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. 

JANET T. MILLS, Attorney General for the State of Maine; 

CHANDLER WOODCOCK, Commissioner for the Maine Department of 

Inland Fisheries and Wildlife; JOEL T. WILKINSON, 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 STATES DISTRICT COURT 

FOR THE DISTRICT OF MAINE 

[Hon. George Z. Singal, U.S. District Judge] 
Before 

Torruella, Selya, and Lynch, 

Circuit Judges. 

Kaighn Smith, Jr., with whom James T. Kilbreth, III, David M. 

Kallin, Drummond Woodsum, and Mark A. Chavaree were on brief, for 

appellant Penobscot Nation. 

Mary Gabrielle Sprague, Attorney, Environment and Natural 

Resources Division, U.S. Department of Justice, with whom John C. 

Cruden, Assistant Attorney General, Bella Sewall Wolitz, Office of 

the Solicitor, U.S. Department of the Interior, Steven Miskinis, 

Attorney, Environment and Natural Resources Division, U.S. 

Department of Justice, and Elizabeth Ann Peterson, Attorney, 

Environment and Natural Resources Division, U.S. Department of 

Justice, were on brief, for appellant United States. 

Gerald D. Reid, Assistant Attorney General, Chief, Natural 

Resources Division, with whom Janet T. Mills, Attorney General, 

Kimberly L. Patwardhan, Assistant Attorney General, Susan P. 

Herman, Deputy Attorney General, Chief, Litigation Division, and 

Christopher C. Taub, Assistant Attorney General, Senior Litigation 

Counsel, were on brief, for state defendants appellees. 

Catherine R. Connors, with whom Matthew D. Manahan and Pierce 

Atwood LLP were on brief, for state intervenors appellees. 

June 30, 2017 
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LYNCH, Circuit Judge. The Penobscot Nation (the 

"Nation") filed suit in federal court against the State of Maine 

and various state officials (the "State Defendants"), claiming 

rights as to a 60-mile stretch of the Penobscot River, commonly 

known as the "Main Stem." The United States intervened in support 

of the Nation. Private interests, towns, and other political 

entities, whom we shall call the "State Intervenors," intervened 

in support of the State Defendants' position. 

The district court, on cross-motions for summary 

judgment, made two rulings: (1) "[T]he Penobscot Indian 

Reservation as defined in [the Maine Implementing Act ("MIA"), Me. 

Rev. Stat. Ann. tit. 30 ("30 M.R.S.A."),] § 6203(8) and [the Maine 

Indian Claims Settlement Act ("MICSA")], 25 U.S.C. § 1722(i), 

includes the islands of the Main Stem, but not the waters of the 

Main Stem," Penobscot Nation v. Mills, 151 F. Supp. 3d 181, 222 

(D. Me. 2015); and (2) "[T]he sustenance fishing rights provided 

in . . . 30 M.R.S.A. § 6207(4) allows the Penobscot Nation to take 

fish for individual sustenance in the entirety of the Main Stem 

section of the Penobscot River," id. at 222–23. The court issued 

declaratory relief to that effect on both points. Id. 

In these cross-appeals, we affirm the first ruling and 

hold that the plain text of the definition of "Penobscot Indian 

Reservation" in the MIA and the MICSA (together, the "Settlement 

Acts"), includes the specified islands in the Main Stem, but not 
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the Main Stem itself. As to the second ruling on sustenance 

fishing, we vacate and order dismissal. That claim is not ripe, 

and under these circumstances, the Nation lacks standing to pursue 

it. 

Those interested in further details of this dispute will 

find them in the district court opinion. See Penobscot Nation, 

151 F. Supp. 3d at 185–212. Given that the plain text of the 

statutes resolves the first issue and that there is no Article III 

jurisdiction as to the second, we do not and may not consider that 

history. Instead, we get directly to the point on both issues. 

I. 

This litigation began shortly after the Maine Warden 

Service and the Maine Department of Inland Fisheries and Wildlife 

requested a legal opinion from Maine's then-Attorney General 

William Schneider "regarding the respective regulatory 

jurisdictions of the . . . Nation and the State of Maine . . . 

relating to hunting and fishing on the [M]ain [S]tem of the 

Penobscot River." Attorney General Schneider issued his opinion 

(the "Schneider Opinion" or "Opinion") on August 8, 2012. On the 

same day, Attorney General Schneider sent a copy of the Opinion to 

the Governor of the Nation and noted in a cover letter: "I also 

understand that there have been several incidents in recent years 

in which . . . Nation representatives have confronted state 

employees, including game wardens, as well as members of [the] 
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public, on the River for the purpose of asserting jurisdiction 

over activities occurring on the River." 

The Schneider Opinion states that "the . . . Nation may 

lawfully regulate hunting on, and restrict access to, the islands 

within the River from Medway to Old Town that comprise its 

Reservation, but may not regulate activities occurring on, nor 

restrict public access to, the River itself" and that "the State 

of Maine has exclusive regulatory jurisdiction over activities 

taking place on the River." 

The Nation filed suit in federal court against the State 

Defendants on August 20, 2012. In its second amended complaint, 

the Nation sought a declaratory judgment that the Schneider Opinion 

misinterprets federal law -- namely, MISCA --and that both the 

Nation's regulatory authority and its sustenance fishing rights 

extend to and include the Main Stem of the Penobscot River. The 

State Defendants answered the Nation's complaint and filed 

counterclaims. The State Defendants sought a declaratory judgment 

that, among other things, "[t]he waters and bed of the [M]ain 

[S]tem of the Penobscot River are not within the Penobscot Nation 

reservation." All parties agree that the State Defendants' 

declaratory judgment claim on this point is ripe. 

The United States, through the Department of Justice, 

filed a motion to intervene on behalf of the Nation on August 16, 

2013, and the district court granted the United States intervenor 
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status on February 4, 2014.1 The State Intervenors filed their 

motion to intervene in support of the State Defendants on February 

18, 2013, which the district court granted on June 18, 2013. The 

parties engaged in discovery and further procedural sparring, 

after which the Nation, the State Defendants, and the United States 

each moved for summary judgment, and the State Intervenors moved 

for judgment on the pleadings. 

The positions of the Nation and the United States 

differed slightly. The Nation defined the term "Reservation" to 

include the entire Main Stem, bank-to-bank, and its submerged 

lands. The United States said that that was its preferred reading, 

but it offered as another possible reading that the "Reservation" 

reaches the "thread" or centerline of the River. This alternative 

reading would create "halos" around each of the Nation's islands, 

in which the Nation could engage in sustenance fishing. 

 1 The State Defendants objected to the United States' 

motion to intervene on the ground that it was barred by 25 U.S.C. 

§ 1723(a)(2), and they continue that objection on appeal. 

The State Defendants filed an amended answer and 

counterclaims against the United States on November 3, 2014, 

asserting affirmative defenses that, among other things, the 

United States' complaint should be dismissed for failure to join 

indispensable parties and as barred by 25 U.S.C. § 1723(a)(2), and 

seeking declaratory relief along the lines of what they requested 

in their counterclaims against the Nation. Given our disposition, 

we do not reach these questions. 
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After oral argument, the district court issued its 

opinion.2 The Nation and the United States then filed motions to 

amend the judgment, seeking to "clarify" that the Penobscot Indian 

Reservation includes submerged lands on each side of the Nation's 

islands to the thread of the Penobscot River, or alternatively 

"clarify" that the court had not decided the issue. The State 

Defendants opposed the motions, and the court summarily denied the 

motions. 

These cross-appeals followed. 

II. 

We review orders granting summary judgment de novo. 

McGrath v. Tavares, 757 F.3d 20, 25 (1st Cir. 2014). The parties 

agreed before the district court that the record was "amenable to 

resolution" by summary judgment, and the court agreed, concluding 

that it could "disregard as immaterial many factual disputes 

appearing in the record." Penobscot Nation, 151 F. Supp. 3d at 

185 & n.4. All of the issues here are ones of law, which we review 

 2 On the same day that it issued its opinion, the court, 

in a separate order, granted in part and denied in part the State 

Intervenors' motion for judgment on the pleadings for the same 

reasons and also granted in part and denied in part the State 

Intervenors' motion to exclude expert testimony submitted by the 

plaintiffs. The expert testimony ruling is not at issue in this 

appeal. 
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de novo. Franceschi v. U.S. Dep't of Veterans Affairs, 514 F.3d 

81, 84–85 (1st Cir. 2008). 

A. Construction of 30 M.R.S.A. § 6203(8) 

Section 6203(8) of the MIA, which sets out what 

"Penobscot Indian Reservation" "means" under the MIA, in turn 

controls what "Penobscot Indian Reservation" "means" for federal 

law purposes, 25 U.S.C. § 1722(i) ("'Penobscot Indian Reservation' 

means those lands as defined in the [the MIA]."). "As a rule, [a] 

definition which declares what a term 'means' . . . excludes any 

meaning that is not stated." Burgess v. United States, 553 U.S. 

124, 130 (2008) (alterations in original) (quoting Colautti v. 

Franklin, 439 U.S. 379, 392-93 n.10 (1979)). 

The interpretation of section 6203(8) presents a 

question of statutory construction. We apply traditional rules of 

statutory construction to the Settlement Acts. See Maine v. 

Johnson, 498 F.3d 37, 41–47 (1st Cir. 2007); Aroostook Band of 

Micmacs v. Ryan, 484 F.3d 41, 50, 56 (1st Cir. 2007). The canon 

construing statutory ambiguities in favor of Indian tribes does 

not apply when the statutory language is unambiguous. South 

Carolina v. Catawba Indian Tribe, Inc., 476 U.S. 498, 506 (1986); 

see also, e.g., Carcieri v. Salazar, 555 U.S. 379, 387 (2009) 
- 9 - 

(holding that where the language of the Indian Reorganization Act 

is unambiguous, the court must enforce its plain meaning).3

"As in any statutory construction case, '[w]e start, of 

course, with the statutory text . . . .'" Sebelius v. Cloer, 133 

S. Ct. 1886, 1893 (2013) (alteration in original) (quoting BP Am. 

Prod. Co. v. Burton, 549 U.S. 84, 91 (2006)). The MIA states that 

"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. 

30 M.R.S.A. § 6203(8). Where the meaning of the statutory text is 

plain and works no absurd result, the plain meaning controls. See 

Lamie v. U.S. Trustee, 540 U.S. 526, 534 (2004) ("It is well 

 3 We reject the plaintiffs' and dissent's argument that we 

must apply the Indian canon of construction resolving ambiguities 

in favor of Indian tribes. In fact, it would be an error of law 

to apply the canon here, under Catawaba Indian Tribe. 476 U.S. at 

506 ("The canon of construction regarding the resolution of 

ambiguities in favor of Indians, however, does not permit reliance 

on ambiguities that do not exist; nor does it permit disregard of 

the clearly expressed intent of Congress."). Because the plain 

meaning of the Settlement Acts resolves the question of the scope 

of the Reservation, there are no ambiguities to resolve in favor 

of the Nation. Carcieri, 555 U.S. at 387. 

The reference to the canon in Penobscot Nation v. 

Fellencer, 164 F.3d 706, 709 (1st Cir. 1999), noted by the dissent, 

does not apply here. That case concerned whether a decision by 

the Nation's Tribal Council to terminate a community health nurse's 

employment was an "internal tribal matter" within the meaning of 

the Settlement Acts. Id. at 707. Whatever ambiguities may have 

been presented by that question, there are none here, and so the 

canon cannot apply. 
- 10 - 

established that 'when the statute's language is plain, the sole 

function of the courts -- at least where the disposition required 

by the text is not absurd -- is to enforce it according to its 

terms.'" (quoting Hartford Underwriters Ins. Co. v. Union Planters 

Bank, N.A., 530 U.S. 1, 6 (2000))). Such is the case here.4

The analysis turns on what "the islands in the Penobscot 

River" means. "Island" is not given a special definition in the 

MIA, and so we "construe [it] in accordance with its ordinary or 

natural meaning." FDIC v. Meyer, 510 U.S. 471, 476 (1994).5 In 

its ordinary use, "island" refers to a piece of land that is 

completely surrounded by water. See, e.g., Island, Oxford English 

Dictionary Online, http://www.oed.com/view/Entry/99986 (last 

visited June 20, 2017) (first definition) ("A piece of land 

completely surrounded by water."); Island, Merriam-Webster's 

Dictionary Online, https://www.merriam-webster.com/dictionary 

/island (last visited June 20, 2017) (first definition) ("[A] tract 

 4 We do not reach the defendants' argument that the terms 

of the MICSA itself, in 25 U.S.C. §§ 1725(h) and 1735(b), bar the 

application of the Indian canons of construction to the MIA. And 

we do not reach the defendants' argument that any ambiguities in 

the Settlement Acts should be construed with a presumption against 

finding that a state has conveyed its navigable waters. 

5 Because we find that the plain meaning of section 6203(8) 

resolves the issue of the meaning of the "Reservation," we do not 

reach several of the defendants' alternative arguments that the 

Main Stem has been "transfer[red]" from the Nation to Maine under 

the Settlement Acts, see 25 U.S.C. §§ 1722(b),(n), 1723; 30 

M.R.S.A. §§ 6203(13), 6213, and that the doctrines of laches, 

acquiescence, and impossibility bar the Nation's claims. 
- 11 - 

of land surrounded by water and smaller than a continent[.]"); 

Island, Dictionary.com, http://www.dictionary.com/browse/island 

(last visited June 20, 2017) (first definition) ("[A] tract of 

land completely surrounded by water, and not large enough to be 

called a continent.").6 Its ordinary meaning is clear and 

 6 The dissent argues that if "island" is to be understood 

in terms of "land," then we should look to dictionary definitions 

of "land" that the dissent claims include water. What the dissent 

does not reveal is that the primary definitions of "land" in all 

the sources it cites exclude water. The only definitions arguably 

helpful to the dissent are subordinate to these primary 

definitions. See Land, Webster's 1913 Dictionary, 

http://www.webster-dictionary.org/definition/land (last visited 

June 19, 2017) (listing as first definition "[t]he solid part of 

the surface of the earth; - opposed to water as constituting a 

part of such surface, especially to oceans and seas; as, to sight 

land after a long voyage," and listing the definition offered by 

the dissent eighth); Wordreference.com, Land, 

http://www.wordreference.com/definition/land (last visited June 

19, 2017) (listing as first definition "any part of the earth's 

surface, as a continent or an island, not covered by a body of 

water," and listing the definitions arguably most helpful to the 

dissent -- "an area of ground with specific boundaries" and "any 

part of the earth's surface that can be owned as property, and 

everything connected to it" -- third and fifth, respectively); 

Dictionary.com, Land, http://www.dictionary.com/browse/land (last 

visited June 19, 2017) (listing as first definition "any part of 

the earth's surface not covered by a body of water; the part of 

the earth's surface occupied by continents and islands," and 

listing the definition arguably most helpful to the dissent -- 

"any part of the earth's surface that can be owned as property, 

and everything annexed to it, whether by nature or by the human 

hand" -- fifth). 

 We do not, as the dissent suggests, contend that a 

subordinate definition can never supply the operative meaning of 

a term. But as a general rule, a term's "most common[,] . . . 

ordinary and natural" meaning controls, Mallard v. U.S. Dist. Court 

for S. Dist. of Iowa, 490 U.S. 296, 301 (1989), and "[a]ny 

definition of a word that is absent from many dictionaries" or 

consistently subordinate where included is "hardly a common or 

ordinary meaning," Taniguchi v. Kan Pac. Saipan, Ltd., 132 S. Ct. 
- 12 - 

unambiguous. See also Carcieri, 555 U.S. at 388–90 (interpreting 

the use of "now" in 25 U.S.C. § 479 through its ordinary meaning 

and use in the statute, and finding the term unambiguous). 

To add emphasis to the limits of this definitional term, 

the statute further states that the Reservation "islands" 

"consist[] solely" of the enumerated islands. 30 M.R.S.A. 

§ 6203(8) (emphasis added). "'Solely' leaves no leeway." 

Helvering v. Sw. Consol. Corp., 315 U.S. 194, 198 (1942). 

Our holding that the term "island" does not refer to the 

surrounding water itself or to the land submerged by the 

surrounding water is also compelled by other text within the 

Settlement Acts. See, e.g., Henson v. Santander Consumer USA Inc., 

No. 16-349, 2017 WL 2507342, at *4 (U.S. June 12, 2017) (confirming 

plain meaning reading by "[l]ooking to other neighboring 

provisions in the [statute]"). When the Settlement Acts mean to 

address the various topics of water, water rights, or submerged 

land, they do so explicitly and use different language. See, e.g., 

25 U.S.C. § 1721(b)(2) ("It is the purpose of this subchapter . . . 

to clarify the status of . . . natural resources in the State of 

Maine."); id. § 1722(b) (defining the phrase "land or natural 

 

1997, 2003 (2012). It is clear what the ordinary meaning of "land" 

is from the fact that all of the dictionaries cited above define 

it primarily as excluding water, while none ranks a definition 

inclusive of water higher than third. See id. "Were the meaning 

of ['land'] that [the dissent] advocates truly common or ordinary, 

we would expect to see more support for that meaning." Id. 
- 13 - 

resources" in the MICSA as "any real property or natural resources 

. . . including . . . water and water rights"); 30 M.R.S.A. 

§ 6203(3) (defining the phrase "land or other natural resources" 

in the MIA as "any real property or other natural resources . . . 

including . . . water and water rights"); 25 U.S.C. § 1722(n) and 

30 M.R.S.A. § 6203(13) (including "natural resources" as things 

that can be "transferred" as that word is used in the Settlement 

Acts); 30 M.R.S.A. § 6207 (discussing regulation of "waters"); id. 

§ 6207(1)(B) (addressing regulation of "[t]aking of fish on any 

pond in which all the shoreline and all submerged lands are wholly 

within Indian territory," and using the term "territory" rather 

than "Reservation" (emphasis added)). 

Further, section 6205(3)(A), which deals with purchases 

of land to compensate for regulatory takings within Indian 

reservations, 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," thus implying 

that otherwise the "Reservation" is not contiguous to land along 

and adjacent to the Penobscot River. 30 M.R.S.A. § 6205(3)(A). 

The Nation's and United States' construction of "Penobscot Indian 

Reservation" would render that language superfluous, a result 

forbidden by the canons of construction. See In re Montreal, Me. 

& Atl. Ry., Ltd., 799 F.3d 1, 9 (1st Cir. 2015) ("[C]ourts should 
- 14 - 

construe statutes to avoid rendering superfluous any words or 

phrases therein."). 

The MICSA's definitional provision for "Penobscot Indian 

Reservation" itself reinforces this plain-meaning reading of the 

MIA. Section 1722(i) of the MICSA provides that "'Penobscot Indian 

Reservation' means those lands as defined in [the MIA]." 25 U.S.C. 

1722(i) (emphasis added). In its ordinary meaning, the unadorned 

term "land" does not mean water. It means land, as distinct from 

water.7 The MICSA does not say waters are included within the 

boundaries of the "Penobscot Indian Reservation." Taken together, 

the Settlement Acts unambiguously define "Penobscot Indian 

Reservation" as specified islands in the Main Stem of the Penobscot 

River, and not the Main Stem itself or any portion of the Main 

Stem. The plain meaning of "islands in the Penobscot River" is 

 7 See, e.g., Land, Oxford English Dictionary Online, 

http://www.oed.com/view/Entry/105432 (last visited June 20, 2017) 

(first definition) ("The solid portion of the earth's surface, as 

opposed to sea, water."); Land, Merriam-Webster's Dictionary 

Online, https://www.merriam-webster.com/dictionary/land (last 

visited June 20, 2017) (first definition) ("[T]he solid part of 

the surface of the earth[.]"); Land, Dictionary.com, 

http://www.dictionary.com/browse/land (last visited June 20, 2017) 

(first definition) ("[A]ny part of the earth's surface not covered 

by a body of water; the part of the earth's surface occupied by 

continents and islands."). 

 As we have shown at note 6, supra, the dissent's attempt 

to argue that "land" includes water by reference to subordinate 

definitions of "land" from dictionaries that primarily define 

"land" as excluding water is unconvincing. The ordinary meaning 

of land, as even the sources cited by the dissent make clear, 

obviously excludes water. 
- 15 - 

the islands in the River, not the islands and the River or the 

riverbed. 

The Nation and the United States agree that a plainmeaning reading must control. They offer a different reading of 

what that plain meaning is. They argue that the definition of 

"Penobscot Indian Reservation" in section 6203(8) is modified by 

section 6207(4)'s grant of sustenance fishing rights to the Nation 

"within the boundaries of [the Nation's] Indian reservation[]." 

30 M.R.S.A. § 6207(4).8 They contend that because section 6207(4) 

was meant to protect the Nation's sustenance fishing rights in the 

Penobscot River, a reading of section 6203(8) based on the 

otherwise plain meaning of the term "islands" must be rejected 

because it would lead to the absurd result of nullifying section 

6207(4). 

Not so. The two provisions -- sections 6203(8) and 

6207(4) -- are not in tension. The Nation's and United States' 

argument selectively omits relevant text and also ignores the 

differences in text between the two sections. Section 6203 itself 

specifically articulates that definitions in its subsections do 

 8 The Nation also makes similar contentions based on 

section 6207's provisions for sustenance hunting and trapping and 

"related authorities." These arguments are even less persuasive 

than those based on section 6207(4), as the provisions of section 

6207 at issue reference the Nation's "territor[y]," a distinct 

term encompassing both the Reservation and over 130,000 acres of 

trust lands acquired by the United States on behalf of the Nation. 

See 30 M.R.S.A. §§ 6205(2), 6207(1). 
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not apply when "the context indicates otherwise," 30 M.R.S.A. 

§ 6203, which governs section 6207(4). This clause avoids any 

supposed conflict between section 6203(8) and section 6207(4) 

through the statute's own provisions. There is no need to distort 

the plain meaning of "islands" in section 6203(8). 

Also, the sustenance fishing provision refers to "Indian 

reservations," not just the "Penobscot Indian Reservation," as it 

applies "within the boundaries" of both the Passamaquoddy Tribe's 

and the Nation's respective reservations. Id. § 6207(4). If the 

term "island" in section 6203(8) was meant to include all or any 

portion of the surrounding waters, the text would have said so. 

As Justice Scalia observed in a Chevron case, see Chevron, U.S.A., 

Inc. v. Nat. Res. Def. Council, Inc., 467 U.S. 837 (1984), 

legislatures do not "hide elephants in mouseholes." Whitman v. 

Am. Trucking Ass'ns, Inc., 531 U.S. 457, 468 (2001). The ancillary 

reference to "Indian reservations" referring to both the 

Passamaquoddy Tribe and the Nation in section 6207(4) cannot 

dramatically alter the plain meaning of section 6203(8)'s 

definition of "Penobscot Indian Reservation." 

The Nation and the United States also point to the 

reference to previous "agreement[s]" in section 6203(8): "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 in that river 
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northward thereof that existed on June 29, 1818, excepting any 

island transferred [after] June 29, 1818." 30 M.R.S.A. § 6203(8). 

They argue that the reference to the previous treaties found in 

the "by agreement" clause means that the definition of "Penobscot 

Indian Reservation" incorporates the Nation's understanding of the 

treaties and state common law. Again, not so. The reference to 

the treaties is merely language specifying which "islands" are 

involved, not language modifying the meaning of "islands." The 

treaties no longer have meaning independent of the Maine Settlement 

Acts. Rather, upon the passage of the Acts, the treaties were 

subsumed within the Acts, and we look only to the statutory text 

to understand the reservation's boundaries. 

The Nation and the United States further argue that, 

regardless of text, the district court's reading of section 6203(8) 

must be incorrect because it contradicts the Supreme Court's 

holding in Alaska Pacific Fisheries v. United States, 248 U.S. 78 

(1918). It does not. Alaska Pacific concerned the interpretation 

of a distinct phrase, "the body of lands known as Annette Islands, 

situated in Alexander Archipelago in Southeastern Alaska," in an 

unrelated congressional statute that was enacted in 1891 before 

Alaska became a state. Id. at 86 (quoting Act of March 3, 1891, 

ch. 561, § 15, 26 Stat. 1095, 1101). The Court considered not only 

the statute's plain text but also the legislative history of the 

statute and the "general rule that statutes passed for the benefit 
- 18 - 

of dependent Indian tribes . . . are to be liberally construed, 

doubtful expression resolved in favor of the Indians." Id. at 78. 

In light of those considerations, the Court held that Congress 

"did not reserve merely the site of [the Metlakahtlans'] village, 

or the island on which they were dwelling, but the whole of what 

is known as Annette Islands, and referred to it as a single body 

of lands." Id. at 89. 

Alaska Pacific's holding does not affect the question 

before us. Despite the superficial similarities between the 

definition of the Penobscot reservation and the statute at issue 

in Alaska Pacific, they differ materially. The Alaska Pacific 

Court found it "important," if not "essential," to consider "the 

circumstances in which the reservation was created." Id. at 87. 

Not so here: the definition of the Penobscot reservation lacks any 

comparable ambiguity, and any resort to "the circumstances in which 

the reservation was created" would be neither important nor 

essential but, rather, wholly unnecessary. The definition of the 

Penobscot Indian Reservation specifies that it consists "solely of 

Indian Island . . . and all islands in that river." 30 M.R.S.A. 

§ 6203(8) (emphasis added). The definition in Alaska Pacific has 

no limiting term comparable to the adverb "solely." Moreover, the 

definition of the Penobscot reservation refers only to "islands in 

the Penobscot River" and "islands in that river." Id. (emphases 

added). As discussed above, this forms a clear distinction between 
- 19 - 

uplands and the river itself. In contrast, the definition in 

Alaska Pacific uses a much vaguer phrase: "the body of lands known 

as Annette Islands, situated in Alexander Archipelago." 248 U.S. 

at 86. Unlike the Alaska Pacific Court, we have no need to consider 

legislative history or the Indian canons of construction, see supra 

note 3, because the plain text of the definition of the Penobscot 

reservation is unambiguous.9

We are forbidden by law from varying from the plain text 

based on arguments made as to the nature of the Agreement reached. 

We do not look to either side's understanding of the Agreement 

when the meaning of the text of the Settlement Acts is plain.10 

See Star Athletica, L.L.C. v. Varsity Brands, Inc., 137 S. Ct. 

 9 Hynes v. Grimes Packing Co., 337 U.S. 86 (1949), and 

Choctaw Nation v. Oklahoma, 397 U.S. 620 (1970), cited by the 

dissent as applying Alaska Pacific, are inapposite for the same 

reasons. Those cases also interpreted materially distinct 

language in enactments unrelated to the Settlement Acts. 

10 We reject the position of the United States that we 

should not use normal canons of statutory construction and should 

instead use Maine's state law rules for the construction of deeds. 

We are not construing a deed. 

 We also reject the United States' arguments more 

generally that state common law informs the definition of 

Reservation. Nothing in the text of the Settlement Acts permits 

the use of state common law to construe the statutes' definitional 

provisions. The meaning of Reservation in the Settlement Acts is 

plain, and we cannot use state common law to alter that plain 

meaning. 

Finally, we reject the United States' argument that the 

Settlement Acts grant to the Nation "halos" of riparian rights 

around each island. Nothing in the plain language of the statutes 

supports this position. 
- 20 - 

1002, 1010 (2017) ("The controlling principle in this case is the 

basic and unexceptional rule that courts must give effect to the 

clear meaning of statutes as written." (quoting Estate of Cowart 

v. Nicklos Drilling Co., 505 U.S. 469, 476 (1992))); Puerto Rico 

v. Franklin Cal. Tax-Free Tr., 136 S. Ct. 1938, 1946 (2016) 

(question of statutory interpretation "begins 'with the language 

of the statute itself,' and that 'is also where the inquiry should 

end,' for 'the statute's language is plain'" (quoting United States 

v. Ron Pair Enters., Inc., 489 U.S. 235, 241 (1989))). 

The Nation's and United States' arguments from history 

and each party's intent would be relevant only if the statutory 

language were ambiguous. See Matal v. Tam, No. 15-1293, 2017 WL 

2621315, at *10 (U.S. June 19, 2017) ("These arguments are 

unpersuasive. As always, our inquiry into the meaning of the 

statute's text ceases when 'the statutory language is unambiguous 

and the statutory scheme is coherent and consistent.'" (quoting 

Barnhart v. Sigmon Coal Co., 534 U.S. 438, 450 (2002))); Milner v. 

Dep't of the Navy, 562 U.S. 562, 572 (2011) ("Those of us who make 

use of legislative history believe that clear evidence of 

congressional intent may illuminate ambiguous text. We will not 

take the opposite tack of allowing ambiguous legislative history 

to muddy clear statutory language."). The language is not 

ambiguous. 
- 21 - 

The district court was correct to hold that the 

Settlement Acts mean what they plainly say. The Penobscot Indian 

Reservation consists of the specified "islands in" the Main Stem 

of the Penobscot River. It does not include the Main Stem itself, 

any portion thereof, or the submerged lands underneath. 

As to the dissent's three reasons to reach the opposite 

conclusion, as explained, the Alaska Pacific opinion does not 

provide the rule for decision because it concerned an entirely 

different provision in a different statute. The dissent departs 

from the Supreme Court's mandate that courts must interpret 

statutes according to their plain text. See Tam, 2017 WL 2621315, 

at *10 (noting that a party's "argument is refuted by the plain 

terms of the [statute]"); Henson, 2017 WL 2507342, at *6 ("And 

while it is of course our job to apply faithfully the law Congress 

has written, it is never our job to rewrite a constitutionally 

valid statutory text under the banner of speculation about 

[congressional intent]."); Star Athletica, LLC, 137 S. Ct. at 1010 

("We . . . begin and end our inquiry with the text . . . ."); 

Samsung Elecs. Co. v. Apple Inc., 137 S. Ct. 429, 434 (2016) ("The 

text resolves this case."). Second, the statute is clear that the 

role of the treaties is simply to define which "islands" are 

included in the Reservation, not to alter the plain meaning of the 

term Reservation itself. 
- 22 - 

Third, the question of the definition of Reservation is 

not the same as the unripe question of sustenance fishing. The 

MIA itself provides for how to resolve tensions between the 

definition of Reservation and the use of that term in the 

sustenance fishing provision. 

Maine v. Johnson, 498 F.3d 37 (1st Cir. 2007), cited 

heavily by the dissent, concerned an entirely different issue and 

did not present the issue of the meaning of Penobscot Indian 

Reservation in the Settlement Acts. Footnote 11 of Johnson, which 

the dissent suggests controls this case, merely distinguishes 

between Reservation lands and land later acquired in trust. Id. 

at 47 n.11. It is simply not true that this court has held in 

Johnson that the definition of Reservation embraced the waters of 

the Penobscot River. Johnson addressed a distinct question and, 

in doing so, explicitly bypassed any territorial dispute that might 

have been implicated by that question. 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 . . . points 

lies within the tribes' territories."); see also id. at 47. It 

has no bearing on the precise boundaries of the Nation's 

Reservation as that term is used in the Settlement Acts. 

Moreover, while the Nation and the United States 

referred glancingly in their briefing to footnote 11 in Johnson, 

they did not argue that the issue presented in this case was 
- 23 - 

already decided by Johnson. The dissent has made this argument 

for them.11 The dissent's version of history does not illuminate 

the plain meaning of the text and is impermissible to consider.12

We affirm the entry of declaratory judgment for the 

defendants on this point. 

B. Sustenance Fishing Rights 

We hold that the federal courts lack jurisdiction in the 

circumstances of this case to adjudicate the question of the 

Nation's sustenance fishing rights. The district court erred in 

reaching this issue because the issue is not ripe and the 

plaintiffs presently lack standing. As a result, we vacate the 

district court's ruling on this issue, without adjudicating the 

 11 The dissent, but not the United States or the Nation, 

argues that Maine -- in its briefing in Johnson -- has been 

inconsistent as to whether the term "islands" includes waters. 

Maine has had no notice of this argument or an opportunity to 

respond. Further, we see no necessary contradiction, especially 

since the issue here was not at issue in Johnson. 

 Similarly, as to the 1988 letter from the Maine Attorney 

General, the question was whether Maine law prohibited the use of 

gill nets to take about 20 Atlantic salmon, for the sole use of 

tribal members for their individual consumption, and not to be 

sold or processed for sale. The Attorney General's answer was 

there was no prohibition, under section 6207(4) of the MIA (the 

sustenance fishing clause). The Attorney General did not purport 

to address whether any portion of the River was a part of the 

Reservation. Me. Op. Atty. Gen. No. 13 88-2 (Me. A.G.), 1988 WL 

483316. 

 

12 Similarly, the dissent invokes an argument regarding the 

views expressed in a report commissioned by the Maine Indian 

Tribal-State Commission. We do not read that report as the dissent 

does and, in any event, the Commission's views do not displace the 

rules of construction courts must follow. 
- 24 - 

merits of the sustenance fishing issue, and order dismissal of 

this claim for relief. 

The Constitution limits the jurisdiction of the federal 

courts to "Cases" and "Controversies." U.S. Const. art. III, § 2. 

Two "interrelated" "manifestations" of that limitation "are the 

justiciability doctrines of standing and ripeness." Reddy v. 

Foster, 845 F.3d 493, 499, 505 (1st Cir. 2017) (affirming dismissal 

of challenge to never-implemented statute). The plaintiffs cannot 

satisfy either doctrine as to the sustenance fishing issue. 

The standing doctrine requires, inter alia, that a 

plaintiff show an "injury in fact," which is "'an invasion of a 

legally protected interest' that is 'concrete and particularized' 

and 'actual or imminent, not conjectural or hypothetical.'" 

Spokeo, Inc. v. Robins, 136 S. Ct. 1540, 1548 (2016) (quoting Lujan 

v. Defs. of Wildlife, 504 U.S. 555, 560 (1992)). 

The Nation alleges that the Schneider Opinion poses a 

"threat" to its sustenance fishing rights. We see no such threat. 

Allegations of future injury confer standing only "under 

circumstances that render the threatened enforcement sufficiently 

imminent." Susan B. Anthony List v. Driehaus, 134 S. Ct. 2334, 

2342 (2014). That test is not met. 

The Schneider Opinion does not confer standing on the 

Nation now to obtain relief as to the sustenance fishing issue. 

The Opinion itself does not address or even mention the scope of 
- 25 - 

the Nation's fishing rights. Nothing about the Opinion evidences 

that Maine threatens an injury -- imminent or otherwise -- to the 

Nation's sustenance fishing activities. See Blum v. Holder, 744 

F.3d 790, 792 (1st Cir. 2014) (holding that animal rights activists 

lacked standing to challenge the Animal Enterprise Terrorism Act 

where they had not been prosecuted or threatened with prosecution 

under the statute). 

On the contrary, Maine has affirmatively represented 

that it has a "longstanding, informal policy" not to "interfere[] 

with [Nation] members engaged in sustenance fishing on the Maine 

Stem." In Reddy, where we held there was neither standing nor 

ripeness, we found that the challenged unimplemented legislation 

did not presently interfere with the plaintiffs' relevant 

activities and that the government had "affirmatively disavowed 

prosecution . . . unless and until" certain absent preconditions 

were met. 845 F.3d at 502; see also Blum, 744 F.3d at 798 

("Particular weight must be given to the Government disavowal of 

any intention to prosecute . . . ."). The Nation's claims that 

the Schneider Opinion presently threatens the Tribe's "exclusive 

sovereign authority to govern [sustenance fishing]" or "tribal 

self-government" have no support in the record. 

Nor can the Nation generate standing or ripeness by its 

own actions. The Nation points to an Internet "alert" from a 

Nation official to Nation members stating that they are "at risk 
- 26 - 

of prosecution by Maine law enforcement officers" if they practice 

sustenance fishing in the Main Stem. The State of Maine has said 

no such thing. 

These kinds of general and hypothetical allegations of 

injury cannot succeed at the summary judgment stage, where the 

plaintiffs must do more than merely allege legal injury and must 

instead provide a factual basis for the alleged injury. See Lujan, 

504 U.S. at 561. The Nation and the United States have not even 

attempted to show that any member of the Nation has suffered any 

injury related to sustenance fishing practices in response to the 

Schneider Opinion. See Reddy, 845 F.3d at 503 (rejecting 

"conjectural fear" as sufficient for standing); see also Wittman 

v. Personhuballah, 136 S. Ct. 1732, 1737 (2016) ("When challenged 

by a court (or by an opposing party) concerned about standing, the 

party invoking the court’s jurisdiction cannot simply allege a 

nonobvious harm, without more."). 

The Nation and the United States also attempt to create 

standing by arguing that the State Defendants' own counterclaims 

in this lawsuit "necessarily place in controversy the location of 

the Penobscot Nation's sustenance fishery." The counterclaims do 

not do so. The State Defendants' counterclaims referenced 

allegations from Maine officials and recreational users of the 

Main Stem that the Nation had attempted to assert exclusive control 

over the Main Stem by, inter alia, demanding payment for access 
- 27 - 

permits. While this may establish standing as to the issue about 

the meaning of "Penobscot Indian Reservation" (for which standing 

has not been contested), it does not go to the issue of sustenance 

fishing rights. The allegations do not show there has been any 

injury to the Nation's sustenance fishing activities. The 

plaintiffs cannot bootstrap the justiciability of their own claims 

by use of the State Defendants' counterclaims. Cf. DaimlerChrysler 

Corp. v. Cuno, 547 U.S. 332, 352 (2006) ("[A] plaintiff must 

demonstrate standing for each claim he seeks to press."). 

The sustenance fishing claim is also not ripe. 

Plaintiffs must show both "fitness" and "hardship" to satisfy the 

ripeness analysis. Reddy, 845 F.3d at 501. 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)), and the hardship prong "concerns the 

harm to the parties seeking relief that would come to those parties 

from our 'withholding of a decision' at this time," Reddy, 845 

F.3d at 501 (quoting Labor Relations Div. of Constr. Indus. of 

Mass., Inc. v. Healey, 844 F.3d 318, 330 (1st Cir. 2016)). 

Both prongs of the ripeness analysis prevent 

justiciability here. The sustenance fishing claim on this record 

is merely speculative. There is no evidence in this record that 
- 28 - 

Maine has interfered with or threatened to interfere with the 

Nation's sustenance fishing in the Main Stem, and there is not 

even an allegation that the State plans to change its informal 

policy of not interfering with sustenance fishing. We have no 

concrete dispute before us and so have no facts to frame the 

appropriate inquiry, or even any relief. See Reddy, 845 F.3d at 

497. 

As to hardship, "there is no apparent prejudice to the 

plaintiffs if they must wait until their claims ripen to sue," 

because "[t]hey are 'not required to engage in, or to refrain from, 

any conduct, unless and until'" Maine actually takes some step to 

interfere with or at least officially proposes to interfere with 

sustenance fishing in the Main Stem. Id. at 505 (quoting Texas v. 

United States, 523 U.S. 296, 301 (1998)). The claim is not ripe 

for adjudication and the district court lacked jurisdiction to 

review it.13

III. 

The judgment of the district court is affirmed as to the 

declaratory judgment regarding the definition of "Penobscot Indian 

Reservation" under 30 M.R.S.A. § 6203(8) and 25 U.S.C. § 1722(i), 

and vacated with instructions to dismiss for want of jurisdiction 

 13 In response to the defendants' ripeness arguments, 

Penobscot Nation cites case law on the requirements for the Ex 

Parte Young exception to the Eleventh Amendment. These citations 

are inapposite and add nothing to the ripeness analysis. 
- 29 - 

as to the declaratory judgment regarding the sustenance fishing 

rights under 30 M.R.S.A. § 6207(4). No costs are awarded. 

-Dissenting Opinion Follows- 
- 30 - 

TORRUELLA, Circuit Judge (dissenting). "Everything in 

US history is about the land—[including] who . . . fished its 

waters . . . ."14 This statement is particularly relevant in the 

dealings by the U.S. majority with the indigenous Indian 

population, and lies at the heart of the present appeal. Although 

the United States has ratified over 370 treaties with Indian 

nations15 -- it unfortunately "has a long and appalling history of 

breaking treaties with Indian nations whenever it was convenient 

. . . to do so."16 In the present case, the United States is on 

the right side of history and the law, but regrettably the same 

cannot be said of the State of Maine and its co-parties. 

As will be presently detailed, the Reservation of the 

Penobscot Indian Nation includes the Main Stem of the Penobscot 

River, bank-to-bank, for three principal reasons.17 First, the 

Supreme Court has held that a grant of "lands" and "islands" to 

Indians includes "submerged lands"18 and "surrounding waters," 

 14 Roxanne Dunbar-Ortiz, An Indigenous Peoples' History of 

the United States 1, (2014). 

15 The interested reader may find a complete database of 

these treaties at: 

http://digital.library.okstate.edu/kappler/vol2/ tocy1.htm. 

16 Singer, Joseph, Legal Theory: Sovereignty and Property, 

86 Nw. U.L. Rev. 1, 2 (1991). 

17 For the sake of clarity, I here refer to the Penobscot 

Indian Nation as the "Nation" or the "Penobscots"; to its 

reservation as the "Reservation"; and to the "the Main Stem of the 

Penobscot River, bank-to-bank," as "the Main Stem." 

18 As a matter of both Maine and Massachusetts law, the river 
- 31 - 

Alaska Pacific Fisheries v. United States, 248 U.S. 78, 87-89 

(1918). See infra Section II. Second, the Settlement Acts reserve 

to the Nation what it retained in its treaties with Massachusetts 

and Maine, see 30 M.R.S.A. § 6203(8) -- including the Main Stem. 

See infra Section III. Third, in a carefully negotiated key 

provision, the Settlement Acts provide for the Penobscot Nation to 

have the right to fish within its Reservation, 30 M.R.S.A. 

§ 6207(4) -- yet if the majority view prevails, the Nation's 

"fishing" will only take place in the uplands of their islands, on 

dry land where there are no fish and no places to fish. See infra 

Section IV. These three reasons render the definition of the 

Reservation in the Settlement Acts ambiguous to say the least, and 

are therefore individually and collectively bolstered by the 

Indian canon of construction, "a principle deeply rooted in this 

Court's Indian jurisprudence [whereby] 'Statutes are to be 

construed liberally in favor of the Indians, with ambiguous 

provisions interpreted to their benefit.'"19 This clearly defeats 

the majority's dictionary-driven conclusion to the contrary. 

 

bed of the Penobscot River is submerged land, and, because that 

river is non-tidal, this submerged land is not owned by the state, 

but rather privately owned. See infra Section III. 

19 Cty. 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)). 
- 32 - 

The majority opinion "doth protest too much"20 that the 

Settlement Acts define the Reservation unambiguously, and that 

considerations such as history and purpose are therefore 

irrelevant. Not only is the statute equivocal for the three 

reasons just stated, but as this court has cogently ruled 

[although] [t]he usual maxim is that courts do 

not go beyond the text of the statute if the 

meaning is plain. . . . [T]hat maxim has 

inherent flexibility. Even seemingly 

straightforward text should be informed by the 

purpose and context of the statute. Both this 

court and the Supreme Court have checked a 

sense of a statute's plain meaning against 

undisputed legislative history as a guard 

against judicial error. 

Greebel v. FTP Software, Inc., 194 F.3d 185, 192 (1st Cir. 1999) 

(Lynch, J.) (emphasis added). Yet the majority ignores this 

precedent and -- elevating the dictionary above the law -- bypasses 

the Supreme Court's warning (made in the context of Indian law) 

that "one may not fully comprehend the statute's scope by 

extracting from it a single phrase, such as 'public lands' and 

getting the phrase's meaning from the dictionary," Hynes v. Grimes 

Packing Co., 337 U.S. 86, 115-16 (1949).21

 20 William Shakespeare, Hamlet act 3, sc. 2 137 (T.J.B. 

Spencer Ed., Penguin Books 1996) (1603). 

21 Even if the majority were correct to rely solely on 

dictionaries here -- and it is not -- its methodology is 

fallacious. The majority acknowledges that dictionaries offer 

multiple definitions of "land," but asserts that the definition 

listed first must govern, and that it unambiguously establishes 

the meaning of "land." Yet the existence of multiple, 

contradictory definitions is a textbook example of ambiguity. See 
- 33 - 

Further relying on its erroneous conclusion that the 

Settlement Acts are unambiguous, the majority claims that the 

Indian canon of construction does not apply. As stated, the 

majority is wrong on both counts. But even if the Settlement Acts 

were not ambiguous, the Indian canon would still apply, because it 

mandates that "treaties 'must . . . be construed . . . in the sense 

in which they would naturally be understood by the Indians.'" 

South Dakota v. Bourland, 508 U.S. 679, 701 (1993) (quoting 

 

e.g., Watt v. Western Nuclear, Inc., 462 U.S. 36, 41-42 (1983) 

("As this Court observed . . . the word 'minerals' is 'used in so 

many senses, dependent upon the context, that the ordinary 

definitions of the dictionary throw but little light upon its 

signification in a given case.'") (quoting Northern Pacific R. Co. 

v. Soderberg, 188 U.S. 526, 530 (1903)). See also United States 

v. Williams, 553 U.S. 285, 294-95 (2008) (Scalia, J.) (relying on 

the fourth dictionary definition of "promotes" and dictionary 

definition 3a of "presents.") 

A good example of a definition of "land" that does include 

water can be found in the very dictionary that Maine relies on in 

its brief: "Any ground, soil, or earth whatsoever, as meadows, 

pastures, woods, etc., and everything annexed to it, whether by 

nature, as trees, water, etc., or by the hand of man, as buildings, 

fences, etc.; real estate." http://www.websterdictionary.org/definition/land (eighth definition) (last visited 

June 23, 2017) (emphasis added). Similar definitions can be found 

in other dictionaries. See, e.g., 

http://www.wordreference.com/definition/land (last visited June 

23, 2017)(fifth definition) ("any part of the earth's surface that 

can be owned as property, and everything connected to it"); 

http://www.dictionary.com/browse/land (last visited June 23, 2017) 

(definition 5a) ("any part of the earth's surface that can be owned 

as property, and everything annexed to it, whether by nature or by 

the human hand.") See also http://www.dictionary.com/browse/land 

(last visited June 23, 2017) (seventh definition) ("A part of the 

surface of the earth marked off by natural or political boundaries 

or the like; a region or country" -- which plainly can include 

water.") 
- 34 - 

Washington v. Wash. State Commercial Passenger Fishing Vessel 

Assn., 443 U.S. 658, 676 (1979); Jones v. Meehan, 175 U.S. 1, 11 

(1899)). As the record establishes, the natural understanding of 

the Penobscots is that the River and the Islands are one and the 

same; to the Nation, the waters and the bed of the River are so 

intimately connected to the uplands of the islands, that no 

distinction between the two is made. Indeed, the Penobscot 

locution "to fish my islands" means to fish the waters surrounding 

the uplands of those islands. The majority, however, believes 

that the Nation, negotiating the Settlement Agreements from a 

position of strength -- having just established before this court 

that it had a claim to approximately two-thirds of Maine, see, 

e.g., Joint Passamaquoddy Tribal Council v. Morton, 528 F.2d 370, 

370 (1st Cir. 1975) -- ceded the Penobscot River that it has fished 

since time immemorial and values so greatly.

Indeed, at the urging of none other than Maine itself, 

this court previously had no difficulty in accepting that both the 

Penobscot and Passamaquoddy reservation "lands" embraced "waters." 

See Maine v. Johnson, 498 F.3d 37, 47 (1st Cir. 2007). 22 But 

 22 Clutching at straws the majority claims that, in the 

present dispute, Maine was not on notice of its own position in 

Johnson. Supra at 22 n.10. The majority also claims that Johnson 

"concerned an entirely different issue;" that "[i]t is simply not 

true that this court has held in Johnson that the definition of 

Reservation embraced the waters of the Penobscot River;" that this 

dissent relies merely on a footnote in Johnson; that the Nation 

and the United States refer only "glancingly" to that footnote; 
- 35 - 

today, the majority gives short shrift to our holding in Johnson. 

The majority also "see[s] no necessary contradiction" between 

Maine's position in Johnson that the Reservation includes a part 

of the Penobscot River, and its present position (and the 

majority's holding) that no part of the River is included. But 

there is a clear contradiction -- for which Johnson's words speak 

the loudest and clearest. 

 

and that this dissent therefore makes the argument for them that 

Johnson decides the present case. Supra at 22. 

I have difficulty accepting that Maine must be put on notice 

of its own position. In any event, both the Nation and the United 

States have extensively argued that Maine (until its sudden change 

of heart in 2012) had consistently taken the position that the 

Reservation includes at least some of the waters of the Penobscot 

River, citing various documents which I lay out in Section I infra. 

Maine was thus on notice that its present position is in conflict 

with its prior position. As I will explain in further detail, the 

majority's decision is in fact in direct contradiction with the 

holding of Johnson, and that holding is based on much more than a 

single footnote. See infra Section III. Furthermore, the Nation 

and the United States have both referred to Johnson much more that 

"glancingly" in their arguments. For instance, in a section of 

its brief dedicated to showing that the Nation has retained as its 

reservation that which it has not ceded in its treaties with 

Massachusetts and Maine, the Nation writes that

this Court has said that the question of 

whether the boundaries of the Penobscot Indian 

Reservation include the waters of the River 

turns on whether those waters were "retained 

by the tribe[] . . . based on earlier [treaty] 

agreements between the tribe[] and 

Massachusetts and Maine." Johnson, 498 F.3d 

at 47 (emphasis in original) 

Both the Nation and the United States also rely on Johnson in 

their reply briefs; indeed, the United States does so on the very 

first page of its reply brief. 
- 36 - 

I. Context and History 

Contrary to the majority's myopic view, it is necessary 

to understand the "unique history" of the Settlement Acts to decide 

the present case. Johnson, 498 F.3d at 47. Supreme Court 

precedent and the Settlement Acts require that we look at that 

history.23 See infra Sections II and III. 

What the majority terms "the dissent's version of 

history," supra at 23, is principally drawn from primary sources, 

such as the 1796, 1818, and 1833 treaties between Massachusetts or 

Maine and the Nation, from Congressional Reports, and from letters 

and filings by Maine's own attorneys general and one of its 

solicitors general. The history here is also drawn from our own 

case law. 

The relevant history commences with the epoch of the 

American Revolution, a time when the Nation had aboriginal title 

to land which was "centered on the Penobscot River," located in 

the then-Massachusetts territory of Maine. H.R. Rep. No. 96-1353, 

at 11 (1980). As the Revolution began, General George Washington 

sought the assistance of the Native American tribes in Maine, 

including the Penobscots. Id. Colonel John Allan of the 

 23 I summarize only the most relevant history here. The 

interested reader may find more extensive descriptions of the 

history in, among others: Penobscot Nation v. Stilphen, 461 A.2d 

478 (Me. 1983), and Passamaquoddy Tribe v. Maine, 75 F.3d 784 (1st 

Cir. 1996). 
- 37 - 

Massachusetts militia negotiated a treaty with the Penobscots and 

the other tribes, promising the protection of their lands in 

exchange for their assistance in the war. Id. at 11-12. 

Unfortunately, this promise did not last much past the 

birth of the United States. Id. at 12. Massachusetts (which then 

still included the territory of Maine), cash-strapped at the time, 

sought to buy land from the Indians to resell at a profit. Id. 

After the Penobscots successfully rebuffed numerous such attempts, 

they eventually yielded, and entered into two treaties ceding some 

of their lands. In the first treaty, in 1796, the Nation ceded, 

within a 30-mile tract, "all the lands on both sides of the 

Penobscot River." Vine Deloria, Jr. et al., Documents of American 

Indian Diplomacy: Treaties, Agreements, and Conventions 1094 (1st 

Ed. 1999). These lands were six miles wide. Id. The bargain was 

typically one-sided. The Nation received no money, but rather 

specified quantities of "blue cloth for blankets," "shot," 

"[gun][p]owder," "hats," "[s]alt," "New England Rum," and "corn." 

Id. In the second treaty, in 1818, the Nation ceded the remainder 

of its lands on both sides of the river, reserving only four 

townships on those lands for the Nation's "perpetual use." Treaty 

Made by the Commonwealth of Massachusetts with the Penobscot Tribe 

of Indians, 1843, Me. Acts 243 (1818). In exchange, the Nation 

again received tokens, inter alia, a "cannon," "knives," and 

"drums." Id. 
- 38 - 

When Maine obtained statehood in 1820, it assumed 

Massachusetts's treaty obligations to the Indians. In 1833, Maine 

purchased, for $50,000, the four townships on the shore of the 

Penobscot River that had been euphemistically reserved for the 

Nation's "perpetual use."

As it turned out, however, in all these dealings with 

the Nation, both Massachusetts and Maine had proceeded in violation 

of the Indian Nonintercourse Act, 25 U.S.C. § 177, which prohibited 

any transfer of land from Indians without Congressional approval. 

See Joint Tribal Council of the Passamaquoddy Tribe v. Morton, 528 

F.2d 370, 377 (1st Cir. 1975). These two states neither sought 

nor obtained Congressional ratification of their treaties with the 

Nation. H.R. Rep. No. 96-1353, at 11 (1980).

When this violation surfaced in the 1970s, the Penobscot 

Nation initiated litigation claiming that, because neither Maine 

nor Massachusetts ever sought the required approval from Congress 

the treaties with Congress, the land transfers were void ab initio 

and the Nation had therefore retained legal title to its aboriginal 

lands, which amounted to nearly two-thirds of Maine's land mass. 

Other tribes initiated several similar claims. These litigations 

led to settlement discussions, and resulted in the passage of the 

Settlement Acts in 1980.

The Settlement Acts embodied a compromise, the core of 

which was that the Nation received increased sovereignty (previous 
- 39 - 

to the Settlement Acts, Maine did not consider the Nation to have 

any sovereignty24) and a fund was provided by the federal government 

to reacquire some of the Nation's lost lands. To the benefit of 

Maine, Congress retroactively ratified the land transfers of 1796, 

1818, and 1833, and provided that the Nation would be generally 

subject to Maine law. See 25 U.S.C. § 1723; 30 M.R.S.A. § 6204. In 

essence, the Nation became akin to a municipality under Maine law, 

but one with additional sovereignty over, inter alia, "internal 

tribal matters," "sustenance fishing," and "hunting and trapping." 

See 30 M.R.S.A. §§ 6206, 6207. 

Congress -- House and Senate alike -- ratified the MIA 

on the understanding that the Nation's rights to hunt and to fish 

were both "expressly retained sovereign activities," and that the 

tribes had the "permanent right to control hunting and fishing 

within . . . their Reservations," whereas the State had only a 

"residual right to prevent the two tribes from exercising their 

hunting and fishing rights in a manner which has a substantially 

 24 See, e.g., Great Northern Paper v. Penobscot Nation, 770 

A.2d 574, 581 (Me. 2001) ("[Prior to the Settlement Acts] Indians 

residing within Maine's borders were subjected to the general laws 

of the state like 'any other inhabitants' of Maine. Although the 

Tribes were recognized in a cultural sense, they were simply not 

recognized by the state or the federal government in an official 

or 'political sense.'") (quoting State v. Newell, 24 A. 943, 944 

(1892); United States v. Levesque, 681 F.2d 75 (1st Cir. 1982) 

(Criminal cases committed in Indian country still outstanding 

after passage of the Settlement Acts were tried in the United 

States District Court for the District of Maine). 
- 40 - 

adverse effect on stock in or on adjacent lands or waters." S. 

Rep. No. 96-957, at 15, 17 (1980); H.R. Rep. No. 96-1353, at 15, 

17 (1980). That these provisions would receive such importance is 

only natural, given that Congress understood that the Penobscots 

were a "riverine" people, whose "aboriginal territory . . . is 

centered on the Penobscot River." H.R. Rep. 96-1353 at 11 (1980). 

In fact, the sustenance fishing provision was amended several times 

to accommodate the concerns of the parties. 

Indeed, the Penobscots have fished, hunted, and trapped 

on the River since time immemorial. The River is the only place 

within their Reservation where the Penobscots can fish, because 

the uplands of their islands have no surface water where this 

activity can be conducted. Fishing is central to Penobscot 

culture, because fish is not only a major traditional source of 

sustenance, but is also central to many of the Nation's rituals 

and traditions. 

It is not only the Penobscots who have understood the 

Main Stem to be part of their Reservation since the Settlement 

Acts came into force; the United States has consistently taken 

this position as well (and does so once more in the present case). 

Thus, in 1995 and 1997 filings before the Federal Energy Regulatory 

Commission ("FERC"), the Department of the Interior ("DOI"), took 

the position that the Main Stem is part of the Reservation, 

principally because the 1818 Treaty did not cede the Penobscot 
- 41 - 

River to Massachusetts. The federal government has also repeatedly 

granted the Nation funding for water resources planning, fisheries 

management, and water-quality monitoring of the River. 

The Maine Indian Tribal-State Commission -- an entity 

created by the Settlement Acts for the purpose of, inter alia, 

"continually review[ing] the effectiveness of this Act and the 

social, economic and legal relationship between the Houlton Band 

of Maliseet Indians, the Passamaquoddy Tribe and the Penobscot 

Nation . . . ," 30 M.R.S.A. § 6212(3) -- has also consistently 

taken the position that the Main Stem is within the Nation's 

Reservation. See Friederichs, Zyl-Navarro, and Bertino, The 

Drafting and Enactment of the Maine Indian Claims Settlement Act, 

(February 2017) (commissioned by the Maine Indian Tribal-State 

Commission), available at http://www.mitsc.org/.

Maine has also understood the Main Stem, or at least a 

portion thereof, to fall within the Reservation. Thus, in a 1988 

letter, Maine's then-Attorney General Tierney stated that the 

Nation could "place gill nets in the Penobscot River within the 

boundaries of the Penobscot Reservation." Me. Op. Atty. Gen. No. 

88-2 (Me.A.G.), 1988 WL 483316 (emphasis added). In a 1997 filing 

before the FERC, Maine's then-Solicitor General Warren stated that 

"the boundaries of the Penobscot Reservation . . . includ[e] the 

islands in the Penobscot River . . . and a portion of the riverbed 

between any reservation island and the opposite shore." (emphasis 
- 42 - 

added). In fact, Maine's eel permits advised the public that 

"[t]he portions of the Penobscot River and submerged lands 

surrounding the islands in the river are part of the Penobscot 

Indian Reservation." Maine reaffirmed its position before this 

court in 2006, when it argued in its brief that: 

To be clear, it is the State's 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 . . . . 25 

Brief of State of Maine as Intervenor-Respondent, at 3 n.2, Maine 

v. Johnson, 498 F.3d 37 (1st Cir. 2007) (Nos. 04-1363, 04-1375) 

(emphasis added). In the same litigation, Maine insisted that in 

order to determine the exact boundaries of the Reservation, it was 

necessary to analyze "the relevant treaties referenced in the 

Reservation definitions in the [MIA] including historical 

transfers of Reservation lands and natural resources (30 M.R.S.A. 

§§ 6203(5) and (8)), and aspects of Maine property law." Brief 

for Petitioner State of Maine at 58, Johnson, 498 F.3d (Nos. 04-

1363, 04-1375). 

In that same litigation, this court accepted that the 

Penobscot Reservation included at least a part of the Penobscot 

 25 The usual riparian rights include ownership of the 

submerged lands (i.e. the river bed) around the islands. See infra 

Section III. 
- 43 - 

River, but did not resolve what part that was. The court had no 

difficulty in referring to Indian "lands" as encompassing 

"waters." See Johnson, 498 F.3d at 47. 

Yet, thereafter in 2012, only five years after Maine had 

argued to this court that the Penobscot Indian Reservation included 

a part of the Penobscot River -- and more than 30 years after the 

Settlement Acts came into force -- Maine's then-Attorney General 

William Schneider wrote to the Nation informing it that no part of 

the River is within its Reservation. This sudden change in Maine's 

position, embodying an attempt to breach the agreement contained 

in the Settlement Acts, sparked the present litigation. 

II. Supreme Court Precedent is Dispositive 

Alaska Pacific Fisheries definitively established the 

rule of law that determines that the Penobscot Indian Reservation 

includes the Main Stem. Although the majority acknowledges that 

there are "superficial similarities" between Alaska Pacific 

Fisheries and the present case, it tries to downgrade the holding. 

Supra at 18. In fact, the similarities are not "superficial," they 

are profound. 

In Alaska Pacific Fisheries, 

[t]he principal question for decision [was] 

whether the reservation created by the Act of 

1891 embraces only the upland of the islands 

or includes as well the adjacent waters and 

submerged land. The question is one of 

construction -- of determining what Congress 
- 44 - 

intended by the words 'the body of lands known 

as Annette Islands.' 

248 U.S. at 87 (quoting Comp. St. 1916, § 5096a) (emphasis added). 

The Supreme Court unmistakably held that the reservation included 

the adjacent waters and submerged land. Id. at 89. 

To arrive at this conclusion, the Supreme Court looked 

not to a dictionary, but rather observed that 

As an appreciation of the circumstances in 

which words are used usually is conducive and 

at times is essential to a right understanding 

of them, it is important, in approaching a 

solution of the question stated, to have in 

mind the circumstances in which the 

reservation was created -- the power of 

Congress in the premises, the location and 

character of the islands, the situation and 

needs of the Indians and the object to be 

attained. 

Id. at 87 (emphasis added). 

If one follows the Supreme Court's analysis step-bystep, the majority's grievous errors become clearly apparent. At 

the threshold, a comparison between the language at issue in Alaska 

Pacific Fisheries and the language at issue here is in order. 

In Alaska Pacific Fisheries, the relevant phrase was 

"the body of lands known as Annette Islands, situated in Alexander 

Archipelago in Southeastern Alaska," Id. at 86 (quoting Act of 

March 3, 1891, c. 561, § 15, 26 Stat. 1095, 1101). In the present 

case, there is a two-part relevant text. First, the MICSA defines 
- 45 - 

the Reservation as "those lands as defined in the [the MIA]." 25 

U.S.C. § 1722(i). Second, the MIA defines the Reservation as 

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. 

30 M.R.S.A. § 6203(8). The definition in Alaska Pacific Fisheries 

and the definition here are highly similar. Neither definition 

mentions waters or submerged lands, but refers only to "lands" and 

"islands." Both definitions specify which islands are included in 

the reservations. One definition does this by using the name the 

islands are known under ("Annette Islands"); the other definition 

does this by referring back to previous treaties in which the 

Nation retained islands, then using the name of one island ("Indian 

Island, also known as Old Town Island"), and then detailing which 

other islands are intended ("all islands in that river northward 

thereof"). Finally, both definitions also specify where these 

islands are located: one is "situated in Alexander Archipelago in 

Southeastern Alaska" and the other "in the Penobscot River." 

Rather than being "superficial[ly] similar[]," Alaska Pacific 

Fisheries unquestionably establishes the proper methodology for 
- 46 - 

determining the demarcation of the Nation's Reservation in the 

present case. 

Alaska Pacific Fisheries mandates an approach to 

interpreting statutes that do not expressly grant waters or 

submerged lands to the Indians -- an approach that looks not to a 

dictionary, but rather places the statute in its context, and looks 

to Congressional intent. If the Supreme Court had applied the 

majority's approach to the definition at issue in Alaska Pacific 

Fisheries, then it would not have held that the reservation at 

issue included waters or submerged lands. But the Supreme Court 

did not apply the majority's approach, and concluded that the 

reservation did include waters and submerged lands. The majority's 

approach is thus precluded by binding Supreme Court precedent.26

 26 Based on the language of the respective statutes, the 

majority attempts to distinguish Alaska Pacific Fisheries from the 

present case. This attempt fails. The majority cites the word 

"solely" in the MIA. But the majority fails to see that "solely" 

serves to specify which islands in the Penobscot River are included 

in the Reservation, and which are not -- not whether the Main Stem 

is excluded from the Reservation. Specifically, there are islands 

in the Penobscot River south of Indian Island (such as Marsh Island 

which is on the west side of Indian Island), and also islands north 

of Indian Island that were created after 1818, such as Gero Island. 

The legislative history reveals that Maine was particularly 

concerned that those post-1818 islands might be deemed included in 

the Reservation. The majority also argues that the phrase "in the 

Penobscot River" means that no part of the River is included in 

the Reservation. But the reference to the Penobscot River, like 

the reference to the "Alexander Archipelago" in Alaska Pacific 

Fisheries, serves to situate the Reservation. In addition, the 

words "in the Penobscot River" limit the size of the Reservation 

-- without these words, the Nation could claim all islands 

northward of Indian Island, regardless of which body of water they 
- 47 - 

Returning to the approach that Alaska Pacific Fisheries 

sets out, I commence with the statement in Alaska Pacific 

Fisheries, "[t]hat Congress had power to make the reservation 

inclusive of the adjacent waters and submerged land as well as the 

upland needs little more than statement." Id. Similarly, in the 

present case, Congress had the power to ratify -- or to decline to 

ratify -- any territorial arrangement between the Nation and Maine. 

Next, it can easily be concluded that the analysis of 

the location and character of the islands in the present case is 

clearly in line with Alaska Pacific Fisheries. The Annette Islands 

are "separated from other islands by well-known bodies of water." 

Id. at 88. In the present case, the islands that are part of the 

Penobscot Indian Reservation are separated from other islands 

(such as those to the south of Indian Island), as well as from the 

banks of the Penobscot River, by a well-known body of water: the 

Main Stem of that very Penobscot River. The Supreme Court also 

remarked that the "salmon and other fish," that passed through the 

waters of the Annette Islands Reservation, gave "to the islands a 

value for settlement and inhabitance which otherwise they would 

not have." Id. Again, this applies in the present case. The 

Penobscots are a riverine people who have fished in the Main Stem 

since time immemorial, and for whom fishing is not only a key means 

 

are in. 
- 48 - 

of sustenance, but also an inextricable part of their culture. 

The fish in the Main Stem thus give the Reservation islands a 

"value for settlement and inhabitance which otherwise they would 

not have." 

Turning to the final step of the analysis, a major 

purpose of the Nation in entering into the Settlement Acts -- in 

addition to the fishing -- was increased sovereignty over its 

territory, and the regaining of some of the territory it had lost 

to Massachusetts and Maine in 1796, 1818, and 1833. Thus, 

surrendering the River upon which its aboriginal lands were 

centered was plainly not part of the Nation's purpose -- retaining 

the Main Stem was. Indeed, just like the Indians in Alaska Pacific 

Fisheries, "[t]he Indians naturally looked on the fishing grounds 

as part of the islands and proceeded on that theory in soliciting 

the reservation." Alaska Pacific Fisheries, 248 U.S. at 89. 

The Supreme Court in Alaska Pacific Fisheries bolstered 

its holding by noting that, pursuant to the Indian canon of 

construction, "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. at 89. 

Most assuredly, this applies in the present case as well. See 

Penobscot Nation, 164 F.3d at 709 (1st Cir. 1999) (applying the 

Indian canon of construction to the Settlement Acts). In Alaska 

Pacific Fisheries, the Court found further support for its holding 
- 49 - 

in the fact that, following enactment, the statute was treated by 

the Indians, the public, and the Secretary of the Interior as 

including the adjacent waters in the reservation. As previously 

stated, this situation also exists in the present case. Since the 

enactment of the Settlement Acts, the Nation and the United States 

have understood that the Reservation included the Main Stem. Supra 

Section I. Even Maine, until it recently reversed course, and the 

public it informed, understood that at least a part of the Main 

Stem was within the Nation's Reservation. Id. 

Alaska Pacific Fisheries has been applied in other cases 

that are instructive for present purposes. Two cases -- which the 

majority addresses only in a conclusory footnote -- are 

particularly so. First, in Hynes v. Grimes Packing Co., the 

Supreme Court applied Alaska Pacific Fisheries to conclude that 

"any other public lands which are actually occupied by Indians or 

Eskimos within said Territory [Alaska]," included "waters." 337 

U.S. 86, 110-11 (1949) (emphasis added). The Supreme Court 

observed that "one may not fully comprehend the statute's scope by 

extracting from it a single phrase, such as 'public lands' and 

getting the phrase's meaning from the dictionary," rather, the 

statute "must 'be taken as intended to fit into the existing 

system' and interpreted in that aspect." Id. at 115-116. Second, 

in Choctaw Nation v. Oklahoma, the Supreme Court had to determine 

whether a grant of "land" to the Choctaw Indians included submerged 
- 50 - 

lands in the Arkansas River. 397 U.S. 620, 621, 625 (1970). The 

relevant boundary was described simply as "'up the Arkansas' and 

'down the Arkansas,'" and there was no reference in the grant to 

conveying that river or any submerged lands to the Indians. Id. 

at 631. Citing Alaska Pacific Fisheries, the Supreme Court noted 

that "the question is whether the United States intended to convey 

title to the river bed to petitioners," id. at 633, and concluded 

that the grant of "land" bounded by the Arkansas River included 

the submerged lands of that river. Id. at 635. 

In light of Alaska Pacific Fisheries, the proposition 

that the words "lands" and "islands" refer only to land above the 

waters of the Penobscot River can very well be put to rest.27 

Additionally, the notion that one can resort to dictionary 

definition to resolve the present case can similarly rest in peace. 

The Reservation includes the Main Stem. 

I continue, however, because the Nation and the United 

States have both presented arguments that, even without Alaska 

Pacific Fisheries, demonstrate that the Penobscot Indian 

Reservation includes the Main Stem. 

 27 The majority never specifies at what water level the 

boundaries of the Penobscot Indian Reservation are to be 

determined. Indeed, according to the majority's interpretation, 

it would appear that the Penobscot Indian Reservation shrinks when 

the water levels in the River rise, and then expands when those 

levels fall. 
- 51 - 

III. The Nation Never Ceded the Main Stem to Massachusetts 

[T]he Indians are acknowledged to have the 

unquestionable right to the lands they occupy, 

until it shall be extinguished by a voluntary 

cession to the government; and . . . that right 

was declared to be as sacred as the title of 

the United States to the fee. 

Leavenworth v. United States, 92 U.S. 733, 742 (1876). The 

Settlement Acts were enacted against the backdrop of an 

unextinguished and "sacred" right of the Indians inhabiting Maine 

to approximately two-thirds of that state's landmass. I commence 

with the uncontested proposition that this aboriginal title 

included the Penobscot River and its bed. Congress enacted the 

Settlement Acts on the understanding that the tribes would 

surrender their aboriginal title, but "would retain as 

reservations those lands and natural resources which were reserved 

to them in their treaties with Massachusetts." S. Rep. No. 96-

957, at 18 (1980); H.R. Rep. No. 96-1353, at 18 (1980). 

This understanding is reflected in the language of both 

MICSA and the MIA. Thus, MICSA retroactively ratified the transfer 

of lands in the 1796, 1818, and 1833 treaties: "Any transfer of 

land or natural resources located anywhere within the United States 

from, by, or on behalf of . . . the Penobscot Nation . . . shall 

be deemed to have been made in accordance with the Constitution 

and all laws of the United States . . . ." 25 U.S.C. § 1723(a)(1). 

MICSA then extinguishes the Nation's aboriginal claim as to the 
- 52 - 

lands or natural resources transferred in the 1796, 1818, and 1833 

treaties. 25 U.S.C. § 1723(b). But the Nation did not transfer 

the Main Stem in those treaties. 

The language of the MIA also reflects Congress's 

understanding that the Nation would retain what it had not ceded 

in its treaties with Massachusetts and Maine. The MIA refers those 

treaties in the very definition of the Penobscot Indian 

Reservation: "'Penobscot Indian Reservation' means the islands in 

the Penobscot River reserved to the Penobscot Nation by agreement 

with the States of Massachusetts and Maine . . . ." 30 M.R.S. § 

6203(8). The majority effectively reads this language out of the 

MIA. By taking this language as "merely language specifying which 

'islands' are involved," supra at 16, the majority renders the 

language superfluous -- because the MIA already specifies which 

islands are included in the Reservation: "solely . . . Indian 

Island, also known as Old Town Island, and all islands in [the 

Penobscot R]iver northward thereof that existed on June 29, 

1818 . . . ." 30 M.R.S. § 6203(8). The majority's reading "is 

thus at odds with one of the most basic interpretive canons, that 

'"[a] statute should be construed so that effect is given to all 

its provisions, so that no part will be inoperative or superfluous, 
- 53 - 

void or insignificant . . . ."'" Corley v. United States, 556 

U.S. 303, 314 (2009).28

Admittedly, if one relies on the text of the MIA standing 

alone, the majority's reading -- that the reference to the 1796, 

1818, and 1833 treaties merely serves to specify which islands are 

part of the Reservation -- is not impossible. However, "[w]hen we 

are faced with these two possible constructions, our choice between 

them must be dictated by a principle deeply rooted in this Court's 

Indian jurisprudence: 'Statutes are to be construed liberally in 

favor of the Indians, with ambiguous provisions interpreted to 

their benefit.'" Cty. 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)). 

Thus, not only do the purpose and legislative history of 

the Settlement Acts lead to the conclusion that the Nation has 

 28 The majority attempts a similar argument with respect to 

section 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." 30 M.R.S.A. § 6205(3)(A). The majority argues that 

this implies "that otherwise the 'Reservation' is not contiguous 

to land along and adjacent to the Penobscot River;" and that 

including the Main Stem in the Reservation "would render that 

language superfluous." Supra at 13. What the majority apparently 

fails to take into account is that the Penobscot River also runs 

for approximately 30 miles south of the Main Stem. Thus, section 

6205(3)(A), far from being redundant, serves the purpose of 

rendering land along and adjacent to any part of the Penobscot 

River (including south of the Reservation) contiguous to the 

Reservation. 
- 54 - 

retained what it has not ceded -- but the Indian canon of 

construction mandates that conclusion, for the Indians never ceded 

the Penobscot River in the 1796, 1818, and 1833 treaties. To 

understand why this is the case, it is essential to examine those 

treaties. 

In the 1796 and 1818 treaties, the Nation ceded its 

"land" on both sides of the Penobscot River -- but Old Town Island, 

and all the islands in the River northward thereof, were reserved 

for the Tribe; the 1818 treaty also reserved four townships to the 

Nation, which were then sold to Maine in the 1833 treaty. None of 

these treaties explicitly mention the River being conveyed to 

Massachusetts or to Maine, nor do they mention it being reserved 

for the Indians. 

[W]e will construe a treaty with the Indians 

as 'that unlettered people' understood it, and 

'as justice and reason demand, in all cases 

where power is exerted by the strong over 

those to whom they owe care and protection,' 

and counterpoise the inequality 'by the 

superior justice which looks only to the 

substance of the right, without regard to 

technical rules.' 

United States v. Winans, 198 U.S. 371, 380-81 (1905). The Nation 

views the Penobscot River as part of the islands, and in the 1796, 

1818, and 1833 treaties, the Nation retained those islands, and 

thus naturally understood that it retained the River as well. The 

Nation ceded only "land" on both sides of the River, which it 

naturally understood to refer only to the uplands on both sides of 
- 55 - 

the River. Thus, the Nation retained the River in the 1796, 1818, 

and 1833 treaties. 

But even reading the treaties technically leads to the 

conclusion that the Nation retained the Main Stem. Under 

Massachusetts, as well as Maine, common law,29 the river beds of 

non-tidal rivers are considers submerged lands, and are privately 

owned,30 presumptively by the owner of the abutting uplands, who 

may be referred to as a riparian owner. McFarlin v. Essex Co., 64 

Mass. 304, 309-10 (Mass. 1852); In re Opinion of the Justices, 106 

A. 865, 868-69 (Me. 1919). The Penobscot River, in relevant part, 

is non-tidal. Veazie v. Dwinel, 50 Me. 479, 479 (Me. 1862). When 

two different persons own land on opposite sides of the River, 

each presumptively owns the submerged land to the "thread" (i.e. 

midline) of the river; the same holds true for owners of islands 

-- they, too, presumptively own the submerged lands to the thread 

of the river between the island upland and the upland on the river 

bank. See Warren v. Westbrook Mfg. Co., 86 Me. 32, 40 (Me. 1893). 

Ownership of submerged lands brings with it certain rights, such 

as the exclusive right to fish in the waters above the submerged 

 29 Because Massachusetts and Maine common law are identical 

in all respects that are material here, I here cite to both, 

leaving to the side the question of whether Maine or Massachusetts 

law should apply to a given treaty or issue. 

30 Unlike the beds of tidal rivers, which cannot be privately 

owned, but are rather owned by the state for the benefit of all 

citizens. Storer v. Freeman, 6 Mass. 435, 438 (Mass. 1810). 
- 56 - 

lands; it also brings with it certain obligations, such as allowing 

the public passage through the waters above the submerged lands. 

McFarlin, 64 Mass. at 309-10; In re Opinion of the Justices, 106 

A. at 868-69. 

In an arm's-length transaction, the presumption would be 

that the Nation ceded its submerged lands until the thread between 

its retained islands and the banks of the River. But 

Massachusetts, as well as Maine, law recognizes that the 

presumption is defeated where the transaction was not at arm's 

length, especially where, as here, the grantor does not understand 

that he or she is relinquishing title to the submerged lands. See 

Hatch v. Dwight, 17 Mass. 289, 298 (Mass. 1821); Hines v. Robinson, 

57 Me. 324, 330 (Me. 1869). 

Note that, even if (as the majority) one reads the 1796, 

1818, and 1833 treaties out of the Settlement Acts, state law still 

informs the meaning of those Acts. Varity v. Howe, 516 U.S. 489, 

502 (1996) ("The dissent looks to the dictionary for interpretive 

assistance. Though dictionaries sometimes help in such matters, 

we believe it more important here to look to the common law 

. . . .") (citing Nationwide Mut. Ins. Co. v. Darden, 503 U.S. 

318, 322 (1992)). This is especially true in this case, because 

Maine insisted that Maine law apply to the Penobscots. Supra 

Section I; 30 M.R.S.A. §§ 6202, 6204. Section 6204 of the MIA is 
- 57 - 

even entitled "Laws of the State to apply to Indian Lands."31 "Laws 

of the State," in turn, is defined to include "common law." 30 

M.R.S.A. § 6203(4). And if islands include submerged lands, and 

the Nation's Reservation includes islands, then, by simple 

deduction, the Nation's Reservation includes submerged lands.32 

The United States, the Nation, and Maine (until Maine 

suddenly changed its mind in 2012) have consistently taken the 

position that the Reservation was defined with reference to the 

1796, 1818, and 1833 treaties and state common law. Supra Section 

I. In fact, it was Maine who -- before this court in Johnson -- 

was adamant that the boundary issue "involves analysis of the 

relevant treaties referenced in the Reservation definitions in the 

[MIA] including the historical transfers of Reservation lands and 

natural resources (30 M.R.S.A. §§ 6203(5) and (8)), and aspects of 

Maine property law." Brief for Petitioner State of Maine at 58, 

Maine v. Johnson, 498 F.3d 37 (1st Cir. 2007) (Nos. 04-1363, 04-

1375) (emphasis added).

 31 Although the Penobscots did negotiate a few exceptions to 

the general rule that they are subject to Maine law, none of those 

exceptions could support the proposition that the Indians somehow 

surrendered their property rights under Maine law. See, e.g., 30 

M.R.S.A. §§ 6206, 6207. 

32 Citing no authority, the majority, however, asserts that 

state common law, including law for the construction of deeds, 

should not figure in our construction of the Settlement Acts. 

Supra at 19 n.9. 
- 58 - 

Contrary to the majority's protestation that Johnson 

"did not present the issue of the meaning of Penobscot Indian 

Reservation in the Settlement Acts," Johnson did just that. 

Johnson concerned a dispute over the allocation of regulatory 

authority over waste discharges into water between Maine, the EPA, 

and the Indians (specifically, the Nation and the Passamaquoddy 

Tribe). In order to resolve that dispute, this court had to 

address the meaning of the Reservation.33 For in order to determine 

that the Nation did not have regulatory authority as to two 

discharge facilities, this court had to decide whether those 

facilities discharged into territory "acquired by the Secretary 

[of the Interior] in trust" for the Nation, or whether it 

discharged into the Reservation.34 Johnson, 498 F.3d at 47. As 

the majority itself puts it, in Johnson, we "distinguishe[d] 

between Reservation lands and land later acquired in trust." Supra 

at 22. We made that distinction by observing that the Reservation, 

 33 Note that in order for the Nation to have standing in a 

case concerning waste discharges into water, its Reservation had 

to include at least some part of the Penobscot River. We decided 

the Nation's claims in Johnson on the merits, thus determining 

that the Nation had standing and, implicitly, that the Reservation 

included some part of the River. Restoration Pres. Masonry, Inc. 

v. Grove Eur. Ltd., 325 F.3d 54, 59 (1st Cir. 2003) (We do not 

assume the existence of Article III jurisdiction). 

34 The Nation's Territory is comprised of its Reservation 

plus any lands acquired by the Secretary of the Interior for the 

benefit of the Nation. 30 M.R.S.A. § 6205(2). The Nation's 

regulatory authority is different in its territory and its 

reservation. See, e.g., 30 M.R.S.A. § 1724(h). 
- 59 - 

unlike the Territory, contained "reservation waters retained by 

the [Penobscot and Passamaquoddy] tribes under the [MIA], based on 

earlier agreements between the tribes and Massachusetts and 

Maine." Johnson, 498 F.3d at 47 (original emphasis). We then 

clarified that we arrived at this conclusion because we read the 

MIA as "defin[ing] [the Nation's] reservation lands as those 

reserved to the tribe[] by agreement with Massachusetts and Maine 

and not subsequently transferred." Id. at 47 n.11 (citing 30 

M.R.S.A. § 6203(5), (8)) (emphasis added).35 The majority is 

correct insofar as it notes that, in Johnson, we bypassed the issue 

of the Reservation's exact boundaries. But we did hold that the 

Reservation was defined in terms of what the Nation retained, and 

that the Reservation included some part of the Penobscot River -- 

which directly conflicts with the majority's view that the 

Reservation is defined by the dictionary, and includes no part of 

River.

It is therefore nothing short of stunning that the 

majority today holds that the 1796, 1818, and 1833 treaties are 

unambiguously excluded from the Settlement Acts. Apparently, the 

majority believes that this court in Johnson was not merely wrong, 

 35 The majority seeks to characterize my reliance on Johnson 

as being based merely on footnote 11 in that case. Supra at 22. 

As this discussion makes clear, I am not relying merely on that 

footnote, although it does provide useful clarification. As for 

the majority's other attempts to argue that reliance on Johnson is 

not proper, I have addressed those in footnote 22, supra. 
- 60 - 

but that it completely misread an unambiguous provision. 

Notwithstanding the majority's protestations, in Johnson, this 

Court had no difficulty in referring to Indian "lands" as including 

"waters." Id. at 45 ("[T]wo source points . . . drain into 

navigable waters within what we assume to be tribal land.") 

(emphasis added); Id. at 47 ("[T]he facilities . . . discharge 

onto reservation waters . . . . That such lands may be subject to 

. . . .") (emphasis added). 

IV. The Nation's Right to Fish "within" its Reservation

In a section entitled "Sustenance fishing within the 

Indian reservations," the MIA provides that 

Notwithstanding any rule or regulation 

promulgated by the commission[36] 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 . . . . 

30 M.R.S.A. § 6207(4) (emphasis added). 

This provision was carefully negotiated and was amended 

several times to accommodate the concerns of the parties. The 

provision was understood by all involved to be central to the 

Nation's position -- and indeed to its very existence and culture 

 36 Referring to the Maine Indian Tribal-State Commission. 

See supra Section I. 
- 61 - 

-- and was one of the very few exclusions in the MIA to the 

applicability of Maine law to the Nation and its lands.37

The fact that the Indians can fish "within" their 

Reservation implies that there is a place to do so. Unless the 

majority is of the view that one can fish where there is no water, 

there is no place to fish on the uplands of the Nation's islands 

-- which implies that some part of the River has to be a part of 

the Reservation. The previous two sections of this dissent have 

already explained why that part of the River is the Main Stem, so 

I will not belabor that point here. 

What is worth repeating, however, is just how strongly 

the sustenance fishing provision implies that the Nation's 

Reservation embraces a part of the River. Given the attention 

paid to this provision and to the importance of sustenance fishing 

to the Nation, the grant of fishing rights within the boundaries 

of the Reservation was not accidental. This is especially so given 

that Congress knows how to grant fishing or others rights to 

Indians outside of their reservations. See, e.g., Washington v. 

 37 The majority appears to believe, however, that this 

provision (or at least the reference to the Reservation therein) 

is "ancillary," because the provision applies to both the 

Passamaquoddy and the Penobscot Reservations. Supra at 16. I 

fail to see how a provision that grants additional rights not only 

to the Penobscots, but also to the Passamaquoddy, is thereby 

rendered less significant to the Nation's position -- if anything, 

because the provision applies to two distinct reservations, rather 

than only to one, it carries more weight, not less. 
- 62 - 

Wash. State Commercial Passenger Fishing Vessel Ass'n, 443 U.S. 

658, 674 and n.21 (1979) (holding that six treaties granted Indians 

off-reservation fishing rights, through the following language (or 

language materially identical thereto): "The right of taking fish, 

at all usual and accustomed grounds and stations, is further 

secured to said Indians, in common with all citizens of the 

Territory . . . ."). 

The majority correctly points out that the Nation has 

hunting and trapping rights as well within its territory, which is 

much larger than its Reservation. Supra at 14 n.6, 15; 30 M.R.S.A. 

§§ 6207(1)(A), 6205(2), 6207(1). However, the majority -- 

incorrectly -- views this hunting and trapping provision as 

providing only weak support for the position of the United States 

and the Nation. What the majority fails to see is that section 

6207 sets up a detailed scheme allocating authority over fishing 

between the Nation, the Maine Indian Tribal State Commission,38 and 

the state. Thus, section 6207(1)(A) (which gives the Indians 

hunting and trapping rights) is part of section 6207(1), which 

gives Indians the "exclusive authority within their respective 

Indian territories to promulgate and enact ordinances regulating" 

not only "[h]unting, trapping or other taking of wildlife," but 

also "[t]aking of fish on any pond in which all the shoreline and 

 38 Referring to the Maine Indian Tribal-State Commission. 

See supra Section I. 
- 63 - 

all submerged lands are wholly within Indian territory and which 

is less than 10 acres in surface area." 30 M.R.S.A. §§ 6207(1). 

Section 6207(3) then goes on, in painstaking detail, to delineate 

the areas in which the commission shall have "exclusive authority 

to promulgate fishing rules or regulations," again with reference 

to "Indian territory."39 30 M.R.S.A. §§ 6207(3). Section 6207(6) 

then lays out what authorities and duties Maine's Commissioner of 

Inland Fisheries and Wildlife has within Indian territories. 

Given this meticulous delineation of who has what 

authority over fishing -- and where, exactly, that authority 

applies -- a provision that gives Indians sustenance fishing rights 

within their reservations "[n]otwithstanding any rule or 

regulation promulgated by the commission or any other law of the 

State" is highly significant. 30 M.R.S.A. § 6207(4). This 

provision plainly implies that those reservations include places 

 39 To wit, the commission has such authority in: 

A. Any pond other than those specified in 

subsection 1, paragraph B, 50% or more of the 

linear shoreline of which is within Indian 

territory; 

B. Any section of a river or stream both 

sides of which are within Indian territory; 

and 

C. Any section of a river or stream one 

side of which is within Indian territory for 

a continuous length of 1⁄2 mile or more. 

30 M.R.S.A. § 6207(3). 
- 64 - 

in which to fish. In the case of the Penobscot Reservation, that 

means that the Main Stem is part of the Reservation. 

The majority, however, argues against this necessary 

implication by relying on the boilerplate phrase "unless the 

context indicates otherwise" that applies to the definitions 

section of the MIA. 30 M.R.S.A. § 6203; supra at 15. But the 

majority never explains in what way the "context indicates 

otherwise." In fact, as I have just explained, the context 

indicates that "reservations" in the sustenance fishing provision 

was used to mean exactly that -- reservations, as including the 

Main Stem. 30 M.R.S.A. § 6207(4). It is only through the 

majority's forced reading of the definition of the Nation's 

Reservation that a tension is even created between that definition 

and the sustenance fishing provision. But even assuming that this 

tension exists, that the Settlement Acts somehow offer two 

definitions of the Reservation, I am forced to repeat that "[w]hen 

we are faced with these two possible constructions, our choice 

between them must be dictated by a principle deeply rooted in this 

Court's Indian jurisprudence: 'Statutes are to be construed 

liberally in favor of the Indians, with ambiguous provisions 

interpreted to their benefit.'" Cty. of Yakima, 502 U.S. at 269 

(quoting Montana, 471 U.S. at 766).40

 40 Because the Main Stem is part of the Reservation, there 

is no need for this court to reach the second issue, namely whether 
- 65 - 

V. Conclusion

As previously elaborated, there are at least three 

reasons -- each of which is sufficient by itself -- why the 

Penobscot Indian Reservation includes the Main Stem of the 

Penobscot River. First, the Supreme Court's binding precedent, 

especially Alaska Pacific Fisheries, establishes that the words 

"lands" and "islands" can include contiguous waters and submerged 

 

the Nation has standing to sue for a declaratory judgment that it 

has a right to sustenance fishing in the Main Stem. Plainly, 

section 6207(4) of the MIA gives the Nation this right. The 2012 

letter from Maine's then-Attorney General Schneider (the letter 

that has given rise to this dispute) acknowledges that "the 

Penobscot Nation has authority to regulate hunting and fishing on 

those islands included in its Reservation . . . ." The letter 

proceeds to explain that "[t]he River itself is not part of the 

Penobscot Nation's Reservation, and therefore is not subject to 

its regulatory authority or proprietary control." But the Main 

Stem of the River is, in fact, part of the Reservation, and the 

question of whether the Penobscots can fish in the Main Stem is 

therefore moot. 

If I were to reach the issue of standing and ripeness, 

however, I would still find that the Indians have standing and 

that their claim is ripe. An Indian Nation or Tribe has the 

standing to seek declaratory and injunctive relief where its 

sovereignty is put in question, even absent any other concrete 

harm. See Moe v. Confederated Salish & Kootenai Tribes of Flathead 

Reservation, 425 U.S. 463, 468 n.7 (1976). As already amply 

elaborated upon herein, the Nation views its right to sustenance 

fishing as an essential element of its sovereignty, and Congress 

understood the hunting and fishing provision as recognizing the 

Nation's exercise of "inherent sovereignty," and considered 

hunting and fishing "expressly retained sovereign activities." S. 

Rep. No. 96-957, at 14-15 (1980); H.R. Rep. No. 96-1353, at 14-15 

(1980). A declaration from Maine, therefore, that the Nation has 

no such right (even if Maine does not, at present, intend to 

interfere with the Nation's sustenance fishing) is calling the 

Nation's sovereignty into question. 
- 66 - 

lands. On the facts of the present case, there is no question 

that they do include the waters and submerged lands of the Main 

Stem. Second, in the 1796, 1818, and 1833 treaties -- with 

reference to which the Reservation is defined -- the Nation 

retained the Main Stem; this is true even if we interpret the 

treaties technically in light of Maine and Massachusetts common 

law. Third, the Settlement Acts provide the Nation with sustenance 

fishing rights within its Reservation -- a right that only makes 

sense and can only be exercised if the Reservation includes at 

least a part of the waters of the Penobscot River. 

These three reasons are also mutually reinforcing. For 

instance, Alaska Pacific Fisheries calls for an appraisal of, inter 

alia, the purposes which the Settlement Acts sought to attain; the 

sustenance fishing provision underscores that one of those 

purposes was to guarantee to the Nation sustenance fishing rights 

within its Reservation, without otherwise disturbing the carefully 

crafted regulatory balance of the Settlement Acts. Alaska Pacific 

Fisheries also calls for an appraisal of the situation of the 

Nation -- which situation is clarified by the 1796, 1818, and 1833 

treaties and state common law establishing that the Nation was in 

possession of the Main Stem when it entered into the Settlement 

Acts. 
- 67 - 

I cannot join in the majority's overreliance on 

dictionaries, to the exclusion of far more persuasive and common 

sense authority. 

[I]t is one of the surest indexes of a mature 

and developed jurisprudence not to make a 

fortress out of the dictionary; but to 

remember that statutes always have some 

purpose or object to accomplish, whose 

sympathetic and imaginative discovery is the 

surest guide to their meaning. 

Watt v. Alaska, 451 U.S. 259, 266 n.9 (1981) (quoting Cabell v. 

Markham, 148 F.2d 737, 739 (L. Hand, J.), aff'd, 326 U.S. 404 

(1945)). 

 Respectfully, but most emphatically, I dissent.