From "Conservation Matters," (Summer 1996) Courtesy of the Conservation Law Foundation

PENOBSCOT: A People and Their River

For some of the oldest inhabitants of Maine, a river is the source of mythology, sustenance, memories of deprivation, and newfound inspiration.

By Paul Bisulca

Long before the coming of the great white swans that carried the fair-skinned people to our shores and in a time when there were creatures much larger than they are today, the People lived along a stream from which they derived much benefit. One day they noticed that the water in the stream was lower than it had been the day before. With each day, the water level receded more, and the People began to suffer. It was decided that someone must travel up the now almost dry stream bed to learn the reason for this problem, and a person was chosen to do this.

After some time and late in the day, the chosen man came to a mountain blocking the stream. So he camped for the night. In the morning he felt the earth shake and was startled from his sleep. Looking up, he realized that he had camped near the foot of a giant frog. The man asked the creature what it was doing there. The giant frog replied that it was the largest creature on this land and that it was drinking all the water. The more it drank, the bigger and stronger it would become. Unable to do anything, the man returned to his village and informed the elders. It was decided to summon Klose-kur-beh.

Klose-kur-beh was the first man on this land, a man made from nothing, and he had great power. Seeing the dire condition of the People and what was causing it, Klose-kur-beh turned himself into a giant. However, he lacked a suitable weapon to use against the frog. Klose-kur-beh looked around and saw a giant pine tree which he pulled from the ground. Raising the tree in the air he slammed it down on the frog, which burst and spewed water in a thousand directions. As the water fell to the earth, it drained into the depression created by the uprooted pine tree and flowed powerfully from there. That is how the River came to be. The People who lived where the River tumbled down over huge white boulders, took their name from that place, Pana-wampskik. We are that People.

Memories of a Nation
The Penobscot River drains the largest watershed in Maine and is the U.S. Fish and Wildlife Service's flagship river for the restoration of Atlantic salmon in this country. Almost 80% of all salmon returning to U.S. waters calls the Penobscot River home. It is also home to the Penobscot Indian Nation whose 1996 census lists 2,093 tribal members. Indian Island, located about 12 miles north of Bangor, is the site of our tribal government and the residence of 500 of our members. The Penobscot Indian Nation's reservation consists of Indian Island and all the islands in the Penobscot River north of Indian Island. Clearly, we are a riverine tribe with historical and contemporary connections to the river and its resources. In 1820 Captain Francis, a Penobscot delegate to the Treaty Conference in Bangor described us this way:

Brother, the Good Spirit who made and placed the red men here, before the white men came, gave us all the land from whence the waters run into the Penobscot. He caused the forests to abound with game, and the river with fish, for our use and subsistence. We then were contented and happy.

But with Maine's statehood in 1820 and the accelerated exploitation of its natural resources by a rapidly expanding non-Indian population, things began to change. By 1823 we petitioned the Governor and Council of Maine:

... in years past the beasts of the forest, Moose and Deer, were very plenty about the head branches of the Penobscot and Kennebeck Rivers, [but] in consequence of the white people killing them off merely for the sake of their skins, they have now become nearly extinct. And in order that their growth should be again propagated, the Indians on their part have come to a conclusion to kill no more of the aforesaid game, Moose and Deer, at present. [We wonder] whether it will not be prudent on the part of government to pass an act in like manner prohibiting the white people from killing those beasts in future.

Similar petitions were subsequently submitted seeking relief from the impact on the Penobscot's fisheries of 19th-century dam construction and commercial fishing downstream of the tribe. But nothing was done to remedy or ameliorate this devastation, and by 1906, when the Milford dam was constructed several hundred yards below our principal village on Indian Island, the salmon, shad, and alewife fisheries were almost completely destroyed.

Considering the prevailing attitude at that time, it is not surprising that Indian petitions were ignored. Indians were not citizens of the U.S. and the view of Indians as inferior was not just a vulgar view. The Maine Supreme Court in 1824 wrote: "[I]mbecility on their part and the dictates of humanity on ours, have necessarily prescribed to them their subjugation to our paternal control; in disregard of some, at least, of abstract principles of the rights of man." Maine's Indian agent Purinton, wrote in 1861, "There are unmistakable indications that the people to which this tribe belongs do not possess the high order of intellect that distinguish the European race." One might argue that today's attitudes do not mirror the past. But a large number of our people still remember that Indians living in reservations received the right to vote in the U.S. and in Maine as recently as 1954 and 1957 respectively.

A tradition of respecting resources
Notwithstanding popular opinion regarding Indian intellect, the Penobscots did understand resource management and had successfully managed their land and water resources for a very long time. When an 1834 wing dam was built on land acquired from the tribe, we conditioned the sale on the provision that the dam be opened each spring to facilitate the shad spawning migration. And just eight years ago, when the state of Maine still permitted each sport fisherman to catch and keep three Atlantic salmon from the Penobscot River, we made a decision not to take any because of the low return rate of spawners. This tribal policy continues today. Native people, such as the Penobscots, have been environmentalists long before CLF, the Sierra Club, or any other environmental organization came on the scene and have long struggled against the environmentally destructive dark side of industry.

However, in December 1991, it was the Conservation Law Foundation's Dan Sosland who first introduced this author to the advantages of collaboration with environmental organizations. As a newly appointed member to the tribe's Hydro Review Committee, I listened as Dan briefed our 12-member Tribal Council on CLF's hope that it could work with the tribe to help protect Maine's natural resources. During a time when state agencies were openly hostile to Indian demands that they discharge their statutory responsibilities to the tribes, I decided that the Penobscot Nation would have to establish collaborative relationships with environmental groups. This would be the only way to enhance our effort to articulate the tribe's political and legal demands within state and federal regulatory processes. Thus began a long and lasting relationship with CLF and, subsequently, other environmental groups.

The struggle continues. Currently, the Penobscot Nation is unable to fully exercise its statutorily protected sustenance fishing rights in the Penobscot River because of the discharge on to tribal land of 2, 3, 7, 8 tetrachloro-dibenzo-p-dioxin from Lincoln Pulp & Paper Company, located 30 miles upstream from Indian Island. The mill bleaches its wood pulp with chlorine and chlorine dioxide. This produces dioxin and other dioxin-like organochlorines as a byproduct. Dioxin is the most potent carcinogen known to man and impairs human reproductive capacity. A state-imposed consumption advisory for the Penobscot River below Lincoln limits men to two 8-ounce fish meals per month. Women and children cannot safely consume any fish from this segment of the river.

In 1993, the Maine Board of Environmental Protection issued a permit to allow Bangor Hydro-Electric Company to build a new hydropower project at Basin Mills and permanently trap salmon, shad, and alewife downstream of the Penobscot reservation and truck those fish approximately 100 miles north of Indian Island. The Basin Mills project is awaiting a license from the Federal Energy Regulatory Commission, which, on March 26 this year, granted a 90-day stay in proceedings for the Basin Mills, Orono, Stillwater, and Milford projects to allow negotiations among the Penobscot Nation, Bangor Hydro-Electric, the Governor of Maine, and federal agencies to determine how Indian fishing rights constrain project operations and new construction. The Departments of Justice, Interior, and Commerce, the EPA, the Maine Council of Churches, and the Maine Indian Relations Committee of the Episcopal Diocese of Maine all support the Penobscot Na-tion's efforts to protect its fishing rights. The tribe advocates sound fisheries management practices for both Indian and non-Indian uses and is working cooperatively with the Atlantic Salmon Federation and its Maine Council and with the Natural Resources Council of Maine on the dioxin issue.

At the initiative of Interior Secretary Bruce Babbitt and Maine Governor Angus King, negotiations with the Penobscot Indian Nation commenced in February this year. The purpose of these negotiations is to reach an agreement on how to reconcile Indian fishing rights with certain industrial operations that negatively affect water quality and fishery management goals. It is safe to say that a negotiated settlement will produce substantial environmental benefits, while a failure in negotiation is likely to result in litigation and continued conflict. In case of the latter, it may be necessary for our tribal elders to again summon Klose-kur-beh from his home within Mount Katahdin.

Regardless of our short-term successes or failures, we have been here far longer than anybody else and I am reasonably confident we will not be going away any time soon. We will remain an entity to be reckoned with, especially as our scientific, legal, and political capabilities grow, as they have over the past few years. We shall also continue to nurture our respect for other life forms and our commitment to protect and preserve them. In those cases where our environmental objectives are consistent with those of environmental organizations or environmentally minded individuals, we will continue to work with them, as we do now. Together we will raise the pine tree and leave its impression on this state.

Paul Bisulca is a former representative of the Penobscot Nation in the Maine legislature.