The Unceded Flow: Maine’s Indigenous Water Rights and the Battle for Cultural Heritage
In the vast, verdant expanse of what is now called Maine, water is not merely a resource; it is the lifeblood, the sacred thread woven through the very fabric of Indigenous existence. For the Wabanaki Confederacy – the Penobscot, Passamaquoddy, Maliseet, and Mi’kmaq Nations – rivers, lakes, and coastal waters are ancestral highways, providers of sustenance, and sites of profound spiritual connection. Yet, for generations, this intrinsic relationship has been systematically eroded by colonial legal frameworks, industrial pollution, and a persistent denial of inherent sovereignty, culminating in a modern-day battle for water rights that is as much about cultural survival as it is about ecological justice.
The struggle for water in Maine is fundamentally a struggle for self-determination. Unlike most other federally recognized tribes in the United States, the Wabanaki Nations operate under the 1980 Maine Indian Claims Settlement Act (MICSA). While ostensibly designed to resolve land disputes, MICSA has proven to be a straitjacket on Wabanaki sovereignty, interpreting tribal lands as akin to municipalities rather than sovereign nations. Critically, this interpretation stripped the tribes of the federal trust protections typically afforded to Indigenous peoples and significantly limited their jurisdiction over natural resources, particularly water. This singular act has defined the legal landscape for over four decades, placing the Wabanaki in a unique and often disadvantageous position compared to their counterparts nationwide.
The Penobscot Nation’s fight for the Penobscot River epitomizes this predicament. For millennia, the Penobscot people have lived by, from, and with the Panaquamscut, "the place where the rocks open out" – their sacred river. It is the source of their identity, their food, and their spiritual well-being. But the industrial era brought dams, pollution from pulp and paper mills, and a profound degradation of water quality, decimating fish populations and rendering traditional foods unsafe to consume. In response, the Penobscot Nation sought to exercise its inherent right to regulate water quality standards on the main stem of the river, arguing that their reservation encompassed the river itself, not just the islands within it.
In 2012, the U.S. Environmental Protection Agency (EPA) sided with the Penobscot Nation, affirming their right to set water quality standards for the entire reservation, including the main stem of the river. This was a monumental victory, a recognition of environmental justice and tribal sovereignty. However, the State of Maine, backed by powerful industrial interests, challenged this decision. The legal battle culminated in a devastating 2017 ruling by the U.S. First Circuit Court of Appeals, which declared that the Penobscot Nation’s reservation only included the islands and the riverbed beneath them, not the flowing waters of the main stem. This decision effectively bifurcated the river, severing the Nation’s jurisdiction from the very waters that define its existence.
"They’re trying to take the river out of us," said Penobscot Nation Chief Kirk Francis at the time, his words encapsulating the profound cultural wound inflicted by the ruling. "You can’t separate us from the river. It’s our lifeblood, it’s our relative." The court’s decision ignored centuries of Wabanaki history, traditional ecological knowledge, and the spiritual bond that cannot be neatly divided by legalistic lines on a map. It meant that the state, not the tribe, would continue to have primary authority over the discharges that flow through Penobscot ancestral territory, impacting the health of the river and the people.
The implications of this ruling extend far beyond the Penobscot River. The Passamaquoddy Tribe, for instance, faces similar challenges on the St. Croix River and along the coast. Their traditional fishing grounds, particularly for the prized elvers (baby eels), are threatened by over-regulation, encroachment, and the state’s dominant authority over coastal resources. For the Passamaquoddy, the St. Croix is known as Schoodic, "where the waters flow." It is integral to their identity and economy, and the constant battle for management rights undermines their ability to sustain their cultural practices and livelihoods.
The concept of water as cultural heritage for the Wabanaki is multi-faceted and deeply ingrained. It is:
- Spiritual Connection: Water bodies are considered living entities, imbued with spirit and sacredness. Ceremonies, prayers, and traditional practices are intrinsically linked to the health and accessibility of water. Pollution and restricted access are not just environmental problems; they are spiritual assaults.
- Sustenance and Traditional Foods: Fish, eels, clams, and other aquatic life have been primary food sources for millennia. The inability to safely harvest and consume these foods due to contamination (e.g., mercury and dioxins from historical industrial waste) represents a direct attack on food sovereignty, traditional diet, and intergenerational knowledge transfer. The Penobscot Nation, for example, has had to issue advisories against consuming fish from parts of the river, a stark reminder of the loss.
- Medicinal Plants and Ecosystem Health: Many medicinal plants and natural resources crucial to Wabanaki healing practices grow along riverbanks and in wetlands. The degradation of water quality and the disruption of ecosystems directly impact the availability and potency of these vital plants.
- Language, Stories, and Place Names: Wabanaki languages are rich with terms for water, rivers, and specific geographic features. These names often tell stories, describe historical events, or denote spiritual significance. When access to these places is restricted or they are irrevocably altered, a piece of linguistic and cultural heritage is lost.
- Transportation and Cultural Movement: Rivers and coastal waters were the original highways, facilitating trade, communication, and movement between communities. The ability to navigate and utilize these waters freely is a fundamental aspect of historical and contemporary Wabanaki life.
The struggle for water rights is also a struggle against environmental racism. For too long, Indigenous communities have disproportionately borne the brunt of industrial pollution, with their sacred lands and waters becoming dumping grounds. The lack of meaningful tribal jurisdiction over their ancestral waters perpetuates this injustice, leaving them vulnerable to external decisions that prioritize economic development over ecological and human health.
In recent years, there has been a renewed push within Maine to address the broader issue of Wabanaki sovereignty. Legislative efforts, such as LD 1626 (which sought to affirm tribal jurisdiction over water quality on their lands) and LD 2004 (a comprehensive bill aimed at updating the 1980 Settlement Act to recognize inherent tribal sovereignty), have been introduced. While LD 1626 faced legislative hurdles and LD 2004 has also encountered significant resistance from the state, these initiatives highlight the persistent demand for justice and the recognition of inherent rights. Advocates argue that these changes are not about granting new rights, but about restoring rights that were never truly ceded and are universally recognized for other sovereign nations.
The path forward demands a fundamental shift in perception and policy. It requires the State of Maine to acknowledge the inherent sovereignty of the Wabanaki Nations and to move beyond the limitations of MICSA. It necessitates a recognition that environmental health and cultural preservation are inextricably linked. True reconciliation means more than symbolic gestures; it requires the restoration of practical authority over ancestral lands and waters.
As Penobscot Elder and respected leader Donna Loring has eloquently stated, "We never relinquished our rights to the water. We never relinquished our rights to the land." This sentiment echoes across the Wabanaki Confederacy. The rivers continue to flow, carrying not just water but centuries of history, culture, and an unwavering spirit of resilience. The unceded flow of these waters is a constant reminder that the fight for Indigenous water rights in Maine is not just a legal battle; it is a profound testament to the enduring power of cultural heritage and the sacred promise of self-determination. The future of Maine’s Indigenous nations, and indeed the health of its ecosystems, hinges on finally honoring that promise.
