Did Maine's 2012 AG opinion say the Penobscot Nation or the State has authority to regulate hunting and fishing on the main stem of the Penobscot River?

Plain-English summary

The Maine Indian Claims Settlement Acts (state at 30 M.R.S. section 6201 et seq.; federal at 25 U.S.C. section 1721 et seq.) settled centuries of land-claim litigation between Maine and the Wabanaki tribes (Penobscot Nation, Passamaquoddy Tribe, Houlton Band of Maliseet Indians, Aroostook Band of Micmacs) in 1980. The settlement allocated land and money, recognized the tribes, and divided jurisdiction between the State and the tribes for many regulatory matters, including hunting and fishing.

This 2012 AG opinion addressed where the boundary between state and tribal jurisdiction sat for hunting and fishing on the main stem of the Penobscot River. The AG's analysis at the time concluded that the State retained regulatory authority over the main stem of the river, while the Penobscot Nation's authority extended to its trust islands and to sustenance fishing rights specifically reserved by the Settlement Act.

The boundary was contested. Penobscot Nation v. Mills (the federal litigation that played out over years following this opinion) eventually addressed many of the same issues. The legal landscape has shifted since 2012; do not rely on this opinion for current law.

Currency note

This opinion was issued in 2012. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.

Background and statutory framework

The Maine Indian Claims Settlement Acts (state and federal) were enacted in 1980 to resolve tribal land claims. The settlement created the framework that has governed state-tribal relations in Maine since. Key features:

• The federal government provided settlement funds and recognized the tribes.
• The State of Maine ceded certain lands but retained regulatory authority over many activities on tribal lands and on bordering or adjacent waters.
• The tribes retained specific rights including sustenance fishing rights for tribal members within their reservations and trust lands.
• 30 M.R.S. section 6207 codified the division of authority between the State and the tribes.

The main stem of the Penobscot River runs through and adjacent to Penobscot Nation trust islands. Whether state or tribal regulation governed at any given point on the river was the operational question this opinion addressed.

The 2012 AG analysis read the Settlement Acts to give the State broad regulatory authority over the river itself, with sustenance fishing as a reserved tribal right. The Penobscot Nation disputed that reading, leading to subsequent litigation.

Common questions

What was the practical effect of this opinion at the time?
The opinion supported state assertion of regulatory authority over hunting and fishing on the main stem. Maine fish and wildlife regulations were treated as applicable; tribal members exercising sustenance rights were treated as having a recognized but limited authority within the river system.

Did the courts agree with this AG opinion?
Subsequent federal litigation (Penobscot Nation v. Mills and related cases) addressed similar questions. Outcomes varied across issues. Anyone working with current law should review the litigation outcomes and the most recent guidance from the Maine Indian Tribal-State Commission rather than relying on this 2012 opinion.

Where does Maine Indian Tribal-State Commission fit in?
30 M.R.S. section 6212 establishes the Commission as a continuing forum for state-tribal coordination. Disputes over the operation of the Settlement Acts often go through Commission processes before becoming litigation.

Are tribal members exempt from Maine fishing licenses on the river?
The Settlement Acts and the AG opinion treated sustenance fishing within trust lands as a reserved tribal right, not requiring state licensing. Sport fishing, commercial fishing, and fishing outside trust lands were treated differently. Specific application has shifted with subsequent rulings.

Citations

• 30 M.R.S. section 6201 et seq. (Maine Indian Claims Settlement Act)
• 25 U.S.C. section 1721 et seq. (federal Settlement Act)
• 30 M.R.S. section 6207 (jurisdictional division)
• 30 M.R.S. section 6212 (Maine Indian Tribal-State Commission)

Source

• Landing page: https://www.maine.gov/ag/about/ag_opinions.html

Original opinion text

MAINE STATE LEGISLATURE

    The following document is provided by the
   LAW AND LEGISLATIVE DIGITAL LIBRARY

at the Maine State Law and Legislative Reference Library
http://legislature.maine.gov/lawlib

Reproduced from scanned originals with text recognition applied
(searchable text may contain some errors and/or omissions)
 REGIONAL OFI'ICES,
2012 - 03 84 HARLOW ST., ZND FLOOR
BANGOR, MAINE 04401
TEL, (207) 941,3070
FAX: (207) 941,3075
William J. Schneider 415 CONGRESS ST., STE. 301
ATTORNEY GENERAL PORTLAND, MAINE 04101
Tm, (207) 822-0260
FAX: (207) 822-0259

                                       STATE OF MAINE                                    14 ACCESS HlGHWAY, STE.1

TEL: (207) 626-8800 OPFICE OF THE ATTORNEY GENERAL CARlBOU, MAINJ-~04736
TEI, (207) 4%-3792
TTY: 1-800-577-6690 6 STATE HOUSE STATION FAX, (207) 496-3291
AUGUSTA, MAINE 04333,0006

                                           August 8, 2012

Chandler Woodcock, Commissioner
Department of Inland Fisheries and \.Vikllife
41 State House Station
Augusta, ~,rn 04333-0041

Colonel Joel T. Wilkinson
Maine Warden Service
41 State House Station
Augusta, ME 04333-0041

Dear Commissioner Woodcock and Colonel Wilkinson:

        You have requested an Opinion from this Office regarding the respective regulatory

jurisdictions of the Penobscot Indian Nation ("Penobscot Nation") and the State of Maine
("State") relating to hunting and fishing on the main stem of the Penobscot River ("River"). This
Opinion is intended to clarify the jurisdictional issue for state and tribal game wardens, as ,vell as
for those engaged in recreational activities on the River. As will be explained in more detail
below, the Penobscot Nation may lawfully regulate hunting on, and restrict access to, the islands
within the River from lv1edway to Old Town that comprise its Reservation, but may not regulate
activities occurring on, nor restrict public access to, the River itself. With the exception of the
islands that form the Penobscot Indian Reservation, the River is open for public use and
enjoyment, m~d the State of Maine has exclusive regulatory jurisdiction over activities taking
place on the River.

       The division ofregulatory jurisdiction as bet\veen the Penobscot Nation and the State is

set forth in An Act to Implement the Maine Indian Land Claims Settlement Act, 30 M.R.S.
§§ 6201, et seq., ,:vhich was ratified and confirmed by Congress in the 1,1aine Indian Claims
Settlement Ac/, 25 U.S.C. §§ 1721, el seq. Among other things, these statutes carefully explain
how the Penobscot Nation and the State, respectively, may regulate activities such as hunting and
fishing. 30 M.R.S. § 6207.

      The Penobscot Nation has exclusive authority to regulate hunting, trapping and other

taking of v,1ildlife within its Indian Territory. 30 M.R.S. § 6207(l)(A). Its Territory is defined in
the law to include both the Penobscot Indian Reservation, as well as additional land purchased by
the United States Secretary of the Interior on the Penobscot Nation's behalf. 30 M.R.S.

                                         Piur--·n;n ON l{f.l'Yt:Lf.P PAPER

§ 6205(2). The Penobscot Indian Reservation is defined to include ''the islands in the Penobscot
River reserved to the Penobscot Nation by agreement with the States of Massachusetts and
Maine consisting solely of Indian Island . , . and all islands northward thereof that existed on
June 29, 1818, excepting any islands transferred to a person or entity after that date." 30 M.R.S.
§ 6203(8). 1

                  For the purposes of your inquiry, which involves activities occurring on the main stem of
          the River, this means the Penobscot Nation has authority to regulate hunting and fishing on those
          islands included in its Reservation from Indian Island in Old Town, northward to the confluence
          of the East and West branches in Medway.2 Like private landowners, the Penobscot Nation may
          also restrict access to their lands, here islands, as it sees fit. However, the River itself is not part
          of the Penobscot Nation's Reservation, and therefore is not subject to its regulatory authority or
          proprietary control. The Penobscot River is held in trust by the State for all Maine citizens, and
          State law, including statutes and regulations governing hunting, are fully applicable there.
          30 M.R.S. § 6204. Accol'dingly, members of the public engaged in hunting, fishing or other
          recreational activities on the waters of the Penobscot River are subject to Maine law as they
          would be elsewhere in the State, and are not subject to any additional restrictions from the
          Penobscot Nation.

                                      To avoid friction on the Penobscot River, it is important that state and tribal officials, as

· · · · · · · · · · · · ·· · - · · ,vellasmembers ofthe·PenobseotNationand·· the generalpublic, have a-clear understanding of
the regulatory jurisdictions of the Penobscot Nation and the State of Maine. Both the State and
the Penobscot Nation must encourage citizens to respond civilly to uniformed tribal and state
game wardens performing their official duties. All citizens must heed and comply with
ordinances promulgated by the Penobscot Nation governing the islands it owns> as well as State
laws and regulations governing the River.

                                                                            Sincerely,



                                                                           &~ HNEl:R, 1       1




          1
            This definition was amended twice with the agreement of the Penobscot Nation to add lands to the
          Reservation. In 1988, the statute was amended to add Smith Island, and 24 acres of land located at
          Matagamon Dam Lot on the East Branch of the River. 30 M.R.S. § 6203(8). In 2009, it was amended
          again to add 714 acres of land in Arg)1le, known as the Argyle East Parcel. As part of its Reservation, and
          therefore Territory, hunting on these additional lands is subject to regulation by the Penobscot Nation.
          Man-made boom piers in the River are not within the scope of this definition and therefore not part of
          Penobscot Indian Territory.

          2
           By law, the Penobscot Nation must conspicuously post any land or water it regulates in order to provide
          reasonable notice to the public of any such restrictions. 30 M.R.S. § 6207(5).


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