the honorable united states court of appeals for the st circuit is now in session l parsons having any business before this honorable court make it their attendance and they shall be heard god save the united states of america and this honorable court order is in session begin when you are ready penobscot nation based on our agreement with the united states a grand to take fourteen minutes for the opening argument miss bray will then take ten minutes in the united states and with the quince commission i would like to reserve the remaining six minutes for rebuttal yes thank you your honors the settlement acts memorialized and ratified an agreement between the penobscot nation and state of maine to redress the nation's expanse of land claims arising out of prior unlawful treaty exactions as understood by all parties at the time the acts confirmed what was left of the nation's aboriginal home moving forward but now forty years later the state attempts to renege on that agreement the state makes a mockery of the settlement acts explicit confirmation of the penobscot nation's on reservation fishing rights rights rendered meaningless if the reservation excludes the main stem of the nation's namesake river undisputedly the only place on the reservation with water to fish ordinary principles of statutory construction or clothes that conclusion neither the state nor its interveners offer any possible let alone an end the us way to reconcile the definition of the nation's reservation with its on reservation fishing rights unless the reservation includes the main stem if any doubt remains the indian canons compel the nation's construction as the supreme court reaffirmed in a court in mcgirt just two months ago in response to a regrettable history of broken promises that the state seeks to perpetuate  here your honors after three rounds of briefing argument in the district court argument in the court of appeals on bond proceedings here the state in the intervenor still cannot agree on a coherent construction of the reservation expressed that federal indian law principles shall generally govern the interpretation of the m i a you know that is the canon of construction such a thing you settlement acts and that was a provision of and i am governing the interpretation of that provision and one of those two principles is that the indian canons of construction apply so this court itself has already determined that under the main settlement acts the federal indian principles apply and like i said that follows from the regime that may in itself agreed to there are other courts that have also interpreted state settlement acts the  ratified by by congress this circuit in rhode island the new rank and applying the rhode island settlement act again another state statute ratified by federal law apply the indian can and saying we strictly construe any limitation on try wonderous diction the n c i amicus brief lays out even more authority every settlement activities that we're aware of we're not aware of anyone and the other side is not cited one that does  disputing that they held aboriginal title nor do we think there's any serious dispute that either the seven hundred and ninety six treaty or the eight hundred and eighteen treaty see that those treaties the language just plain it's either the land on the sides of the two takes on the similar argument about the state and there the state of oklahoma made the argument look we've been controlling the city of oklahoma eastern oklahoma for her for a long long time and so this land we have essentially usurp it and here's what the supreme court said in mcgirt that quote a state could encroach on tribal boundaries and with enough time and patience nullify the promises made and quote and then justice course it says we reject that sort of prior positions if in fact it believed it had clearly usurped the main stem through some unspecified acts over a century well then you would not have had the state saying all the way up until two thousand and twelve that the main stem was part of the penobscot nation's reservation in fact the main interest the main indian tribal state commission which was set up by the settlement acts in one thousand nine hundred to be the expert commission half constituted by appointees from the state of maine has constituted by appointees from the tribe and then they elect the th chair they unanimously voted and submitted an amicus brief before this court in the on down proceedings that says our expert view from the beginning has been that the main stem has been and continues to be part of the penobscot reservation if in fact the stated somehow adverse possessed unbeknownst to anyone the main stem of the river and contrary to its filings to further contrary its findings to the department of interior contrary to its findings to this court up until two thousand and twelve all of which acknowledged that the main stem was part of the knob scott nation reservation then we would have expected to see congress to speak more clearly it's inconceivable that congress as trustee for the penobscot nation would have intended to give away the heart of the penobscot nation's remaining aboriginal homeland without us being absolutely clear about it and in fact your honor you don't need any of the indian canons to resolve this case because simply looking at the the settlement acts as a whole when you look at the definition of the penobscot reservation you have to read that alongside the the statutes confirmation of the on reza nation fishing right that was specifically negotiated highlighted by congress as a central piece of the settlement x if in fact the penobscot nations reservation excludes the main step that again when you're construing that definition of transfer and applying it to aboriginal reservation again the statute and the legislative history makes clear there is an existing reservation here when you are diminishing an existing reservation congress has to be absolutely clear that it means to give away a part of that reservation and so even if you construe transfer broadly this statute is nowhere near clear enough to voice an indication that it meant to give away the main stem and take it outside of the reservation and again your honor you don't even need the indian canons to get there you can do that based upon the statute itself six hundred and twenty thousand and seventy four the neighboring provision to the definition of the reservation says that the nation shall be able to exercise its sustenance fishing right within the boundaries of the reservation the place yes why is why is it not reasonable to conclude that the tribe has hunching and fishing rights on the main even though it doesn't necessarily mean that it has to be part of the reservation honor because of six section sixty two thousand and seventy four in the text of it it doesn't say that the tribe has hunting and as fishing sustenance fishing rights anywhere in indian territory or elsewhere in the state of maine text of section sixty two thousand and seventy four and i'll just read it to you here it says notwithstanding any rule or regulation i'm a gated by the commissioner any other law the state the members of the past nation may take fish we've been the boundaries of their respective indian reservation so the statute is explicit that sustenance fishing right extends all the only within the boundaries of the reservation and so i think that directly answers your question judge thomas and that is the only place that this settlement act gives the nation the right to exercise its core sustenance fishing right again this was of paramount importance to the nation as congress recognized in the legislative history of pages six hundred and twenty eight two thousand six hundred and twenty nine of the joint appendix the only place i can exercise that is in the reservation and it is undisputed that the only place on the reservation where you can fish is within the mains the waters of the main stem again you don't need any of the indian canons you simply apply the supreme court tried and true method of ordinary and if you would mute later correctly concluded that the penobscot nation made and congress all intended to confirm to the nation a reservation homeland that includes both the uplands and the surrounding from those sessions which is the area between the sides of the river minus any post treaty transfers of specific parcels that might be established such as before townships that have been reserved by the cannot scut indian reservation and the intent to confirm the reservation is evidence in the structure of mix as well that there is a differentiation between the reservation and the territories if there had been an intent to do away with the reservation as the interveners argue there would be no need to refer to a reservation separate from the territories that makes it only extinguished aboriginal title to go land that was seeded in the treaties which is the uplands on both sides of the river reserving to the nation the river because everyone knew that the nation needed to preserve their right to fetch and to hunt and trap in the waters of the main stem that wasn't critical component of their substance it's a critical component of their idea as  penobscot indians there was no doubt about that at the time of the treaties and there was no doubt about that in one thousand nine hundred and eighty when the settlement acts were an acted so the state's assertions the nation and the states are not trying to reopen the penobscot slan claims its main the change of position in two thousand and twelve with the main attorney general's opinion advising that the reservation includes no submerged land and eighty eight when maine attorney general james tierney issued a letter saying the penobscot had the right to sustenance fish in the river the issue was whether they could use gill nets on salmon what's interesting about this is there is no limitation that they can only this part of the river which was mains interpretation starting in the ninety's it was a general affirmation of the right to fish we believe that it is bank to bank because the cooler definition of the reservation is what was not seated in the treaties now there might be some specific trans individual transactions that could possibly still be demonstrated but this idea that there was any transparent by generic regulation as mr shaw argued is just not consistent federal law if it is bank to bank could you just address that along in adjacent language that's in the m i a and what it means it seems to me that the words along and adjacent are redundant so i'm just trying to figure out why there's the words along and adjacent and then how that bears on the need for that provision in light of the fact that you say that the reservation goes back to back right your honor i'm not sure i can shed much light on the a long and adjacent language there's a lot of language that if you really get down to parsing one can say that it could have been drafted more artfully we believe that that particular language doesn't really resolve the question on the one hand you could say it would indicate that the waters submerges lands are not part of the reservation on the other hand is just term i have found in his opinion which we believe to agree with the position of the knobs nation that the indian can apply to the construction of these provisions of the m i a itself yes your honor and mean i believe  reading me out that's not my quit i'm assuming there's not a disagreement between mr and mia if i read next simply to ratify whatever the definition of the reservation in me is what is the authority that supports the idea that with respect to meet his definition itself main was a main court would be obligated to apply the indian canons in interpreting media you follow that you may do and i don't think reservation is are you saying that are you depending upon the language of the treaty itself or are you relying upon common property common law  what ist what order waterways traveled with land right your honor our common law argument is really a back up argument in response to the assertion that the reservation can only be the uplands we think the controlling law is the treaty language we do rely as you know heavily on alaska pacific fisheries which means that when you interpret a reservation that is silent on the inclusion or exclusion of submerged land that you look to whether those submerged lands are necessary for the purpose of the reservation but the common law is important because at the very minimum up under maine common law and island parcel in a non title reach of a river like the main stem is understood to presumptuously include the submerged land to the thread of the surrounding channels now that can be increased or decreased by the expressed intent of the parties we believe that the treaty is a situation where the parties did express the intent that the submerged land would not just be limited to this thread but would extend in the river bank to bank so that's that's house it is specific treaties like which are you referring to your honor on both sides of the river and the understanding that the in the in the reservation under principles of massachusetts at that time common law one which then translated into maine common law when it became a state in eight hundred and twenty in addition to w h the express tradition in the eight hundred and eighteen treaty of a right of passage by nonmembers over the river which again emphasizes that the river is within the reservation but it's subject to the to the public's right of passage over the waters and that is and understood common law public right imposed on  about bank to bank in reference to the islands what about with along the direction of the flow of the river is the entire submerged land from the entire river within the reservation that has been clear for many many years that is larry has what is the what is the precise boundary in your view your honor i w to pull out a map which i don't have just at the moment i don't believe there is any just beautiful camp and i'm afraid i can't i'm just wrong there was a place i think called nichols rot precisely where that is on a map i'm not sure so it's so is it the south edge of the island your honor i'm afraid that i may not be correctly representing the penobscot nations position here as to that mr shaw was addressing the transfer theory as an as an adverse possession theory adverse possession and the kates more physical presence i think that the the between the time of the trees and the time of the settlement your honor only we believe as to specific parcels of land like the four townships that the nation sold demonstrated that an idea has been rejected by the supreme court that congress needs to be clear when aboriginal title is extinguished when reservations are diminished when tribal sovereignty this court's decision in bottom and seventy nine rejected the idea that the maine tribe sovereign immunity disappeared over the years because of a similar subjection to maine authority  talking about was the penobscot nations to begin with in total and then various parts of this were seeded along the way your honor it is the treaty interpret as the indians would have understood it so it does require some appreciation of the history of the penobscot nation but there can be no dispute that the  riverine people for whom the river is the critical component of both their sustenance and their cultural identity so the united states or the supreme court has  rejected the notion that a rather is critical to the quote tribes identity and holding that the bed of the big horn river was not intended to be reserved in that reservation but there really can be no doubt everyone understood best it is well documented so yes one does have to understand who the cannot scott people are but that isn't easy understanding in this case thank river and there isn't any support for that position in the text of the settlement act congress state and the tribes agreed upon that resolves and not only are the water better banks are not using the definition of saxon sixty two or thirty eight the traps right to fish on the indian reservation if the main still is the only place that that could have meaning why would that be and the and the  to figure out if why isn't it implicit in that language the recognition that fishing rights are occurring only on the tribes reservation the language of the century does say within the boundaries of their respective reservation you know  matter of statutory interpretation as i had understood it there are our own proprietary answers to the question one is that the opposed to the state of maine and other has to do with the fact that in fact this language goes to two different tri definition of reservation is not limited by the sustenance fishing rights and at that time going to say yes you do have those rights it is and hire a separate issue whether the question is right or not but whether it's right or not does not give the state of  ne the ability to uncoil to answering the question so do you have any other answer is other than the ones i have outlined so truthfully your honour's if if the not going into the united states had not appeal to the squirt then the state also would not have appealed in the district court decision and that we would have accepted the district court result that the understand how the same phrase used in another the part should be interpreted so it's not just a matter of whether the sustenance rights are before us it's a matter of how we are to look at this legislation in as a part of the comstock river and as a the court has been asking about i'm sorry to interrupt judge i apologize chief judge howard i wanted to double check on the audio with the telephone call i've ever report that there may be an issue with a telephone call attorney headline please go ahead so i think where we left off is we were discussing the other provisions of the settlement act that use just different language that would indicate that congress and the parties intended to include the bat and waters of the main san within the past that indian reservation notably bed and waters are not included in the definition of section six hundred and thirty eight there's also submerged lands in section six  reservation in the other provision of media i thought it was important to see how the reservation was elsewhere used in the year and if i didn't know how it was youth elsewhere in me i couldn't figure out what it meant in sixty two or seven for because i thought that language itself wasn't so clear that it determined then i'd have to figure out what's the seven for men when it referred to the reservation including allowing for sustenance fish rights so it would matter to me what means position was as to what that provision means in the two possible ways i can think of is sixty two or seventy four does not include the river and yet still makes sense for it does include the river but the word reservation in it means something different than the way reservation is used elsewhere in media does maine have a view as to which of those two things is true as i understand the question it is that six hundred and twenty thousand seven hundred and forty one of the options is that it does not include the river and that your other option you presented was that sixty seven pool our reservation includes a river but that reservation means something different than in section sixty two or three it doesn't have a view as between those two things for purposes of how i'm supposed to understand what the word reservation means in sixty four dollars since i think it's important to figure that out to understand what reservation means could just pursue that the question is not on either the question is the position of the state it could be both it could be either  does the state of maine have a position so in our brief we have argued that one way to harmonize the two provisions would be to suggest that that six dollars to seven dollars for again does not include the waters of the main stand but again would not preclude fishing from the islands of the main stem and that's really only as a matter of statutory construction there is no question that the trust what we're doing here is statutory  practice in acceptance of the practice or is it implicit in the nation's ownership of the islands themselves that like the right to ingress and egress they have the right to fish in  fishing that could occur would be standing on the island be on the high water mark if i thought therefore that such fishing provision contemplated the reservation included the river what is mains explanation that indicates otherwise is the idea there that sixty two dollars or three is just so clear that the context would have to indicate otherwise because if the context where it's sixty two or thirty eight were not itself clear i don't see why the context would indicate otherwise yes if the court concluded the sixty two or three it wasn't clear you know with respect to the sustenance fishing right then yes i think the context could indicate otherwise and section that prefatory language of sixty three as the majority suggested aware of the transfer provisions so the transfer definition is broader than the united states and the nation and i have argued to this court it only really focus on the st half of the definition of transfer which identifies typical property transaction control of land or other natural resources correct yes that would include adverse possession but you know i agree with the united states that adverse possession is really more about you know possession of land for a specific period of time it's not what  so i think that then the treaty of eight hundred and eighteen dollars also there was a reference to the foreign reserves townships and so that is the way that we've referred to that that that reservation for the for th for the tribes is to ensure that you know citizens that have the right to know pass and repass among says you know but not you but the history also shows that the state and of massachusetts and maine just simply presumed that they had two answers is one you know these were drafted by moyers and some lawyers like to have a back up argument but again it's also with those reserved townships that were on both sides of the river include the transfer provisions because it's not just you know a regular property transaction it's also any exercise or any act any involuntary or voluntary act that  affected change and dominion or control or title to land or natural resources so all of the transactions that state of maine and the state of massachusetts engaged in after the acquiring the land and that's reading all of the river was part of the reservation prior to that transfer no earlier when you were going to judge your way you were taking the position that the river was not part of it even at the time of the eight eighteen treaty or thereafter i'm just trying to figure out what the states actually what count is of what happened and i find it very helpful to just keep all these balls in the air that will maybe it is this and maybe it's that what what the parties understandings were going into that settlement agreement so it's undisputed that leading into the settlement that the tribe had not exercised you know sovereign control over the past that ever so many the tribe last have sovereign control over you know i can't say your honor it was it's not in the record that it would be before our you know before settlers from massachusetts and maine from the colonies arrived so  matter for purposes of interpret ing the transfer provision we don't tell you why to me that's true i could see why maybe it doesn't for the transfer position provision although you would want to know  baseline was so you could read the significance of the actions that occurred there after to see whether really met the standard of affecting an implicit transfer but as i read the eight hundred and eighteen treaty some of the language in it looks a lot like the language of what the tribe had control have a view that i don't think there's any anything in the record that specifically speaks to that and i would be hesitant to go outside of what the summer in judgment record says in this particular case but you know it goes back to what  means you it was unclear whether the drive had the river at that point i think that these are arguments and issues that would have been litigated in united states the main that led up to the settlement act you know what were the parties were not unlawful and those that never reached a resolution where there was a decision from a court that said that those transactions were unlawful so i am not trying to not see a position i'm just saying that these are issues that were never addressed through that litigation and these are issues that the settlement act were designed to resolve so that whatever the problem and also the problem we have is that because  references the eighteen treaty we're trying to figure out what the baseline is for ownership of the river at that point that is your position is that i guess transactions that the tribe would not have had you know title to the better river and that's consistent with the historical practice and the transfer and provision again was meant to confirm what had the existing situation on senate report for that argument but the senate report also says and not subsequently transferred so again the transfer provision is a term of art within the settlement acts and congress intended to unclouded the title but in the relevant respect i did understood that it was similar in the sense that it's referring to ireland's a collection of them and then the so just repeating those languages in the media raises the question for me yes and the relevant ones is that they refer to a collection of islands without saying whether it means land and water or just which of the two land water are both right and that's true these so i get a sense of what the baseline is if i thought that from this back and forth it made sense to conclude that the tribe would not have thought that the language of the eight hundred and eighteen dollars treaty conclusively resolved that the river was no longer part of the penobscot nation's reservation or part of its sovereign control and then i looked at media and i saw the words that they used in media mirroring in many respects the words from the eight hundred and eighteen dollars treaty it seems to me that would be a good argument that the trip that the penobscot nation in when mia was adopted also would have had that same understanding that the river belonged to it though maine might have had the opposite understanding and so the very ambiguity that existed in th seems to have carried over to me a what's the reason to think that's wrong the reason it doesn't carry over because of the transfer provisions proceed slowly so it's always not modified islands it's modifying consisting so it doesn't help island as water or not it's not it's not serving that function it's just telling you what the islands consists of and it consists solely of the islands that then follow i'm not that point at i want you to address the point i made solely does not modify iowan modifies consisting the word islands precedes the word soley so when we come to it we just then modifying consisting had changes in the number of islands that were caused by the flow of the river and that this land we just put in there to exclude those islands that were created by the change of the river thank you your honors it is nothing short of stunning to the penobscot nation that the state still refuses to give a coherent account of either the relevant provisions of the statute or of the key history underlying the statutes let me just recap to start with the statutory question sixty the state still is ignoring sixty two thousand and seventy four which is the other place in the statute that uses the term reservation any we can cite scores of supreme court precedent that says you have to harmonize statutory provisions that use the same term and i think it's not surprising that the state hasn't offered a competing construction because there is an easy construction that reconciles both provisions staring us in the face that construction is that the penobscot nations reservation encompasses the main stem of the  construction reconciles the tax it reconciles the history and i'm reconciled you never get to that issue as the your points contend the text  in of itself even if you ignored every other indication statute y in and of itself it's not clearly and unambiguously excluding the main stem it uses the term island and then it references the islands in the seven hundred and ninety six and conflicts with that understanding we have mountains of evidence in the record that shows the nation and quite frankly everyone has always understood those treaties to leave the main stem of the river with the penobscot nation so that alone injects at a minimum we think it's clear but the other way but at a minimum it jacks ambiguity the nd point i would make is that congress wrote that statute and i don't wan into a big discussion about alaska pacific fisheries because you've already heard that but it wrote that statute against the backdrop of alaska pacific fisheries which also created her confront an island reservation and there it is not just stop at the pla island it said we're going to look at that island what island means in this context it's only meaningful to the indian tribe if it includes the surrounding waters that they've found so inherently valuable to their reservation so ambiguity because the state neither the state nor the state defense can give any coherent construction to sixty two or seventy four that reconciles the term reservation unless you assume that the  reza nation negotiated a provision a central provision that had no meaning and unless you assume that the united states as its trustee ratified into a law important provision that had no meaning that is not how we should be  one is that that provision still had some place to fish the record squarely refutes that the district court it a seventy seven dollars we have multiple sites it is just not disputed that there is no place on the reservation to fish but for the main stem there is no other water on the reservation it's just simply not disputed so that leaves them with the interpretation that not even the state advances but the state intervene or say oh well maybe they could stand on the end of the shore and cast a line well your honor of course you have to look at history the nation is never fish like that the nation fishes on boats that's why the state has always recognized up until two thousand and twelve exactly that practice they have no coherent explanation for it the only other meaning which again the state doesn't embrace is the preservation somehow means two different things even though it's in the same statute again the supreme court has ample president that says congress has to be crystal clear if it wants to define the same term in two different ways here every indication actually cuts the other way now that's the statute that statutory construction we win the case on there on that ground but if you want to penobscot nation encompass the river they have the river they have lands on both sides of the river stretching six miles out sixty miles in either direction in seven hundred and ninety six and in the eight hundred and eighteen treaties and those treaties are printed in the addendum to our brief they're short so they're easy to read they transfer to the state of massachusetts at the time land on both sides of the river not the river itself it's in black and white and if there's any doubt about that in hundred they specifically grant to massachusetts the right of passage in the river that provision makes zero sense if they no longer had aboriginal title to the brainstem and still any doubt about it there shouldn't be of course you have to construe treaties as the indian tribe would have construed them so all they can latch on to is this regulatory transfer idea which we've already discussed at significant length there's no doubt that the statute doesn't recognize that there's no doubt that the history doesn't recognize it now that leaves one and only one question that is does the main stem does the reservation include the main stem bank to bank or some other line that is an even more straightforward question your honor the just recorded page one so the main stem ends at the confluence of the east and west branches of the penobscot river so that is the subset of the river that we're talking about here today again bank to bank comports with the historical understanding and court saying that the nd point i would make practically it doesn't make any sense to create some artificial line in the river when you are promulgating regulations that govern fishing and trapping on the river were or someone is violating that it can't be that if their boat suddenly moves afoot to the left that you can't enforce the statute that's never how it's worked ever forget about before nine hundred and eighty but even after nine conjunction with the state game wardens of patrol the entire river bank to bank the rd argument although i don't think you even need to remotely get there because they don't have any good argument to limit it not to bank to bank but would be if there's any doubt about it then the indian can and can and of course the supreme court said again again if there's questions about the scope of an indian reservation the doubts are resolved in favor of the indian tribe thank you thank you all we will take this case under advisement and get a decision to use soon as we can thank you that concludes arguments for today this session of the honorable united states court of appeals is now recessed until the next session of the court god save the united states of america and this honorable court counsel you may now disconnect from the meeting and i t may stop the youtube stream