New Scholarship on Dam Removal on Ottaway, Penobscot, and Elwha Rivers

Coleen A. Fox, Nicholas J. Reo, Brett Fessell, and Frank Dituri have published “Native American Tribes and Dam Removal: Restoring the Ottaway, Penobscot and Elwha Rivers.

From the article.

The abstract:

Since the early 1900s, more than 1700 dams have been removed from rivers in the United States. Native American Tribes have played a key role in many significant removals, bringing cultural, economic, and legal resources to bear on the process. Their involvement contrasts with the displacement and marginalisation that have historically characterised the relationship between Native Americans and the dams built by settler – colonial governments on their rivers. Our research investigates Tribal involvement in dam removals, with examples from the Ottaway, Penobscot, and Elwha rivers. We ask the following: what roles have Tribes played in successful removals? How do dam removals affect and reflect shifting relations between Tribal governments and non-Tribal actors? Our research finds that Tribal involvement provides opportunities for inserting underacknowledged values and resource claims into dam removal efforts, and that it facilitates new collaborations and alliances. We also find evidence of Tribal involvement affecting the nature and practice of river restoration through dam removal. We conclude that the involvement of Tribes in dam removal contributes to important shifts in environmental politics in the US, and that it also creates opportunities for restorative environmental justice for Native Americans and their rivers.

HIGHLY recommended.

The Elwha River, deep in the Olympic National Forest of Washington State’s Olympic Peninsula, flattens out here but will narrow and add rapid as it heads toward Madison Falls.
From the article.
From the article.

EPA Issues Water Quality Regulation to Protect the Penobscot River

Link: Bangor Daily News article by Judy Harrison,

Download: Promulgation of Certain Federal Water Quality Standards Applicable to Maine (Final Rule)Fact Sheet: Final Rule on Certain Federal Water Quality Standards Applicable to MaineResponse to Public Comments

EPA Issues Water Quality Regulation to Protect the Penobscot River

On Thursday, the EPA issued water quality standards governing the Penobscot River to protect the sustenance fishing rights of the Penobscot Nation.  Penobscot Chief, Kirk Francis, praised EPA.  “This is great news for the Penobscot River, the Penobscot People, and the State of Maine,” said Francis.  “This brings us one step closer to restoring the fish habitat of the Penobscot River for the betterment of all who use this extraordinary River.”

The Penobscot River, the aboriginal homeland of the Penobscot Indian Nation, historically supported the largest habitat for sea run salmon in the North Atlantic.  The Penobscot River has also supported robust populations of shad, eel, alewives, blueback herring and multiple other species that the Penobscots have relied upon for food.

The Atlantic salmon is an anadromous fish, which typically spends 2-3 years in freshwater before migrating to the ocean, where it also spends 2-3 years before returning to its natal river to spawn.  Although the Atlantic salmon has been listed on the endangered species list since 2009, the State of Maine, a number of US agencies, NGOs, and the Penobscot Nation are working together in an internationally-recognized river restoration project to improve fish habitats in the Penobscot River through dam removals and other efforts.

“The federal and private investment of millions of dollars to restore the Penobscot River’s migratory fisheries is now resulting in rebounding runs of herring, shad, sturgeon, and over time we expect, Atlantic salmon.” said Andrew Goode, Vice President of the Atlantic Salmon Federation.  “The EPA’s water quality standards are an important contribution to the restoration of these fisheries for the benefit of the Penobscot Indian Nation and the people of Maine.”

A year ago, the EPA disapproved human health criteria that Maine used in its water quality standards because they exposed Penobscot tribal members and other Maine Indians to cancer risks, given tribal fish consumption rates.  Maine used a fish consumption rate of 32.4 grams per day for Native populations.  The EPA found that rate erroneous and adopted water quality standards to protect the health of tribal members at a consumption rate of 286 grams per day.

Historically, Penobscot tribal members have consumed fish and other food sources from the Penobscot River at much higher rates.  In the 1980s and early 1990s, for example, Penobscots relied upon the River for food sources at the rates averaging up to 750 grams per day. But those consumption rates went down in the face of dioxin and other pollutant contamination in the River.

“We still have a ways to go to restore the health of the River,” said Chief Francis, “but EPA’s water quality standards are a huge step forward to ensure that Penobscot people can safely eat from the River as we have done for centuries.”

In 1980, upon settling land claims of the Penobscot Nation and other tribes, the US Congress confirmed that the tribes would have a right to take fish within their reservations for sustenance.  Last year, the EPA, backed by the US Department of the Interior, told Maine that the law required the existence of fish of a quality to eat at meaningful levels of consumption.  Maine officials have, in the past, taken the position that the Tribes’ sustenance fishing rights do not guarantee a fish habitat.

Public support for EPA’s water quality standards is overwhelming:  of the 107 comments provided to the Agency, 101 were in favor of the standards and only 6 voiced concerns. EPA’s standards protect the fishing rights of all Maine tribes.

“As indigenous people, we have long known that water is life,” said Chief Francis.  “EPA’s water quality standards protect life; it’s as simple as that.”

Maine’s Second Amended Complaint in State v. McCarthy

Doc. 30- Second Amended Complaint

Previous Turtle Talk coverage here.

Maine is suing the EPA over agency action concerning the State’s surface water quality standards.

Trust Breach Claims by Nine Tribes Survives Motion to Dismiss

Here are the materials in Sisseton Wahpeton Oyate v. Jewell (D.C. District Court):

17 Amended Complaint

19 US Motion to Dismiss

22 Opposition

23 US Reply

27 DCT Order

EPA Issues Decision on Maine’s Application to Issue Water Quality Standards with Tribal Fishing Rights Implications

Here are the materials:

2015-1-30 ME WQS EPA Response to Comments

2015-2-2 ME WQS EPA Decision Letter Attachment A

2015-2-2 ME WQS EPA Decision Letter

Maine Tribal Fishing Rights Letter to EPA 1.30.15

Congressman Faleomaveaga: It is Time to Change the Racist Name of the NFL’s Washington Redskins

Op Ed
It is Time to Change the Racist Name of the NFL’s Washington Redskins
By Eni F.H. Faleomavaega

It is time that the National Football League and NFL Commissioner Roger Goodell face the reality that the continued use of the word “redskin” is unacceptable.  It is a racist, derogatory term and patently offensive to Native Americans.   The Native American community has spent millions of dollars over the last two decades trying earnestly to fight the racism that is perpetuated by this slur.  The fact that the NFL and Commissioner Goodell continue to deny this is a shameful testament of the mistreatment of Native Americans for so many years.  It is quite obvious that once the American public understands why the word “redskins” is so offensive, they will know that the word should never be used again.

The origin of the term “Redskins” is commonly attributed to the historical practice of trading Native American Indian scalps and body parts as bounties and trophies.  For example, in 1749, the British bounty on the Mi’kmaq Nation of what is now Maine and Nova Scotia, was a straightforward “ten Guineas for every Indian Micmac taken or killed, to be paid upon producing such Savage taken or his scalp.”

Just as devastating was the Phips Proclamation, issued in 1755 by Spencer Phips, Lieutenant Governor and Commander in Chief of the Massachusetts Bay Province, who called for the wholesale extermination of the Penobscot Indian Nation.   

By vote of the General Court of the Province, settlers were paid out of the public treasury for killing and scalping the Penobscot people.  The bounty for a male Penobscot Indian above the age of 12 was 50 pounds, and his scalp was worth 40 pounds.  The bounty for a female Penobscot Indian of any age and for males under the age of 12 was 25 pounds, while their scalps were worth 20 pounds.  These scalps were called “redskins.”  The question is quite simple:  suppose that a “redskin” scalp that was brought for payment was your mother, your wife, your daughter, your father, your husband, or your son?   The fact is Native Americans are human beings, not animals.

The current Chairman and Chief of the Penobscot Nation, Chief Kirk Francis, recently declared in a joint statement that “redskins” is “not just a racial slur or a derogatory term,” but a painful “reminder of one of the most gruesome acts of . . . ethnic cleansing ever committed against the Penobscot people.”  The hunting and killing of Penobscot Indians, as stated by Chief Francis, was “a most despicable and disgraceful act of genocide.”

The NFL – Modern-Day Institutionalized Racism

Recently, I and nine Members of Congress explained the violent history and disparaging nature of the term “redskins” in a letter to Mr. Dan Snyder, owner of the Washington football franchise.  Similar letters were sent to Mr. Frederick Smith, President and CEO of FedEx (a key sponsor for the franchise), and to Mr. Roger Goodell, Commissioner of the National Football League. 

As of today, Mr. Snyder has yet to respond.  Mr. Smith ignored our letter as well, opting instead to have a staff member cite contractual obligations as FedEx’s reason for its silence on the subject. 

Mr. Goodell, however, in a dismissive manner, declared that the team’s name “is a unifying force that stands for strength, courage, pride and respect.”  In other words, the NFL is telling everyone—Native Americans included—that they cannot be offended because the NFL means no offense.  Essentially, Mr. Goodell attempts to wash away the stain from a history of persecution against Native American peoples by spreading twisted and false information concerning the use of the word “redskins” by one of the NFL’s richest franchises.

Mr. Goodell’s response is indicative of the Washington football franchise’s own racist and bigoted beginnings.  The team’s founder, George Preston Marshall, is identified by historians as the driving force behind the effort to prevent African Americans from playing in the NFL.  And once African Americans were allowed to play in 1946, Marshall was the last club owner to field an African American player – a move he reluctantly made some 14 years later in 1962.  It should be noted that Secretary of the Interior Stewart Udall and U.S. Attorney General Robert F. Kennedy presented Marshall with an ultimatum – unless Marshall signed an African American player, the government would revoke his franchise’s 30-year lease on the use of the D.C. Stadium.

Congressman Tom Cole, the Representative from Oklahoma, Co-Chair of the Congressional Native American Caucus, and a member of the Chikasaw Nation, states:  “This is the 21st century.  This is the capital of political correctness on the planet.  It is very, very, very offensive.  This isn’t like warriors or chiefs.  It’s not a term of respect, and it’s needlessly offensive to a large part of our population.  They just don’t happen to live around Washington, D.C.”

Congresswoman Betty McCollum, the Representative from Minnesota and Co-Chair of the Congressional Native American Caucus, states that Mr. Goodell’s letter “is another attempt to justify a racial slur on behalf of [Mr.] Dan Snyder,” owner of the Washington franchise, “and other NFL owners who appear to be only concerned with earning ever larger profits, even if it means exploiting a racist stereotype of Native Americans.  For the head of a multi-billion dollar sports league to embrace the twisted logic that ‘[r]edskin’ actually ‘stands for strength, courage, pride, and respect’ is a statement of absurdity.”

Congresswoman Eleanor Holmes Norton, the Representative from the District of Columbia, states that Mr. Snyder “is a man who has shown sensibilities based on his own ethnic identity, [yet] who refuses to recognize the sensibilities of American Indians.”

Recently, in an interview with USA Today Sports, Mr. Snyder defiantly stated, “We’ll never change the name.  It’s that simple.  NEVER – you can use caps.”  Mr. Snyder’s statement is totally inconsistent with the NFL’s diversity policy, which states: 

Diversity is critically important to the NFL. It is a cultural and organizational imperative about dignity, respect, inclusion and opportunity . . . The overall objective of the [NFL’s] diversity effort is to create a culturally progressive and socially reflective organization that represents, supports and celebrates diversity at all levels.


It is critically important that the NFL promote its Commitment to Diversity, and uphold its moral responsibility to disavow the usage of racial slurs.  Just as important is the moral responsibility of the NFL’s 31 other football club owners to collectively have the necessary courage to stand up and speak out against the use of this derogatory term.  Mr. Snyder, more than anyone else in the NFL, should display greater sensitivity and appreciation for a people who have been maligned and mistreated for hundreds of years.     

Ms. Suzan Harjo, President of the Morning Star Institute – a national Native American rights organization – and a member of the Cheyenne and Hodulgee Muscogee tribes, summed it up best when she stated: “[Redskins] is the worst thing in the English language you can be called if you are a native person.”  This is not just a statement, but a direct invitation for Mr. Snyder and the NFL to do the right thing.  I challenge Mr. Snyder to be reasonable, and to realize the harmful legacy that his franchise’s name perpetuates.

H.R. 1278 – A Congressional Effort to Correct the Past

In an attempt to correct the long-standing usage of the term “redskins,” the bill H.R. 1278 entitled, “The Non-Disparagement of Native American Persons or Peoples in Trademark Registration Act of 2013” was introduced.  This bill would cancel the federal registrations of trademarks using the word “redskin” in reference to Native Americans.  The Trademark Act of 1946 – more commonly known as the Lanham Act – requires that the U.S. Patent and Trademark Office (PTO) not register any trademark that “[c]onsists of or comprises . . . matter which may disparage . . . persons, living or dead…or bring them into contempt, or disrepute.”  15 U.S.C. §1502(a).   

Native American tribes have a treaty, trust and special relationship with the United States.  Because of the duty of care owed to the Native American people by the federal government, it is incumbent upon the federal government to ensure that the Lanham Act is strictly enforced in order to safeguard Indian tribes and citizens from racially disparaging federal trademarks.

Accordingly, the Patent and Trademark Office has rejected applications submitted by the Washington franchise for trademarks which proposed to use the term “redskins” – three times in 1996 and once in 2002.  The PTO denied the applications on grounds that “redskins” is a racialslur that disparages Native Americans

In 1992, seven prominent Native American leaders petitioned the Trademark Trial and Appeal Board (TTAB) to cancel the federal registrations for six trademarks using “redskins.”  The TTAB in 1999 ruled that the term “redskins” may, in fact, disparage American Indians, and cancelled the registrations.  On appeal, a federal court reversed the TTAB’s decision, holding that the petitioners waited too long after coming of age to file their petition.  A new group of young Native Americans petitioned the TTAB to cancel the registrations of the offending trademarks in 2006.  The TTAB held a hearing on March 7, 2013.  A final decision is pending.

H.R. 1278 is supported by a number of major Native American organizations, including the National Congress of American Indians (NCAI) – the oldest, largest and most representative American Indian and Alaska Native organization serving tribal governments and communities.  Mr. Jefferson Keel, a member of the Chikasaw Nation and President of NCAI, stated that our efforts as Members of Congress will hopefully accomplish “what Native American people, nations, and organizations have tried to do in the courts for almost twenty years – end the racist epithet that has served as the [name] of the Washington’s pro football franchise for far too long.”

The Native American Rights Fund (NARF) – the oldest and largest nonprofit law firm dedicated to asserting and defending the rights of Indian tribes, organizations, and individuals nationwide – also supports the call to change the Washington franchise’s racist name.  NARF recently issued a statement describing our efforts as “a clear signal that some [M]embers of Congress do not take anti-Native stereotyping and discrimination lightly.  These Representatives now join Native American nations, organizations and people who have lost patience with the intransigence of the Washington pro football franchise in holding on to the indefensible – a racial epithet masquerading as a team name.”

Despite the Native American community’s best efforts before administrative agencies and the courts, the term “redskins” remains a federally registered trademark.  It has been well over twenty years and this matter is still before the courts.  This injustice is the result of negligence and a cavalier attitude demonstrated by an administrative agency charged with the responsibility of not allowing racist or derogatory terms to be registered as trademarks.   Since the federal government made the mistake in registering the disparaging trademark, it is now up to Congress to correct it. 

Federal Court Vacates Default Judgment in Penobscot Business-Related Defamation Suit

Here are the materials in Russell v. Krowne (D. Md.):

DCT Order Vacating Default Judgment

Penoscot Indian Nation Motion for Default Judgment

Defendant Motion to Vacate

Penobscot Response to Motion to Vacate

Defendant Reply

Strange case; seems to involve a program created by Penobscot called Grant America Program, which is  home buyer down payment program, and the defendants’ website, which published internet posts calling the program a “scam.” The Nation and its allies claim defamation, and the defendants call the suit a SLAPP suit.