters' intent. Carnero v.
Bos. Sci. Corp., 433 F.3d 1, 7 (1st Cir. 2006) ("In searching for
clear evidence of Congress's intent, courts consider 'all
available evidence' about the meaning of the statute."); see
Robinson, 519 U.S. at 345–46. Here, the legislative history,
context, and purpose of the Settlement Acts show that the drafters
never intended the Reservation to include the River itself.
- 28 -
Before the Settlement Acts were passed, Massachusetts,
then Maine, had exercised regulatory authority over the River for
more than a century. Massachusetts regulated the River before its
1818 treaty with the Nation. See 1810 Mass. Laws ch. LXXXVIII
(outlining penalties for obstructing the River or taking fish from
it outside of approved times) ; 1813 Mass. Laws ch. CXLIV (same);
1816 Mass. Laws ch. XCIX (providing for the appointment of fish
wardens for the River). After the 1818 treaty, once Maine
separated from Massachusetts and became a state in 1820, it
regulated the River in Massachusetts's stead. See 1843 Me. Laws
ch. 25 (providing for the appointment of fish wardens to supervise
fisheries in the River).
Massachusetts and Maine also conveyed parcels along the
Main Stem, including adjacent submerged lands, to municipalities
and private parties in publicly recorded deeds. These entities
relied on the title given to them by Maine and Massachusetts. They
used the Main Stem and built on its submerged lands. For example,
several dams were constructed in and adjacent to the Main Stem
beginning in the 19th and 20th centuries. See, e.g., Penobscot
Chem. Fibre Co., 30 F.P.C. 1465, 1465–66 (1963) (describing the
Great Works Dam, which was "built prior to 1900"); Bangor Hydro-
Elec. Co., 42 F.P.C. 1302, 1302 (1969) (describing two dams in the
Main Stem which were acquired in 1925). The Nation admits that it
did not execute leases or grant any interest in connection with
- 29 -
any of these dams. As amended in 1988, § 6203(8) even mentions
the owner of some of these dams, Bangor-Pacific Hydro Associates.
It says that the Reservation includes certain "parcels of land
that have been or may be acquired by [the Nation] from [Bangor-
Pacific] as compensation for flowage of reservation lands by the
West Enfield dam." Notably, the compensation is only for flowage.14
It is not for building a dam on the submerged lands of the Main
Stem.
The Settlement Acts' stated intention was to resolve
outstanding disputes among the Nation, Maine, and parties
represented by the State Intervenors. The Settlement Acts were
passed after the Nation, along with two other tribes, claimed title
to two-thirds of Maine, an area "on which more than 250,000 private
citizens now reside." Senate Report at 11; House Report at 11.
In response to these claims, President Carter appointed retired
Georgia Supreme Court Justice William B. Gunter to recommend a
settlement. Senate Report at 13. Gunter's recommendation to the
President, which served as the basis for the Settlement Acts and
which is included in the Senate Report, explained that the Nation's
claims had caused "economic stagnation within the claims area" and
14 "Flowage" is "an overflowing onto adjacent land" or "a
body of water formed by overflowing or damming." See Merriam-
Webster Online Dictionary, https://www.merriam-
webster.com/dictionary/flowage (last visited Jan. 25, 2021) (first
and second definition).
- 30 -
had resulted in "a slow-down or cessation of economic activity
because property cannot be sold, mortgages cannot be acquired,
title insurance becomes unavailable, and bond issues are placed in
jeopardy." Id. at 55. Justice Gunter wrote that "[w]ere it not
for this adverse economic result, these cases could take their
normal course through the courts, and there would be no reason or
necessity" for President Carter to take any action to facilitate
a settlement. Id. He ultimately recommended a settlement with
terms similar to those in MIA and MICSA. Id. at 56. However,
emphasizing the need to address the economic consequences of the
Nation's land claims and settle the land disputes, he wrote that
"Congress should immediately extinguish all aboriginal title, if
any, to all lands within the claims area except that held in the
public ownership by the State of Maine" if a settlement could not
be reached. Id. at 57.
The text of MICSA explicitly incorporates Justice
Gunter's concern about avoiding litigation and clarifying title to
land in Maine. It states MICSA's purpose is to "to remove the
cloud on titles to land in [Maine] resulting from Indian Claims"
and "to clarify the status of other land and natural resources in
[Maine]." 25 U.S.C. § 1721(b)(1)-(2). Other parts of the House
and Senate Reports on MICSA further support the idea that the
Settlement Acts were passed to avoid litigation in which "the court
would be required to decide questions of fact concerning events
- 31 -
which began before this country was founded." Senate Report at
13; House Report at 12-14.
A key provision of the Settlement Acts, § 1723 of MICSA,
helped Congress achieve this purpose. Through § 1723, Congress
retroactively ratified "any transfer of land or natural resources
located anywhere within the State of Maine" made by any Indian
tribe, including the Nation. 25 U.S.C. § 1723(a)(1). "Transfer"
is defined extremely broadly15 and includes "any act, event, or
circumstance that resulted in a change of title to, possession of,
dominion over, or control of land or natural resources." Id.§ 1722(n). The Settlement Acts also extinguished aboriginal title
to any land or natural resources the Nation transferred and barred
the Nation from making claims "based on any interest in or right
involving such land or natural resources." Id. § 1723(c). Through
this provision, Congress intended to extinguish all of the Nation's
land claims in Maine. See House Report at 18 ("[Section 1723]
provides for the extinguishment of the land claims of the . . .
the Penobscot Nation . . . in the State of Maine.").
Maine and the Nation "each . . . benefitted from the
settlement." Akins v. Penobscot Nation, 130 F.3d 482, 484 (1st
15 The Senate Report says that the word "transfer" covers
"all conceivable events and circumstances under which title,
possession, dominion, or control of land or natural resources can
pass from one person or group of persons to another person or group
of persons." Senate Report at 21.
- 32 -
Cir. 1997). Indeed, the Nation benefited greatly. It largely
received "the powers of a municipality under Maine law." Id.; see
Me. Rev. Stat. Ann. tit. 30, § 6206. The settlement "confirmed
[the Nation's] title to designated reservation lands, memorialized
federal recognition of its tribal status, and opened the floodgate
for the influx of millions of dollars in federal subsidies."
Akins, 130 F.3d at 484 (quoting Passamaquoddy Tribe v. Maine, 75
F.3d 784, 787 (1st Cir. 1996) (alteration in original)). It also
established two multi-million-dollar trusts for the Nation: (1) a
$26.8 million trust to buy land and (2) a $13.5 million trust whose
income is paid quarterly to the Nation. See 25 U.S.C. § 1724(a)-
(d); Penobscot Nation v. Stilphen, 461 A.2d 478, 487 n.6 (Me. 1983)
(describing the trusts). Indeed, the Native American Rights Fund,
which represented the Nation in its land claim cases before the
Settlement Acts were passed, said shortly after the settlement
that "[t]he Maine settlement is far and away the greatest Indian
victory of its kind in the history of the United States." See
Penobscot Nation, 151 F. Supp. 3d at 196.
Discounting the history of the Settlement Acts
themselves, the dissent tells a one-sided story about the
importance of the River to the Nation, details the various treaties
the Nation entered into, and speculates about the Nation's
understanding of those treaties and how they must have reserved
the River for the Nation. It ends its history in the early 1800s,
- 33 -
saying that it is this history that "formed the backdrop for the
Settlement Acts." It also relies on "post-enactment history of
the Settlement Acts" to reinforce its understanding, something the
Supreme Court has specifically counseled against. See McGirt, 140
S. Ct. at 2452 ("[E]vidence of the subsequent treatment of the
disputed land . . . has 'limited interpretive value.'" (quoting
Nebraska v. Parker, 136 S. Ct. 1072, 1082 (2016))); see also South
Dakota v. Yankton Sioux Tribe, 522 U.S. 329, 356 (1998) (calling
post-enactment history the "least compelling" form of evidence).
It insists without textual support that the Settlement Acts "were
intended in significant part to make up for the fact that the
Nation had entered into . . . treaties . . . without . . . federal
authorization" in violation of the Nonintercourse Act.
The dissent's view of history is disputed,16 and,
regardless, beside the point. The record does not support the
contention that the drafters were motivated by anything other than
their stated purpose of "remov[ing] the cloud on the titles to
land in the State of Maine resulting from Indian claims." 25
U.S.C. § 1721(b)(1). They removed this cloud and settled all of
the Nation's claims by giving the Nation certain land, power,
recognition, and money. As we have recounted, the Settlement Acts'
16 For example, the State Intervenors argue that the
Nation's aboriginal title to the River was extinguished by the
Nation's 1713 treaty with Great Britain, the Treaty of Portsmouth.
- 34 -
drafters wanted to avoid expensive, protracted litigation about
aboriginal title. They did not want courts to decide if, when, or
how the Nation's aboriginal title was extinguished by interpreting
centuries-old documents. And, as they stated explicitly, they did
not want the Nation's claims of aboriginal title rooted in these
treaties to muddy otherwise-valid title to lands or natural
resources in Maine.
Interpreting § 6203(8)'s reference to the treaties as a
resurrection of the Nation's claim to aboriginal title contravenes
all of these purposes. The dissent would have us undo MIA and
MICSA's settlement of all ownership disputes. But "[w]e cannot
interpret . . . statutes to negate their own stated purposes."
King v. Burwell, 576 U.S. 473, 493 (2015) (quoting N.Y. State Dep't
of Soc. Servs. v. Dublino, 413 U.S. 405, 419–20 (1973)). It is
implausible that the drafters intended to give the Nation exclusive
control of the Main Stem -- something it did not have in 1980 --
through a reference (which serves a different purpose) to long-
since-replaced historic treaties.17 This is especially so when the
17 The legislative history of the Settlement Acts provides
even more evidence that the Reservation does not include the River.
In background information provided to the House Committee on
Interior and Insular Affairs, the Reservation was described as "a
4,000-acre reservation on a hundred islands in the Penobscot
River." Settlement of Indian Land Claims in the State of Maine:
Hearing on H.R. 7919 Before the Comm. on Interior and Insular
Affairs, 96th Cong. 159 (1980) (background on H.R. 7919). If the
Reservation included the entirety of the Main Stem, bank-to-bank,
it would have had a surface area of approximate 13,760 acres.
- 35 -
Settlement Acts released Maine from any obligation under those
same treaties, abolished the Nation's aboriginal title to anything
it ever voluntarily or involuntarily transferred, and purported to
settle all of the Nation's land and natural resource claims against
Maine and private parties.
Further, it is noteworthy that the Settlement Acts' text
and legislative history clearly indicate that the drafters did not
intend to give control of the Main Stem to the Nation. Doing so
would have been an enormous change. The River is an important
water artery that Maine (and Massachusetts before it) has
controlled for centuries.18 When the Settlement Acts were drafted
and passed, the Nation's claim to the River and other lands or
natural resources in Maine was speculative. If the drafters had
intended to shift Maine's longstanding ownership and control of
the Main Stem to the Nation, we would expect to see language in
the Settlement Acts' text or legislative history demonstrating
this intent and addressing the consequences of doing so. See,
e.g., Me. Rev. Stat. Ann. tit. 30, § 6207(3) (explicitly providing
for "an orderly transfer of regulatory authority" between Maine
18 As the State Intervenors put it, "it defies credulity
that in 1980, after almost two hundred years of State control, the
Settlement Acts would place the largest river running through the
heart of the state, used by myriad mills, municipalities, and the
public, within the boundaries of the Reservation, to be regulated,
for the first time since colonists arrived, by the Nation."
(internal citations omitted).
- 36 -
and the Maine Indian Tribal-State Commission over specified bodies
of water); id. § 6207(6) (describing procedures by which Maine's
Commissioner of Inland Fisheries and Wildlife may intervene in the
event that "a tribal ordinance or commission regulation . . .
adversely affect[s] or is likely to adversely affect the stock of
any fish or wildlife on lands or waters outside the boundaries of
land or waters subject to [tribal or commission authority]"). But
we see none. It is improbable that, without addressing the issue,
the drafters intended to carry out such a massive change in
ownership and control over the Main Stem.
The dissent tries to limit the practical consequences of
its argument by saying that "the Nation has not . . . claimed a
right to exclude non-tribal members from any of the waters of the
Penobscot River or to control passage in those waters." It calls
the State Defendants' and State Intervenors' arguments about
ownership a "distraction." The idea that the Nation only seeks to
assert limited ownership rights in the River is purely speculative
and contrary to the record. In its original complaint,19 the Nation
19 These statements do not appear in the Nation's second
amended complaint, and the Nation's brief to the original panel
says that the second amended complaint "is narrowly drawn to
address the only live controversy." However, in that same brief,
the Nation argues that "it retains aboriginal title to the
submerged lands of the Main Stem." It describes aboriginal title
as "not identical to ownership" but, quoting Oneida County v.
Oneida Indian Nation of New York, 470 U.S. 226, 235 (1985), "as
sacred as the fee simple of the whites." Black's Law Dictionary
describes "fee simple" as "the broadest property interest allowed
- 37 -
asserted that it "never intended to relinquish its ownership rights
within the Penobscot River" and argued that Congress "inten[ded]
that the Nation's reservation encompass ownership rights within
and attending the Penobscot River." It asked for a declaratory
judgment that it has "exclusive authority to regulate hunting,
trapping or other taking of wildlife within the waters of the Main
Stem" and that its "law enforcement officers have exclusive
authority to enforce the Nation's laws governing hunting, trapping
or other taking of wildlife within the waters of the Main Stem."
And it has previously sued a non-tribal member who removed
submerged logs from the River in tribal court for "trespass to
tribal land" and "unlawful taking of tribal resources." Penobscot
Nation v. Coffman, No. 7-31-03-CIV-04, slip op. at 4 (Penobscot
Tribal Ct. Mar. 2, 2005). The tribal court, invoking a version of
the treaty argument, held that the River is part of the
Reservation. Id. at 3. The tribal court then held that MIA "does
not limit or define the tribal court's jurisdiction" and that the
Supreme Court "has recognized that tribal courts retain
jurisdiction over [civil] disputes arising on a reservation." Id.
at 2. Because the Nation "retains aboriginal ownership of the
by law." Black's Law Dictionary 760 (11th ed. 2019). In its brief
to the original panel, the United States says that the Nation has
an "ownership interest" in its Reservation and that "[i]t is
unnecessary to determine whether the Nation's ownership interest
in the land it has retained is best characterized as aboriginal
title . . . ."
- 38 -
Penobscot River, from bank to bank, limited only by the right of
the public to use the river for navigation," the tribal court held
that the Nation could successfully sue the non-tribal member and
stated that "there is no right granted to an individual to conduct
any . . . enterprise [other than the "limited public easement to
pass up and down the river for the purpose of commercial
transportation"] without tribal permission." Id. at 3-4. The
stakes of reading the definition of Reservation to include the
River are far greater than the dissent is willing to acknowledge.
3. The Indian Canons of Construction Do Not Alter the
Settlement Acts' Plain Meaning or Override Clear
Expressions of Tribal and Legislative Intent.
The Nation and the United States next argue that three
Indian canons apply to this case. None of these canons alter the
plain meaning of the Reservation's definition.20
The first canon they cite says that "[s]tatutes are to
be construed liberally in favor of the Indians, with ambiguous
provisions interpreted to their benefit." See County 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) (alteration in original)). This canon only applies to
20 The State Defendants and State Intervenors argue that
§ 1725(h) and § 1735(b) of MICSA bar the application of any Indian
canons of construction. Because we hold that the Indian canons
are inapplicable for other reasons, we do not reach this issue.
- 39 -
ambiguous provisions. South Carolina v. Catawba Indian Tribe,
Inc., 476 U.S. 498, 506 (1986) ("The canon of construction
regarding the resolution of ambiguities in favor of Indians . . .
does not permit reliance on ambiguities that do not exist.");
Littlefield v. Mashpee Wampanoag Indian Tribe, 951 F.3d 30, 40
(1st Cir. 2020). As we have explained, the definition of
Reservation in the Settlement Acts is not ambiguous. And even if
the definition of Reservation were ambiguous and the canon applied,
interpreting ambiguities to benefit the tribe does not mean that
we must "disregard clear expressions of tribal and congressional
intent." DeCoteau v. Dist. Cnty. Ct., 420 U.S. 425, 445 (1975)
(finding the canon did not support a tribe's interpretation of a
statute when "the 'face of the Act,' and its 'surrounding
circumstances' and 'legislative history,' all point[ed]
unmistakably" to a different interpretation); see also Yankton
Sioux Tribe, 522 U.S. at 349; Catawba, 476 U.S. at 506–07; Ore.
Dep't of Fish & Wildlife v. Klamath Indian Tribe, 473 U.S. 753,
774 (1985); Rice v. Rehner, 463 U.S. 713, 732-33 (1983); Andrus v.
Glover Constr. Co., 446 U.S. 608, 618-19 (1980). The context,
history, and purpose of the Settlement Acts point unmistakably to
an interpretation of the Reservation that excludes the Main Stem.
Next, they cite the Indian treaty canon: "Indian
treaties 'must be interpreted in light of the parties' intentions,
with any ambiguities resolved in favor of the Indians." Herrera
- 40 -
v. Wyoming, 139 S. Ct. 1686, 1699 (2019) (quoting Minnesota v.
Mille Lacs Band of Chippewa Indians, 526 U.S. 172, 206 (1999));
Jones v. Meehan, 175 U.S. 1, 11 (1899) (stating that treaties must
be construed "in the sense in which they would naturally be
understood by the Indians"). But the Settlement Acts are not
treaties. See Aroostook Band of Micmacs, 484 F.3d at 53 (refusing
to apply "rules of statutory construction favoring Indians"
applicable to treaties because interpreting MICSA "does not
involve any treaty"). They are statutes. The treaty canon has no
bearing on their interpretation.
Finally, they cite the Indian canon saying that
Congress's intent to diminish a reservation must be clear. See
Parker, 136 S. Ct. at 1078–79 ("'[O]nly Congress can divest a
reservation of its land and diminish its boundaries,' and its
intent to do so must be clear." (quoting Solem v. Bartlett, 465
U.S. 463, 470 (1984))); United States v. Santa Fe Pac. R.R. Co.,
314 U.S. 339, 345-46 (1941). This is not a traditional
diminishment case, as the United States admits in its brief to us,
making the canon inapplicable. Regardless, the text of the
Settlement Acts makes Congress's intent clear. "The most probative
evidence of congressional intent [to change a reservation's
boundaries] is the statutory language used." Solem, 465 U.S. at
470. The "unconditional commitment from Congress to compensate
the Indian tribe for its opened land" creates "an almost
- 41 -
insurmountable presumption that Congress meant for the tribe's
reservation to be diminished." Id. at 470-71; see also McGirt,
140 S. Ct. at 2468 ("When interpreting Congress's work in [a
diminishment case], no less than any other, our charge is usually
to ascertain and follow the original meaning of the law before
us."). As we have stated, the statutory language defining the
Reservation makes it clear that Congress did not intend to include
the River or submerged lands as part of the Reservation. Congress
also agreed to put $13,500,000 into the Maine Indian Claims
Settlement Fund and $26,800,000 into the Maine Indian Claims Land
Acquisition Fund for the benefit of the Nation. 25 U.S.C.
§ 1724(a), (c). Congress intended these funds to compensate the
Nation for giving up any claims to the land or natural resources
not included in the Settlement Acts' definition of Reservation.
See Me. Rev. Stat. Ann. tit. 30, § 6203(12) (defining "Settlement
Fund" as "the trust fund established for the . . . Penobscot Nation
by the United States pursuant to congressional legislation
extinguishing aboriginal land claims in Maine"). Indeed, MICSA
forbids the Secretary of the Interior from using settlement fund
money for the benefit of the Nation unless the Nation has "executed
appropriate documents relinquishing all claims to the extent
provided by sections [of this Act approving prior transfer and
discharging Maine from all obligations arising from any treaties
or agreements with the Nation]." 25 U.S.C. § 1724(f). Congress
- 42 -
intended the Settlement Acts to "provide the . . . Nation . . .
with a fair and just settlement of their land claims," id.§ 1721(a)(7), and "clarify the status of other land and natural
resources in the state of Maine," id. § 1721(b)(2), so any
diminishment was intended.
4. The Nation's Reading of Reservation Makes Other Parts of
the Settlement Acts Incoherent and Inconsistent.
Adopting the Nation and United States' reading of
"Penobscot Indian Reservation" would make other parts of the
Settlement Acts incoherent and inconsistent. See Robinson, 519
U.S. at 341. One section of MIA dealing with regulatory takings
of land within the Reservation says 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." Me.
Rev. Stat. Ann. tit. 30, § 6205(3)(A). This statutory language
makes it clear that, outside of § 6205(3)(A), land along and
adjacent to the River is not contiguous to the Reservation. If
land along and adjacent to the River is not contiguous to the
Reservation, then the Reservation cannot possibly include the
River itself. To interpret it otherwise would render
§ 6205(3)(A)'s language superfluous, something we must avoid. See
- 43 -
City of Chicago, 141 S. Ct. at 91; Nielsen v. Preap, 139 S. Ct.
954, 969 (2019).
Next, other provisions of the Settlement Acts explicitly
address water, water rights, and submerged lands using different
and more specific language. Reading "Penobscot Indian
Reservation" to include these things when they are not mentioned
anywhere in the definition would make the Settlement Acts
inconsistent. For example, the Settlement Acts define the phrase
"land or other natural resources" -- not simply "land" -- to
include "water and water rights." 25 U.S.C. § 1722(b); Me. Rev.
Stat. Ann. tit. 30, § 6203(3). Equating "land" with "land or other
natural resources" in MICSA's definition of Reservation collapses
this difference. See 25 U.S.C. § 1722(i) (defining the Reservation
to include "lands," not "lands or other natural resources").
Another section of the Settlement Acts, Me. Rev. Stat. Ann. tit.
30, § 6207, shows that the drafters knew how to say "lands or
waters" when that is what they intended. See Me. Rev. Stat. Ann.
tit. 30, § 6207(5)-(6) (using "lands or waters" instead of
"lands").
MIA also addresses the Nation's authority to regulate
"any pond in which all the shoreline and all submerged lands are
wholly within Indian territory." Id. § 6207(1)(B) (emphasis
added). Penobscot Indian Territory is a defined term distinct
from Penobscot Indian Reservation. There is no reference in the
- 44 -
Settlement Acts to any submerged lands in the Reservation, and the
use of "submerged lands" in § 6207(1)(B) is the only time the
phrase is used. Like their use of "land or other natural
resources" and "lands or waters" in other parts of MIA and MICSA,
the drafters knew how to -- and did -- include more than land when
they wanted to do so. Cf. Caraco Pharm. Labs., Ltd. v. Novo
Nordisk A/S, 566 U.S. 399, 416 (2012) ("[I]f we needed any proof
that Congress knew how to say [a phrase] when it meant [that
phrase], here we find it.").
5. The Settlement Acts' Grant of Sustenance Fishing Rights to
the Nation Does Not Alter § 6203(8)'s Plain Meaning.
The Nation and the United States next argue that
§ 6207(4)'s grant of sustenance fishing rights to the
Passamaquoddy Tribe and the Nation "within the boundaries of their
. . . Indian reservations" means that § 6203(8)'s definition of
Reservation must include the River and its submerged lands. They
say that interpreting § 6203(8) to exclude the River's waters and
submerged lands is inconsistent with § 6207(4)'s grant of
sustenance fishing rights because the Nation can only exercise
these rights in the River.21
21 The Nation says that there are no waters on the surfaces
of the islands to support fish. The State Defendants have admitted
to this fact. MIA was amended in 1988 and 2009 to include lands
other than the islands in the definition of "Penobscot Indian
Reservation," but when the statute was originally passed in 1980,
only the islands were included in that definition.
- 45 -
At this stage, our inquiry is focused on the meaning of
Reservation under § 6203(8), not the scope of the Nation's
sustenance fishing rights under § 6207(4). We consider whether
the statutory scheme is coherent and consistent if Reservation is
given its plain meaning and this meaning is applied consistently
throughout the Settlement Acts, including to § 6207(4)'s grant of
sustenance fishing rights. See Barnhart, 534 U.S. at 450. We
hold that it is. Whether the phrase "Indian reservations" used in
§ 6207(4)'s grant of sustenance fishing rights is itself ambiguous
and susceptible to an interpretation that includes the Main Stem
is an entirely separate issue that we address later. The fact
that the Settlement Acts are coherent and consistent when "Indian
reservations" is taken to incorporate the plain meaning of
Penobscot Indian Reservation and exclude the Main Stem reinforces
our conclusion that the plain meaning of "islands" controls.
Section 6207(4) uses the phrase "Indian reservations" to
refer to two tribes' reservations, the Passamaquoddy Indian
Reservation and the Penobscot Indian Reservation. Even if the
Nation cannot exercise its sustenance fishing rights on its
islands, there is nothing in the record to indicate that the
sustenance fishing rights guaranteed to the Passamaquoddy Tribe by
§ 6207(4) is meaningless.22 The Nation and United States' argument
22 The dissent argues that for the Passamaquoddy Tribe to
have sustenance fishing rights, the definition "'Passamaquoddy
- 46 -
that § 6207(4) is incoherent as applied to the Nation alone ignores
§ 6207(4)'s broader application and context. The section still
has meaning as applied to the Passamaquoddy Tribe and is not, as
the Nation and United States argue, rendered a nullity when
"islands" is given its plain meaning.
The Nation, the United States, and the dissent read too
much into the § 6207(4)'s grant of sustenance fishing rights.
Section § 6203(8) gives a clear definition of "Penobscot Indian
Reservation" that does not include the Main Stem. The Settlement
Acts' context and purpose confirm this reading, and they are fully
coherent when the Reservation is given this meaning. We have not,
as the dissent argues, "set aside" § 6207(4) in determining what
§ 6203(8) means. We have explicitly considered whether § 6207(4)
makes sense when § 6203(8) is understood to exclude the Main Stem,
and we conclude that it does. See Ali v. Fed. Bureau of Prisons,
Indian Reservation' means those lands as defined in [MIA]" in
§ 1722(f) of MICSA must mean that the Passamaquoddy Reservation
includes lands and waters. It says that this creates a "fatal
flaw" in our argument that § 1722(i)'s similarly worded definition
of Penobscot Indian Reservation means only lands. We see no flaw,
as the language used to describe the parcels included in the
Passamaquoddy Indian Reservation is very different from the
language used in the definition of Penobscot Indian Reservation.
For example, the inclusion of "Indian Township in Washington
County" in the definition of Passamaquoddy Indian Reservation, Me.
Rev. Stat. Ann. tit. 30, § 6203(5), closely resembles the
reservation of an "undivided tract of land described merely by
exterior metes and bounds" that the Court has held includes "all
of the land inside those boundaries including the river," Choctaw
Nation, 397 U.S. at 628.
- 47 -
552 U.S. 214, 222 (2008) ("[O]ur construction . . . must, to the
extent possible, ensure that the statutory scheme is coherent and
consistent."). The dissent insists that the "Penobscot Indian
Reservation" defined in § 6203(8) must have a meaning consistent
with the "Indian reservation[]" used in § 6207(4), but, as we have
explained, the dissent's interpretation would create an
inconsistency within § 6203(8) itself. We cannot conclude, as the
dissent would, that the Settlement Acts' drafters intended to
override the text of § 6203(8) by implication when they used a
different term in a different section of MIA that applies to more
than one tribe. We presume that the drafters did not "hide
elephants in mouseholes." Whitman v. Am. Trucking Ass'ns, 531
U.S. 457, 468 (2001).
Despite our conclusion that § 6207(4) is still coherent
when Reservation is given its plain meaning, we agree with the
Nation and the United States that "Indian reservations" as used in
§ 6207(4) is itself ambiguous and that § 6207(4) grants the Nation
sustenance fishing rights in the Main Stem.23 We do not, as the
dissent says, hold that § 6207(4) must be read in this way. And
we do not agree that reading § 6207(4) this way means we must
23 This is a separate issue from whether Maine has violated
the Nation's rights under § 6207(4). As we explain later, we do
not reach the Nation's sustenance fishing claim because the Nation
lacks standing and the claim is not ripe.
- 48 -
deprive § 6203(8) of its plain meaning. The two provisions can
and do coexist.
Nothing in § 6207(4)'s use of the phrase "Indian
reservations" alters the plain meaning of § 6203(8). MIA itself
tells us this. Section 6203 says that the statute's definitions
do not apply when "the context indicates otherwise." Me. Rev.
Stat. Ann. tit. 30, § 6203. The Supreme Court has also held that
"context counts" and that "[t]here is . . . no 'effectively
irrebuttable' presumption that the same defined term in different
provisions of the same statute must 'be interpreted identically.'"
Env't. Def. v. Duke Energy Corp., 549 U.S. 561, 575–76 (2007)
(quoting United States v. Duke Energy Corp., 411 F.3d 539, 550
(4th Cir. 2005)); see also Nw. Austin Mun. Util. Dist. No. One v.
Holder, 557 U.S. 193, 207 (2009) ("[T]he statutory
definition . . . does not apply to every use of the term 'political
subdivision' in the Act."). The fact that § 6207(4) does not even
use the defined term "Penobscot Indian Reservation" and nowhere
indicates that "Indian reservations" incorporates § 6203(8)'s
definition provides even more evidence that the Nation's
sustenance fishing right is not necessarily limited to the
Reservation.
Section 6207(4) has meaning and that meaning is
consistent with our holding as to § 6203(8). Whether Congress was
aware or not that there are no places to fish on the Reservation's
- 49 -
islands, § 6207(4) means that the Nation has the right to engage
in sustenance fishing in the Main Stem. That is a different right
than the ownership rights the Nation is asserting under § 6203(8).
Nothing in the legislative history indicates that the
drafters of the Settlement Acts intended to restrict the Nation's
existing right to fish in the Main Stem.24 To the contrary, their
aim was to strengthen it. The House and Senate Reports explain
that Maine previously recognized the Nation's "right to control
Indian subsistence hunting and fishing within their reservations"
and that § 6207(4) ends "[t]he power of [Maine] to alter" these
rights.25 See Senate Report at 16; House Report at 17-18.
Legislative history from the passage of MIA also confirms that the
drafters understood that the right to sustenance fish could be
exercised in the Main Stem. See Hearing on Legis. Doc. 2037 Before
the Joint Select Comm. on Indian Land Claims, 109th Leg., 2d Reg.
Sess. 55-56 (Me. 1980) (statement of Mr. Patterson that "the
contemplation of this draft was to keep in place that same kind of
right and provide that the Indians could continue to sustenance
24 The record is clear that some members of the Nation have
relied on sustenance fishing for generations before the Settlement
Acts were passed.
25 Before the Settlement Acts, Maine law said that the
Commissioner of Inland Fisheries and Wildlife "shall issue
a . . . fishing license to any [Penobscot] Indian." 1979 Me. Laws
ch. 420 § 9(A). It also recognized the "right of Indians to take
fish and wildlife for their own sustenance on their reservation
lands." Id. § 9(B).
- 50 -
hunt and fish"); id. at 120 (raising concern that the sustenance
fishing right would allow the Nation to cast a net "right across
these rivers [including the Penobscot River] and completely wipe
out . . . the spawning stock").
Given this context, we conclude that the drafters did
not intend for the phrase "Indian reservations," as used in
§ 6207(4) and applied to the Nation, to have the same meaning as
"Penobscot Indian Reservation." Under this interpretation, the
Settlement Acts give the Nation sustenance fishing rights in the
Main Stem even though the River and its submerged lands are not
part of the Reservation. There is no serious dispute about whether
the Settlement Acts give the Nation sustenance fishing rights in
the Main Stem. They do. The dispute here is over ownership of
the River and its submerged lands, and we have explained why we
have reached the interpretation we have.
B. The Nation's Assertion that Maine Has Infringed Its Sustenance
Fishing Rights Is Not Ripe and the Nation Lacks Standing to
Pursue That Claim.
We view differently the claim that Maine has infringed
those fishing rights and that infringement justifies the issuance
of a declaratory judgment. See Me. Rev. Stat. Ann. tit.
30, § 6207(4). The district court erred in issuing a declaratory
judgment because the Nation lacks standing to pursue this claim
and the claim is not ripe. "The requirements for a justiciable
case or controversy are no less strict in a declaratory judgment
- 51 -
proceeding than in any other type of suit." Ala. State Fed'n of
Labor v. McAdory, 325 U.S. 450, 461 (1945). We vacate the district
court's ruling on this issue and order dismissal of the claim
without prejudice.
Article III of the Constitution limits federal courts'
jurisdiction to cases or controversies. See, e.g., Students for
Fair Admissions, Inc. v. President & Fellows of Harvard Coll., 980
F.3d 157, 182–83 (1st Cir. 2020) (citing Warth v. Seldin, 422 U.S.
490, 498 (1975)). "The doctrines of standing and ripeness
'originate' from the same Article III limitation." Susan B.
Anthony List v. Driehaus, 573 U.S. 149, 157 n.5 (2014).
1. The Nation Does Not Have Standing to Pursue Its Claim That
Maine Has Violated the Sustenance Fishing Rights Guaranteed
to it Under MIA.
To have standing, a plaintiff must "have (1) suffered an
injury in fact, (2) that is fairly traceable to the challenged
conduct of the defendant, and (3) that is likely to be redressed
by a favorable judicial decision." Spokeo, Inc. v. Robins, 136 S.
Ct. 1540, 1547 (2016). The Nation has suffered no injury in fact.
An injury in fact is "'an invasion of a legally protected
interest' that is 'concrete and particularized' and 'actual or
imminent, not conjectural or hypothetical.'" Id. at 1548 (quoting
Lujan v. Defenders of Wildlife, 504 U.S. 555, 560 (1992)).
Sometimes, the threat of enforcement alone "may suffice as an
'imminent' Article III injury in fact." Reddy v. Foster, 845 F.3d
- 52 -
493, 500 (1st Cir. 2017) (quoting Susan B. Anthony List, 573 U.S.
at 158). The Nation argues that it has suffered an injury in fact
because the Schneider Opinion is a concrete and particularized
imminent threat to its sustenance fishing rights.
We see no imminent threat. The Schneider Opinion does
not even mention the Nation's sustenance fishing rights. It does
not prevent any tribal member from engaging in sustenance fishing.
Maine has not prevented any Nation member from engaging in
sustenance fishing. Indeed, Maine has a "long-standing policy of
not interfering with tribal members' sustenance fishing in the
Main Stem" and has represented to us that it has "no intention of
changing that policy." Under circumstances like these, when "a
future injury is 'too speculative for Article III purposes' and no
prosecution is even close to impending," a plaintiff lacks
standing. See Reddy, 845 F.3d at 500 (quoting Blum v. Holder, 744
F.3d 790, 799 (1st Cir. 2014)).
There is no support in the record for the Nation's claims
that the Schneider Opinion threatens its sovereignty or regulatory
authority. The cases cited by the Nation for the proposition that
tribes are granted special solicitude as sovereigns in the standing
analysis are also inapposite. In those cases, there was actual
harm to tribal members or people operating in tribal territory
that threatened the tribes' sovereignty. See Moe v. Confederated
Salish & Kootenai Tribes of Flathead Rsrv., 425 U.S. 463, 468-69,
- 53 -
469 n.7 (1976) (tribe had standing to challenge Montana's statutory
scheme for assessment and collection of personal property taxes
from tribe's members); White Mountain Apache Tribe v. Bracker, 448
U.S. 136, 139-40 (1980) (tribe had standing to challenge Arizona's
taxes on a logging company operating solely on an Indian
reservation when the tribe agreed to reimburse the company for
taxes it paid for its on-reservation activity). The Nation has
not shown that it faces an actual or imminent harm in this case.
2. The Nation's Claim That Maine Has Violated the Sustenance
Fishing Rights Guaranteed to it Under MIA Is Not Ripe.
The Nation's claim is also not ripe. Our "[r]ipeness
analysis has two prongs: 'fitness' and 'hardship.'" See Reddy,
845 F.3d at 501 (citing Texas v. United States, 523 U.S. 296, 300-
01 (1998)). 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)). The hardship
prong is prudential and asks what harm would come to those seeking
relief if we withheld a decision. Reddy, 845 F.3d at 501 (citing
Labor Relations Div. of Constr. Indus. of Mass., Inc. v. Healey,
844 F.3d 318, 326 (1st Cir. 2016)).
Neither prong is met here. On the fitness prong, the
Nation's claim depends on uncertain or contingent events. There
- 54 -
is no evidence that Maine has interfered with the Nation's
sustenance fishing rights or that it may do so in the future. Cf.
McInnis-Misenor v. Me. Med. Ctr., 319 F.3d 63, 72 (1st Cir. 2003)
("[T]hat the future event may never come to pass augurs against a
finding of fitness."). There is no concrete dispute before us.
The hardship prong is also not met. Our analysis
"focuses on 'direct and immediate' harm." Id. at 73. "[T]here is
no apparent prejudice to the plaintiffs if they must wait until
their claims ripen to sue" here because "[t]hey are not 'required
to engage in, or to refrain from, any conduct, unless and until'"
Maine either interferes with the Nation's sustenance fishing
rights or demonstrates an intent to do so. Reddy, 845 F.3d at 505
(quoting Texas, 523 U.S. at 301).
III.
The judgment of the district court is affirmed as to the
definition of "Penobscot Indian Reservation" under Me. Rev. Stat.
Ann. tit. 30, § 6203(8) and 25 U.S.C. § 1722(i) and vacated with
instructions to dismiss without prejudice for want of jurisdiction
as to the declaratory judgment regarding the sustenance fishing
rights under Me. Rev. Stat. Ann. tit. 30, § 6207(4). No costs are
awarded.
- Concurring and Dissenting Opinion Follows -
- 55 -
BARRON, Circuit Judge, with whom THOMPSON, Circuit
Judge, joins, concurring in part and dissenting in part. The State
of Maine enacted the Maine Implementing Act ("MIA") in 1980 in
tandem with Congress's passage that same year of the Maine Indian
Claims Settlement Act ("MICSA"). Together, the measures sought to
settle then-pending litigation that had called into question,
among other things, the legal status of cessions of land "on both
sides of the Penobscot [R]iver" that the Penobscot Nation had made
first to Massachusetts, and then to Maine, in treaties around the
turn of the nineteenth century. The questions that we must resolve
in this appeal concern one aspect of the settlement that these
Acts brought about -- the nature of the rights in certain waters
of the Penobscot River that the Nation would continue to enjoy.
I agree with the majority that the Settlement Acts, in
effectively blessing the Penobscot Nation's long-ago transfers of
land beyond the banks of the river, did not leave the Nation with
nothing in return as to the waters in between. In particular, I
agree with the majority that those Acts secure to the Nation a
limited right that entitles its members to fish in those waters
for their own sustenance. But, I cannot agree with the majority's
further and more consequential conclusion that the Acts give the
Nation no further rights in those waters.
The majority arrives at this result by narrowly
construing the provision in the Acts that purports to define the
- 56 -
"Penobscot Indian Reservation" so that it excludes altogether the
waters of the Penobscot River. The consequence is that the
sovereign rights to regulate the taking of wildlife that the
Settlement Acts expressly entitle this riverine Nation to exercise
throughout its "Reservation" extend to no portion of the Penobscot
River itself.
Yet, as I will explain, the statutory text does not
compel such a landlocked construction of the "Penobscot Indian
Reservation." In fact, a different provision of the same statute
that defines the "Reservation" expressly describes the
"boundaries" of the "Penobscot Nation . . . Indian reservation[]"
in terms that even the majority agrees include the portions of the
Penobscot River that are in dispute. See Me. Rev. Stat. Ann. tit.
30, § 6207(4).
The problem with the majority's narrow construction,
however, runs deeper still. The Settlement Acts were intended in
significant part to make up for the fact that the Nation had
entered into the treaties at the heart of the underlying disputes
over land transfers without the federal authorization that
Congress had early on required in the Trade and Intercourse Act of
1790 ("the Nonintercourse Act"), see 25 U.S.C. § 1721(a)(1), to
protect tribes from states swindling them.26 After all, it was the
26 In Joint Tribal Council of the Passamaquoddy Tribe v.
Morton, 528 F.2d 370 (1st Cir. 1975), this Court confirmed that
- 57 -
lack of any such congressional authorization for those treaties
that led the Nation to assert that the land transfers that it had
made in them were without legal effect, thereby precipitating the
title disputes that the Settlement Acts aimed to resolve. It is
thus tragically ironic, in my view, that the majority now construes
the Acts to leave the Nation with even fewer sovereign rights in
the river that has been its lifeblood than it had reserved for
itself in its own unprotected dealings with those two states so
early on in our history.
Moreover, precisely because text, history, and purpose
undermine the notion that the definition of the Nation's
"Reservation" in the Settlement Acts clearly excludes the waters
at issue, longstanding principles of interpretation require that
we construe that definition to include those waters. For, those
principles require that we resolve an ambiguity on that score in
the Nation's favor, see County of Yakima v. Confederated Tribes &
Bands of the Yakima Indian Nation, 502 U.S. 251, 269 (1992), and,
at the very least, we confront such an ambiguity here.
the Nonintercourse Act applied to the Passamaquoddy Tribe and
created a trust relationship between the United States and that
tribe. See id. at 373. The Penobscot Nation's land claims
preceding the MICSA were premised on the theory -- which is not
challenged here -- that the same would be true of the Penobscot
Nation. See Joint Tribal Council of the Passamaquoddy Tribe v.
Morton, 388 F. Supp. 649, 654 n.6 (D. Me. 1975).
- 58 -
I.
The MICSA provides that the "'Penobscot Indian
Reservation' means those lands as defined in the [MIA]." 25 U.S.C.
§ 1722(i). The MIA in turn provides that the
"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.
Me. Rev. Stat. Ann. tit. 30, § 6203(8).
The ultimate question that we must decide on appeal, in
light of these two provisions, is a relatively discrete one of
statutory interpretation. It concerns whether the definition of
the "Penobscot Indian Reservation" in § 6203(8) of the MIA
encompasses only the uplands of the individual islands to which it
refers -- which is all the majority concludes that it includes --
or also the whole of the area comprising the uplands of those
islands, waters included -- which is what the Penobscot Nation
contends that it does.27
27 In construing the Settlement Acts, we have held that
because the MICSA adopted the MIA, interpretative questions about
provisions of the MIA are federal questions. See Penobscot Nation
v. Fellencer, 164 F.3d 706, 708 (1st Cir. 1999) (explaining that
"[b]ecause the phrase 'internal tribal matters' was adopted by the
federal Settlement Act, the meaning of that phrase [which does not
- 59 -
Before answering that question, however, it helps to
clarify more precisely what is at stake in this interpretive
dispute, as there appears to be some confusion on that point.
Critical to sorting out that confusion is a recognition that
§ 6203(8) of the MIA, by its own terms, is definitional rather
than substantive. It only purports to define, in other words,
what the term "Penobscot Indian Reservation" in the Settlement
Acts themselves -- when used elsewhere in them -- means. It does
not itself purport to establish a reservation in the typical sense.
This fact is significant. In consequence of it, the
meaning assigned to "Penobscot Indian Reservation" in § 6203(8) of
the MIA must be understood in connection with the concrete rights
and authorities that the Settlement Acts themselves provide that
the Penobscot Nation enjoys within what those same Acts call the
Nation's "Reservation." As a result, the lengthy arguments of the
State of Maine and the Intervenors that "ownership" of the relevant
stretch of the river, including its submerged lands, is at issue
in this appeal are, in the end, a distraction. Whatever claims
the Penobscot Nation might have in that regard, the Nation seeks
here to prove with respect to the definition of the "Penobscot
appear in the MICSA itself] raises a question of federal law").
Accordingly, although § 6203(8) of the MIA is itself a provision
of state law, the parties do not dispute that its meaning is a
question of federal law such that we have jurisdiction under 28
U.S.C. § 1331.
- 60 -
Indian Reservation" in § 6203(8) of the MIA only that the
definition is broad enough to ensure that, when it is plugged into
the substantive provisions of the MIA that are keyed to it, the
Nation will have the same right to regulate hunting and trapping
in the waters in that stretch of the river that the Nation
generally has under those same substantive provisions within the
boundaries of the "Penobscot Indian Reservation."28
Having clarified that much up front, though, there is
still one further threshold point to address. It concerns the
interpretive resources that we may draw upon to decide how best to
determine whether the definition of the term "Penobscot Indian
Reservation" in § 6203(8) of the MIA refers to the relevant waters
or only to the uplands located in them. I thus begin my analysis
there, as a consideration of this question of interpretive method
demonstrates, in my view, the errors in the majority's rationale
for its lead holding, in which the majority gives this definition
in § 6203(8) of the MIA a narrow, uplands-only construction.
A.
The majority explains that in construing the definition
of the "Penobscot Indian Reservation" in § 6203(8) of the MIA we
may not draw upon what history shows about the Penobscot Nation's
28 For that reason, I do not consider the argument that
adjudication of the ownership of the river would require joinder
of riverfront landowners or that fee simple title in the river is
owned in trust by the State.
- 61 -
past understandings regarding its rights in the waters at issue.
The majority further explains that in construing that definitional
provision we may not rely on any of the canons of construction
relating to Indian tribes.
In the majority's view, we must labor under these
interpretive constraints because this statutory provision's text
-- given the ordinary meaning of the words in it -- in and of
itself compels an uplands-only reading. The majority emphasizes
that a statute's words should be given their ordinary meaning if
the legislature does not define them. See Maj. Op. 11-12, 11 n.5.
It then asserts that the ordinary meaning of the word "islands" in
§ 6203(8) of the MIA -- and "lands" in the provision of the MICSA
that cross-references that provision of the MIA -- conveys an
uplands-only, not a waters-inclusive, understanding. Maj. Op. 12-
13. Thus, the majority concludes, because neither the word
"islands" nor the word "lands" is defined in either the MIA or the
MICSA, the ordinary, water-less meaning of "islands" and "lands"
controls.
The majority finds additional support for this
dictionary-based reading of the relevant statutory text in the
fact that the Settlement Acts do not use a single geographic name
for the islands referred to in § 6203(8). Nor, the majority points
out, do those Acts describe the islands at any point with reference
to any words that require the islands to be treated as a collective
- 62 -
-- and thus as an area including the surrounding waters -- rather
than as individual land masses. See Maj. Op. 17.
The majority does address the contention that the
qualifier "reserved to the Penobscot Nation by agreement" in
§ 6203(8) of the MIA suggests that we should set the dictionary
aside and consult history to discern whether what had been
"reserved . . . by agreement" encompasses any of the waters that
surround the islands' uplands. Maj. Op. 21-22. The majority
concludes, however, that the text of § 6203(8) makes perfectly
clear that the "islands" to which that definitional provision is
referring are only those that the "consisting" phrase within that
same provision describes them to be. See Maj. Op. 22-23.
The majority explains in this regard that the word
"islands" is used in that phrase in conjunction with the words
"solely" and "in the Penobscot River," and it concludes that those
two modifiers themselves support a dictionary-based (and thus, in
the majority's view, uplands-only) understanding of "islands."
See Maj. Op. 13-14, 17. In fact, the majority asserts, the word
"islands" in § 6203(8) of the MIA would have to bear two distinct
meanings in the same provision -- one including waters and one not
-- for the area-based construction of § 6203(8) of that statute
for which the Nation advocates to be a viable one. See Maj. Op.
25-26.
- 63 -
B.
The majority is right that we have no warrant to rely on
extra-textual interpretive aids to construe the definition in
§ 6203(8) of the MIA if that text is as clear as the majority
concludes that it is. But, even when a statute uses words that on
their own bear an ordinary meaning that is plain, there may still
be ambiguity as to whether it is plain that those words should be
given that ordinary meaning. See Yates v. United States, 574 U.S.
528, 537 (2015) ("Whether a statutory term is unambiguous . . .
does not turn solely on dictionary definitions of its component
words. Rather, '[t]he plainness or ambiguity of statutory language
is determined [not only] by reference to the language itself, [but
as well by] the specific context in which that language is used,
and the broader context of the statute as a whole.'" (alterations
in original) (quoting Robinson v. Shell Oil Co., 519 U.S. 337, 341
(1997))); see also Antonin Scalia & Bryan A. Garner, Reading Law:
The Interpretation of Legal Texts 70 (2012) ("One should assume
the contextually appropriate ordinary meaning unless there is
reason to think otherwise . . . . which ordinarily comes from
context."); id. at 73 ("Sometimes context indicates that a
technical meaning applies.").
Thus, even if the majority is right that the words
"lands" and "islands" in isolation bear an ordinary meaning that
plainly excludes waters offshore, we still must assess whether
- 64 -
those words carry their ordinary meanings here, given the specific
way in which those words are used in the statutory provisions at
hand. In my view, there is good reason to conclude from the text
of § 6203(8) of the MIA alone that those words do not.
1.
For starters, the word "islands" appears in § 6203(8) of
the MIA only as a constituent part of a larger phrase. See Bostock
v. Clayton County, 140 S. Ct. 1731, 1750 (2020). That larger
phrase, moreover, refers to a specific group of islands both for
the purpose of defining where as part of a settlement of rights to
land and natural resources the Nation may exercise certain
sovereign rights and in terms of what had been "reserved to the
Penobscot Nation by agreement," Me. Rev. Stat. Ann. tit. 30,
§ 6203(8).
The plain text of § 6203(8) of the MIA in these ways
supplies a reason why the word "islands" as it appears in this
context might not mean what it ordinarily would if it were
considered on its own. That being so, the same is necessarily
also true of the word "lands." That word, after all, appears in
the provision of the MICSA that directs the reader to § 6203(8) of
the MIA to find the definition of the "Penobscot Indian
Reservation."29
29 No party has argued on appeal that we should understand
the fact that this provision of the MICSA refers to "those lands
- 65 -
Precedent from the Supreme Court of the United States
supports the conclusion that the features of the text of § 6203(8)
of the MIA that I have just described render that provision more
ambiguous in the relevant respect than the majority allows. On
more than one occasion, the Court has held that reservation-
defining statutes refer to waters despite their failure to make
any express reference to those waters and despite their use of
geographic terms that, in and of themselves, ordinarily might be
understood to refer to dry land only.
For example, in Alaska Pacific Fisheries v. United
States, 248 U.S. 78 (1918), the Court considered a statute that
defined a reservation as consisting of "the body of lands known as
Annette Islands" and held that, textually speaking, that larger
phrase arguably could refer to "the area comprising the islands"
-- and thus an area inclusive of waters -- rather than only to the
uplands in that area. Id. at 86-89. For that reason, the Court
determined, only an inquiry into sources beyond those that would
merely disclose the ordinary meaning of the words "lands" or
"islands" could reveal the intended meaning of the larger phrase
in which those words were embedded. See id. at 87.30
as defined in the [MIA]," 25 U.S.C. § 1722(i) (emphasis added), to
limit the definition in § 6203(8) of the MIA.
30 The majority notes, Maj. Op. 16, that Alaska Pacific
Fisheries concerns Alaska and that, as the Supreme Court just
observed, "[t]he 'simple truth' . . . is that 'Alaska is often the
exception, not the rule.'" Yellen v. Confederated Tribes of the
- 66 -
Similarly, in Hynes v. Grimes Packing Co., 337 U.S. 86(1949), the Court held that the statutory phrase "any other public
lands which are actually occupied by Indians or Eskimos within
said Territory" did not, in consequence of the ordinary meaning of
the word "lands" alone, resolve whether the reservation that it
purported to define included coastal waters. See id. at 91-92,
110-11. Thus, the Court there, too, concluded that only a broader
consideration of legislative purpose, as informed by the history
of how the native peoples interacted with those waters, could
resolve whether the phrase invoking the word "lands" did or did
not include those waters. Id. at 115-16.31
The Court later explained in Amoco Production Co. v.
Village of Gambell, 480 U.S. 531 (1987), that an extra-textual,
historically informed inquiry was proper in each of those earlier
cases precisely because the reservation-defining statute had in
Chehalis Rsrv., ___ S. Ct. ___, 2021 WL 2599432, at *3 (2021) [No.
20-543] (quoting Sturgeon v. Frost, 577 U.S. 424, 440 (2016)).
But, there is no suggestion in Alaska Pacific Fisheries,
Confederated Tribes of the Chehalis Reservation (which does not
reference Alaska Pacific Fisheries), or any case in between that
would provide a basis for concluding that the Court would find the
relevant text in the statute set forth in Alaska Pacific Fisheries
to exclude the waters surrounding the Annette Islands if that
collection of islands happened to have been located somewhere other
than Alaska.
31 True, Hynes is also a case from Alaska, but not even the
majority suggests that its state of origin was what made the
relevant phrase there not susceptible of being construed with only
a dictionary as an aid.
- 67 -
each instance used a phrase that, despite the common geographic
terms embedded therein, had no "precise geographic/political
meaning[] which would have been commonly understood, without
further inquiry, to exclude the waters." Id. at 547 n.14.
Accordingly, the Court determined that, given the larger phrase
used, fidelity to text had required in each case the conclusion
that "[t]he meaning of the phrase[] had to be derived from [its]
context in the statute[]." Id.Against that precedential backdrop, the fact that we
confront here not just the word "islands" -- or "lands" -- but a
larger phrase referring to a specific set of "islands" should give
us some reason to pause before we turn to the dictionary's
definition of those discrete words to discern the meaning of that
larger phrase. As in Alaska Pacific Fisheries and Hynes, the
phrase that matters here is configured in a way that at least
raises the question whether it refers to an area inclusive of
waters, despite the fact that the only geographic terms used in
connection with that phrase are "islands" and "lands." That is
not because we have no choice but to conclude that the word
"islands" is itself being used -- unusually -- as a "term of art."
See Maj. Op. 21-22. It is because we are construing a larger
phrase, of which "islands" is just a key part, and not that word
on its own.
- 68 -
Consider that, like the reference to "Annette Islands"
in Alaska Pacific Fisheries, the reference to "islands" in the
relevant phrase here concerns a discrete and definable grouping,
rather than a disparate assortment, of land masses that is located
in one continuous and discernable stretch of waters. For this
reason, geographic reality no more rules out an area-based reading
of the relevant phrase than it did in Alaska Pacific Fisheries.
Consider also that, like the statute in Alaska Pacific
Fisheries, this one refers to the "islands" as an undifferentiated
group -- "all islands" -- without purporting to distinguish which
among them are "the site of [the tribe's] village[s], or the
island[s] on which they were dwelling," Alaska Pac. Fisheries, 248
U.S. at 89. For this reason as well, the text is arguably
suggestive of an area comprising the islands, waters included.32
There is, however, yet one more reason to be wary of
reaching too quickly for the dictionary -- and thus looking at no
32 The United States argues that "islands" could be broader
than the discrete uplands because, under Massachusetts and Maine
common law, island estates ordinarily included submerged lands and
associated rights to riverine resources -- thus, with respect to
any individual island, there may be an ambiguity at least as to
whether it would include submerged lands to the thread of the
river. The State challenges this understanding of the relevant
common law. In light of Alaska Pacific Fisheries, and for the
reasons set forth below, I find that "islands in the Penobscot
River reserved to the Penobscot Nation by agreement" is
sufficiently susceptible of an area-based understanding that it is
not necessary to reach this dispute about what each individual
island may include in terms of attendant waters under state common
law.
- 69 -
other extra-textual source -- to determine the meaning of § 6203(8)
of the MIA with respect to the uplands/waters issue. As I have
mentioned, the larger phrase that we are concerned with in that
provision specifies that it is referring to what was "reserved to
the Penobscot Nation by agreement with the States of Massachusetts
and Maine." That same phrase then goes on to reference a specific
date in 1818 in defining what was "reserved," and that date, of
course, is the one on which the Penobscot Nation signed the
"treaty" with Massachusetts in which the Nation purported to cede
the lands "on both sides of the . . . river" while keeping "all
the islands" in the relevant stretch of the river. Treaty Made by
the Commonwealth of Massachusetts with the Penobscot Tribe of
Indians, June 29, 1818, in Acts and Resolves Passed by the Twenty-
Third Legislature of the State of Maine, A.D., 1843, at 253, 253-
54 (Augusta, Wm. R. Smith & Co. 1843) [hereinafter 1818 Treaty].
Quite obviously, no dictionary can reveal the nature of
an earlier agreed-to reservation between specific historically
rooted sovereign actors, see Amoco Prod. Co., 480 U.S. at 547 n.14,
just as no dictionary could have given content to the use-based
qualifier that the relevant statute in Hynes included. Given that
the "Reservation" here concerns a group of islands in a stretch of
water that marks out a cohesive area in its own right, there is no
reason rooted in fidelity to text that would require us to construe
the phrase as if the terms of, and understandings about, that prior
- 70 -
agreement are wholly beside the point insofar as those terms and
understandings would support an area-based rather than uplands-
only construction. Rather, the text would seem rather strongly to
suggest that the drafters intended to give effect to these very
understandings in § 6203(8) even if they would support such an
area-based construction. Indeed, even Maine adamantly took the
position in earlier litigation that a proper determination of the
"Reservation" necessarily "involves analysis of the relevant
treaties referenced in the Reservation definitions in the [MIA]
including the historical transfers of Reservation lands and
natural resources." Brief of Petitioner State of Maine at 58,
Maine v. Johnson, 498 F.3d 37 (1st Cir. 2007) (Nos. 04-1363, 04-
1375) (emphases added).
2.
For all these reasons, the majority's uplands-only
construction of § 6203(8) -- rooted as it is in a claim about the
limited, dictionary-based interpretive method that we must use --
is less clearly one that the text in and of itself compels than
the majority contends. That is especially so when one recognizes
that the majority's construction is hard to square with standard
interpretive practices, because it appears to attribute no
independent meaning to the phrase "reserved . . . by agreement."
As we have seen, the majority appears to treat the
"reserved . . . by agreement" qualifier as if it were superfluous.
- 71 -
In fact, because that qualifier precedes the "consisting" phrase,
§ 6203(8) changes not a bit in the majority's view if the qualifier
is omitted.33
We are generally loath, however, to treat statutory
words as wasted. Nor would there appear to be any special reason
to conclude that the words to which the majority assigns no import
here are ones that need not have been included at all.
Those words appear alongside the provision's express
reference to the 1818 date. That is the date of an agreement
excluding "all islands" in the river from the cessions of lands
"on both sides of" it that the Nation had purported to make. The
joint inclusion of the reference to islands that had been
"reserved . . . by agreement" and the date of a past agreement
33 The majority asserts that the qualifier is necessary to
clarify that islands transferred by the Nation prior to 1818 are
not part of the Penobscot Indian Reservation. Maj. Op. 23-24, 23
n.11. The majority does not assert, however, that any island was
transferred by the Nation before 1818, and the 1818 treaty's
"covenant . . . that [the Nation] shall have, enjoy and
improve . . . all the islands in the Penobscot river above Oldtown
and including said Oldtown island," 1818 Treaty, supra, at 254,
suggests that there had been no such transfer, at least in the
relevant stretch of the river. If any island not in that stretch
of the river had been transferred before that date, § 6203(8) would
already exclude that island by virtue of the "consisting solely"
phrase. The "reserved . . . by agreement" language thus would not
in that event be necessary to make that exclusion clear. Aside
from the counterfactual nature of the majority's explanation of
the function of "reserved . . . by agreement," it would be strange
in light of the drafters' explicit exclusion of post-1818 transfers
to conclude that the drafters effected the exclusion of pre-1818
transfers in such an oblique way.
- 72 -
making a reservation involving those very islands surely provides
some reason to think that the ordinary meaning of "islands" might
not be an entirely reliable guide to § 6203(8)'s meaning insofar
as the agreement that had been struck by the Nation on that date
reflected a different understanding of what the Nation had reserved
than the dictionary definition of "island" would supply. And, as
I have noted, Maine itself once read the text in just this
historically informed manner, taking the position that the
definition of the "Penobscot Indian Reservation" in § 6203(8) of
the MIA had to be construed in light of the understandings of the
parties to the 1818 treaty and not without considering them at
all.
Perhaps, then, the initial phrase in § 6203(8) of the
MIA, which contains this backward-looking qualifier about what had
been agreed to in the past, is best construed to have been intended
to give effect to the outcome of an agreement as the parties to it
understood it when it was struck centuries before. True, the
definition does not just end with the reference to what had been
"reserved . . . by agreement." It goes on to include the trailing
"consisting" and "excepting" phrases. But, the inclusion of those
phrases hardly compels a reading that would make the reference to
the prior agreement of no import. Instead, those phrases may
comfortably be read to be usefully clarifying -- just as
settlements of disputes over the meaning of old agreements often
- 73 -
do -- critical details concerning what the parties to the
settlement that the Settlement Acts effected understood to have
been reserved in the earlier treaty.
Indeed, a comparison of the 1818 treaty and § 6203(8) of
the MIA reveals that the drafters of the MIA merely revised the
more encompassing "including" phrase of that treaty by
substituting for it the more limiting "consisting solely" and
"excepting" phrases. By doing so, they accounted for post-treaty
developments (whether man-made or naturally occurring) that
obviously could not have been known in 1818. They thus ensured
through that revision of the treaty's language that § 6203(8) of
the MIA would account for matters that -- given their late-breaking
nature -- cannot have been understood to have been carefully
considered by the treaty parties at that earlier time.
Of course, even on this reading of § 6203(8), the
question would remain as to whether the larger phrase containing
"the islands" in § 6203(8) of the MIA is referring to merely the
uplands in the area demarcated by those "islands" or to the area
comprising them and thus the waters in that area, too. The text
of this provision -- at least in and of itself -- cannot be said
to resolve that question conclusively in the Nation's favor, even
if it might be so read. It all would depend, even on such a
historically informed reading, on what the parties to the 1818
- 74 -
treaty understood to have been "reserved . . . by agreement" way
back when.
But, I do note that an area-based reading does give a
meaningful role to the "reserved . . . by agreement" language that
the majority's uplands-only reading does not. It reads that
language to have been included because the drafters were intent on
capturing past understandings arising from past dealings. For
this reason, too, the "reserved . . . by agreement" language
should warn the reader away from an ahistorical, dictionary-based
understanding of what is meant by "islands."
I recognize that the majority contends that the
"consisting" phrase's own text in and of itself rules out an area-
based reading, no matter what the history of past dealings might
show. The majority explains that this is so in part because the
word "solely" in that phrase compels the conclusion that the
drafters of § 6203(8) of the MIA intended to debar the islands'
surrounding waters from being within the "Reservation." See Maj.
Op. 14.
But, I cannot agree with that analysis. The word
"solely," given its placement, is, as a matter of grammar, merely
narrowing the general set of "islands" that precedes it to a
smaller set of "islands" that are thereafter described. It thus
cannot be specifying an uplands-only rather than area-based
understanding of "islands" any more than the use of the word
- 75 -
"solely" in the phrase "ship the bikes that had been ordered,
consisting solely of the bikes in storage" could be read to be
sorting between bikes that have baskets and those that do not.
And that is especially so because the group of islands described
after "solely," like the group of islands described before that
term, is a group that, by virtue of how the islands are situated
relative to one another, may easily be understood to demarcate an
area comprising the islands.
Nor can I agree with the majority's related contention
that the phrase "in the Penobscot River" requires an uplands-only
reading. Maj. Op. 13-14. The reference to the islands "in the
[river]" running from a southward point A to a northward point B
is easily read to be merely part and parcel of the effort, partly
carried out by the "consisting" phrase, to demarcate the bounds of
the area as a whole, rather than to distinguish between the land
masses and the surrounding waters within that area.
That leaves, then, only the majority's assertion that an
area-based reading impermissibly requires that we give the word
"islands" two distinct meanings in the same provision -- one
referencing an area that includes waters and another referencing
uplands alone. Maj. Op. 25-26. But, I do not see how such a
reading does so.
The two phrases in § 6203(8) of the MIA that use that
same word "islands" comfortably may be understood to be working
- 76 -
together to specify the area comprising the "islands." The
"islands" referenced each time are ones that are grouped together
in a continuous stretch of water and that are expressly referred
to only in connection with the 1818 "agreement" that "reserved"
them to the Nation. The latter phrase does, on such a reading,
demarcate the area in a way that the former on its own does not.
But, that does not mean the latter is not referring to an area
just as the former is.
In fact, the "excepting" phrase that then follows
accords with this same understanding -- even though, of course, it
does not compel it. Unlike the phrases that contain the two prior
references to "islands," the "excepting" phrase refers to "any
island" that has certain specified attributes and so does not refer
to the group of "islands" previously referenced at all. The
singular-form reference to "any island" in the "excepting" phrase
thus may be read to suggest that any discrete land mass with the
attributes denominated -- that is, any individual land mass in
that area that had been "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," Me. Rev. Stat. Ann.
tit. 30, § 6203(8) -- is being excepted from the area comprising
the "islands" already mentioned.
In this respect, the text admits of being read much as
an admittedly stilted advertisement for "a tour of the U.S. Virgin
- 77 -
Islands, consisting solely of all those islands excepting the
island of Saint Croix" might be. Such an advertisement is easily
read to suggest that the tour will be of the entirety of the
waters-inclusive area comprising the U.S. Virgin Islands, though
not of the one particular upland portion of it that has been
expressly excluded.
Finally, I realize that, as the majority notes,
§ 6203(8) of the MIA was amended in 1988 to add to the definition
of "Penobscot Indian Reservation" certain parcels of land
"acquired by the Penobscot Nation from Bangor Pacific Hydro
Associates as compensation for flowage of reservation lands by the
West Enfield dam." 1988 Me. Laws 1300. I also realize that the
majority stresses that the compensation is only for flowage and
not for the construction of a dam on the submerged lands of the
Main Stem, which is the part of the Penobscot River that contains
the waters in dispute.34 Maj. Op. 30. The District Court relied
on this amendment too, for the distinct point that it supports
reading § 6203(8) of the MIA to include only the uplands given
that, if the "Reservation" included the relevant waters of the
Main Stem, flowage would not result in the loss of reservation
space. See Penobscot Nation v. Mills, 151 F. Supp. 3d 181, 217
n.42 (D. Me. 2015).
34 The dam was built in 1894 in the Penobscot River above
Old Town.
- 78 -
But, the Penobscot Nation, like anyone, has different
uses for uplands and waters, and the loss of an upland area is
still a loss even if the flowage remains part of the "Reservation."
The amendment makes sense, therefore, even if § 6203(8) of the MIA
is read to mean the relevant area as a whole -- especially given
the limited nature of the rights to regulate hunting and trapping
in the waters in the area at issue that the Penobscot Nation
contends that it would enjoy, at a minimum, if the "Reservation"
does not exclude those waters altogether.
3.
For all these reasons, then, the text of § 6203(8) of
the MIA itself may be read to be making a less-than-generic
reference to the "islands" no less than the text in the
reservation-defining statute in Alaska Pacific Fisheries. That
said, there are textual differences between § 6203(8) of the MIA
and the provision at issue in Alaska Pacific Fisheries, just as
there are textual differences between § 6203(8) of the MIA and the
provision at issue in Hynes.
I do not disagree that those differences supply some
reason to hesitate before relying on those cases to find the kind
of ambiguity here that would permit us to do what the Court did in
each of those earlier cases: look beyond a dictionary to history
and context to determine what was intended. But, as I will next
explain, in light of the potential ambiguity in § 6203(8) of the
- 79 -
MIA, we cannot look to that provision alone to determine whether
its text is ambiguous. We must at least consider that provision's
text in the context of the text of the other provisions of the
Settlement Acts. See Maj. Op. 43-45. And, when I consider one
such provision, § 6207(4) of the MIA, any hesitancy that I might
have about finding § 6203(8) to be ambiguous in the relevant
respect dissipates. For, once that provision is brought into view,
the textual case for reading § 6203(8) to be referring to the area
comprising the islands "reserved . . . by agreement" rather than
only to the uplands of the islands in that area is at the very
least strong enough to render the provision unclear as to whether
that area-based, waters-inclusive understanding is to be
preferred.
C.
Section 6207 of the MIA addresses the control over
wildlife resources that the Penobscot Nation retains in Indian
territory, including as to the part of such territory that is
itself within the "Penobscot Indian Reservation."35 As a discrete
provision within that larger section, § 6207(4) addresses just one
aspect of that control. It states that "the members of the
35 In the Settlement Acts, Penobscot "territory" is not
coextensive with the "Reservation." The latter refers to only the
area set forth in § 6203(8). The former covers both the
"Reservation" area and a number of other areas throughout Maine.
Me. Rev. Stat. Ann. tit. 30, §§ 6203(9), 6205(2).
- 80 -
Passamaquoddy Tribe and the Penobscot Nation may take fish, within
the boundaries of their respective Indian reservations, for their
individual sustenance." Me. Rev. Stat. Ann. tit. 30, § 6207(4).36
The reason that § 6207(4) of the MIA is so significant
for present purposes is that the "Penobscot Nation . . . Indian
reservation[]" to which this provision refers must be understood
-- at least when read in context -- to include the area comprising
the islands at issue in this case, waters included, rather than
merely the discrete uplands that are situated in that area. See
Maj. Op. 48-51.
This conclusion follows from the District Court's
factual finding, accepted by all parties to this appeal, that
"[n]one of [the uplands of] those islands contains a body of water
in which fish live." Penobscot Nation, 151 F. Supp. 3d at 186.
In light of that finding, an interpretation of § 6207(4) of the
MIA that permits fishing only from the uplands is an untenable
one. Given the "long-accepted practice of Penobscot Nation members
sustenance fishing [from boats] in the Main Stem," id. at 220, and
how ill-suited the uplands are to that practice, this sustenance
fishing provision would have no practical meaning as to the
36 With the passage of the MIA, Maine repealed a state law
that had established "the right of Indians to take fish and
wildlife for their own sustenance on their own reservation lands."
Me. Rev. Stat. Ann. tit. 12, § 7076(9)(B) (emphasis added),
repealed by 1979 Me. Laws 2409.
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Penobscot Nation if the "reservation[]" to which it refers
encompassed only those uplands.
But, precisely because § 6207(4) of the MIA must be so
understood despite the ambiguities that its text alone might
contain -- as even the majority agrees, Maj. Op. 4837 -- I do not
37 The majority does point out that § 6207(4) refers to the
"reservations" of the Penobscot Nation and the Passamaquoddy
Tribe. Maj. Op. 46-47. But, the plain text of that provision
specifically provides that members of the Penobscot Nation and the
Passamaquoddy Tribe "may take fish[] within the boundaries of their
respective Indian reservations." Me. Rev. Stat. Ann. tit. 30,
§ 6207(4) (emphasis added). This language is much more specific
than the similar state law provision that was repealed with the
enactment of the MIA. See Me. Rev. Stat. Ann. tit. 12,
§ 7076(9)(B) (establishing "the right of Indians to take fish and
wildlife for their own sustenance on their own reservation lands"
(emphasis added)). Moreover, the legislative history makes clear
that sustenance fishing in the Penobscot River, not merely within
the Passamaquoddy Indian Reservation, was an issue of concern.
See, e.g., Penobscot Nation, 151 F. Supp. 3d at 191 (citing
discussions of salmon fishing in the Penobscot River).
In addition to these reasons to think that § 6207(4) cannot
be understood to have meaning only as to the Passamaquoddy Tribe,
there is another. The majority's conclusion that the Settlement
Acts are "coherent and consistent" if "Reservation" in § 6203(8)
excludes waters and that term is given a consistent meaning
throughout the Settlement Acts depends on § 6207(4) having meaning
as applied to the Passamaquoddy Tribe. See Maj. Op. 46-47. But,
it has such meaning only if there are areas within the
Passamaquoddy Indian Reservation where members of the
Passamaquoddy Tribe can engage in sustenance fishing. Assuming as
the majority must for this argument about § 6207(4) that such areas
do exist, there then becomes a fatal flaw in the majority's
argument that "lands" in § 1722(i) of the MICSA excludes water.
See Maj. Op. 13, 18 n.8, 44. That is because "lands" in § 1722(f),
the identically worded MICSA provision that incorporates the MIA's
definition of "Passamaquoddy Indian Reservation," would then have
to refer to an area including waters. Yet, if "lands," standing
alone, is waters-inclusive in § 1722(f), how can that same word,
in an identical phrase, "reinforc[e]," Maj. Op. 13, a waters-
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see how the text of the MIA alone makes clear that § 6203(8) of
that same statute is referring only to the uplands and not to the
area comprising the islands. To so conclude, one would have to
think it clear that the drafters of the MIA did not intend in
referring to the "Penobscot Nation . . . Indian reservation[]" in
§ 6207(4) to have in mind the "Penobscot Indian Reservation" that
§ 6203(8) defines. But, how could we be certain of that? See
Sullivan v. Stroop, 496 U.S. 478, 484 (1990) (explaining that we
presume that "identical words used in different parts of the same
act are intended to have the same meaning" (quoting Sorenson v.
Sec'y of the Treasury, 475 U.S. 851, 860 (1986))).
The majority is right, see Maj. Op. 49, that § 6203 of
the MIA expressly states that the definitions that follow in the
various subsections of that provision apply "unless the context
indicates otherwise," Me. Rev. Stat. Ann. tit. 30, § 6203. But,
that provision obviously does not command that every term defined
in § 6203 of the MIA must be given a variant meaning at some point.
Nor does the majority explain what "reservations" in
§ 6207(4) of the MIA would mean if it does not refer to the
definitions of "Passamaquoddy Indian Reservation" and "Penobscot
Indian Reservation" in § 6203(5) and § 6203(8), respectively. The
absence of any such explanation is especially conspicuous given
excluding reading of the Settlement Acts' definition of "Penobscot
Indian Reservation"?
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that other provisions of the MIA in fact support reading "Indian
reservation[]" in § 6207(4) to have the same meaning as "Penobscot
Indian Reservation" in § 6203(8).38
The principle that elephants do not hide in mouseholes
also would appear to counsel against the conclusion that the
drafters of the MIA chose silently to refer to the Penobscot Indian
Reservation in two fundamentally inconsistent ways. The term
"Penobscot Indian Reservation" is of special importance to the
statutory scheme, and, as we will see, sustenance fishing rights
were central to the settlement discussions that led to the passage
of the Settlement Acts. It would not have gone unnoticed that the
38 In § 6209-B of the MIA, which explains the jurisdiction
of the Penobscot Nation Tribal Court, the statute refers to
"[c]riminal offenses . . . committed on the Indian reservation of
the Penobscot Nation" and to application of laws "within the
Penobscot Indian reservation" (both without capitalizing
"reservation"). Me. Rev. Stat. Ann. tit. 30, § 6209-B(1). By all
indications, § 6209-B(1) uses "Indian reservation of the Penobscot
Nation" and "Penobscot Indian reservation" interchangeably, and
there is no indication that these uses of "reservation" were not
meant to incorporate the definition at § 6203(8). Thus, § 6209-
B(1) suggests -- especially in light of the fact that there are
very few verbatim uses of the precise defined term "Penobscot
Indian Reservation," which appears outside of § 6203(8) only in
§ 6205 -- that references to "reservations" in the MIA are meant
to incorporate the definitions of "Penobscot Indian Reservation"
and "Passamaquoddy Indian Reservation" even if they do not use
those exact terms. Moreover, other provisions of § 6207 of the
MIA suggest that the drafters of the Settlement Acts were not using
"reservation" as a catch-all term, as many of its provisions refer
to the "respective Indian territories" of the Penobscot Nation and
Passamaquoddy Tribe, see, e.g., Me. Rev. Stat. Ann. tit. 30,
§ 6207(1) (emphasis added) -- a reference that, by all indications,
also refers to the definitions in § 6203, albeit to those for
"Passamaquoddy Indian territory" and "Penobscot Indian territory."
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same word was being used to convey such different meanings, and so
the absence of any attempt to explain the decision to use the word
in that nonuniform way would be surprising. See Whitman v. Am.
Trucking Ass'ns, 531 U.S. 457, 468 (2001); see also Gustafson v.
Alloyd Co., 513 U.S. 561, 573 (1995) (explaining that "[t]he burden
should be on the proponents of the view that" a term carries
different meanings "to adduce strong textual support for that
conclusion").39
There is yet one more reason, though, to question the
majority's insistence that "reservation[]" in § 6207(4) of the MIA
cannot be referring to the "Reservation" that § 6203(8) of this
same statute defines. As I have emphasized, the definitional
provision at § 6203(8) of the MIA explains what the term
"'Penobscot Indian Reservation' means" when used in the MIA. Me.
Rev. Stat. Ann. tit. 30, § 6203(8) (emphasis added). In this way,
the definition contained in that provision of the MIA serves to
give content to the rights in the Nation's "Indian Reservation"
that the statute elsewhere confers. Because the definition
39 I note that, by holding in the course of construing
§ 6203(8) of the MIA that the Nation has sustenance fishing rights
under § 6207(4) of the MIA in the disputed portions of the
Penobscot River, the majority necessarily renders moot the
Nation's stand-alone request for a declaratory judgment to that
exact same effect. Accordingly, I do not join the majority's
separate holding that we lack Article III jurisdiction on ripeness
and standing grounds to entertain the Nation's request for such
declaratory relief, as, in my view, there is no reason for us to
reach that constitutional issue here. See Maj. Op. 51-55.
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performs this function in the MIA, however, it is hardly evident
that "Penobscot Nation . . . Indian reservation[]" must be
understood to mean something different and undefined in the
provision of the MIA that lays out the Nation's rights with respect
to sustenance fishing -- § 6207(4) -- from what the Nation's
"Indian Reservation" in § 6203(8) of that statute means when that
term appears in other provisions of the MIA that similarly specify
the Nation's rights. To the contrary, it seems far more natural
to read § 6207(4) to incorporate the definition of the "Indian
Reservation" set forth in § 6203(8), precisely because that
definition has a purpose only once it is plugged into such rights-
granting provisions.40
To be clear, I am not arguing that § 6207(4) of the MIA
"alters" the meaning of § 6203(8) of that statute. See Maj. Op.
49. I am arguing that § 6207(4) constitutes part of the statutory
context that helps us decide the meaning of § 6203(8).
I can see no other way to proceed. It cannot be that we
must set aside a provision purporting to refer to the "boundaries
of the[]" "Penobscot Nation . . . Indian reservation[]" in
40 For this same reason, the grant of sustenance fishing
rights in § 6207(4) is in no way rendered unnecessary if the
"Penobscot Indian Reservation" does include some waters of the
Penobscot River. Under the MIA, the Nation's rights do not come
from the definition of "Penobscot Indian Reservation." They come
from provisions like § 6207(4). Otherwise, under the MIA, Maine
maintains a large measure of regulatory authority even over areas
within the "Reservation."
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determining what another provision in the same statute, which
expressly purports to define the boundaries of the "Penobscot
Indian Reservation," means.
That being so, a consideration of these two provisions
of the MIA together would suggest, if anything, that the drafters
of the Settlement Acts understood the "Penobscot Indian
Reservation" to be inclusive of the area comprising the islands
named and not to consist only of the discrete -- water-less --
uplands in that area. Only that reading harmonizes the provisions.
But, even if we cannot be certain that reading is intended, the
two provisions together at the very least undermine the notion
that § 6203(8) of the MIA clearly adopts an uplands-only
understanding of "Reservation," given that § 6207(4) of that very
statute (as even the majority agrees) rejects such a waters-
excluding reading of that very same word.
D.
The majority does make the fair point that if we are to
look outside of § 6203(8) of the MIA to other provisions of the
Settlement Acts for guidance about that definitional provision's
intended meaning, then we cannot confine that review only to
§ 6207(4) of the MIA. But, that wider review does not itself
suggest that § 6203(8) clearly defines the "Reservation" to
include only the uplands of the islands "reserved . . . by
agreement."
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The majority emphasizes, Maj. Op. 44, that the MIA
expressly defines "land or other natural resources" to include
water and at other points references water rights or submerged
land. Me. Rev. Stat. Ann. tit. 30, §§ 6203(3), 6207; see also 25
U.S.C. §§ 1721(b)(2), 1722(b). It thus considers the absence of
those terms in § 6203(8) of that statute conspicuous. But, the
possible ambiguity in § 6203(8) that is our concern arises from
the use of the word "islands" in the course of a larger phrase
that refers back to what was "reserved . . . by agreement." Thus,
the bare reference elsewhere in the Settlement Acts to "lands" and
"waters" fails to demonstrate that there is no such ambiguity to
resolve.
The majority also points to § 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." Maj. Op. 43. On a waters-
inclusive understanding of § 6203(8), however, that language in
§ 6205(3)(A) would still be doing useful work. It would be
clarifying what it means to be "contiguous" to a river. So, too,
could it be making clear that lands that abut parts of the
Penobscot River that are not part of the "Reservation" are
considered contiguous to the "Reservation."41
41 The Intervenors argue that understanding "land along and
adjacent to the Penobscot River" to include lands far away from
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Finally, the majority invokes § 1723 of the MICSA, see
Maj. Op. 32, which retroactively ratifies all "transfer[s] of land
or natural resources located anywhere within the United States
from, by, or on behalf of the . . . Penobscot Nation . . . or any
of [its] members" and extinguishes aboriginal title to those lands
or resources as of the date of any such transfer. 25 U.S.C.
§ 1723(a)-(b). That provision's import, however, is limited. It
does not purport to extinguish aboriginal title to land not
transferred.
The MICSA does broadly define "transfer" to include
any voluntary or involuntary sale, grant,
lease, allotment, partition, or other
conveyance; any transaction the purpose of
which was to effect a sale, grant, lease,
allotment, partition, or conveyance; and any
act, event, or circumstance that resulted in
a change in title to, possession of, dominion
over, or control of land or natural resources.
the "Reservation" along other stretches of the Penobscot River is
in tension with the language in § 6205(3)(A) providing that such
replacement lands are to be "as nearly adjacent to the parcel taken
as practicable." But, because the reference in § 6205(3)(A) to
"land along and adjacent to the Penobscot River" does not itself
demarcate any particular stretch of the river, it can be understood
as reflecting the understanding that it may not be practicable to
acquire land that is on the bank of the stretch of the river within
the "Reservation." Moreover, "along and adjacent" need not
necessarily refer to land far downriver on this understanding.
"Adjacent" can mean "not distant" or "nearby," see Adjacent,
Merriam-Webster Online Dictionary, https://www.merriam-
webster.com/dictionary/adjacent (last visited May 13, 2021) (first
definition), a definition that finds support in the very language
the Intervenors point to -- "as nearly adjacent to the parcel taken
as practicable." Thus, "along and adjacent to the Penobscot River"
could refer to land both along the river and close to it.
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Id. § 1722(n). In doing so, though, the provision just takes us
back to the question of whether the relevant area here -- waters
included, but sans uplands -- was transferred.
In any event, there is reason to think that the state
regulation of the river that Maine and the majority point to is
not an "act" or "circumstance" that resulted in a "change in title
to, possession of, dominion over, or control of" the river so as
to effect a transfer.42 As the Penobscot Nation has pointed out,
Maine also regulated -- and continues to regulate -- aspects of
the uplands that are undisputedly part of the "Penobscot Indian
Reservation."
And, even if one were to accept that the sort of state
regulation that the State and the Intervenors point to could effect
a transfer, a conclusion that the river itself was subject to such
a transfer would leave empty the grant of sustenance fishing rights
in § 6207(4) of the MIA to the Penobscot Nation "within the
42 The State relies on the interpretation of a similar
transfer provision in the Rhode Island Indian Claims Settlement
Act in Greene v. Rhode Island, 398 F.3d 45, 52 (1st Cir. 2005).
But, as the Penobscot Nation points out, in Greene the Seaconke
Wampanoag Tribe itself claimed to have been "dispossessed" of the
lands at issue and does not seem to have occupied or controlled
those lands even at the time the Union was formed. See id. at 48,
50, 52.
For similar reasons, Maine's arguments based on the doctrines
of laches, acquiescence, and impossibility also fail. Maine relies
on City of Sherrill v. Oneida Indian Nation, 544 U.S. 197 (2005),
but the lands in that case had been out of tribal control for over
200 years. See id. at 215-16.
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boundaries of" its "Indian reservation[]." Thus, while the MICSA
controls in the event of a conflict between that federal statute
and the MIA, 25 U.S.C. § 1735(a), I see no reason why we must read
§ 1723 of the MICSA to create a conflict when it is hardly clear
that the text of the Settlement Acts mandates that result.
E.
To this point, my focus has been on the four corners of
the MICSA and the MIA. That focus reveals in my view that it is
at the very least far from clear on the face of the overall
statutory scheme that the definition of the "Penobscot Indian
Reservation" in § 6203(8) of the MIA must be read as the majority
reads it. But, of course, that conclusion does not resolve the
ultimate interpretive dispute at hand. It just highlights that
there is much interpretive work left to do -- in terms of
consulting what the history shows regarding what was understood to
have been reserved by the "agreement" to which § 6203(8) of the
MIA refers, both at the time of that agreement and in the run-up
to the enactment of the Settlement Acts that make reference to it.
I thus now move on to undertake that further work.
II.
In Alaska Pacific Fisheries, the Court resolved the
ambiguity in the text there at issue by broadening the view to
include "[t]he circumstances in which the reservation was
created," as the Court explained that these circumstances could
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"shed much light on what Congress intended by 'the body of lands
known as Annette Islands.'" 248 U.S. at 87-89. Following that
same interpretive approach to the textual ambiguity present here,
I will consider the relevant "circumstances" in which the
settlement that produced these Acts was forged, as those
circumstances, too, may "shed much light on," id. at 89, what the
drafters of the Settlement Acts intended in using the words that
they did in § 6203(8) of the MIA.
As I will explain, at a minimum, those circumstances
reinforce the reasons to find the relevant words in the provision
here at least as ambiguous with respect to whether the waters at
issue are included as a textual analysis of them suggests that
they are. Thus, at the very least, those circumstances support
the application of the Indian canon in construing those words to
resolve the ambiguity.
But, before reviewing the circumstances leading up to
the Acts' passage, it first helps to get certain things straight
about which specific circumstances are relevant to the Acts' proper
construction and how they differ in certain respects from the
circumstances that mattered most in Alaska Pacific Fisheries
itself.
A.
In Alaska Pacific Fisheries, the Court explained that
Congress, in defining that reservation as it did, was aware, among
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other things, that "[t]he Indians naturally looked on the fishing
grounds as part of the islands and proceeded on that theory in
soliciting the reservation" and that "[e]vidently Congress
intended to conform its action to their situation and needs." 248
U.S. at 89. Many of those same circumstances are at least as
present here, as we will see, given the Nation's historic ties to
the river. In fact, the relevant statutory text here, unlike that
at issue in Alaska Pacific Fisheries, describes an area that the
tribe has inhabited since time immemorial.
But, as I have already explained, the relevant text does
more than refer to a geographic feature to which the Nation has
ties. That statutory text also indicates that the drafters of the
Settlement Acts intended in defining the "Reservation" to preserve
what had been "reserved . . . by agreement" prior to the Acts'
passage.
Thus, the statute that contains the definition of the
term at issue here would not only appear to direct us to consider
what history shows regarding the Nation's past usages of the waters
in question. It would also appear to direct us to consider past
understandings of what rights the Nation had reserved as to those
waters.
In that regard, it is important to keep in mind the
following understanding in reviewing the relatively detailed
history of the Nation's ties to the river that is set forth below:
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§ 6203(8) of the MIA plainly sets forth what the term "Penobscot
Indian Reservation" "means" with reference to treaties in which
the Penobscot Nation gave up holdings centuries ago to
Massachusetts and then to Maine. That is notable because those
treaties did not themselves purport to be grants of rights from
either of those states to the Penobscot Nation. Those treaties
were by their terms grants of rights to prior holdings from the
Penobscot Nation to those other sovereigns.
Thus, we must be wary of reading those treaties to
establish the limits of what the Nation was reserving rather than
to be merely specifying what it was relinquishing. Otherwise we
will fail to grasp just what the parties to those agreements
understood them to have accomplished. See United States v. Winans,
198 U.S. 371, 381 (1905) ("[T]he treaty was not a grant of rights
to the Indians, but a grant of rights from them -- a reservation
of those not granted. And the form of the instrument and its
language was adapted to that purpose."); Washington v. Wash. State
Com. Passenger Fishing Vessel Ass'n, 443 U.S. 658, 680-81 (1979)
(citing Winans, 198 U.S. at 380-81); Cohen's Handbook of Federal
Indian Law § 2.02 (Nell Jessup Newton ed., 2017) (describing the
"reserved rights doctrine").
It is equally important to keep in mind one more thing
in reviewing the account of the history that follows. As I noted
earlier, the Penobscot Nation does not argue that what was
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"reserved . . . by agreement" necessarily includes all forms of
"ownership" of the waters and submerged lands of the river at
issue.43 For example, the Nation has not, for purposes of this
litigation, claimed a right to exclude non-tribal members from any
of the waters of the Penobscot River or to control passage in those
waters. Nor would the Penobscot Nation have "exclusive control of
the Main Stem" -- the portion of the Penobscot River that includes
the waters in question -- as the majority suggests, Maj. Op. 35,
if those waters were within what § 6203(8) defines to be the
"Penobscot Indian Reservation."
Under the Settlement Acts, the Penobscot Nation would
have on its preferred reading of § 6203(8) of the MIA "exclusive
authority . . . to promulgate and enact ordinances
regulating . . . [h]unting, trapping or other taking of wildlife"
within the relevant area of the river, because the MIA expressly
grants the Nation that right in its "Reservation." See Me. Rev.
43 The Penobscot Nation explained to the panel that in the
proceedings before the District Court, its position was that its
"circumscribed sustenance rights and related authorities" outlined
in the second amended complaint "did not implicate riverbed
ownership, but if they did, the Tribe's position was that it
retained aboriginal title to the riverbed." The Nation explained
that this is a "different concept than ownership" but nevertheless
a largely semantic distinction given that "the Indians' right of
occupancy is 'as sacred as the fee simple of the whites,'" County
of Oneida v. Oneida Indian Nation, 470 U.S. 226, 235 (1985)
(quoting Mitchel v. United States, 34 U.S. (9 Pet.) 711, 746
(1835)).
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Stat. Ann. tit. 30, § 6207(1)(A).44 And, violations of these and
other tribal ordinances by tribal members within the portions of
the Penobscot River at issue -- as well as certain criminal
offenses committed by tribal members in these areas -- then would
be within the exclusive jurisdiction of the Penobscot Nation
(unless it chooses not to exercise such jurisdiction, in which
case the state has jurisdiction), because, again, the MIA itself
gives that measure of regulatory authority to the Nation within
its "Reservation." Id. §§ 6206(3), 6209-B(1).
There is no suggestion by the Nation here, however, that
either the MIA or the MICSA would give the Nation additional rights
if its understanding of § 6203(8) of the MIA were controlling.
44 Under the Settlement Acts, these ordinances must be
"equally applicable . . . to all persons regardless of whether
such person is a member of the [Penobscot Nation]," except that
there may be "special provisions for the sustenance of individual
members of the . . . Penobscot Nation." Me. Rev. Stat. Ann. tit.
30, § 6207(1). This regulatory authority does not include
regulating the taking of fish except on ponds "wholly within Indian
territory and . . . less than 10 acres in surface area." See id.§ 6207(1)(B), (3). And, notwithstanding this authority, the Maine
Department of Inland Fisheries and Wildlife is entitled to "conduct
fish and wildlife surveys" within the Penobscot Indian Reservation
and in some circumstances may exercise regulatory authority to
prevent "significant depletion of fish or wildlife stocks on lands
or waters outside the boundaries of lands or waters subject to
regulation by . . . the Penobscot Nation or the [Maine Indian
Tribal-State Commission]." Id. § 6207(6).
Section 6207(1) refers to Penobscot Indian territory, which,
as I have explained, is broader than the "Penobscot Indian
Reservation." But, it is clear from the MIA that the relevant
area of the river is within Penobscot Indian territory if and only
if it is within the "Reservation." See id. § 6205(2).
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Thus, we need to keep an eye only on the following in looking to
the past: Does the history suggest that those who drafted these
Settlement Acts intended clearly to exclude all waters in the river
from the definition of the "Penobscot Indian Reservation" in
§ 6203(8) of the MIA, such that the Penobscot Nation would not
have the rights related to hunting, trapping, and taking wildlife
in those waters that the MIA itself gives the Nation in that
"Reservation"?
B.
I begin by canvassing the history that bears on the
nature of the Penobscot Nation's rights in the area in question
before the Nation purported to cede any of those rights to either
Massachusetts or Maine. That inquiry, which is foundational to
any understanding of what the Nation had "reserved" over the years,
necessarily takes us quite far back in time.
1.
So far as the record reveals, from time immemorial the
Penobscot Nation has centered its domain, originally consisting of
many thousands of acres of territory in what today is the State of
Maine, on the Penobscot River. S. Rep. No. 96-957, at 11 (1980);
H.R. Rep. No. 96-1353, at 11 (1980), reprinted in 1980 U.S.C.C.A.N.
3786, 3787 (stating that "[t]he aboriginal territory of the
Penobscot Nation is centered on the Penobscot River" and its "land-
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ownership orientation" is "riverine").45 In consequence, there is
little question that the Penobscot Nation had aboriginal title to
the lands in that area when the European colonists arrived in New
England in the early seventeenth century. And there is little
question -- and certainly no contention to the contrary by the
State of Maine in this litigation -- that such aboriginal title
did encompass use and occupancy of the Main Stem of the Penobscot
River and not merely land masses (individual islands, which may
come and go over time) within it. See County of Oneida v. Oneida
Indian Nation, 470 U.S. 226, 233-35 (1985) (explaining that "Indian
nations held 'aboriginal title' to lands they had inhabited from
time immemorial" while "discovering nations held fee title to these
lands, subject to the Indians' right of occupancy and use");
Leavenworth, Lawrence & Galveston R.R. Co. v. United States, 92
U.S. 733, 742-43 (1875).
Consistent with this understanding, the members of the
Penobscot Nation located their principal villages along that
portion of the river.46 And, in turn, the river provided the
Penobscot Nation with the main resources upon which its members
45 The Penobscot refer to themselves as Pa'nawampske'wiak,
or "People of where the river broadens out."
46 The Penobscot's principal village was variously called
Panawamskeag or Pem ta guaiusk took ("great or long River").
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depended to live by way of fishing, hunting, and trapping, as well
as a means of travel.
The river's foundational influence on the Penobscot
Nation is also embedded in the Nation's language, culture,
traditions, and belief systems. For example, Penobscot family
names, ntútems ("totems"), reflect the creatures of the river:
Neptune (eel), Sockalexis (sturgeon), Penewit (yellow perch),
Nicola/Nicolar (otter), and Orno/Tama'hkwe (beaver). Each family
group also has its own district known as nzibum, meaning "my
river."
In addition, the river features centrally in the
Penobscot Nation's creation myths and is linked to many water-
based totem animals, including fish. This is articulated in its
creation myth about Anglebému ("Guards the water"), the giant frog
that gulped up all the water in the Penobscot River and was killed
by Gluskábe, the Penobscot Nation's "culture hero," who then
released the waters, rescued his "grandchildren," and settled "up
the river."
Thus, it is evident that the Penobscot River and its
natural resources were "not much less necessary to the existence
of the [Penobscot Nation] than the atmosphere they breathed."
Winans, 198 U.S. at 381. And so, when we consider -- as we next
will -- the treaties that the Penobscot Nation purported to make
with Massachusetts and Maine regarding its aboriginal holdings in
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subsequent years, we must do so with this understanding of the
nature of the Penobscot Nation's ties to the river. It would be
strange to construe those agreements -- and the reservations that
the Nation made in them -- without doing so, for I can see no
reason to interpret the terms of those agreements as if the
Penobscot Nation were, in entering into them, as indifferent to
preserving its sovereign rights in the river as Maine now appears
to suggest that we must understand the Nation to have been.
2.
We consider first the various late seventeenth- and
early eighteenth-century peace treaties between the Penobscot
Nation and the British provinces. In them, the Penobscot Nation
and other tribes in the same general area agreed to "cease and
forbear all acts of Hostility," acknowledged themselves as lawful
subjects of Great Britain, and agreed to British colonists' use
and possession of the colonists' former settlements and
properties. See Treaty of Portsmouth, July 13, 1713, reprinted in
Penhallow's Indian Wars 74 (Edward Wheelock ed., 1924); Dummer's
Treaty, Dec. 15, 1725, reprinted in 3 Collections of the Maine
Historical Society 416 (Portland, Brown Thurston 1853).
But, notably, these treaties also "sav[ed] unto the
Indians their own Ground," Treaty of Portsmouth, supra, at 76;
Dummer's Treaty, supra, at 417-18 ("Saving unto the
Penobscot . . . all their Lands, Liberties and Properties not by
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them conveyed or Sold to or Possessed by any of the English
Subjects as aforesaid, as also the Priviledge of Fishing, Hunting,
and Fowling as formerly."). And, subsequent events provide some
idea of what those reserved Penobscot "lands" were understood to
be.
In 1775, for example, a committee report of the third
Provincial Congress of Massachusetts "forb[ade] any person or
persons whatsoever[] from trespassing or making waste[] upon any
of the lands and territories, or possessions, beginning at the
head of the tide on Penobscot river, extending six miles on each
side of said river, now claimed by our brethren, the Indians of
the Penobscot tribe." The Journals of Each Provincial Congress of
Massachusetts in 1774 and 1775, at 371 (Boston, Dutton & Wentworth
1838). The report also noted the "friendship and assistance"
offered by the Penobscot in the war with Great Britain. Id.
Indeed, a subsequent treaty, which Colonel John Allan of the
Massachusetts militia negotiated with the Penobscot Nation and
other Maine tribes on June 23, 1777, promised to the Penobscot the
protection of their territory in exchange for their assistance in
the Revolutionary War. S. Rep. No. 96-957, at 11-12; H.R. Rep.
No. 96-1353, at 11-12. Crucially for present purposes, however,
that treaty contained no terms that divested the Penobscot Nation
of any of its aboriginal lands or sovereign rights and so does not
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itself provide any basis for concluding that the Penobscot Nation
had no claim to the river as of that date.
There followed nearly twenty years later a 1796 treaty
between representatives of the Penobscot Nation and officials from
the State of Massachusetts (Maine still not yet being a state).
That treaty, for the first time, did involve a putative cession of
land by the Penobscot Nation.
Despite the Nonintercourse Act being in effect at that
time, this land cession was not approved by Congress. See Trade
and Intercourse Act of 1793, 1 Stat. 329, 330 (codified as amended
at 25 U.S.C. § 177) ("[N]o purchase or grant of lands, or of any
title or claim thereto, from any Indians or nation or tribe of
Indians, within the bounds of the United States, shall be of any
validity in law or equity, unless the same be made by a treaty or
convention entered into pursuant to the constitution . . . .").
But, this agreement purported nonetheless to provide in exchange
for "[o]ne hundred and forty nine and a half yards blue cloth for
blankets, four hundred pounds of shot, one hundred pounds of
Powder, thirty six hats, thirteen bushels of Salt . . . , one
barrel of New England Rum, and one hundred bushels of corn," to be
delivered upon signing the treaty, as well as similar specified
items every year thereafter, "so long as [the Penobscot Nation]
shall continue to be a nation and shall live within this
Commonwealth," that the Penobscot Nation would cede a thirty-mile
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tract, six miles wide, of "all the lands on both sides of the River
Penobscot . . . excepting however, and reserving to the [Penobscot
Nation], all the Islands in said River, above Old Town, including
said Old Town Island, within the limits of the said thirty miles."
Treaty Between the Penobscot and Massachusetts, Aug. 8, 1796, in
2 Documents of American Indian Diplomacy 1094, 1094 (Vine Deloria,
Jr. & Raymond J. DeMallie eds., 1999).
There is no question that the Nation gave up a fair
amount through this treaty -- seemingly for not much in return.
But, the terms of this treaty in no sense indicate that the Nation
was relinquishing rather than reserving its historic rights to use
and occupancy of the river itself or its longstanding sovereign
rights relating to hunting and fishing therein.
Indeed, in June 1797, the then-Governor of
Massachusetts, Increase Sumner, reported in his executive address
to the Massachusetts General Court (the Massachusetts Legislature)
that a delegation of Penobscot representatives had rightly
complained to state officials of settler incursions that had
"almost deprived [the Penobscot] of the Benefit of their Salmon
Fishery." Acts and Laws of the Commonwealth of Massachusetts 653
(Boston, Young & Minns 1896) (emphasis added). And, consistent
with that same understanding, in 1807, a delegation of the
Penobscot Nation headed by its Chief, Attian Elmut, met with
Massachusetts Governor James Sullivan to seek protection of the
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Nation's fishing rights on the river next to its head village on
Old Town. A notetaker quoted Chief Attian as saying, "the God of
Nature gave them their fishery, and no man without their consent
has a right to take it from them." Wabanaki Homeland and the New
State of Maine: The 1820 Journal and Plans of Survey of Joseph
Treat 43 (Micah A. Pawling ed., 2007) (emphasis added).
Thereafter, in 1812, following attempts by multiple other
Penobscot Nation delegations to obtain redress for incursions upon
these fisheries, the Massachusetts legislature responded with
protective legislation.
This is the history, then, that supplied the context for
when representatives of the Penobscot Nation entered into the
treaty with officials from Massachusetts -- Maine still not yet
being a state in its own right -- that serves as the MIA's specific
reference point: the one signed on June 29, 1818. It, too, was
made without congressional approval and in apparent contravention
of the Nonintercourse Act. But, the treaty was sealed by the
payment of four hundred dollars, in addition to "one six pound
cannon, one swivel, fifty knives, six brass kettles, two hundred
yards of calico, two drums, four fifes, one box pipes, three
hundred yards of ribbon, and [the receipt of certain similar
articles] . . . every year, so long as they shall remain a nation,
and reside within the commonwealth of Massachusetts." 1818 Treaty,
supra, at 253, 255. And, in exchange for that seemingly minimal
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consideration, the Penobscot Nation ceded "all the lands they
claim, occupy and possess by any means whatever on both sides of
the Penobscot river, and the branches thereof, above the tract of
thirty miles in length on both sides of said river, which said
tribe conveyed and released to said commonwealth" by the treaty of
1796. Id. at 253-54.
This treaty, then, purported to confirm the prior
limited cession of lands in the 1796 treaty and to cede more lands
"on both sides of the . . . river." It did not, however, give any
more of a hint that it disclaimed the Penobscot Nation's historic
rights to the river than the earlier treaty had. Indeed, this
treaty expressly stipulated that reserved for the Penobscot Nation
to "enjoy and improve" were four townships and "all the islands in
the Penobscot river above Oldtown and including said Oldtown
island." Id. at 254.47
47 The text of the 1818 treaty, unlike its predecessor, did
specifically provide that "the citizens of [Massachusetts] shall
have a right to pass and repass any of the rivers . . . which run
through any of the lands hereby reserved, for the purpose of
transporting their timber and other articles through the same."
1818 Treaty, supra, at 255 (emphasis added). The parties dispute
the import of this provision. According to the Penobscot Nation,
it must refer to the Penobscot River. To the extent it does so,
it reinforces an area-based reading given that the river does not
"run through" any of the uplands but instead "run[s] through" the
area comprising them, suggesting that the "lands hereby reserved"
include that area. For its part, the State argues that this
language was only necessary given that in the 1818 treaty the
Penobscot Nation also reserved the four townships (which were, as
we will see, later ceded to Maine). The "right to pass and repass
any of the rivers, streams, and ponds, which run through any of
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Reflective of that understanding, in a colloquy
thereafter in July of 1820 between representatives of the Penobscot
Nation and officials from the new state of Maine -- once Maine had
separated from Massachusetts and gained statehood and was
therefore to assume Massachusetts's treaty obligations -- John
Neptune, representing the Penobscot Nation, again protested
incursions into the river affecting the Penobscot Nation: "The
white people take the fish in the river so they do not get up to
us. They take them with weirs; they take them with dip-net. They
are all gone before they get to us. The Indians get none." History
of Penobscot County, Maine 593 (Cleveland, Williams, Chase & Co.
1882). Then-Governor of Maine William King agreed that the protest
was justified, replying that the Penobscot Nation's complaint
would be "attended to." XVIII Niles' Weekly Register 563
(Baltimore, Franklin Press 1820).
the lands hereby reserved," Maine argues, was an "affirmative grant
to non-tribal members" to pass through the waters running through
those reserved townships. Maine does not point to any rivers
running through those townships, much less ones that would have
been important in timber transportation, as the record makes clear
that the Main Stem of the Penobscot River was. But, it is true
that per the 1818 treaty, the first reserved township "cross[ed]
the mouth of the Mattawamkeag river." Id. at 254. Thus, the
treaty provision granting a "right to pass" is not a conclusive
indication that the 1818 treaty contemplated a reservation of the
area comprising the islands, including their attendant waters.
Nonetheless, the fact that the provision could still have meaning
even if it did not refer to the waters surrounding the reserved
uplands hardly eliminates the ambiguity that inheres in what was
"reserved" in the 1818 treaty.
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The following month, on August 17, 1820, Penobscot
leaders signed two more treaties. Together, these treaties
released Massachusetts from its obligations under the 1818 treaty
and substituted the new state of Maine in its place. But, they
did not suggest that the Nation was relinquishing what it had
retained to that point.
The 1820 treaty with Maine provided that the Penobscot
Nation "shall have and enjoy, all the reservations made to them,
by virtue of" the 1818 treaty while any "lands, rights, immunities
or privileges" held by Massachusetts pursuant to the 1818 treaty
would be transferred to Maine. Wabanaki Homeland, supra, at 289.
And, notably, in 1821, Neptune, after having raised concerns about
the Penobscot Nation's fishing rights before the Nation signed the
1820 treaty with Maine, followed up with a petition to the Maine
Legislature in which he stated that
[T]he waters of our Penobscot River was one of
the greatest sources by which they obtained
their [living] . . . . But . . . our brethren
the white Men who live near the tide waters of
our River every year built so many
weares . . . . and killed so[ ]many of the
fish that there is hardly any comes up the
River where we live so that we cannot [c]atch
enough for the use of our families . . . . We
have asked the general Court at Boston to make
laws to stop the white people from building
wares and they have made Laws but they have
done [us] no good . . . . [N]ow we ask you to
make a Law to stop the white folks . . . .
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There is no record of the Maine Legislature responding
with protective legislation, as Massachusetts had done. But, in
1833, the State of Maine purchased for $50,000 from the Penobscot
Nation -- again without the requisite federal approval for such a
land purchase -- four townships on the banks of the Penobscot River
that had been reserved for the Penobscot Nation's "perpetual use"
in the prior treaties.
3.
There were no more "agreements" between the Penobscot
Nation and the States of Massachusetts and Maine, and such
developments as occurred over the course of the next century are
not especially clarifying with respect to the issue that is our
concern. But, to the extent they do shed light, they underscore
how difficult it is to find any clear indication that the parties
to any of the past agreements understood the Penobscot Nation to
have given up all claims to sovereign rights in the waters at
issue.
The State of Maine did pass legislation over the course
of these years that authorized the construction and operation of
log booms, piers, and dams in the Main Stem of the Penobscot River,
and lumber companies built lumber mills on and over parts of the
Main Stem during that same time. See Penobscot Nation, 151 F.
Supp. 3d at 201-02. It is also undisputed that this construction
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happened without any lease or other grant from the Penobscot
Nation.
But, the record shows that the Penobscot Nation itself
signed leases for dam and mill owners to build on some of the
islands near Old Town. And, those leases reserved fishing rights
for the Nation and required that fish passages be left open. The
leases also specifically allowed for the grantees' use of parts of
the river itself -- including "coves and eddies," river ledges,
and other landmarks within the channel of the river. Throughout
this period, moreover, the Penobscot continued to engage in
fishing, hunting, and trapping from the river and to pass between
its islands on the river.
This somewhat mixed picture of the understandings that
prevailed following the treaties is in itself significant. As we
have seen, the history that led up to the forging of the last
treaty involving the Penobscot Nation hardly supports an uplands-
only understanding of what had been reserved to the Nation up until
that time. It is thus hard to see how what followed does so with
any clarity.48
48 The Intervenors do argue that the river (or even a right
to use and occupancy of its waters of a sort that the Penobscot
Nation now asserts) could not have been part of what was
"reserved," given that -- whatever its aboriginal holdings may
once have been -- the Nation ceded the river as early as the 1713
treaty. But, the history just recounted -- including the very
fact of the later treaties -- and what it shows about the parties'
understandings disposes of the Intervenors' argument that the 1713
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C.
In sum, the "circumstances," Alaska Pac. Fisheries, 248
U.S. at 87-89, that formed the backdrop for the Settlement Acts
suggest at a minimum that it is plausible that Congress, Maine,
and the Penobscot Nation understood the Nation to have
"reserved . . . by agreement," through the limited (but
substantial) cessions of lands "on both sides of the . . . river"
that were made, the Nation's use of the river and its historic
sovereign rights with respect to fishing, trapping, and hunting
therein. See Winans, 198 U.S. at 381. Thus, these circumstances
support -- even if they do not compel -- an understanding of the
phrase "islands in the Penobscot River reserved to the Penobscot
Nation by agreement" in the MIA's definition of the "Penobscot
Indian Reservation" that would include the area comprising the
islands and not simply the uplands.
Given that such an understanding results in a reading of
§ 6203(8) of the MIA that is just as inclusive of the waters in
that area as is the "reservation[]" to which the majority agrees
treaty can be understood to have divested the Penobscot Nation of
all of its aboriginal holdings.
The majority also characterizes as "disputed" the assertion
that the Nation did not give up any rights to the river in the
1796 and 1818 treaties. Maj. Op. 22. But, no party has argued
that the Nation gave up rights to the river in either of those
treaties, and the majority does not explain the source of this
dispute or how the text of either treaty makes this point
disputable.
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that § 6207(4) of that same statute refers, I can see no reason
why we would not then be confronted at the very least with an
ambiguity in § 6203(8) to which the Indian canon would apply. And,
if we were to apply that canon, we then would be required to
construe the term that it purports to define -- "Penobscot Indian
Reservation" -- in the waters-inclusive, area-based manner that
the Penobscot Nation favors, with all the follow-on consequences
that would entail under the Settlement Acts.
In fact, for that not to be the case, either of two
things would have to be true. The legislative history of the
Settlement Acts would have to compel us to conclude what the
statutory text itself does not: that the definition of the
"Reservation" in § 6203(8) of the MIA was intended to encompass
only the uplands of the islands at issue. Or, alternatively, the
Indian canons simply would have to have no application in this
context. I thus now wind up the analysis by considering each
possibility.
III.
The majority does conclude, in an independent holding,
that the legislative history in and of itself compels the uplands-
only reading. But, I cannot agree.
A.
The majority asserts that it would be odd for legislation
purporting to settle the Maine tribes' land claims to resolve title
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disputes by ratifying reservations in prior agreements without
explaining what the reservations in those agreements were. See
Maj. Op. 28-37. After all, why would the drafters have wanted to
make consideration of the complicated history necessary,
especially given that the disputes concern a navigable waterway?
For this purpose-based reason, the majority contends that it makes
sense to read § 6203(8) of the MIA -- to which the MICSA directs
the reader to find the definition of "Penobscot Indian Reservation"
-- to encompass only the uplands. That reading, after all, lays
to rest any disputes about what rights to the waters the Nation
retains within the "Reservation" by making clear that no such
waters lie within it.
This argument disregards, however, the fact that the
Settlement Acts were a response to potential land claims to areas
that were "ceded" by the Maine tribes -- up to two-thirds of the
area of what is now the State of Maine, see Passamaquoddy Tribe v.
Maine, 75 F.3d 784, 787 (1st Cir. 1996) -- without regard to the
Nonintercourse Act. In other words, the dispute being settled
was, in the main, about whether the putative treaty-based cessions
of lands "on both sides of the Penobscot river" themselves were to
be given legal effect. It was not about the dispute that is front
and center in this litigation, which concerns only whether what
had been "reserved . . . by agreement" in the treaty making those
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cessions of land included the area comprising the islands or only
the uplands in that area.
Thus, it is hardly implausible that the drafters thought
it sufficient to accomplish their chief task -- settling
potentially dramatically destabilizing land claims -- to use the
1818 agreement between the Nation and Massachusetts as the
reference point. That agreement clearly established that land "on
both sides of the . . . river" had not been "reserved" by the
Nation. See 1818 Treaty, supra, at 253-54.
This understanding, which would take the drafters to
have been relying on past understandings reflected in that treaty,
is even less implausible when one considers the repeated references
in the legislative history that reflect comfort with the notion
that the Nation would retain sovereign rights relating to hunting
and fishing. Congress's final committee reports provide that the
MICSA would extinguish the Nation's land claims resulting from the
purported invalidity of the land transfers. But, the reports also
expressly describe the settlement as providing that "the Penobscot
Nation will retain as reservations those lands and natural
resources which were reserved to them in their treaties with
Massachusetts and not subsequently transferred by them." S. Rep.
No. 96-957, at 18 (emphasis added); H.R. Rep. No. 96-1353, at 18.
Those committee reports further explain that the Nation will
"retain[] sovereign activities," including those relating to
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hunting and fishing, under the Settlement Acts. S. Rep. No. 96-
957, at 15; H.R. Rep. No. 96-1353, at 15.
It is also notable that the legislative history does not
evidence a legislative understanding -- let alone a clear one --
that the Nation was relinquishing those rights in the waters
relating to hunting and fishing that it had long claimed as an
aspect of its sovereignty. To the contrary, Congress heard
testimony from members of the Penobscot Nation about the waters'
importance, including testimony from a tribal member who relied on
food sources from the river to feed her children, explaining that
her son "fishes my islands," meaning that he fished from a canoe
in the waters surrounding the islands. And though members of the
Penobscot Nation testifying before Congress expressed concerns
that settlement provisions might be construed to destroy the
Nation's "sovereign rights," in particular those related to
hunting and fishing and the Nation's culture, the committee report
for the MICSA called these concerns "unfounded" and emphasized
that the hunting and fishing provisions in the MIA recognized the
Penobscot Nation's "inherent sovereignty" and were "examples of
expressly retained sovereign activities." S. Rep. No. 96-957, at
14-15; H.R. Rep. No. 96-1353, at 14-15.
That part of the legislative history is important for
present purposes. As I have explained, § 6207(4) of the MIA, in
securing sustenance fishing rights to the Penobscot Nation "within
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the boundaries" of its "Indian reservation[]," is plainly
referring to the area comprising the islands in the Penobscot River
that are the very same "islands" referenced in § 6203(8) of the
MIA. That being so, it is hard to see how this part of the
legislative history supports the construction of § 6203(8)'s
definition of the "Reservation"'s boundaries, landlocked as it
would make them, that Maine urges us to adopt.
But, the case for rejecting Maine's position regarding
the legislative history is even stronger when one considers what
that history most conspicuously does not disclose -- any suggestion
whatsoever that the "reservation[]" referenced in § 6207(4) of the
MIA is not the "Penobscot Indian Reservation" defined in § 6203(8)
of that same statute. That is quite an omission if -- in order to
clarify things in the face of title disputes -- the legislature
must have intended for the latter definition to be an uplands-only
one and the former to be a waters-inclusive one.
The omission becomes all the harder to explain -- if one
accepts the majority's view of the definition in § 6203(8) of the
MIA -- when one considers still other features of the legislative
history. Those features underscore the reasons that I have already
given to doubt that the drafters of the MIA meant to refer to two
distinct Penobscot Nation reservations rather than merely one in
two different provisions of that statute.
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For example, in a public hearing held by the Maine
Legislature's Joint Select Committee on Indian Land Claims in March
1980, the tribes' attorney explained that the exercise of "tribal
powers in certain areas of particular cultural importance such as
hunting and fishing" was an issue that had been important for the
State to understand in negotiations. See Hearing on L.D. 2037
Before the Joint Select Comm. on Indian Land Claims, 109th Leg.,
2d Sess. 25 (Me. 1980). The Committee heard concerns about hunting
and fishing from non-tribal members, too. A member of the Atlantic
Seamen's Salmon Commission expressed concern that "critical parts
of the Penobscot River" would "fall within the confines of the
Settlement," which "could spell danger to the salmon." Id. at
117-18. But, significantly, rather than refuting this premise,
Maine's Deputy Attorney General explained:
Currently under Maine Law, the Indians can
hunt and fish on their existing reservation
for their own sustenance without regulation of
the State. That's a right which the State
gave to the Maine Indians on their
reservations a number of years ago and the
contemplation of this draft was to keep in
place that same kind of right . . . .
Id. at 55-56 (emphases added).
It is also worth noting that those aspects of the
legislative history suggesting that the Penobscot Nation did not
have fee title to the submerged lands are not inconsistent with
the idea that the Settlement Acts codified the use- and occupancy-
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based hunting and fishing rights that the Penobscot Nation had
long enjoyed, which are all the Nation must establish that it
reserved to prevail in the present litigation. See Winans, 198
U.S. at 381; Cohen's Handbook § 18.01 (explaining that aboriginal
title includes "component hunting, fishing, and gathering
rights"); id. § 15.02 ("An Indian reservation is a place within
which a tribe may exercise tribal powers, but not all land within
a reservation may belong to the tribe."). And, according to the
Penobscot Nation's negotiators, the Penobscot Nation had
maintained through the negotiations that it retained aboriginal
title to the waters of the Main Stem in the area comprising the
islands referenced in § 6203(8).
True, the stated purposes of the MICSA include
"remov[ing] the cloud on the titles to land in the State of Maine
resulting from Indian claims" and "clarify[ing] the status of other
land and natural resources in the State of Maine." 25 U.S.C.
§ 1721(b). True as well, the U.S. Department of the Interior's
Federal Register notice describes the MICSA as "extinguish[ing]
any claims of aboriginal title of the Maine Indians anywhere in
the United States and bar[ring] all claims based on such title."
Extinguishment of Indian Claims, 46 Fed. Reg. 2390, 2391 (Jan. 9,
1981).
But, as I have explained -- and as the extensive history
that I have reviewed makes clear -- the Settlement Acts responded
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to aboriginal title claims to the land that was ceded in the
eighteenth- and nineteenth-century agreements. See 25 U.S.C.
§ 1721(a)(1). There is no indication that the Settlement Acts
were intended to upset use- and occupancy-based sovereign rights
in those areas not previously ceded in the suspect agreements --
at least insofar as those rights are no broader than the ones
recognized in the Settlement Acts themselves as ones that the
Nation would retain in its "Reservation." To the contrary, the
focus in the federal legislative history on the Penobscot Nation's
retained sovereignty with respect to activities that could only
occur within the waters in question -- such as, for example, the
activity that is the subject of § 6207(4) itself -- suggests that
upsetting those rights was not the intended result.
The rights that the Penobscot Nation claims, moreover,
are a function of the substantive provisions of the Settlement
Acts themselves. The federal legislative history just canvassed
shows that these provisions of those Acts -- which ensure that the
Penobscot Nation can exercise within its "Reservation" the rights
related to the taking of wildlife that it claims in this litigation
-- are best understood as encompassing the area in which the Nation
has long exercised these rights.
Thus, the legislative history does not support the
purpose-based assertion that the majority makes about why the
definition of "Penobscot Indian Reservation" in § 6203(8) of the
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MIA must be construed to exclude altogether everything but the
uplands. Rather, that legislative history at most merely
underscores the ambiguity that arises from the reference in that
provision to what was "reserved . . . by agreement," given the
waters-inclusive reference to the "Penobscot Nation . . . Indian
reservation[]" in § 6207(4) of that same statute.
In sum, a purpose to clear title to lands and natural
resources that have been transferred cannot itself reveal what was
understood to have been transferred, and the Penobscot Nation seeks
here only to ensure that the Nation will enjoy the same sovereign
rights over taking wildlife in the waters in question that the
Settlement Acts plainly give the Nation throughout the Penobscot
Indian Reservation. I thus do not see how a recognition of those
limited rights can be said to be beyond the comprehension of the
drafters of these measures when the legislative history reveals
the repeated contemplation of just such recognition.
B.
The majority does also conclude, less generally, that
the legislative history shows that the legislature deliberately
included only the uplands of the islands in the "Reservation."
See Maj. Op. 35 n.17. But, here, too, the evidence is weaker than
advertised.
In a "background" paper that the U.S. Department of the
Interior included in a hearing submission to the House Committee
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on Interior and Insular Affairs, the Penobscot Nation was described
as having a "4,000 acre reservation on a hundred islands in the
Penobscot River." Had the entire Main Stem been included, bank-
to-bank, the majority concludes, the reservation would be 13,760
acres. Maj. Op. 35 n.17.
In support of its contention that this point is a salient
one, the State cites Idaho v. United States, 533 U.S. 262 (2001).
There, the Court used as evidence of the intent to include
submerged lands in a reservation the fact that the acreage
description in a government survey purporting to define the
reservation's total area "necessarily included" submerged lands.
Id. at 267, 274. As the Penobscot Nation and the United States
point out, however, citing examples from the website for the Maine
Department of Inland Fisheries and Wildlife, "it is not unusual to
specify only upland acreage when adjacent submerged lands also are
within the boundaries." Therefore, there is a weaker inference to
be drawn from an acreage description that excludes submerged lands
than from one that necessarily includes submerged lands. Cf. id.
at 267. Moreover, in Idaho the acreage description came from a
formal survey of the reservation that was undertaken by the United
States for the very purpose of setting the reservation boundaries
and "fix[ing] the reservation's total area." Id. The brief
reference to acreage included in the hearing submission, in
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contrast, cannot bear the weight the majority or the State would
put on it.
Similarly, a map was provided to the Senate in the run-
up to the MICSA's enactment that shaded only the islands and not
the river in the color denoting the "Reservation."49 But, that map
was introduced into the record for purposes of identifying the
newly acquired trust lands under the settlement, not to define the
boundaries of the existing reservation. See Proposed Settlement
of Maine Indian Land Claims: Hearing on S. 2829 Before the S.
Select Comm. on Indian Affairs, 96th Cong. 282 (1980) (statement
of Sen. William S. Cohen, Member, S. Comm. on Indian Affairs)
(requesting a "map of the State of Maine designating the areas
that are now under consideration for sale" and stating that such
a map "should become a part of the record as far as what areas are
being contemplated for sale and what range of parcels are being
contemplated for purchase"). Particularly in these circumstances,
the shading hardly indicates that Congress understood the
Penobscot Nation to retain no reservation-based rights in the Main
Stem.
49 The District Court found that pursuant to the map's key,
the islands in the Main Stem were shaded in red, which represented
"Indian Reservation," and the Main Stem was shaded in white, which
represented "river and lakes adjacent to settlement lands."
Penobscot Nation, 151 F. Supp. 3d at 194, 218.
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C.
The post-enactment history of the Settlement Acts
reinforces this same understanding. It cannot reveal a legislative
meaning not otherwise indicated, but it does usefully give some
indication of the understandings that prevailed at the time of the
Settlement Acts' passage. Those understandings comport with the
understanding of the "Reservation" boundaries that the Penobscot
Nation favors. See Alaska Pac. Fisheries, 248 U.S. at 89-90
(citing, as support for the conclusion that the reservation
included the adjacent waters, the fact that "the statute from the
time of its enactment has been treated . . . by the Indians and
the public as reserving the adjacent fishing grounds as well as
the upland, and that in [post-enactment] regulations prescribed by
the Secretary of the Interior . . . the Indians are recognized as
the only persons to whom permits may be issued for erecting salmon
traps at these islands"); cf. McGirt v. Oklahoma, 140 S. Ct. 2452,
2469 (2020) (explaining that the Supreme Court has recognized "that
'[e]vidence of the subsequent treatment of the disputed land'" may
play a limited interpretive role "to the extent it sheds light on
what the terms found in a statute meant at the time of the law's
adoption" (alteration in original) (quoting Nebraska v. Parker,
577 U.S. 481, 493 (2016))).
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1.
Consider that the Penobscot Nation began operating its
own warden service in 1976, Penobscot Nation, 151 F. Supp. 3d at
196-97, largely through federal funding from the U.S. Department
of the Interior for the Nation's exercise of governmental authority
on "Reservation lands and waterways,"50 and that the Nation
continued doing so after the Settlement Acts were enacted. In
fact, since 1982, Penobscot Nation wardens have been cross-
deputized under state law to "have the powers of [state] game
wardens" within "Penobscot Indian Territory." Me. Rev. Stat. Ann.
tit. 12, § 10401; 1981 Me. Laws 1886, 1887; see also Penobscot
Nation, 151 F. Supp. 3d at 197.
To be sure, in the years following the Settlement Acts,
Maine and Penobscot Nation game wardens collaborated on some
patrols and enforcement actions in the Main Stem. Penobscot
Nation, 151 F. Supp. 3d at 197. According to affidavits of state
game wardens, those wardens enforced Maine fish and game laws
50 The Penobscot Nation has consistently received federal
funding related to the river. For example, in 1993, the Penobscot
Nation received funding for a water resources management program
that included monitoring of the Penobscot River. Penobscot Nation,
151 F. Supp. 3d at 212. In 1999, the Nation received funding to
educate tribal members on the risks of consuming contaminated fish,
in light of the fact that tribal members continued to rely on the
river to feed their families. Id. And, in 2007 and 2010, the
Nation again received funding for game warden patrols,
acknowledging that the tribe patrolled in the Penobscot River.
Id.
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against tribal and non-tribal members. But, the record shows, in
1990, when state game wardens responded to a report involving a
tribal member deer hunting from a boat in the Penobscot River in
violation of state hunting regulations, the state wardens
contacted Penobscot Nation wardens, and the tribal member was
ultimately turned over to Penobscot Nation wardens for prosecution
in the Tribal Court after an initial joint investigation.51 See
id. at 209. Thus, this aspect of the post-enactment history
accords with a conclusion that the Settlement Acts were not
understood to have conferred to Maine full authority with respect
to hunting, trapping, and fishing in the relevant waters, such
that the Nation was divested of them.
2.
Other post-enactment developments and representations by
state officials support this same conclusion. For example, eight
years after the Settlement Acts were negotiated and went into
effect, an issue arose as to the application within the river of
state-wide rules against the use of gill nets to harvest fish.
See id. at 199. Members of the Penobscot Nation wanted to use
51 The Penobscot Nation's exercise of jurisdiction suggests
that the river was understood to be within the "Reservation" in
part because the Settlement Acts gave the Penobscot Nation
exclusive jurisdiction over certain criminal offenses committed on
the Penobscot Indian Reservation by a tribal member. The Tribal
Court would not have had jurisdiction over a crime not committed
on its reservation. See 1989 Me. Laws 249-50; 1979 Me. Laws 2404.
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gill nets to fish in the Penobscot River, within what they
understood to be part of the "Reservation," as was consistent with
the Nation's traditional practices and permitted under its own
regulations.
In a letter dated February 16, 1988, Maine Attorney
General James E. Tierney opined that the Penobscot Nation's use of
gill nets was permissible:
In the opinion of this Department, . . .
[p]ursuant to Section 6207(4) of the [MIA],
members of the . . . Penobscot Nation are
authorized to take fish, within the boundaries
of their . . . Indian Reservation[], and
"notwithstanding any rule or regulation
promulgated by the Commission or any other law
of the State," so long as the fish so taken
are used for "their individual sustenance."
Letter from James E. Tierney, Att'y Gen. of Me., to William J.
Vail, Chairman, Atl. Sea Run Salmon Comm'n (Feb. 16, 1988). There
was notably no indication in this response that the "Indian
Reservation[]" to which he referred was not the one defined in
§ 6203(8). Indeed, the capitalized reference to the "Reservation"
appears to reflect the understanding that they were the same.
Similarly, in the mid-1990s, Maine issued permits for
eel pots in waters of the Penobscot River that provided that "[t]he
portions of the Penobscot River and submerged lands surrounding
the islands in the river are part of the Penobscot Indian
Reservation and [gear] should not be placed on these lands without
permission from the Penobscot Nation." Penobscot Nation, 151 F.
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Supp. 3d at 199. Again, it is hardly logical to think that this
reference to the "Penobscot Indian Reservation" meant something
different than that term as defined in § 6203(8) of the MIA.
In fact, the Penobscot Nation maintained in the years
following the Settlement Acts its own permitting system and issued
permits to non-tribal members for duck hunting and eel trapping in
the relevant waters. And, the Penobscot Nation passed regulations
concerning tribal members' sustenance fishing in those waters.52
Illuminating, too, are the disputes that arose in the
1990s over the relicensing of hydro-electric dams on the Penobscot
River. In proceedings before the Federal Energy Regulatory
Commission ("FERC"), Bangor Pacific Hydro Associates and various
papermaking companies with facilities located in or near the river
asserted the position that the river was outside the reservation
boundaries. Then-Chair of the Maine Indian Tribal-State
Commission Bennett Katz, who was Majority Leader of the Maine
Senate at the time of the MIA's passage, explained in a letter to
FERC that this was "the first time these particular arguments ha[d]
come to the attention of the Commission" and that, "[t]o [his]
knowledge, the State ha[d] never questioned the existence of the
right of the Penobscot Indian Nation to sustenance fishing in the
52 Consistent with the Settlement Acts, the Penobscot
Nation is not seeking here to regulate fishing other than tribal
members' sustenance fishing.
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Penobscot River." Letter from Bennett Katz, Chair, Me. Indian
Tribal-State Comm'n, to Lois Cashell, Sec'y, Fed. Energy Regul.
Comm'n (Nov. 1, 1995). Moreover, he stated that he could not
"imagine that [such a restrictive] meaning was intended by [his]
colleagues in the Legislature who voted in support of the
Settlement." Id.
Indeed, the State of Maine subsequently expressed its
view in a brief to FERC that "Penobscot fishing rights under the
[MIA] exist in that portion of the Penobscot River which falls
within the boundaries of the Penobscot Indian Reservation," which
"may generally be described as including the islands in the
Penobscot River above Old Town . . . and a portion of the riverbed
between any reservation island and the opposite shore." State of
Maine's Response to the Department of the Interior's April 9, 1997
Filings Pursuant to Sections 4(e) and 10(e) of the Federal Power
Act at 12-13, Project No. 2534 (FERC May 29, 1997). So, there,
too, the equation between the "reservation[]" referenced in
§ 6207(4) of the MIA and the "Reservation" referenced in § 6203(8)
of that statute seemed to be one that came naturally even to Maine
itself.
3.
There is still more evidence from these years that it
was not thought that the Settlement Acts defined an uplands-only
"Reservation." Also in the 1990s, the Penobscot Nation began
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lobbying the U.S. Environmental Protection Agency ("EPA") for
water quality standards that would protect the Nation's right to
sustenance fish in the Main Stem. Penobscot Nation, 151 F. Supp.
3d at 207. Maine's Attorney General wrote to the EPA asserting
that the sustenance fishing rights established in the Settlement
Acts did "not guarantee a particular quality or quantity of fish."
Letter from Andrew Ketterer, Att'y Gen. of Me., to John DeVillars,
Reg'l Adm'r, Env't Prot. Agency (June 3, 1997). But, notably, in
the course of that letter, he did not reject the view that the
Nation had rights in the waters owing to its rights to the islands,
stating that "[a]lthough there may be a certain portion of the
river bed that goes along with the ownership of an island in the
river, . . . ownership of a portion of the bed does not constitute
ownership of the 'river.'" Id.
There is, finally, a 2006 brief to this Court involving
Maine's environmental regulatory authority concerning discharges
into the river. Maine acknowledged there that there was "strong[]
disagree[ment]" between the parties -- the State, the Penobscot
and Passamaquoddy Tribes, and the federal government -- concerning
the "boundaries of Indian Territory in the Penobscot basin." Brief
of Petitioner State of Maine at 58, Johnson, 498 F.3d 37 (Nos. 04-
1363, 04-1375). But, in that same litigation, the State made clear
that it viewed the definition of the "Reservation" in the
Settlement Acts as including the "accompanying riparian rights" to
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the islands that "have not been transferred." Brief of State of
Maine as Intervenor-Respondent at 3 n.2, Johnson, 498 F.3d 37 (Nos.
04-1363, 04-1375). This statement, though not a concession of the
point in dispute here, is also in no sense a clear embrace of the
uplands-only view now said to be crystal clear in § 6203(8).
In fact, it was only when, around 2012, the Maine
Commissioner of Inland Fisheries and Wildlife and the Colonel of
Maine's Warden Service requested an opinion from the Maine Attorney
General addressing the "respective regulatory jurisdictions" of
the Penobscot Nation and the State "relating to hunting and fishing
on the main stem of the Penobscot River" that the uplands-only
view became Maine's in any clear way. Att'y Gen. of Me., Opinion
Letter (Aug. 8, 2012). In a formal opinion issued on August 8,
2012, Maine Attorney General William Schneider adopted the
interpretation of the MIA that Maine had previously disavowed when
it was proposed by the paper companies in the FERC proceedings --
that "the River itself is not part of the Penobscot Nation's
Reservation, and therefore is not subject to its regulatory
authority or proprietary control." Id.
D.
In sum, neither the text of the Settlement Acts nor their
pre- or post-enactment history requires the conclusion that the
definition of the term "Penobscot Indian Reservation" in the
Settlement Acts unambiguously excludes the waters at issue, such
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that the rights in the "Reservation" under the Settlement Acts
themselves that are actually at issue in this case do not extend
to those waters. It is hardly unambiguous, therefore, that the
Settlement Acts' definition of "Penobscot Indian Reservation"
excludes the waters at issue, such that the Nation's sole right in
them is conferred by § 6207(4) and that the Nation has no rights
in them in consequence of what was "reserved to the Penobscot
Nation by agreement." For, as I have explained, "islands in the
Penobscot River reserved to the Penobscot Nation by agreement" is
not itself a term with a fixed and readily identifiable
geopolitical meaning. See Amoco Prod. Co., 480 U.S. at 547 & n.14.
And, as the Supreme Court has made clear, the use of terms like
"lands" and "islands" in a larger phrase does not, depending on
context, necessarily exclude attendant waters. See, e.g., Alaska
Pac. Fisheries, 248 U.S. at 89; Hynes, 337 U.S. at 110-11.
IV.
The Penobscot Nation urges us, not unpersuasively, to
conclude that the history (legislative and otherwise) itself
suffices to demonstrate that its reading of § 6203(8) of the MIA
-- given the ambiguity inherent in that provision's text and the
text of § 6207(4) of that same statute -- is superior. But, the
Nation recognizes that we need not do so for it to win.
"When we are faced with . . . two possible
constructions, our choice between them must be dictated by a
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principle deeply rooted in . . . Indian jurisprudence:
'[S]tatutes are to be construed liberally in favor of the Indians,
with ambiguous provisions interpreted to their benefit.'" County
of Yakima, 502 U.S. at 269 (third alteration in original) (quoting
Montana v. Blackfeet Tribe of Indians, 471 U.S. 759, 766 (1985));
see also Antoine v. Washington, 420 U.S. 194, 199 (1975) ("The
canon of construction applied over a century and a half by this
Court is that the wording of treaties and statutes ratifying
agreements with the Indians is not to be construed to their
prejudice."). Thus, the Nation contends, and I agree, that the
canon itself suffices to resolve this case in the Nation's favor.
Maine does argue that the Indian canons cannot apply
here, even if the relevant statutory provision defining the
"Reservation" is not itself clear. But, in light of this Court's
opinion in Penobscot Nation v. Fellencer, 164 F.3d 706 (1st Cir.
1999), I cannot agree. See id. at 709 (construing the phrase
"internal tribal matters" in the MIA and noting that it is a
"general principle[] that inform[s] our analysis of the statutory
language" that "special rules of statutory construction obligate
us to construe 'acts diminishing the sovereign rights of Indian
tribes . . . strictly,' 'with ambiguous provisions interpreted to
the [Indians'] benefit'" (third and fourth alterations in
original) (first quoting Rhode Island v. Narragansett Indian
Tribe, 19 F.3d 685, 702 (1st Cir. 1994); and then quoting County
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of Oneida, 470 U.S. at 247)); see also Maynard v. Narragansett
Indian Tribe, 984 F.2d 14, 16 & n.2 (1st Cir. 1993) (noting that
the Rhode Island Indian Claims Settlement Act and its enacting
legislation "would have to be construed to afford the Tribe the
benefit of any ambiguity on the waiver-abrogation issue");
Connecticut ex rel. Blumenthal v. U.S. Dep't of the Interior, 228
F.3d 82, 92-93 (2d Cir. 2000) (construing the Connecticut Indian
Land Claims Settlement Act to the benefit of the Mashantucket
Pequot even though "the Tribe today is at no practical
disadvantage" because the Supreme Court has applied the Indian
canon even "where Indians were at no legal disadvantage").53
53 Maine and the Intervenors argue that specific provisions
of the MICSA providing that "no law or regulation of the United
States (1) which accords or relates to a special status or right
of or to any Indian, Indian nation . . . [or] Indian lands . . . ,
and also (2) which affects or preempts the civil, criminal, or
regulatory jurisdiction of the State of Maine . . . shall apply
within the State" preclude application of the canon of
construction. 25 U.S.C. § 1725(h); see also id. § 1735(b)
(providing that "[t]he provisions of any Federal law enacted after
October 10, 1980, for the benefit of Indians, Indian nations, or
tribes or bands of Indians, . . . which would affect or preempt
the application of the laws of the State of Maine . . . shall not
apply within the State of Maine" unless specifically provided).
Even assuming that Fellencer did not resolve this issue, the claim
is unavailing. The Senate Report supports the view that these
provisions apply to statutes enacted and rules promulgated and not
to interpretive principles. See S. Rep. No. 96-957, at 30-31
(citing as examples the Indian Child Welfare Act and the federal
Clean Air Act). Moreover, the MICSA's baseline is that "the laws
and regulations of the United States which are generally applicable
to Indians . . . shall be applicable in the State of Maine." 25
U.S.C. § 1725(h). Although Maine argues that the case "has direct
jurisdictional implications for the State" and that applying the
canons would affect Maine's "jurisdiction" -- a term that the
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Indeed, the majority does not dispute that the canon would apply
in the event of an ambiguity. See Maj. Op. 39-40.
Nor do Maine's and the Intervenors' arguments that, even
if the Indian canon does apply, the canon against conveying
navigable waters must take precedence over it change the result
here. Even if the navigable waters canon could apply to the
circumstances here, where the federal government never held title
to the river in trust for a state, there is no apparent tension
between the idea that the state could hold "title" in the manner
contemplated by the navigable waters canon and the notion that at
the same time the Penobscot Nation has what it claims here: use-
and occupancy-based rights. Thus, as an ambiguity-resolving
principle, the navigable waters canon can do little work here.54
Senate Report suggests is to be "broadly construed," S. Rep. No.
96-957, at 30 -- there is a difference between an interpretive
principle that could result in jurisdictional implications and
statutes that control how state jurisdiction applies in Indian
country. Nothing in the legislative history clearly reaches the
former as opposed to merely the latter. The reference to Bryan v.
Itasca County, 426 U.S. 373 (1976), in the Senate Report is no
different. It makes clear that the MICSA's reference to "civil
jurisdiction" should not be construed to mean only jurisdiction
over private civil litigation (i.e., adjudicative jurisdiction)
but could also include the state's legislative jurisdiction. But,
it does not speak to whether interpretive canons fall within
§ 1725(h) of the MICSA.
54 To the extent Maine and the Intervenors make a separate
argument that states presumptively gain title to beds of navigable
waters upon statehood, see, e.g., United States v. Holt State Bank,
270 U.S. 49, 54-55 (1926); Idaho v. Coeur d'Alene Tribe, 521 U.S.
261, 283-84 (1997), and thus that by the time the treaties were
signed the Penobscot Nation no longer had any rights in the waters
to reserve, there is no reason to think the drafters of the
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The Indian canon, in contrast, is responsive to the
interpretive question that we are left with. This canon is "rooted
in the unique trust relationship between the United States and the
Indians," Fellencer, 164 F.3d at 709 (quoting County of Oneida,
470 U.S. at 247), and that relationship applies here, see Joint
Tribal Council of the Passamaquoddy Tribe v. Morton, 528 F.2d 370,
373 (1st Cir. 1975). There is, moreover, especially good reason
to think that a construction in the Nation's favor is in fact a
fair proxy for Congress's intent, given the particular role
Settlement Acts incorporated the understanding that what was
"reserved" never could have included the river for this reason and
thus intended § 6203(8) of the MIA to refer only to uplands. Even
if one thought there was some legal reason that the Nation could
not have reserved rights in an area that included the waters in
the treaties, notwithstanding an intent on the part of the treaty
parties to permit the Nation to make such a reservation, the better
understanding of the Settlement Acts is that Congress meant to
incorporate the understanding of the treaty parties at the time.
And, as I have noted, the evidence from the history shows that the
treaty parties understood what had been reserved by the Nation at
each juncture to include rights in waters and fisheries. In
addition, the 1818 treaty itself granted to citizens of the
Commonwealth the "right to pass and repass any of the rivers,
streams, and ponds, which run through any of the lands hereby
reserved, for the purpose of transporting their timber and other
articles through the same." 1818 Treaty, supra, at 255. Whether
or not that portion of the treaty refers to the Penobscot River,
it at the least demonstrates that it was not the parties'
understanding that the Penobscot Nation had no claim to any such
navigable waters once Massachusetts became a state. Thus,
especially when § 6207(4) of the MIA is brought into view, Maine
and the Intervenors' contention about states presumptively gaining
title to the beds of navigable waters upon statehood does nothing
to clear up the ambiguity in the text that is plainly there and
thus does nothing to preclude the application of the Indian canon.
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Congress was playing in settling these land claims in the face of
assertions that the Nonintercourse Act had been violated.
V.
Notwithstanding the differences between Congress's
reference to the "body of lands known as Annette Islands" in the
statute at issue in Alaska Pacific Fisheries and the Settlement
Acts' way of referring to these islands here, this much is -- at
the very least -- clear: § 6203(8) of the MIA does not compel an
uplands-only reading, whether it is considered in the context of
the Settlement Acts as a whole or in the context of the
circumstances that led to their enactment. We thus are obliged to
resolve the ambiguity in the Penobscot Nation's favor. For, while
the Settlement Acts confirm that the Penobscot Nation gave up any
claim (aboriginal or otherwise) to the lands with which they had
parted through earlier treaties made without the required federal
authorization, I cannot see how we could say that it is equally
plain that the text of those Acts also confirms that the Acts do
not protect the Penobscot Nation's historic rights to the area
comprising the islands that the Nation now claims in this appeal.
Before we conclude that a statute purporting to honor what this
riverine Nation had "reserved . . . by agreement" in fact deprives
it of the sovereign rights that it had long enjoyed in the river
that defines it, we must have a clearer indication than is present
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here that the statute was intended to have such a dramatic and
potentially devastating consequence.
Accordingly, I respectfully dissent.
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