From [HERE] A Native American tribe that claimed the right to regulate fishing, boating and other recreation on one of Maine’s most important rivers lost Thursday in a contentious 3-2 decision by the en banc First Circuit.

The Penobscot Nation owns a number of islands in a key 60-mile stretch of the main stem of the Penobscot River near Bangor. But it also claimed to own the river itself — an assertion that the court tossed out in a mammoth 136-page decision that sifted through the history of Native American treaties going back to 1715.

The Penobscot tribe once claimed a legal right to two-thirds of the state of Maine but it settled its dispute in 1980 in return for land, federal recognition and some $40 million in trust funds. While the agreement gave the tribe the islands along the 60-mile stretch, it didn’t specifically say who controlled the river itself. 

Following some incidents in which tribal members confronted people using the river, the Maine attorney general issued a 2012 opinion saying the river wasn’t part of the tribe’s reservation. The tribe sued, and the U.S. intervened on its behalf. A number of local businesses and towns also intervened to support the state. 

In 2017 the First Circuit sided with the state in a 2-1 panel decision, but it later agreed to reconsider the issue en banc.

Thursday’s en banc majority said the 1980 agreement gave the tribe the right to the islands in the river and the plain meaning of “islands” is the land itself and not the waters surrounding them.

Because the 1980 agreement was unambiguous, it wasn’t necessary to consider whether the tribe had any other historical claim to the waters, wrote U.S. Circuit Judge Sandra Lynch, a Clinton appointee.

But U.S. Circuit Judge David Barron dissented and said the 1980 agreement had to be read in light of a treaty it referenced from 1818, two years before Maine became a state. [MORE]