Sunlight Media Collective spoke with Penobscot Nation Chief Kirk Francis about the historic judicial review of the Penobscot River Case now underway. This En Banc Review will assess whether the courts adequately applied Federal Indian Law when siding with the State of Maine’s 2012 opinion that no part of the Penobscot River is Penobscot Tribal territory. The Penobscot Nation says this is an existential threat, and that they never ceded the waterways under any treaty or the Settlement Act, and that past case law supports their position. We also spoke with Chief Francis about the new State recognition of the Wabanaki Tribes under the Violence Against Women Act (VAWA), the Penobscot Nation’s response to the Covid crisis, reflections on the Black Lives Matter Movement & Racial Justice, police brutality and more.
Update: Penobscot River Case under En Banc Review
Thank you for joining us today, Chief Francis, to update us on the Penobscot River case, previously referred to as Penobscot Nation v. Janet Mills, Attorney General for the State of Maine , now titled Penobscot Nation v. Aaron Frey, Attorney General for the State of Maine.
The Penobscot Nation has been in a protracted and painful legal battle with the State regarding the Tribe’s territorial boundaries since 2012, when Maine declared that the Penobscot Tribe’s reservation, which includes more than 200 islands in the Penobscot River, does not include any portion of the River itself.
In the first decision, the federal court found in favor of the State of Maine. The Penobscot Nation appealed . In a 2-1 decision that appeal was also decided in favor of the State and industry intervenor position. Justice Torruella, in his descent, however, wrote an extensive analysis of the interpenetration and application of federal Indian law and the Maine Indian Land Claims Settlement Act which supports the Tribe’s Position . (on the Penobscot River sustenance fishery and territory…)
The Penobscot Nation then requested what is called an En Banc Review by the courts, to require a thorough examination of how and whether federal Indian law was applied accurately in these court decisions. The request for review was finally accepted this spring, and this month all parties submit supplemental briefs.
Chief Kirk Francis, again, thank you for speaking with us today.
Chief Kirk Francis, Penobscot Nation:
Thank you for having me again.
Feel free to revisit and amend the quick introduction that we just laid out. But then, explain what an En Banc Review is and why it is imperative in this case to re-examine the lens that the decisions were made through.
Chief Kirk Francis, Penobscot Nation:
I appreciate the opportunity to talk about it. As you know, this has been the most important thing in the Penobscot Nation’s life. Pre-pandemic, certainly. Keeping people healthy and safe right now is obviously a priority, as well. But this has been a high priority for us, as you mentioned, since 2012. We really saw this issue as more than a simple fishing issue. It was really about the cultural identity of the Tribe. It’s about where our territory exists as we’ve always known it. And a whole host of things around that. I think you did a great job in kind of laying out where we’ve been with this. It’s been an exhausting process. I think what people don’t really understand is these legal battles are not only tough on resources and time, and all of that, but it’s really tough on people emotionally. I think that gets missed a lot. There’s a lot of hurt feelings, a lot of anxiety and just, quite frankly, a lot of confusion about what it exactly means when a state says that you don’t have rights anymore in your ancestral territory.
As you mentioned, we went to District Court. Although the Court acknowledged the Tribe’s sustenance fishing right bank to bank, it did not allow for the Tribe to exercise its associated authorities along with that, the ability to protect that resource, even over our own citizens within our territory. So we were obviously very concerned about that decision. We appealed to the First Circuit. The First Circuit then ruled, in a two to one decision, saying, basically that they were upholding the District Court decision. But they also went a step further and said, you know, “We’re going to erase all of the language about sustenance fishing rights because we don’t think that issue was ripe and shouldn’t have been argued to begin with.” There was really no reason for them to do that. But it was obviously a concern, and even the fact that they upheld any of that decision was also extremely concerning for the Tribe. So we vowed to keep fighting.
We then switched gears with our legal team. Drummond Woodsum has represented us, as they have for 30 years and through a lot of the process. In consultation with them we realized that they were an important member of the team and would continue to be, but we needed to really start to engage people who specialized in the Appellate process at that level. Because after the First Circuit all there is is the Supreme Court. But there is a process you can follow in the interim to ask for a new review of the decision, and that’s the En Banc review that we’ve filed for.
We immediately put that together and filed for En Banc. And the likelihood of success for En Banc, people should realize, is not very good. If you look at, even just in the First Circuit, I think the percentage is about five percent of them get granted. It’s not something that the courts typically do. So you have to prove a lot of things: that this is a national scope issue, that it contradicts previously Circuit Court holdings, that it contradicts Indian Law, you know. So it’s a high barrier to really get an acceptance for the full panel to look at this.
We knew we were going to another step no matter what, so we really wanted the court to really take a look at it. We obviously think they got it wrong, and Judge Torruella’s dissent was so strong and on point that we really felt that a senior member of that court like him would be able to get the ears of the other Justices and really talk about what was fair and just here.
Fortunately for us, after a two year wait after filing, we were granted the En Banc review. We’re in the process now of filing new briefs on that case and then there will be a new schedule and order that will be laid out for oral arguments, etc. So the briefs are due in a few weeks and then there is a time frame for parties to respond to each others’ briefs. Then they’ll set an oral argument, and then it’ll be in the full court’s hands at that point.
So, we’re really excited about the opportunity. We think one of the things that En Banc tells you when it’s granted, is that a majority of the Justices thought it was worth looking at. And just the mere fact that that has happened really has justified a lot of our feelings. So that’s where we are right now.
How many Justices will be reviewing it?
Chief Kirk Francis, Penobscot Nation:
Six, I believe. There are typically seven, but one has been recused because of their work at Pierce Atwood before they joined the court. So there will be six.
And one of them will be Justice Torruella, the dissenter in the Appeal?
Chief Kirk Francis, Penobscot Nation:
Yes. So, we think we’ve gained a pretty good panel here. We think there is a good slate of Judges that will look at it objectively and hopefully see it the way it should be.
And you said that you have a number of new Amicus briefs that will be filed on behalf of the Penobscot Nation? Can you update us on that?
Chief Kirk Francis, Penobscot Nation:
Sure. So, one of the things that happened in the River Case early on was the Native American Caucus within Congress filed an Amicus brief on our case and in support of what Congressional intent is around Indian Law, Federal Indian Law. And it was an excellent brief. But that was six years ago, when we first hit the District court. There are new members of Congress. So we went back to Deb Haaland, who is the first Native American woman to be elected to Congress, and she is the Chair of the Native American Caucus now. They were quite gracious in wanting to help, with Representative Tom Cole from Oklahoma, and a whole slew of new members of Congress signing on to the brief. We haven’t seen their brief yet, we know it’s being worked on. And so we’re excited about that.
The Maine Indian Tribal State Commission (MITSC) will be filing an
Amicus brief. That’s a positive step. That was really contentious in the first
round of cases between the Attorney General’s Office and MITSC, in terms
of whether or not MITSC had the authority to have independent counsel and
think independently from the state, and all of those types of things. So
everybody seems to be on the same page with that now.
They were recognized?
Chief Kirk Francis, Penobscot Nation: Yes, they were. The Attorney
General’s office actually produced a letter that said they didn’t have any
discomfort with that, and that was fine. So, that’s good news. And the
National Congress of American Indians, the United South and Eastern Tribes,
the Affiliated Tribes of the Northwest Indians (who have had similar
fish-based battles in the upper Northwest, Pacific Northwest). So, we’re
looking to garner as much intelligent support as we can around this, based on
Federal Indian Law, treaty fishing rights, those types of things, to help the
court understand the magnitude of this case. So, we’re really excited and
appreciative of all the support we’ve gotten.
Meredith DeFrancesco: So the United States Court of Appeals sent all
parties a list of questions to expand on in the briefs that are currently being
filed. I would like to go into some of those with you if you are able to do that
with us. And I would have you choose which in particular you might like to
highlight, but particularly we were interested in looking at the recent State
and court recognitions of the River as part of the Tribe’s territory and
So in number 10, the courts ask the questions, quote, “ What are the
boundaries of the reservation? And what is the effect of Maine’s former
position that, ‘Portions of the Penobscot River and submerged lands
surrounding the islands in the River are part of the Penobscot reservation.? ‘
” And in question 3, there is reference to the River as being part of the
reservation in the Maine v. Johnson decision. And number 9, “ Did the
Penobscot Nation transfer the main stem of the Penobscot River under the
So, just to preface before we get into that, we know we need to talk about
the Settlement Act, because the State’s interpretation has been pivotal in this
case. And so we do want to ask you, at some point, how the current Tribal
State Task Force and Maine Legislature ’s re-examination of the Settlement
Act, currently underway, potentially impacts this court case and the basis of
the State’s position? We know that there are an enormous amount of layers to
this case and to the questions I am asking. So we would have you take the
lead on what you would like to address first, as to the Settlement Act or some
of those interpretations, recent and more historical, of the River being part of
Penobscot territory and sustenance fishery.
Chief Kirk Francis, Penobscot Nation: Sure. I’ll just touch on a few of
them. I think that the court is exactly right, what actually came from some of
our first briefs, was in Maine v Johnson , in multiple licensing processes,
FERC [Federal Energy Regulatory Commission] processes, all of those
things. The Penobscot River is consistently mentioned as being part of the
Penobscot reservation. So, why Maine v Johnson language is
important—that’s a case we lost, by the way. It was the NPDES [National
Pollutant Discharge Elimination System] case. It was really about wastewater
discharge and who controlled that.
Meredith DeFrancesco: And the paper companies were very involved in
Chief Kirk Francis, Penobscot Nation: Yeah. Absolutely. It says in there,
there is an acknowledgment that the water and submerged land is part of the
reservation. And why that’s important here, and why the Justices are asking
that, is because that would present a contradiction of First Circuit precedent
in terms of how they based the ruling before, if those Justices in their
decisions said, “That is the reservation, but…” They’re acknowledging that
that’s the reservation and that would be a contradiction to the decision that
was made in the River Case. So, I think that’s why they are trying to clarify
that question and I think it’s an important one.
In terms of the Tribe abrogating it’s rights to the River in the Settlement
Act, there is nowhere anywhere that anybody can point to that says that the
River was ever part of the discussion [in Settlement Act negotiations]. That
was already an assumption by Tribal leaders and Tribal people, that the River
was the reservation—that wasn’t land that we were trying to claim during
those times. And contrary to popular belief the River is not land to begin
with, but I think that that is just…I don’t know where that comes from.
The Settlement Act mentions the treaties. It mentions the Tribe’s right to
fish for sea-run fish in the reservation. The only place that exists is in the
river. So, there’s a lot of anecdotal language that really points to supporting
the River as part of the reservation in some of the talks. But the Land Claims
wasn’t about the River, ceding the River or not. As a matter of fact, there’s
language quoted, from Milford to the Branches kind of language, meaning
the Main Stem. So, that’s just a ridiculous thing. And even when it points to
the treaties. I mean, if you look at any treaty the Penobscot Nation ever
signed, you know, there’s no question we ceded lands very clearly from the
banks of one side inland, for example. There was never any ceding of the
Penobscot River. And the Settlement Act doesn’t speak to that. What the
Settlement Act, what they argue in the Settlement Act, that it speaks to, is the
State’s language that it’s the state’s right to control, manage, and enforce
Natural Resource laws across the entire state, including our territory. And
again, that’s interpretative on their part, I think. But that’s how they tie the
Settlement Act to this ceding thought, is “if you agree to give up your
jurisdiction on it then you are ceding it.” And that’s just never really
Chief Kirk Francis, Penobscot Nation: So, I think the court is asking some
important questions. And I’m glad they are because those are the very things,
after a decision comes up, that, “Man, I wished I had another opportunity to
address that.” Because, even though we feel like we did substantively in the
briefs, just a little clarification there could have been a big deal for one of the
Judges, right? So, yeah. So, I think it’s good that the court is asking for that
clarification, it really gives direction about what they want to drill down on in
the next step. And so we are looking forward to being able to do that.
Meredith DeFrancesco: And how are you feeling about the re-examination
of the Settlement Act at the Tribal-State level that was happening just prior to
this, and probably would have had some more of a conclusion had COVID
not come on the scene? How do you feel that could have informed or could
still inform how the courts could look at this and maybe how the state could
have, or could potentially going forward, be amending how they interpret the
Settlement Act as they feel it applies to the Tribes?
Chief Kirk Francis, Penobscot Nation: So, I think LD 2094 is, as it sits
right now- and we all know that it probably won’t end up how it began in this
process- but it could have huge impacts. Part of the argument for this bill is
1) this is about following suit with the rest of America, in terms of reversing
course on a very negative history and a restoration of rights that were taken
away. But also it’s about building a more harmonious relationship as a
sovereign to sovereign, and the recognition of that, to prevent these legal
problems, these constant legal battles and litigation being the only way that
we can solve those things. So, that really was a foundational principle of what
the Tribal leaders wanted to stop – all of this negative legal stuff, constant
challenges to the Tribes’ authority and all of those things.
So it would have a huge impact on, just about every argument they made in
the River Case wouldn’t be valid anymore. And so, my fear is that (the state)
very much knows that and I can already see the process kind of getting very
legalese in terms of, “If you do this, then this could happen. What if they
didn’t do that? What if they didn’t do this?” There’s really a lot of trust issues
around recognizing another true sovereign, I think. Then we try to reverse
that conversation into, “Well look, as it stands right now do you think
everybody trusts the State of Maine every time they get to make a decision?”
So anyway, to your question, I think that LD 2094 would have a huge
impact on the legal arguments that the state would be able to make to support
arguments that they’ve had before, if those things change . But more
importantly I think that it’s important to know that the State is committed to
this process and really wanting to make things better—and I know we’re
dealing with the Legislature and not the Administration on the bill, but the
Administration is a big part of it. I think this would be a great time for the
State to come to the table with some compromises and be able to talk about
what the common ground could be here.
But we’ve heard none of that, and people have just moved forward and are
filling their briefs. And, yeah, I think it’s going to be a long road on 2094.
There’s like the perfect storm with this pandemic hitting, and I think there are
going to be a lot of other priorities and I’m not sure this bill (LD 2094) is
going to get prioritized even when they come back.
Meredith DeFrancesco: I’m interested in having you talk a little bit more
about the particular importance in this case that an En Banc review is done, to
see that Federal Indian Law is being applied in good faith. And I know it was
a central theme for the Wabanaki Tribes, in the Tribal-State process that we
were just discussing, that the Tribes here have not been afforded those same
protections that other Tribes have under Federal Indian Law. If you wanted to
speak a little bit more to the River Case in particular—how important it was
to see that Federal Indian Law was given the full weight rather than being
superseded by a flawed document, on everyone’s admission, being the
Chief Kirk Francis, Penobscot Nation: Yeah. So, obviously it’s a hugely
historic time for the Penobscot Nation in relation to this case.You have a
situation where basically the court of the State takes the position that there
are no federally-recognized Tribes in the State of Maine. That these are
Tribes that exist under a state agreement (that being the Settlement Act),
which of course no one else in the world agrees with, including the United
States Congress, including every federal agency we’ve been 638 contracting
with for 40 years.
So, the level of importance that is on this En Banc review… things like the
Canons of Construction of Indian Law—do those apply to the Penobscot
Nation? When there are ambiguities, the law says that the courts are always
supposed to decide on behalf of the Tribe, when that condition exists. There
are tons of ambiguities here. The court admits to that. But also seemed to buy
into, in the first round, at some level, that somehow the Tribes of Maine need
to be treated differently because of the Settlement Act.
So you have that going on. And then, the national significance of this is
also really important, because Tribes all over the country, whether you’re a
PL280 Tribe or there are tons of Tribes with their own Settlement Acts, etc,
you know, we can’t have a situation… It’s one thing for the Settlement Act to
say, “Okay, Federal Beneficial Acts don’t apply” because of XY and Z in the
Settlement Act. It’s another thing to say that “Federal Indian common law
just doesn’t apply to you generally.” And nowhere in the Settlement Act does
it say that. So, again, following the Federal Indian Law Canons of
Construction is critically important to the protection of the Tribes. That’s in
place for specific reasons because history has told us that all States, local
governments, enterprises, all they really had to do was create these
ambiguities and they would still win the cases. And then Congress stopped
that and said, “No. If there are ambiguities, you are to side on behalf of the
Indian Tribe,” to stop the taking of land and all kinds of other things.
So, here we are today in 2020 with five Tribal communities in this state
still wondering why those principles of Federal Indian Law are not being
applied to the protection of our issues. So, to me that is the important thing of
the En Banc review. And that will really solidify the Tribes as—and even the
court has said, you know, “These are federally-recognized Tribes. They were
recognized in 1976, years before the Settlement Act. They enjoyed all the
same powers, rights and privileges before the Settlement Act.” So, yeah,
those are the things that really are at stake when it comes to this case. And
it’s really about not having a situation where a state can just determine on it’s
own that, “because we have this agreement that none of those protections are
afforded to you and as far as we’re concerned you don’t have a federal
relationship.” So getting those things clarified will go a long way in the Tribe
being able to protect itself.
River Reclassification and Sustenance Fishing
Meredith DeFrancesco: As a sidebar, but related…Recently with the new
Administration in state government there was a comprehensive move to
re-classify rivers and to classify certain areas as sustenance fishing areas, and
that has brought some substantial changes, but it has also brought a certain
spin that allowed certain people to say that sustenance fishing has been
recognized. I didn’t know if you might want to comment on that, where
sustenance fishing is being recognized, but that is still not being recognized
as your sustenance fishery, as part of the Tribe’s territorial waters.
Chief Kirk Francis, Penobscot Nation: Yeah, so that’s the challenge we
have in this state really. There was some really good work done on the water
quality standards legislation, where we are now considering legal action
against the EPA, ironically enough, because that’s gone kind of sideways
lately. But there was some great work done by the State and the Tribes on
trying to make sure that we made a statute that was protective, first of all of
the River, through a water quality standard that kept the River healthy. As we
sit here, I’m not crazy about the fact that it is under State law, but I’m also
appreciative that we have the highest human health criteria, in terms of water
quality standards, in the country right now. [ HP1242, LD 1743, item 1, An
Act To Reclassify Certain Waters of the State ] We’re above Washington
State. So when we started off at…I think we were way over 250 grams per
day of consumption. The state was at 32 or some ridiculous number. That
went on for years. And we’re at 200 now in the legislation. So that’s a really
good compromise. It keeps the River healthy. It protects sustenance fishing,
and more importantly moves towards the health of people. But we have a
long ways to go there, as the fish contaminant study recently done shows us.
The issue of water quality and all of those things have been a real
challenge. But the legislation is a good one. The re-classification of certain
parts of the Penobscot River is good obviously, and is a recognition of
sustenance fisheries. But what we see in both the legislation and in any
reclassification process, is there is no real legal effect in terms of Tribal
authority over those issues. It does not recognize the Tribe’s inherent right to
sustenance fishing, none of those… So, everybody is really good at talking
about the recognition of sustenance fishing, until it gets to a place where the
Tribe has a meaningful voice in that sustenance fishery. And so, in talking
about whether it’s managing the fishery, managing the resources, or
enforcing, even, as I said, jurisdiction over our own citizens. So, it’s nice,
and it’s good for the River, and we have to think about that too. But those
things don’t do a lot to recognize the Tribe’s inherent rights to the River.
Meredith DeFrancesco: Where does it stand right now with how Tribal
wardens can operate on the Penobscot River? Previously it was the case that
they were operating and enforcing state laws when they applied to non-Tribal
residents and also likewise for Tribal residents. Are the Penobscot wardens
able to conduct themselves as they did before the court case?
Chief Kirk Francis, Penobscot Nation: So, our position right now with that
is, you know, the litigation is still pending, there have been some decisions…
We’re going to operate the way that we’ve always understood it, until there is
an absolute decision that says, “It’s illegal, what you’re doing.” What we
have done, however, was take a softer approach while the case was going on.
We told the Maine State Wardens… As you may remember, shortly after the
District court decision, they came into the reservation and started checking
Tribal members—I mean clearly in the reservation, between Orson Island and
Indian Island. Even if you subscribe to a common law riparian right, there’s
no land in there that is state land, so. And they took the position that it was
well within their right to do so. So there was a big blow up and all sides
agreed that State Wardens wouldn’t be up there and we wouldn’t be arresting
non-Indians on the River. I mean we would do that under mutual aid
agreements for crimes, obviously, just as a helpful measure, but we wouldn’t
be exercising sustenance-based authority over non-Indians until things were
Meredith DeFrancesco: And when did that happen, that incident and that
Chief Kirk Francis, Penobscot Nation: 2014, I think. Yeah. Or ’15 maybe.
There’s been a lot of back and forth. Even the Old Town boat landing was
just full of state warden vehicles, they thought there was going to be this big
confrontation, and there wasn’t. It so turned out that day that I was actually
with one of the firemen and we were in the fireboat, which looks like a public
safety boat, and we… I had no idea those guys were there. I went up to go by
my camp and went by the Tribal members. There were half a dozen Tribal
members or so in kayaks and canoes, and they were turning up between the
islands and they waved and I kept going. And when I came back they flagged
us down and told us what had just happened. Turns out, that warden was, his
motor had died in the middle of the River and was just floating out there. So
we went over and were like, “You need any help?” And he was kinda in plain
clothes and he just looked at us oddly. And that somehow turned into that we
were somehow trying to intimidate the warden, and it was this big mess
anyway. And like I said, I knew very little about it at that point. So that really
invoked a conversation that, you know, “We can’t be stepping on each other
here,” and so.. yeah.
Meredith DeFrancesco: Is there anything else you would like to add about
the case right now, the process going forward, what you are hoping will
happen at this point, Chief Francis? And we will be talking with you again
Chief Kirk Francis, Penobscot Nation: Yeah. No, I think that’s about it for
now. Once the briefs are filed, we’ll make sure you get a copy of those and
then we’ll have a more in depth conversation as the oral arguments get
developed and that type of stuff, kinda where things are. You know, like I
said, we’re optimistic and hopeful that if we are really allowed to tell our
story to a diverse group of objective people, that we’ll be able to be very
successful in this. So we’re looking forward to it, and hopefully getting some
VAWA- Violence Against Women Act
Meredith DeFrancesco: Okay, great. Dawn, do you want to turn to
questions about COVID and community care, and VAWA?
Dawn Neptune Adams, Penobscot Nation: Sure. Let’s start with VAWA
[Violence Against Women Act] if you don’t mind. We haven’t really spoken
since that public hearing in the State House about the Violence Against
Women Act when the Governor and the Governor’s Office decided to work
with us on that. If you could give us an update on what that means to us as
womxn in the Penobscot Nation, that would be great.
Chief Kirk Francis, Penobscot Nation: Sure. Yeah, awesome. So, yeah,
you are right. As it turns out there has been a lot of back and forth, and the
Tribe really standing their ground on demanding jurisdiction on all of our
territory over this issue. We were able to get that. The bill was passed and it
was signed and we have since ratified it and sent it back, and I have gotten
confirmation from the Secretary of State that they are in receipt of that and
everything is good to go. So, the court of course, given the COVID situation,
has been relatively dormant the last couple of months, except for virtually
and on an emergency basis.
So we haven’t had the opportunity to really develop the infrastructure
around trying those cases. As you know, we have to have a twelve person
jury, we have to have a lot of different things. So what that means though, to
your question for people, for women within the Tribe, is that they can fully
expect now that when situations occur like they have been over the last
couple of years.. I’m thinking of five maybe six cases off the top of my head
where two of those cases lingered for over a year until the victim said
basically, “I don’t want to relive it,” and walked away. Regretfully, in talking
to them since, feeling like they didn’t get any justice. In another case where a
woman was sexually assaulted, that person [the assailant] fled to Florida.
Despite finding them in Florida and despite an indictment the state refused to
extradite them back to Maine. So, a lot of those types of things… What
women can be assured of, even though we’ll have limits on prosecution, we
can stack those prosecutions. So, if it’s a class D domestic violence for
example, we can do “assault, domestic violence,” and different things to
make sure that people are held accountable on, each one of these charges
would be imprisonable up to a year. So, they can be assured that they are
going to get their day to be heard. And you know, not that our court wouldn’t
have to follow rules and evidence rules and all of those things, but it’s not the
kind of prosecutorial mill that state courts are. It would be given it’s due
And I think people could rest assured that they would have a real system to
hold accountable for any injustice in terms of addressing these things. So I’m
excited about it. I think it’s a great opportunity for the Tribe. We’re going to
continue to fight for the felony portion, both at the state and federal level.
We’re in both Senate bills right now at the federal level for full VAWA
jurisdiction over felony cases as well. And if they can ever figure out a way
to move anything in the Congress, I think we’re going to remain a very big
part of that. So, yeah.
Dawn Neptune Adams, Penobscot Nation: Great. Thank you for that
update. And the way things are, does the Tribe have exclusive jurisdiction or
shared jurisdiction with the state?
Chief Kirk Francis, Penobscot Nation: So VAWA sets up, by it’s
legislation and by the Federal legislation as well, a concurrent situation. So
that the concern over proper trials and all that were in all these processes
whether it was Congress or the state or wherever. So to mitigate that, they’ve
actually allowed for prosecution by multiple sovereigns. So if we botched a
case, for example, or didn’t bring a case (which I can never see us do) or
screwed something up, the state would have the ability to also prosecute that
case. Or if we prosecuted a case and it got challenged, you know, the
defendant can challenge it in federal court. So it really sets up a situation
where multiple jurisdictions can be involved in the same case if they so
choose, separate and distinct from each other.
Dawn Neptune Adams, Penobscot Nation: Thank you very much for that,
Kirk. As a Penobscot womxn, two-spirit womxn, who has dealt with multiple
forms of violence, I am very much assured that my Tribe would have my
back, judicially as well as in other ways. Thank you very much.
Chief Kirk Francis, Penobscot Nation: Yeah. No, it’s a big issue and it’s
not just domestic violence. I mean, women, Indian women especially as we
all know, are a demographic of people who are exposed to violence far more
frequently than anyone else. So, it’s a real serious issue and it’s an important
institutional jurisdiction for us to have if we’re ever going to solve that issue.
So, yeah. I appreciate it.
Penobscot COVID Response
Dawn Neptune Adams, Penobscot Nation: The other question I had, or just
a request for comment and a request to give a shout out to the Penobscot
Nation for the care of our Elders during this pandemic. I’m in contact with
many of them and they have talked about how food has been delivered both
in the form of meals, (Elder meals) and the food bank. If you want to give us
an update on community care in our Tribe, that would be wonderful.
Chief Kirk Francis, Penobscot Nation: Well, you know, our team did an
outstanding job, I think, on a host of issues, and I’ll get to that Elder issue
which is obviously the most priority for us. But I think that very early on we
knew, back in late February, just through USET’s Office of Epidemiology
[United South and Eastern Tribes] and through national conversations and
seeing what was starting to happen in Washington State and other places, we
knew that it was going to be a matter of time before—we didn’t think it was
going to be that quick—but we knew. And so we actually started to work
with our Health Department and with the Epidemiology Center, back in late
February, to create a pandemic response plan which focused on a multitude
of areas including testing how patients… You know, we set up a remote
Respiratory Care Center in back of the Clinic, so patients wouldn’t be
exposing each other to symptoms. And we did a whole host of things around
that. So we presented the plan to Council in the first week of March. And it
was a really good plan and it touched on a lot of different things. So we got
that accepted and we didn’t realize that four days later, five days later, we
were going to be invoking that plan. So we initially went to essential
employees only, sent everybody else home, and then it was five days later
that everybody went home. So, it got honest quick, but we acted quick. And a
lot of people say that we kind of closed too early, or we’re re-opening too
late, and I’m okay with those criticisms, because I think that the vulnerability
of our population and everything I’ve learned about this is extraordinary. I
mean, we have health disparities in our community that really account for an
underlying condition for a large part of our population.
We look at the way our Elders live, mostly in the facilities, and we see
what’s happening in care facilities all over the country, and the devastating
effect that that’s having on them. We closed to any outside visitors right off. t
People were concerned about it, they understood why we did it, and we had a
lot of concern about the isolation of our Elders during this period of time and
so we started to think those things through as well.
And then we just sat and really spent an entire day with the staff, going over
our food distribution plan and how we were going to do that. And we worked
with the schools. We talked to the school and said, “We’d like everybody
eighteen and under to be able to get a meal everyday.” Some days some of
these kids, unfortunately, it’s the only nutritious meal they get, and we’d like
to make sure that continues.They were great working with us on that. So we
didn’t just do K through 8, we did everybody under 18.
And then of course, Elder meals were our top priority. And we really were
concerned about their isolation, how are we going to get them supplies,
materials, all of that. So, to date, we deliver about 1,250 meals per week;
about 900 of those meals are to the Elder community, both on and off
reservation. We went from one meal per day to providing a small breakfast as
well. So we’re doing two meals per day for the Elders. And then we really
beefed up our food pantry so that everybody in between, whether you didn’t
qualify as a youth or an Elder, but you still were indigent in some way and
you needed help. We’re doing around 120 boxes of food for people a week,
that gets them through a five day period I believe, or a six day period. And
we’ve been trying to do things like, we got scallops from Passamaquoddy, we
added those to some of the deliveries. Our bear hunters, we just picked up
two loads of butchered bear meat, so it’s all wrapped and ready to go. We
ordered some pigs, we’ve ordered cattle, and we’re expecting those to be
done here soon hopefully.
So we’ve been trying to add more stuff and more diversity to the
distribution. And then we recently, a few weeks ago, went to the color card
system working with Wabanaki Public Health, so that Elders can simply put
up a card of a certain color indicating that they have need or they don’t have
need, so we kind of know if everybody’s okay. And then closing the
reservation to outside visitors being essential only. We just really felt like we
had an opportunity, the way the community is built, to be very successful,
and also with the one way on, one way off thing. But we also understood that
if we made some mistakes it could be very devastating, the way the
community is built. So, to date we’ve had four total positive cases of Tribal
members; one of those was treated at our facility, all of them lived
off-reservation. So we’ve done very well and just want to keep it that way.
And like I said, we get a little bit of irritation around the length of time it’s
taken to open…We do have, again through the Epidemiology Center and
through our Health Clinic and input from all the Departments, we have
developed a three-phased reopening plan that is available on our website, that
still does things in those first few phases that keeps NOLI [family resources
center] closed, that keeps visitors to a bare minimum to the elder facility, that
also keeps travel bans for employees and all that type of stuff.
So I think we, again, until there is a vaccine or a treatment that is effective
and proven to be effective in saving lives, I don’t think we can, we’re in a
position where there is no good reason for us to take any risks. And I just
think we’re going to stay on a very cautious approach to all of this. And, you
know, there’s only 2,400 of us left, and I see what’s going on nationally with
some of our brother and sister Tribes, and… One that I work with almost
daily through USET is the Mississippi Band of Choctaw, who basically had a
Council meeting back in April, had an exposed staff member, and the Chief
himself tested positive. Today they have over 800 cases and over 70 deaths
amongst a population of 9,000 people. ] So, it’s…if it gets in it can be… You
know, the former Chief’s wife, Miko Denson, his wife [Lena] passed away
last week from it. So it can be devastating.
And my fear is, as we look across the state, across the country; we had a
President and Administration who had a very disjointed approach to testing
when this all start, creating a lot of problems, and also had a lot of very
disjointed message, confusing message, about reopening and where we are
with all of that. I don’t think those decisions are based even 50/50 on public
health. I think those decisions are based on economics and re-elections, and
we have the luxury of not doing that. And so, as things around us start to
open up more and more I think it’s going to be imperative to continue to be
more cautious and be smart.
Dawn Neptune Adams, Penobscot Nation: I think it was really great that
the leadership of the Penobscot Nation had a plan in place ahead of time and
that, you know, rolled with the punches so to speak to keep our people safe.
Thank you very much for that, Chief.
Chief Kirk Francis, Penobscot Nation: Yeah, no worries. Like I said, it was
a really, really good team. I mean, the Directors all stepped up…You know,
we had people that were (one day) school teachers were delivering food, we
had people that were, you know, nonessential medical workers that were
delivering food. We had a lot of people really give a lot of themselves during
a very scary time. So, yeah, I’ll pass that along.
Meredith DeFrancesco: I know we can’t keep you forever, but it seems we
would be remiss, since you are the President of the United South and Eastern
Tribes [USET], if you wanted to comment a little more generally on the
impact of COVID on the Northeast Tribes and on the Southern Tribes?
Chief Kirk Francis, Penobscot Nation: Yeah. So, you know, it’s been a
real challenge for Tribes to get the resources they need to address this. So, we
helped argue for and draft the COVID Relief Fund and try to get that for as
broad a use as we can use those funds based on formulas and methodologies
that helped all Tribes. Of course, things get very political. You’ll notice even
with the Tribal COVID Relief money, you know, states like Oklahoma and
Arizona and all those good red states got a bulk of that money, right? And so
the Tribes like Seminole, for example, that was probably bleeding
twenty-five million dollars a month being closed, received five million
dollars out of that fund. We’re at Penobscot Nation; we received 8.9 million
or something like that. So we did quite well in that first charge. But there was
no rhyme or reason, so you had Tribes that needed a lot more resources—I
knew Tribes in our region that didn’t get anything! Because it was based on
hub-population. And then the second charge of money that went out was
based on employees. And then they said, the Treasury said, “Well you can
use your enterprise employee numbers too.” Well for Tribes in Maine, you
know, our three, four hundred employees per Tribe doesn’t measure up
against, you know, a Navajo Nation who has multiple casinos and tens of
thousands of employees, right, that they can claim. So, the bulk of those
dollars go to those other Tribes. And we got some of those dollars and it was
fine, we think we have enough resources to really do what we need to do.
But I think the challenge has really been testing, you know. There’s only
fourteen Abbott analyzers in the Eastern region among Tribes. We’re
fortunate enough to have one of them. But they are unreliable, there’s a lot of
false-negatives, and so they are not really good for surveillance tools, like
back to work testing and that sort of stuff. Because even the negative tests
you get, you have to transport media for that to the CDC for example to be
confirmed, or a laboratory. So, we just purchased a brand new docking
testing system that should be here in a week or two that is the same system
that the CDC uses, so we’ll be able to do hundreds of reliable tests just as a
matter of maintenance really. So we’re excited.
We have a contact-tracing program that we have developed, so we are
training people on that now. So, you know, we’ve learned a lot of lessons too
from this, and there are probably some things that, you know, just every day
something is changing. We’ve got all those deaths and illness down in
Mississippi Choctaw, starting to see more infections in places like Louisiana
Coushatta. You know, in States like Connecticut and Massachusetts;
Wampanoag and Mohegan-Pequot all the way up to the upstate New York of
course live in a very, you know, very dangerous geography for a while. So,
having the resources to protect those communities was the most challenging
thing. And we’re on USET calls every day and we tried to collectively come
up with best practices and all of that.
So, Tribes are doing okay. Obviously this situation in Mississippi is
especially concerning, but for the most part I think, you know, Tribes are
being faced with everything everybody else is, you know, huge economic
impacts. Again, a thing we don’t have to worry about, our government
contract actually went on fairly well during this whole thing, but the Tribes
with Casinos, our friends at Gila River reopened under a crazy Governor, not
the Governor of the Tribe, the governor of the State, and they, you know,
were forced because of competition and other things, to get rushed into that.
And they had a casino worker pass away. Now they’re being sued for
re-opening, and it’s just a whole mess, so. And it’s a lot going on and I just
think it’s no time to let our guard down, and I just think it’s very dangerous,
the national politics around this issue.
Wampanoag Termination Attempt
Dawn Neptune Adams, Penobscot Nation: You mentioned the Wampanoag
Tribe. Is there anything you would like to say about that termination attempt
that was thwarted in Wampanoag?
Chief Kirk Francis, Penobscot Nation: Yeah, I was actually just talking to
Chairman Cromwell the other day, we’ve been missing each other playing
phone tag the last few days, but I…yeah, it’s pretty awesome, you know. We
were talking… We got the En Banc review acceptance and then almost just a
short period of time later the court started scolding Interior for their actions
and then, bam, you get this decision that came out that said, you know,
basically that they didn’t have a right to do that. So, it’s a huge, huge victory.
Not just for them, but you’re just seeing all of this. No economic interests
should be able to determine whether a Tribe has a right to regain their
homeland. You’re seeing it not just in Land to Trust, but you see it with
Tribes that have been on the federal recognition list for decades that are being
opposed for no good reason except the economic opportunities that they will
have and how that will hurt somebody else. Hopefully these courts are
starting to realize that 1) that is not legal and 2) that protecting these rights is
extremely important to the health and welfare of Tribal people. And so the
decision is awesome. And everybody is really happy about it.
Dawn Neptune Adams, Penobscot Nation: That’s great. Thank you for that
Racial Justice and Police Brutality
Meredith DeFrancesco: The other more than timely issue is: if you have any
comments right now on the racial justice/police brutality movement?
Chief Kirk Francis, Penobscot Nation: Yeah.I mean, all the Tribes in
Maine did a joint statement, and I don’t know if you saw it.
Meredith DeFrancesco: Yes.
Chief Kirk Francis, Penobscot Nation: And so we obviously are watching
in disgust, like everybody else, what has happened, what is continuing to
happen. I mean, even post the George Floyd situation, you still have people
getting shot…And it’s something that Indian people can relate to. When you
look at the police violence charts, the way that a person of color—and
Indians per capita get killed at the hands of police higher than any other race.
We were talking about this actually at the Martin Luther King event last year,
with the ACLU (American Civil Liberties Union) and others had these
statistics. And so it’s something we can relate to in terms of how people are
dealt with in terms of disparities from the minute they are stopped until the
time they are incarcerated and then through incarceration. So, it’s a hugely
important issue and I’m glad that the country is kind of—and it’s not just the
country, the entire world is kind of standing up and saying, you know, “This
can’t be the way things are.” And so I hope there is meaningful change with
it. And we’ll do whatever we can to support that movement. And also
understand, you know, that if you go back to the Civil Rights movement, that
wasn’t just about black people, that was, you know, Native Americans were
also in the middle of that conversation. Even Dr. Martin Luther King
mentions them at certain times, a lot of other Civil rights people mention
Native Americans. You know, those Civil Rights workers in Mississippi were
killed on Indian land at Choctaw. And so there is a huge history of these
issues being intermeshed with the Indian issues as well.
So, I, you know…It’s appalling. Rodney King was 30 years ago, but to see
all that has happened between then and now and that continued to happen,
and you know we’re just seeing a glimpse of what the condition was. So it’s
something I’m hoping, you know, I hope, I hope… It doesn’t help that we
have a President that doesn’t get more forceful, like what happened in
Charlottesville and all
, who doesn’t say anything really, except continuing to support the police.
I just hope that meaningful change comes from it. And I think that as a
state we could do a lot too to send a message that that is not going to be the
way that things go here. I think having Tribal people on the Maine Criminal
Justice Academy Board was a big step. I also think the African American
community needs to be represented on that board as well. And to help
engagement, all of those types of things that are the huge conversation.
But, yes, I’m hugely supportive. I’ve been enthralled by—I mean just think
about, in the middle of a pandemic, how organized these things have become
almost overnight, right? They seem disorganized at times, but anytime you
get that many people in a space for a prolonged period of time…I’m not sure
it’s the safest thing to be doing right now, but I certainly understand why
people did it. I took my daughters and drove down to the one in Bangor here
and watched. I thought it was important for them to see where things are at
with this and why it’s important to get involved.
Dawn Neptune Adams, Penobscot Nation: I think it’s great that the Chief
has pointed out that these issues are things that we as Indigenous people have
to deal with as well. We have had police brutality happen to our own citizens.
My uncle was shot in the back by Old Town Police in 1979, David Tomah.
So these are things that we need to explore together, and share our solidarity
with all our relatives.
Chief Kirk Francis, Penobscot Nation: Definitely. Definitely.
Meredith DeFrancesco: More on that in the near future. Are there statistics
on the disparities you were talking about in Maine?
Chief Kirk Francis, Penobscot Nation: Yes. I can forward those to you.
Native American women, per capita, populate the Maine State Prison at
higher rates than anyone else. And you have men not far behind. So it’s a
condition people don’t really know about because we’re such a small part of
the population, right, people who identify as American Indian in this State.
But it’s a condition that, you know, you look at the whole Passamaquoddy
issue we worked on with Corey Hinton’s grandfather, Peter Francis … that’s
awful, but who got killed by out-of-state hunters. And the whole
prosecutorial system that took over at that point really geared towards freeing
these two non-Indians, as opposed to finding him justice, right. So there’s a
lot of those stories, and I think that this issue, I think these whole issues of
social justice and bringing an end to kind of oppression in a multitude of
areas is good for our issues too. I think it’ll change the mindset of people,
politically, before they start to make decisions that went unchecked before.
So, yes, I think the timing on it is important on a whole host of fronts, not just
the Black Lives Matter movement. It’s really a call to everyone to just bring a
little more humanity to what these institutions have a responsibility to do.