Ainsley Morrison of Kennebunk is a graduating senior at Bowdoin College who has served on the Maine Climate Council’s Community Resilience Working Group since 2023.

The Penobscot Nation shares its name with the river that its people have belonged to for
thousands of years, long before Maine ever became a state. And yet, according to the
state of Maine, the river does not belong to them.

The Nation retains sustenance fishing rights, but it cannot regulate what goes into the water its people depend on to fish. The river runs through the Penobscot Nation’s homeland, and Maine has spent over a decade in court arguing it belongs to the state instead. This is not a historical grievance. It is an active legal dispute, and its resolution, or lack thereof, tells us something urgent about how Indigenous sovereignty functions in the United States today.

The conflict came to a head in 2012, when Maine’s attorney general issued an opinion
declaring that the Penobscot reservation extended only to the islands in the river but not
to the water itself. The legal hook was the Maine Indian Claims Settlement Act of 1980, a
federal law intended to resolve a massive land dispute between the tribes and the state.

It was billed at the time as a compromise. However, for many Wabanaki people, it
became something else entirely: a legal cage. Penobscot elder Donna Loring, a former
tribal representative to the Maine Legislature, has called the act the “biggest piece of
fraud in Maine’s history.”

The Penobscot Nation consequently sued and insisted that treaties with Massachusetts in 1796 and 1818 — in which the Nation ceded lands on “both sides” of the river — necessarily implied that the river itself was never surrendered. The Department of Justice agreed with the compelling argument and intervened on the tribe’s behalf.

Among the groups that fought against the Penobscot Nation in trial were 18 municipalities and businesses holding state permits to discharge waste into the river. Their concern was transparent and telling; if the tribe gained regulatory authority, they might have to limit their dumping.

Environmental justice, in this case, was not just an abstraction. It had a price tag, and Maine chose the permittees. After years of litigation, the First Circuit Court of Appeals ruled against the Nation, deciding that the word “island” in the Settlement Act meant exactly what the dictionary said: land surrounded by water.

The court held that the river was ultimately not part of the reservation. In 2022, the Supreme Court declined to hear further appeal. What makes this case so clarifying is that it exposes a gap between two things that are often conflated: ecological restoration and sovereign recognition.

A multi-dam removal project on the Penobscot has been the site of celebrated conservation success as it reopened habitat and promised vast “environmental, economic and cultural benefits.” But as political theorist David Schlosberg argued two decades ago, environmental justice demands equitable distribution of environmental risk and benefit. It relies on recognition and participation too, meaning that who is seen as a legitimate voice in shaping environmental decisions carries weight.

While the river may have gotten its ecological justice, the people it’s named for are still waiting for theirs.

Maine’s argument that the 1980 Settlement Act is final — while not legally absurd — is
historically dishonest. The Settlement Act was negotiated under enormous pressure, in a
climate where both federal and state officials were eager to extinguish a land claim that
threatened titles across two-thirds of Maine’s land mass.

The state contributed nothing financially to the $81.5 million federal settlement. But in exchange, it gained something priceless: continued jurisdiction and a framework that would treat federally recognized tribes as something closer to municipalities than sovereign nations. This decision left the Penobscot people in a situation unlike virtually any other tribes in the country.

Penobscot Nation Chief Kirk Francis described the Supreme Court’s refusal to hear the case as “a modern day territorial removal.” For a riverine people, “territory” is not only land underfoot. It is water as a way of life, fish, current, seasonal mobility. To weaponize a settlement signed under duress is dispossession by legal instrument rather than by physical force. Although the method may look cleaner, the outcome is the same.

Multiple tribal sovereignty bills have been introduced in recent sessions of Maine’s Legislature — most only to be vetoed or quietly shelved. The question of who governs the Penobscot River is still, in the most important sense, open. A river without a people to answer for it is just hydrology. The Penobscot Nation has answered for this river for millennia. It is past time for us to catch up.