United States Department of the Interior

l1 RfI'LY REFER TO

Avi S Garbow

General Counsel

OfFICE OF THE SOLICITOR

Washington DC 202 10

JAN 3 0 2015

United States Environmental Protection Agency

1200 Pennsylvania Ave NW

Washington DC 20460

Re Maine's WQS and Tribal Fishing Rights of Maine Tribes

Dear Mr Garbow

The State of Maine has submitted proposals to the Environmental Protection Agency

EPA to implement Water Quality Standards WQS within waters set as ide for federa lly

recognized tribes under applicable state and Federal law for uses including sustenance

fishing hereinafter described as Maine Indian Waters To assist in your review of

Maine's proposals you have asked for the Department of the Interior's views regarding

tribal fishing rights in Maine and particularly the relationship between tribal fishing rights

and water quality We have reviewed applicable law and for the reasons explained

below conclude that all four of the Maine tribesthe Penobscot Nation the

Passamaquoddy Tribe the Houlton Band ofMaliseet Indians and the Aroostook Band of

Micmacs have federallyprotected tribal fi shing rights These fi shing rights should be

taken into account in evaluating the adequacy of WQS in Maine

1 Overview of Tribal Fishing Rights in Maine Indian Waters

As you are well aware the four federa lly recognized Indian tribes in the State of Maine

are subject to a unique statutory fran1ework established by the state law Act to Implement

the Maine Indian Claims Settlement Maine Implementing Act 2the statelaw Micmac

Settlement Act 3 the federal Maine Indian Claims Settlement Act MICSA4 and the

1

We note that the exact boundaries of at least some Indian lands and territories in Maine remain in dispute

For example the United States has intervened in a lawsuit fi led by the Penobscot Nation against Maine

claiming that the Penobscot Reservation includes waters in the Main Stem of the Penobscot Ri ver See

Order on Pending Motions in Penobscot Nalion v Mills I 12cv 00254 GZS D Maine Feb 4 20 14

granting US motion to intervene It is beyond the scope of this letter to precisely identify all Maine

Indian Waters The location of Maine Indian Waters for each Tribe would have to be defined based on all

applicable law including statutory language applicable property law doctrine and lands reserved by treaty

and retained by the tribes pursuant to statute We do not elaborate here on the question of whether the

Maine tribes have additional fishing rights outside of Indian lands and terri tories

2

30 MRS 620 I el seq

3

30 MR S 7201 el seq

4

25 USC 1721 et seq

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federal Aroostook Band of Micmacs Settlement Act5 collectively the Settlement

Acts 6

There is no dispute that the four Maine tribes have historically engaged in fishing in

Maine waters and that fishing is an important cultural and economic activity for Maine

tribal members 7Because of differences in their history and applicable statutory

language the fishing rights of the two Southern Tribes the Passamaquoddy Tribe and

the Penobscot Indian Nation derive from different legal sources than the fishing rights

of the Northern Tribes the Houlton Band of Maliseet Indians and the Aroostook Band

of Micmacs But all Maine tribes possess fishing rights that EPA should consider when

analyzing proposed water quality standards in Maine

The fishing rights of the Passamaquoddy Tribe and Penobscot Indian Nation in their

Reservation waters8 are expressly reserved9 fishing rights the Maine Implementing Act

5

PL 102171 105 Stat 1143 1991 6 In MICSA Congress formally confirmed the federal recognition of the Penobscot Nation the

Passamaquoddy Tribe and the Houlton Band ofMaliseet Indians 25 USC 1725 i Federal recognition

was extended to the Aroostook Band of Micmacs eleven years later with the enactment ofP L 102171

Sec 6a so now these four Maine tribes are recognized as eligible for the rights and benefits of Indian

tribal status See generally 25 USC 479a l a providing for listing of federally recognized tribes that

are all entitled to services provided by the United States to Indians because of their status as Indians

7 Notably several standalone provisions in Maine law recognize and arguably encourage the continuing

centrality of fishing to the traditions and health of Maine tribes First the State of Maine recognizes and

facilitates fishing as a central part of tribal culture by issuing permits to tribal members to fish in Maine

waters at no cost 12 MRS I0853 8 Second the State has enacted legislation providing for special

treatment of tribal members engaged in fishing for marine organisms exempting them from many state

permitting requirements and providing a broad exemption for many tribal sustenance and ceremonial uses

12 MRS 6302 A Concerns of the tribes with the process by which this language was adopted and

objections to the definition of sustenance are explained in a recent report by the Maine TribalState

Commission Me Indian TribalState Comm'n Assessment ofthe Intergovernmental Saltwater Fisheries

Conflict between Passamaquoddy and the State ofMaine June 17 2014 available at

http www mitscorgldocuments 148 2014 1 02MITSCbook WEB pdf Commission Saltwater Fisheries

Report

8

30 MRS 6203 5 defming Passamaquoddy Indian Reservation as those lands reserved to the

Passamaquoddy Tribe by agreement with the State ofMassachusetts dated September 19 1794 except for

lands transferred by the Tribe after these treaties but before enactment of the Maine Implementing Act and

with certain additional specifications 6203 8 defining Penobscot Indian Reservation as the islands in

the Penobscot River reserved to the Penobscot Nation by agreement with the States of Massachusetts and

Maine except for islands transferred by the Tribe after these treaties but before the enactment of the Maine

Implementing Act and with the addition of other specifically enumerated parcels Legislative history

confmns that the Reservations include riparian and littoral rights under State law or treaties

The boundaries of the Reservations are limited to those areas described in the bill but

include any riparian or littoral rights expressly reserved by the original treaties with

Massachusetts or by operation of state law

State of Maine Maine legislature Joint Select Committee on the Indian Land Claims Report of

the Joint Select Committee on Indian Land Claims Relating toLD 2037 An Act to provide for

Implementation of the Settlement of Claims by Indians in the State of Maine and to Create the

Passamaquoddy Indian Territory and Penobscot Indian Territory at p 3 para 14

9 A reserved right is a right that has been retained since aboriginal times Section 6207 4s sustenance

fishing right applies within these Reservations retained by the Southern Tribes first under treaties and now

under the Settlement Acts see supra note 8 since aboriginal times Congress used an apt phrase that

2

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acknowledges the right of Penobscot Nation and Passamaquoddy members to take

fish for their individual sustenance within their reservations free of state regulation 10

These statutorilyacknowledged fishing rights are rooted in treaty guarantees11 that were

upheld through the Settlement Acts The Passamaquoddy Tribe's 1794 treaty with the

State of Massachusetts explicitly reserves a Passamaquoddy fishing right in the St Croix

River then known as the Schoodic River the treaty guarantees to said Indians the

privilege of fishing on both branches of the river Schoodic without hindrance or

molestation 12 The Penobscot treaties of 1818 with Massachusetts and 1820 with

Maine do not expressly mention fishing rights because they did not cede the Penobscot

River explicitly retaining islands and granting to non members only the right to pass

and repass the River The Penobscot Nation had historically relied on fishing and the

islands mentioned in the Treaty would have been of little value if they were not

accompanied by fishing grounds 13

The Maine Implementing Act further provides for tribal sustenance fishing in certain

ponds on lands located outside the Southern Tribes reservations but held in trust by the

United States as part of the Indian territories established under the Settlement Acts The

Southern Tribes have exclusive authority to enact ordinances regulating the taking of fish

on ponds of less than ten acres in their trust lands which may include special provisions

for the sustenance of the individual members of the Passamaquoddy Tribe or the

Penobscot Nation 14 The Maine Implementing Act also includes special provisions for

captures the reserved right concept in the legislative history for the Federal Maine Indian Claims Settlement

Act characterizing fishing rights as an example of natural resources considered expressly retained

sovereign activities HR Rep No 961353 at p 15 1980 10

This reading is established by language in 30 MRS 6207 4

Notwithstanding any rule or regulation promulgated by the commission or any other law

of the State the members of the Passamaquoddy Tribe and the Penobscot Nation may

take fish within the boundaries of their respective Indian reservations for their individual

sustenance subject to the limitations of subsection 6 providing for the State to limit tribal

fishing if necessary to protect the stock offish

State regulation is allowed only in the case of conservation necessity as laid out in the Maine

Implementing Act at 30 MRS 6207 6 11

These treaties were State treaties negotiated not with the United States but with the Commonwealth of

Massachusetts Maine later adopted the responsibility to implement these treaties in its state constitution

See Maine Constitution Art X Sec 5

The new State shall as soon as the necessary arrangements can be made for that purpose

assume and perform all the duties and obligations of this Commonwealth towards the

Indians within said District of Maine whether the same arise from treaties or otherwise

Available at http www mainegov Iegislawlibconstl820 pdf Note that per ArtX Sec 7 the text

quoted here is omitted from printed copies of the Maine Constitution but still remains in force and effect

The Settlement Acts preempt any contrary language in the treaties but the legislative history discussed in

supra note 8 explains that expressly reserved riparian rights under the treaties were retained under the

Settlement Acts

12 The text of the treaty is available at http www wabanaki com1794 treaty htm 13

See eg Alaska Pacific Fisheries v US 248 US 78 8689 1918 holding that where Congress set

aside lands for the Metlakahtla Indians a fishing tribe it impliedlyreserved fishing rights in the adjacent

waters

14 30 MRS 6207 I

3

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regulation of certain waters by the Maine Indian TribalState Commission 15 Thus

through the Maine Implementing Act the State has recognized the Southern Tribes

sustenance fishing rights within their territories and the importance offish to tribal

members diet

Although the term sustenance is not defined in the Settlement Acts it is reasonable to

conclude that the term encompasses at a minimwn the notion of tribal members taking

fish to nourish and sustain themselves Moreover the Indian law canons of construction

require that ambiguous terms in statutes must be construed most favorably towards tribal

interests 16 Where fishing rights oftraditionaJ fishing tribes are concerned this rule of

liberal construction applies with special force one court has held that treaties must be

construed in the sense in which they would naturally be understood by the Indians

especially the reference to the right of taking fish

17

The term sustenance in section

62074 of the Maine Implementing Act should thus be construed broadly18 to

incorporate at least the right of tribal members to take sufficient fi sh to nourish and

sustain them19with no specific quantitative limits other than the conservation necessity

limit that the statutory language specifically places on the tribal fishing right 20 When

interpreting the scope of the Maine tribes fishing right as the tribes would understand

them EPA should consider that the tribes ability to fi sh was and continues to be

essential to their livelihood and culture

The sources of the fi shing rights of Maine's Northern Tribes are different in that they are

not discussed explicitly in the Settlement Acts However express language in a statute or

15

The Commission is an intergovernmental body made up of members appointed by the Tribes and the

State 30 MRS 62 12 30 MRS 6207 3 authorizes the Commission to promulgate fi shing rules and

regulations within specified waters on or adjoining the Penobscot Nation's and Passamaquoddy Tribe's

territories taking into account the needs or desires of the tribes to establish fishery practices for the

sustenance of the tribes or to contribute to the economic independence of the tribes

16

Rincon Band of Luiseno Mission Indians of Rincon Reservation v Schwarzenegger 602 F3d I019 I032

9th Cir20 I0 See also Montana v Blackfeet Tribe 47 1US 759 766 1985 Statutes are to be

construed liberally in favor of the Indians with ambiguous provisions interpreted to their benefit The

Indian canons of construction have been held to apply to interpretation of the Settlement Acts See infra

note 48 and accompanying text

17 Washington v Wash State Commercial Passenger Fishing Vessel Ass n 443 US 658 676 678 1979 18

Tribes have argued that in addition to fi shing for individual consumption the definition of sustenance

traditionally incorporated two other components bmter and exchange Commission Saltwater Fisheries

Report supra note 7 at p 2223

19 A study prepared for EPA in collaboration with the Maine Tribes discusses what level of fish

consumption is representative of sustenance fishing in Maine Indian waters Harper Barbara and Darren

Ranco Wabanaki Traditional Cultural Lifeways Exposure Scenario prepared for EPA in collaboration

with the Maine Tribes July 9 2009 available at http www epagov region I govt tribespdfs DITCA pdf

20

This statutory provision establishing a right of the State to regulate in limited situations of conservation

necessity is consistent with the federal common law rule See United States v Oregon 769 F2d 14 10

1416 9th Cir 1990 describing findings that court must make in order to uphold regulation of treaty rights

to take fish including that States must consider the protection of the treaty right to take fi sh as an

objective coequal with the conservation of the fish runs for other uses United States v Washington 384

F Supp 3 12 40 I WO Wash 1974 Neither the Indians nor the nonIndians may fish in a manner so as

to destroy the resource or to preempt it tota lly

4

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treaty is not necessary to establish the existence of a tribal fishing right

21

Tribal fishing

rights are impliedthrough an analysis of the purpose of these land settlements to create

a permanent land base and the trust property interests created pursuant to the Acts As

described below these fishing rights are also rooted in state common law on the right of

riparian owners to fish on their properties in addition to the Settlement Acts and federal

common law on the importance and durability of tribal fishing rights

The fundamental requirement for a fishing right is access to fishable waters and

legislative history for the Maine Implementing Act specifically addresses the issue of the

tribes access to waters in connection with their trust lands

Any lands acquired by purchase or trade may include riparian or littoral

rights to the extent they are conveyed by the selling party or included by

general principles of law 22

This language allows for riparian rights to attach to the tribal trust lands held by the

United States for the Northern Tribes which are acquired by purchase and then put into

trust23 In Maine a right to fish is a right included by general principles of law when

riparian lands are acquired 24 and this language thus confirms that Maine's legislature

recognized the right of the Maine tribes to engage in fishing on their reservation and trust

21

The hunting and fishing rights that were held to survive termination of the Tribe's status as a federally

recognized tribe in the seminal case Menominee Tribe of Indians v United States were created by treaty

language providing that tribal land would be held as Indian lands are held 391 US 404,405 06 1968

See also United States v Dion 416 US 734,738 1986 explaining that as a general rule Indians enjoy

exclusive treaty rights to hunt and fish on lands reserved to them unless such rights were clearly

relinquished by treaty or have been modified by Congress and that these rights need not be expressly

mentioned in the treaty State regulatory jurisdiction is not incompatible with a tribal fishing right the

existence of state laws dealing with tribal fishing in Maine see supra note 7 reinforces that the State

acknowledges the importance of tribal fishing rights Carole E Goldberg et al AMERICAN INDIAN LAW

NATIVE NATIONS AND THE FEDERAL SYSTEM I 177 78 6th ed 2010 It is important to see that

jurisdictional protections supplement rather than displace tribal property rights to hunt and fish

22 State of Maine Maine legislature Joint Select Committee on the Indian Land Claims Report of the Joint

Select Committee on Indian Land Claims Relating toLD 2037 An Act to provide for Implementation of

the Settlement of Claims by Indians in the State of Maine and to Create the Passamaquoddy Indian

Territory and Penobscot Indian Territory at p 3 para 14

23 See 25 USC 1724 d4 providing for land or natural resources to be acquired by the United States

to be held in trust for the benefit of the Houlton Band 30 MRS 6205A providing for acquisition of

Houlton Band Trust Land P L 102171 105 Stat 1143 5 providing for acquisition ofAroostook

Band Trust Lands 30 MRS 7202 2 defining Aroostook Band Trust Land 24 The right of riparian landowners to fish is predicated on both State and federal common law Based on

the default Maine property rule owners of riparian land also own out to the thread or middle of most

streams Wilson Son v Harrisburg 107 Me 207 211 191 0 With respect to the rights of the riparian

proprietor in floatable and nontidal streams it is the settled law of this State that he owns the bed of the

river to the middle of the stream and all but the public right of passage Riparian property owners have

the right to fish on their lands See Answers to Questions Propounded to the Justices of the Supreme

Judicial Court by the House of Representatives 118 Me 503 507 1919 noting that t he riparian

proprietor has the right to take fish from the water over his own land

5

EPA000546
lands alike when these lands are riparian to fishable waters On the Northern Tribes trust

lands this right is subject to reasonable State regulation 5

Even more importantly however the Northern Tribes26 have more than the right of a

Maine citizen to fish they have the right to do so on lands set aside and held in trust for

them The establishment of trust land is one of the most important functions the United

States performs for tribes Trust lands provide a permanent land base protecting these

lands against loss27and providing territory over which tribes may exercise governmental

authority albeit subject to the constraints imposed by the Settlement Acts 28Trust lands

also protect and sustain tribal culture and ways of life including tribal sustenance fishing

25 The Settlement Acts provide that State law applies to the trust lands of the Northern Tribes We describe

this as a right ofreasonable regulation because the Settlement Acts did not contemplate and should not be

read to allow State law that is discriminatory against tribes or not consistent with the Settlement Acts

including the federal purpose ofholding this land base in trust In section 1725 a ofMICSA Congress

approved 30 MRS 6204 of the Maine Implementing Act regarding the application of state law to Indian

lands specifying that Maine civil and criminal law would generally apply to these lands While conferring

civil and criminal jurisdiction on the State of Maine over the Northern Tribes trust lands nothing in

section 1725 abrogates federal authority to protect these tribal trust lands 25 USC 1725 a reads

Except as provided in section 1727 e dealing with Indian Child Welfare Act definitions

and section 1724 d4 regarding acquisition of land and natural resources for the

Houlton Band of Maliseet Indians of this title all Indians Indian nations or tribes or

bands of Indians in the State of Maine other than the Passamaquoddy Tribe the

Penobscot Nation and their members and any lands or natural resources owned by any

such Indian Indian nation tribe or band of Indians and any lands or natural resources

held in trust by the United States or by any other person or entity for any such Indian

Indian nation tribe or band of Indians shall be subject to the civil and criminal

jurisdiction of the State the laws of the State and the civil and criminal jurisdiction of

the courts of the State to the same extent as any other person or land therein

26

This discussion is aimed at the Northern Tribes but we note that some of the Southern Tribes Territories

include lands held in trust that would have fishing rights based on this same trust land focused analysis

Some but not all of these lands have fishing rights confirmed through other statutory language see supra

notes 1415 and accompanying text

27

For the Houlton Band ofMaliseet Indians 30 MRS 6205 A3 describes restraints against alienation

ofthese trust lands The same language applying to the trust land of the Aroostook Band ofMicmacs is

found at 30 MRS 7204 3 With respect to the Micmacs legislative history is even plainer that

Congress intended the trust lands to provide a land base for subsistence purposes The ancestors of the

Aroostook Micmac made a living as migratory hunters trappers fishers and gatherers until the 19th

century Today without a tribal subsistence base of their own most Micmacs in Northern Maine

occupy a niche at the lowest level ofthe social order S Rep No 102136 at 5 9 1991 quoting

testimony of Dr Harold EL Prins

28

Even for the Northern Tribes the Maine Implementing Act recognizes that the tribes may retain certain

aspects of governmental authority over tribal members For example 30 MRS 6209CI a provides

The Houlton Band of Maliseet Indians has the right to exercise exclusive jurisdiction

separate and distinct from the State over c riminal offenses for which the maximum

potential term of imprisonment does not exceed one year and the maximum potential fme

does not exceed 5,000 and that are committed on the Houlton Band Jurisdiction Land by

a member of the Houlton Band of Maliseet Indians except when committed against a

person who is not a member of the Houlton Band of Maliseet Indians or against the

property of a person who is not a member of the Houlton Band of Maliseet Indians

6

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practices which fosters tribal selfdetermination 29 The legislative history for MICSA

supports the view that one of Conresss purposes in providing Maine tribes with a land

base was to preserve their culture 0The connection between fishing rights and land

ownership is particularly emphasized in the Settlement Acts the Maine Implementing

Act defines the land or other natural resources to be purchased with federal funds and

placed into trust as any real property or other natural resources or any interest in or right

involving any real property or other natural resources including but without limitation

minerals and mineral rights timber and timber rights water and water rights and hunting

andfishing rights 31 The exercise of these fishing rights by Tribes is fully consistent

with the Settlement Acts 32

In sum the Federal Government as the owner of the trust lands for the benefit of the

Tribes has a substantial interest in providing all Maine tribes including the Northern

Tribes with a functional land base that ensures the continuation of their sustenance

practices and cultural activities

33

2 Tribal Fishing Rights Include the Subsidiary Right to Sufficient Water Quality

to Render the Rights Meaningful

In Maine EPA must determine how tribal fishing rights intersect with EPA's authority

under the Clean Water Act to approve or disapprove State WQS We are not aware of

any case law addressing an identical situation to the one raised by Maine's proposed

WQS However Federal courts have acknowledged the importance of permanent

enforceable fishing rights for tribes and have interpreted these rights expansively

Tribal fishing rights encompass subsidiary rights that are not explicitly included in treaty

or statutory language but are nonetheless necessary to render them meaningful For

example in the 1905 case United States v Winans the Supreme Court held that a tribe

must be allowed to cross private property to access traditional fishing grounds 34

29 See Final Rule Acquisitions Appeals of Land Acquisition Decisions 78 Fed Reg 67928 67929

November 13 2013 noting in Background section that taking land into trust serves the goals of

protecting and restoring tribal homelands and promoting tribal selfdetermination and reaches the core of

the Federal trust responsibility

30 Sen Rep No 96957 at 17 Nothing in the settlement provides for acculturation nor is it the intent of

Congress to disturb the cultural integrity of the Indian people ofMaine Several of the Maine tribes

submitted comments to the EPA about Maine's WQS describing the centrality of fishing to their cultures

31 30 MRS 6203 3 Emphasis added MICSA includes this defmition almost verbatim at 25 USC

1722 b 25 USC 1724 d authorizes the Secretary to expend the land acquisition fund for the

purpose of acquiring land or natural resources for the Houlton Band ofMaliseet Indians Emphasis

added Section 5a ofthe Aroostook Band of Micmacs Settlement Act PL 102171 provides similarly

that the Secretary is authorized to expend the Land Acquisition Fund for the purposes of acquiring

land or natural resources for the Band and defines natural resources to include fishing rights at section 34

32

Recognizing that Maine tribes have a tribal fishing right would not impinge upon Maine's right to

regulate such a fishing right The existence of a tribal fishing right does not affect or preempt Maine's

regulatory jurisdiction as described in 25 USC 1725 h 33 See supra note 30 and accompanying text

34 198 us 371,384 1905

7

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Similarly in Kittitas Reclamation District v Sunnyside Valley Irrigation District the

Ninth Circuit held that a tribe's fishing right could be protected by enoining water

withdrawals that would destroy salmon eggs before they could hatch 5In Grand

Traverse Band of Ottawa and Chippewa Indians v Director Michigan Department of

Natural Resources the Sixth Circuit found that the treaty right to fish commercially in

the Great Lakes includes a right to temporary mooring of treaty fishing vessels at

municipal marinas because without such mooring the Indians could not fish

commercially 36While the issues presented by diminished water quality in Maine are

different from the issues presented by inadequate access to fishing places or the need to

protect fish populations the result for tribes if water quality in Maine Indian Waters is

not protected is the same Indian tribes will not be able to fish for their sustenance

healthfully

The rules in the cases identified above are all variations on the fundamental holding of

Washington v Washington State Commercial Passenger Fishing Vessel Association that

tribes with reserved fishing rights are entitled to something more tangible then merely

the chance occasionally to dip their nets into the territorial waters 37 The holding of

Washington while specific to the treaty language at issue in that case is consistent with

similarholdings from other courts examining the question of whether a tribal fishing

right implicitly contains within it the right to additional protections to render the fishing

right meaningful For example in holding that a Tribe's hunting and fishing rights

persisted the Minnesota Supreme Court explained that c ertainly it would be

incongruous to construe the treaty as denying the Indians their very means of existence

while purporting to grant them a home 38

In the context of water quantity courts have recognized that tribal fishing rights include

the subsidiary right to water flow sufficient to maintain fish health and reproduction in

order to effectuate the fishing right In United States v Adair the Ninth Circuit held that

the tribe's fishing right implicitly reserved sufficient waters to secure to the Tribe a

continuation of its traditional fishing lifestyle 39 The logic that supports the tribe's

right to water quantity adequate to support a lifestyle based on fishing in Adair supports a

conclusion that EPA should take tribal fishing rights into account when reviewing

Maine's water quality standards If water quality diminishes to the point where the fish

are no longer safe to eat or able to reproduce tribal fishing rights will suffer a diminution

just as surely as they suffer from inadequate quantity of water to support fish40

35 763 F2d 1032 1034 35 9th Cir 1985 36

141 F3d 635,639 40 6th Cir 1989 37 443 us 658 679 1979 38

Minnesota v Clark 282 NW2d 902,909 Minn 1979 39 723 F2d 1394 1409 10 9th Cir 1983 See also Colville Confederated Tribes v Walton 641 F2d 42

4748 9th Cir 1981 implying reservation of water to preserve tribe's replacement fishing grounds

Winters v United States 201 US 564 576 1908 express reservation of land for reservation impliedly

reserved sufficient water from the river to fulfill the purposes of the reservation Arizona v California 373

US 546,598 601 1963 creation of reservation implied intent to reserve sufficient water to satisfy

resent and future needs 0

The leading federal Indian law treatise explains

8

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Ongoing litigation in Washington State involving questions about the extent to which

tribal fishing rights encompass associated rights to protection for fish habitat also informs

our analysis 41 The tribes and the United States have argued that tribal fishing rights

impose a duty on the state of Washington to refrain from building or maintaining road

culverts that directly block fish passage both to and from breeding areas and therefore

significantly and directly kill fish diminish fish populations and diminish habitat 42In

2013 the court adopted this analysis concluding that the tribes treaty based fishing right

had been impermissibly infringed through the construction and operation of culverts

that has reduced the quantity of quality of salmon habitat prevented access to spawning

grounds reduced salmon production and diminished the number of salmon available

for harvest 4

3

The court issued a permanent injunction forcing the State to renovate its

culvert system44 The decision is currently on appeal but the district court's reasoning is

consistent with the view that tribal fishing rights can be protected under the Clean Water

Act

When diminished water quality has hindered tribal uses of water outside the fishing

context courts have held for tribes and found that a right to put water to use for a

particular purpose must include a subsidiary right to water quality sufficient to permit the

protected water use to continue In an Arizona case United States v Gila Valley

Irrigation District farmers with a more junior right whose properties were located

upstream from a reservation were required to take steps to decrease the salinity of the

tribe's saltsensitive water so that the Tribe receives water sufficient for cultivating moderately

crops 45 Other courts have noted that in some situations protecting water

Fulfilling the purposes of Indian reservations depends on the tribes receiving water of

adequate quality as well as sufficient quantity Habitat protection is an integral

component of the reserved fishing right In order to protect the fishery habitat tribes

should have a right not only to a sufficient amount of water but also to water that is of

adequate quality

COHEN'S HANDBOOK OF FEDERAL INDIAN LAW 19.03 9 at 1236 Nell Jessup Newton ed 2012

footnotes and citations omitted

41 The United States District Court for the Western District of Washington court held that several

Washington State tribes treaty fishing rights implicitly incorporated the right to have the fishery habitat

protected from manmade despoliation United States v Washington 506 F Supp 187,203 WO Wash

1980 Phase II The court explained that the existence of an environmentally acceptable habitat is

essential to the survival of the fish without which the expressly reserved right to take fish would be

meaningless and valueless d at 205 That decision was vacated on procedural grounds United States v

Washington 759 F2d 1353 1357 9th Cir 1985 en bane requiring plaintiffs to allege specific

environmental harms before any declaratory judgment could issue noting that i t serves neither the needs

ofthe parties nor the interests of the public for the judiciary to employ the declaratory judgment

frocedure to announce legal rules imprecise in definition and uncertain in dimension

2

In United States v Washington 2007 US Dist LEXIS 61850 3738 WO Wash Aug 22 2007 the

district court held in favor of the federal and tribal plaintiffs

43

United States v Washington 2013 US Dist LEXIS 48850,75 WO Wash 2013 44 d at 7879

45 920 F Supp 1444 1454 56 D Ariz 1996 aff'd 117 F 3d425 9th Cir 1997

9

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quality is fundamental to the protection of tribal rights to selfdetermination 46 Given the

importance of fishing to Maine tribes protection of water quality sufficient to enable the

tribes to continue to fish and to consume the fish they are able to catch is comparable to

protecting water quality to allow the tribe in the Gila Valley case to continue to grow

crops

In summary fundamental long standing tenets of federal Indian law support the

interpretation of tribal fishing rights to include the right to sufficient water quality to

effectuate the fishing right Case law supports the view that water quality cannot be

impaired to the point that fish have trouble reproducing without violating a tribal fishing

right similarly water quality cannot be diminished to the point that consuming fish

threatens human health without violating a tribal fishing right A tribal right to fish

depends on a subsidiary right to fish populations safe for human consumption If third

parties are free to directly and significantly pollute the waters and contaminate available

fish thereby making them inedible or edible only in small quantities the right to fish is

rendered meaningless To satisfy a tribal fishing right to continue culturally important

fishing practices fish cannot be too contaminated for consumption at sustenance levels

3 The Trust Relationship Counsels Protection of Tribal Fishing Rights in Maine

EPA has already recognized that Maine tribes fishing rights should be considered in

regulating water quality in a 2003 decision regarding Maine's authority to issue permits

under the Clean Water Act 47 As EPA noted in that decision the First Circuit has held

that the Indian law canons of construction obliging courts to construe statutes which

diminish the the sovereign rights of Indian tribes strictly apply to the Maine tribes

and that the requirement that ambiguity be interpreted in favor of tribes is rooted in the

unique trust relationship between the United States and Indians 48

In its decision EPA announced that when reviewing proposed permits under the Clean

Water Act49 it would require the state to address the tribes uses for sustenance fishing

consistent with the requirements of the CW A 50 EPA's 2003 analysis of tribal fishing

rights and federal review authority under the Clean Water Act was cogent and the agency

should follow through on this policy in reviewing Maine's WQS 51

46 See Bugenig v Hoopa Valley Tribe 229 F3d 1210 1222 9th Cir2000 It is difficult to imagine how

serious threats to water quality could not have profound implications for tribal selfgovernment Cityof

Albuquerque v Browner 91 F3d 415,423 lOth Cir 1996 upholding tribal water quality standards that

were more stringent than federal standards and observing that the authority to establish such high standards

is in accord with powers inherent in Indian tribal sovereignty

47

68 Fed Reg 65052,65068 Nov 18 2003 48 Penobscot Nation v Fellencer 164 F3d 706 709 I st Cir 1999 internal quotation marks omitted

49 The EPA specifically cited the provision codified at 33 USC 1342 d so 68 Fed Reg at 65,068

Sl The First Circuit reviewing this EPA decision in Maine v Johnson found that EPA's analysis of the

relationship between fishing rights and water quality was not ripe for consideration 498 F3d 37 48 1st

Cir 2007 The current relationship ofthe United States to Maine tribes and the EPA's continued

authority under the Clean Water Act to review Maine's exercise of ceded powers present quite different

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Secretary Jewell has recently reaffirmed the federal trust responsibility to tribes

Consistent with the principles of Secretarial Order 3335 on Reaffirmation of the Federal

Trust Responsibility to Federally Recognized Indian Tribes federal agencies should

e nsure to the maximum extent possible that trust and restricted fee lands trust

resources and treaty and similarly recognized rights are protected 52 In addition

consultation is a critically important part of the United States government to government

relationship with tribes and the EPA should continue to fully consult with tribes

regarding decisions that have implications for trust resources including fishing rights 53

4 Conclusion

The Maine tribes rely on clean water and in particular on water of a quality sufficient to

allow the tribes to engage meaningfully in fishing in Maine Indian Waters Maine tribes

rely on fish as a dietary staple and vital component of their cultures and a diminution in

their ability to take fish at sustenance levels results in a loss of food as well as a threat to

their ability to carry on their traditions

The Maine tribes have fishing rights connected to the lands set aside for them under

federal and state statutes Further these fishing rights would be rendered meaningless if

they did not also imply a right to water quality of a sufficient level to keep the fish edible

so that tribal members can safely take the fish for their sustenance The right of all four

tribes to take fish is wellfounded under State as well as Federal law as discussed in this

letter

Thank you for your attention to these matters of great importance to the Maine tribes I

appreciate the opportunity to submit these views for your consideration

Sincerely

questions from the ones decided in the case We take no view today as to the ultimate resolution of

these potential issues 52

Secretarial Order 3335 August 20 2014 Sec 5 Principle 2 available at

http www usbrgov native policy S0 3335 trustresponsibilityAugust2014 pdf

53

See generally Executive Order 1317 5 on Consultation and Coordination with Indian Tribal Governments

Nov 6 2000

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