March 29, 2024
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Tribes file federal court appeal over water quality jurisdiction

INDIAN ISLAND – Wabanaki and non-native people alike gathered beside the Penobscot River to drum a protest song Monday morning, in a show of support for a tribal fight to control pollution in the rivers Maine’s native people have called home for millennia.

Maine’s tribes have long differed with the state in their belief that native people ought to play a part in regulating the water quality of the rivers central to their cultures – the Penobscot and the St. Croix.

Monday, the Penobscot and Passamaquoddy tribes announced that they would fight the issue in federal court.

“We will not surrender,” Penobscot Gov. Barry Dana said Monday morning, holding in his fist an eagle’s feather, a traditional symbol of power.

At stake is the right to grant National Pollution Discharge Elimination System permits – documents that essentially give communities and companies the right to pollute at low levels while still complying with the federal Clean Water Act.

In 1999 the state first approached the federal government, seeking the right to grant NPDES permits, in hopes of easing a lengthy and complicated process.

Community water treatment plants, paper mills and aquaculture operations all must have the discharge permits to operate.

The Penobscots and Passamaquoddy argue that the Maine Department of Environmental Protection cannot be trusted to consider the interests of fish, wildlife and native people as it grants and enforces the permits.

The state has no authority on sovereign tribal lands and waters, Dana said.

“The state needs to wake up and realize who we are,” he said. “We will not give in to their authority on our body of water.”

Past DEP policies have “befouled and desecrated” the river with carcinogenic mercury and dioxins, said John Dieffenbacher-Krall, co-director of the Maine People’s Alliance, a Maine-based social and environmental justice group that supports the tribes’ effort.

Such environmental groups as Maine Rivers and the Natural Resource Council of Maine also have testified in support of the tribes’ contention that the state should not have environmental jurisdiction over tribal waters,

After years of dispute, the EPA announced a decision last October: At the tribes’ request, the federal government would retain jurisdiction for Penobscot and Passamaquoddy reservations’ water treatment plants, but the state would gain control of everything else.

The compromise satisfied no one.

The Maine Attorney General’s Office, arguing that it ought to manage the entire NPDES program, filed an appeal in the 1st Circuit Court of Appeals last Thursday.

The state is seeking clarity in its laws, said Charles Dow, spokesman for the Maine Attorney General’s Office.

“The language that exists will prompt a lot of confusion and controversy where none needs to be,” Dow said Monday.

The Penobscots and Passamaquoddy filed their own appeal on Friday, asking the federal government to retain jurisdiction over the entire Penobscot and St. Croix river systems.

Ward Churchill, a nationally known native rights activist who is of Creek descent and teaches at the University of Colorado, Boulder, said during Monday’s event that this case sets a dangerous national precedent.

“The state of Maine has no more unilateral [right] to assert its jurisdiction over Penobscot territory … than it does over Canada or France or Mexico,” Churchill said.

The state’s original decision to seek authority over rivers in tribal lands was “an act of war,” he said.

“We are at the point of oblivion … we are ready to die,” Churchill said.

The Attorney General’s Office argued that the Maine Indian Claims Settlement Act of 1980 expressly gives Maine’s government the authority to enforce all federal environmental laws, whether in Indian territory or the middle of Augusta. Fairness is the state’s ultimate goal, officials said.

The Penobscots and Passamaquoddy disagreed Monday, saying that their efforts at a fair compromise have been rejected time and again.

“We reached out our hand, and they slapped it,” Dana said.


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