Penobscot Nation v. Frey

Summary

The First Circuit granted en banc rehearing in this dispute over the Penobscot Nation's reservation boundaries and regulatory authority over the Penobscot River's main stem. The court vacated the prior panel opinion and dissent, directing supplemental briefing on whether the Indian Canon of Construction applies to the Maine Settlement Acts (MIA and MICSA), the effect of the canon against conveying navigable waters, and the proper interpretation of statutory definitions and treaty boundaries. Additional questions address ripeness, standing, laches, and whether the Nation transferred the river's main stem under the Settlement Acts.

Holdings

1. A majority of the active judges who are not disqualified have voted to hear this case en banc. The petitions for rehearing en banc are granted.

Questions Presented

1. Does the Indian Canon of Construction apply to the Maine Settlement Acts?
2. Does the canon against conveying navigable waters affect the application of the Indian Canon?
3. How does Alaska Pacific Fisheries v. United States impact this case?
4. Are there any material ambiguities in the relevant provisions of the Settlement Acts?
5. Do state common law and interpretive rules apply?
6. May the Court consider legislative history?
7. Does 25 U.S.C. § 1723(a)(2) bar the United States from asserting certain claims?
8. Do the doctrines of laches, acquiescence, and/or impossibility bar the Nation's claims?
9. Did the Penobscot Nation transfer the Main Stem of the Penobscot River to Maine under the Settlement Acts?
10. What are the proper boundaries of the Reservation?
11. Is the Nation's claim ripe regarding sustenance fishing rights in the entire Main Stem?
12. Does the Nation have standing to bring this claim?

Disposition

vacated