MISSION: Southwest Research and Information Center is a multi-cultural organization working to promote the health of people and communities, protect natural resources, ensure citizen participation, and secure environmental and social justice now and for future generations

Barry Dana: A People and Their River
Penobscot River, Maine

When you go to Katahdin, Katahdin meaning great mountain, you don't need any education before you get there. You don't need anybody preaching to you for you to get a real strong sense that this is a special place.

When you see a stream coming out of the mountain, directly out of the mountain, there just isn't any place better. Water that we're seeing right here, flowing through the reservation, literally comes from Katahdin, the most sacred place on the planet. Yet here, the water is not viewed as sacred by industry. It's viewed as a pipe to the ocean, you know, a sewer.

Paper Mills NICK BENNETT, SCIENTIST, NATURAL RESOURCES COUNCIL OF MAINE: Paper mills are located on rivers because they need to use a lot of water in the process of making pulp and paper and then they need to discharge that water somewhere. What's in the discharge water is all the products of breaking down trees to make pulp, by-products of bleaching, include things like dioxin. Dioxin is very long lived in the environment; it doesn't break down. So, when you make Dioxin and you discharge it into your treatment plant, it's going to eventually end up in the river. Dioxin is a lipophilic compound and a lipophilic compound means it, literally, it likes fat. So it - as it moves up the food chain, it gets into the fat cells of fish and concentrates. Dioxin has a lot of bad health effects that are associated with it. Cancer is the one that people worry about the most. JOHN BANKS, NATURAL RESOURCE DIRECTOR, PENOBSCOT NATION: So by the time we get it in our bodies, our body burden is potentially much higher. MICHAEL BARDEN, SPOKESMAN, MAINE PULP & PAPER ASSOCIATION: A large, typical large pulp and paper mill would have something like thirty to fifty million gallons per day that needs to be treated and then discharged. A lot of the European plants are new facilities. And you can build in a lot more environmental controls, economically in a new facility as you're starting it then you can go to an older facility and make retrofits.

The Penobscot people once lived throughout the entire state of Maine. Today, our reservation is a series of small islands in the Penobscot River. Indian Island is the only one large enough to inhabit. That's where I grew up. It's only thirty miles downstream from Lincoln Pulp and Paper.

This is the mill, this is its discharge pipe and this is our river. Here you see a touch of foam. Before when I'd come here to visit my grandfather, it was almost a foot thick. That's the landing there, we'd put in canoes and paddle over to see my grandfather.

You'd have this stuff dripping all over you, never knowing what it is. Probably spending about half the summer in the water, I realized that I had these lesions on my legs, these bad boils, and they weren't very pretty. I just figured it was because of the water. So I stopped swimming. They eventually subsided but really never went away. This discharge flows twenty-four hours a day, seven days a week. And it flows through our reservation.

I spent a lot of time with my grandmother growing up on the reservation. She was very hopeful that the traditions of the Penobscot would live on, and I was the one that she looked on to make sure that the traditions were being carried on.

In 1989, I started my own wilderness school where I would take people into the woods and teach them the old ways. I'd teach people how to track and gather wild plants.

I conducted these wilderness camps for kids on my grandfather's land until we realized how dangerous the fallout still was from the paper mill across the river. I'd come to believe that two decades of the Clean Water Act had made the river safe.

About our third outing, people started complaining. They were complaining about skin rash and headaches. And about the fourth camp out, I finally started recognizing it myself. So that was our last camp out here.

Around the same time, rather than regulate the paper industry, the state of Maine posted health warnings that advised eating as little as one eight-ounce serving of fish per month. We were used to eating four times that in a week. Pregnant women and children were told to eat no fish at all.

It's like you catch a fish and you pick it up and you hold a cigarette in your hand and you say, well which one do I dare take?

And then you think well, what's the difference? There's no difference. You eat the fish you'll get sick, you smoke the cigarette you'll get sick so it's your choice. It was a choice. I'd rather eat the fish, myself. We can't fish, we lose our identity. We lose who we are as a people. This is us, this is who we are, the fish are us. We're all connected, we're all related.

RICK NICOLAR, TRIBAL COUNCIL MEMBER

The simple fact is if we as consumers didn't demand white paper, there'd be no need for the bleaching that produces Dioxin.

Do we really have to sacrifice our rivers to make toilet paper? Is it that important? Do we have to cause cancer for that? There are other ways of producing this paper. It's done in America, it's done in Europe. These companies have European counter-parts that produce paper in a closed loop.

LORI DANA, BARRY DANA'S WIFE

Over the last thirty years, there have been hundreds, hundreds of violations of these permits. The state, knowing of these violations, has done their job, they've reported them, and they've issued fines. Those fines amount to $3,000. A year for basically the right to dump billions of gallons of untreated waste water directly into the river.

In 2000, I was elected to the position of tribal chief. My top priority: clean up the Penobscot River.

Around the same time we learned that the state had petitioned the federal Environmental Protection Agency (EDA) to take sole responsibility for issuing discharge permits in Maine waters. We quickly urged the EPA to deny the state's request.

The state sent to the federal government a request for documents and all correspondence between the EPA and the tribes. At the exact same time, three paper mills teamed up and issued the exact same request, word for word, to the tribes requesting to see our documents.

We told the mills that as a sovereign tribe, we did not come under the Maine state Freedom of Access Act. They took us to court, state court.

This act of Maine government requesting the authority to oversee permits in Penobscot waters is an absolute insult.

The paper mills for generations have done just about what they wanted on this river. The state of Maine supported them because they were a very important economic part of the state of Maine. Paper mills had the biggest lobby in the state legislature.

I didn't look at that move by the paper companies to seek those documents as a documents issue or a freedom of information issue. I thought it was just another way for the paper companies and the state of Maine to undermine our sovereignty.

BUTCH PHILLIPS, PENOBSCOT

Protecting Our People JOHN BANKS, NATURAL RESOURCE DIRECTOR, PENOBSCOT NATION: Within the Indian Island community, unfortunately we have a cancer rate that's over twice what the average cancer rate is in the rest of the state of Maine. Because of our lifestyle, because of our practicing our culture, we are a much greater risk. We're sort of like the canary in the coal mine in that we're out here consuming resources directly from the river that are contaminated. The state government apparently has prioritized economics over the environmental health of a whole race of people that have been here for thousands and thousands of years. That's the nub of the issue that really does make me angry. Now I'm sure you've heard the old saying about the fox guarding the hen house. Well this is a classic example in my mind. We believe that because of that influence, the state government cannot adequately protect this river. So one of the things that we began was a monitoring program. Although the state government was doing a significant amount of monitoring, we weren't sure that we could trust them 100 percent. Our water quality data showed that there was some elevated levels of PH acidity coming out of that discharge. And we notified the Maine DEP about these hits we were getting. They discovered that the equipment that they should have been using to monitor water quality in their discharge was sitting on the shelf collecting cobwebs. You know, we're part of this economy. We have tribal members that work in some of these mills. We don't want to shut the mills down, but we want them to take a longer term view on the environment. And adopt friendlier paper-making processes so that they can continue to make paper, they can continue to thrive in terms of a viable business but not at the expense of the environment.

On November 9th, 2000, just one week after my inauguration, the courtroom was packed when the case was heard by the Maine State Superior Court.

We told the court that these documents were generated under Penobscot Nation Governmental Affairs, where we are a sovereign nation and only the federal government has any authority to intervene in regards to tribal sovereignty. So we basically told the mills no. And then we told the superior court judge no. We're not going to hand you or anyone our documents. We were found in contempt of court by the superior court judge and he sentenced us to jail. You know here we are in the year 2000 and tribal leaders, chiefs are going to jail for protecting tribal sovereignty. We decided that as an honorable government we will, as we always have, work with other governments on a government to government level.

We refused to give the papers to the mills. Instead, we marched over 40 miles to present them at the state capital. In the end, the Bush EPA granted the discharge permitting authority to the state of Maine.

This is unprecedented; it's the first time in EPA history that they have sided with a state over a tribe. It's wrong. It's against their own policy.

It is a problem. I think that we're just going to have to fight a little bit harder than what we've been fighting. We've done a great job but we still have a long way to go. The river runs forever, it should be taken care of.

LORRAINE DANA, BARRY'S MOTHER

It's not just here, all over the country, thirty years of environmental protections are quietly being dismantled. Sometimes it seems like many Americans are blind to what's going on, but we don't have the luxury of looking the other way - we can't give up on the river.

People are destroying the earth; it'll be people to bring it back. And the wisdom that's going to be the driving force is held in this land's first people. It's our culture, it's our traditions, and the values that come with those traditions that's basically going to save the planet.

---

Tribal Sovereignty v. State of Maine

Maine Indian Claims Settlement Act (MICSA) of 1980 established a unique relationship between the State of Maine and the Indian tribes within the state's borders, unique compared to the relationship between most state governments and federally recognized sovereign tribes. The act resolved the tribes' claims to land within the state, while giving the state regulatory authority over tribal territory, except for "internal tribal matters." "Internal tribal matters" typically revolve around the idea of Indian sovereignty, which western federal courts traditionally acknowledge. However, the New Hampshire federal courts have consistently ruled that federal courts do not have jurisdiction. This leaves tribes dealing with state courts, whose rulings have undermined their tribal sovereignty.

An example of this is the U.S. Environmental Protection Agency's (EPA) recent decision to turn over water pollution controls on two Indian reservations to the state of Maine. Both the Penobscot Nation and Passamaquoddy Tribe face polluted waters because Maine has failed to regulate industry pollution into tribal waterways. Tribal members can no longer fish freely from the Penobscot River because of pollution.

EPA argued that its decision is based on MICSA, and that both the Passamaquoddy Tribe and the Penobscot Nation were subject to the laws of the State of Maine unless an action involved "internal tribal matters." EPA argued that administration and enforcement of the water pollution controls of the Penobscot River cannot be considered an "internal tribal matter" because the impact on non-tribal members would be far greater than its impact on tribal members. The federal agency based its decision on the fact that many of the facilities that would be impacted by these pollution controls are located on non-Indian lands, are publicly owned, and often provide vast employment opportunities to local communities.

The EPA further argues that decisions concerning these facilities and the manner in which they can pollute the Penobscot River involve the interests of citizens of the towns and employees of these facilities, most of whom are non-tribal members. EPA's decision was contrary to Departments of Interior and Justice recommendations, made after a request by EPA for counsel.

On March 14, 2004, the Penobscot Nation decided to file a federal court appeal of EPA's decision.