Last week, a body charged with negotiating conflicts between Maine’s state and tribal governments issued an unusually blunt report.

The Maine Indian Tribal-State Commission contends that state lawmakers and the Office of the Attorney General knowingly circumvented a legal process that would have required tribal approval of the passage of three laws related to saltwater fisheries in 1998, 2013, and 2014.

This, the commission says, “allowed the Maine Legislature to unilaterally decide contested jurisdictional issues involving saltwater fishing.”

The findings have prompted some tribal officials to call for an immediate repeal of the three laws, which created a licensing compact between tribal and state governments and imposed restrictions on tribal fishing of elvers, or baby eels, which command a high price in Japan.

But both the Passamaquoddy tribal representative to the Legislature who sponsored the 1998 bill and Attorney General Janet T. Mills say the commission has gotten the story wrong, albeit for different reasons.

The central allegation in the 42-page report concerns L.D. 2145, a 1998 law aimed at defusing growing tensions between Passamaquoddy fishermen and the Maine Marine Patrol over differing interpretations of tribal people’s saltwater fishing rights.

State and tribal authorities have sharply conflicting interpretations of what rights the Passamaquoddy and Penobscots gave away when they signed on to the 1980 Maine Land Claims Settlement Acts, the product of a prolonged negotiated settlement to resolve the tribes’ claim to nearly two-thirds of Maine. (See today’s “Unsettled” companion story on Page A6.)

In essence, the state has held that the tribes gave up any special aboriginal rights except those enumerated in the state and federal Settlement Acts, including those related to saltwater fishing. By contrast, the tribes believe they retained their God-given powers – including harvesting marine species in their traditional fishing grounds – except those explicitly extinguished in the acts.

“We’ve been fishing for thousands of years – that’s what we do and that’s who we are,” said Newell Lewey, a member of the Passamaquoddy tribal council and its fisheries advisory committee. “We have never surrendered that, nor would we.”

These differing interpretations have been at the heart of conflicts between the state and tribes, including a tense standoff in the early spring of 2013 between Passamaquoddy elver fishermen and state law enforcement officers.

The Maine Indian Tribal-State Commission report accuses Maine legislators of violating the federal Settlement Act in its passage of the 1998 law by not soliciting tribal approval for what was allegedly an “amendment” to the provisions of the land claims settlement. It charges that in March 1998 the Attorney General’s Office succeeded in inserting a malicious clause that effectively “nullified” the tribe’s right under federal statute to approve or reject such amendments.

The report quotes three legislators expressing this concern during the final debates, with Sen. John Benoit, R-Sandy River Plantation, saying: “You do not change laws relating to the Tribe and the Nation lightly, such as intended here, by this end run play in the general law.”

But two sources who rarely see eye-to-eye disagree with the report’s assessment of the 1998 law, which they note was passed at the Passamaquoddy’s behest, and which they say did not constitute an amendment to the Settlement Acts.

“The 1998 bill took a lot of work, but it put a mechanism in place to reduce conflict between the tribe and the state,” said Passamaquoddy fisherman Frederick Moore III, who was the tribe’s representative to the Legislature in 1998 and sponsored the bill. “In fact, in the years after enactment of the bill – up to 2010 – relations between the tribe and the state over issues of (marine resource) harvesting had never been better.”

Moore – who says he has “devoted the majority of my adult life to correcting the wrongs that were brought about as a result of the Settlement Acts” – is adamant that the law did not amend those acts, for the simple reason that the acts never mentioned saltwater fishing at all.

“We didn’t adopt state jurisdiction (of saltwater fishing) in 1980 – it was never part of the Settlement Acts – so how can a saltwater fishing issue be an amendment to them?” he said.

Period documents show the tribe supported passage of the 1998 bill, with the Passamaquoddy Joint Tribal Council writing Gov. Angus King to thank him for signing it into law.

Mills agrees that the 1998 law did not constitute an amendment to the Settlement Acts, based on a completely different legal interpretation from Moore’s.

Tribal members, she wrote the Press Herald, “are subject to state marine fisheries laws to the same extent as any other citizen” and therefore “the Legislature was not required to amend the Settlement Act” to enact the bill.

A controversial Court Ruling

Mills’ interpretation is based on a 1997 state court decision – State v. Beal – in which District Court Judge John Romei ruled that the Passamaquoddy had surrendered “any inherent saltwater fishing rights” on non-reservation lands when they accepted the Maine Settlement Act’s provision that “all Indians and natural resources owned by them” would be subject to “the laws of Maine and the civil and criminal jurisdiction of (its) courts.”

This court decision – which Maine officials have relied upon to limit tribal sovereignty – also receives some implicit criticism from the commission’s new report, which lays out documentary evidence suggesting it may have been wrongly decided. Richard Cohen, the attorney general at the time the land claims were being negotiated, said on several occasions that saltwater fishing rights were not discussed in the negotiations, and were legitimate topics for discussion going forward.

“We don’t state the judicial decision was wrong, but we do say the judicial decisions that have occurred to this point make it difficult for the tribes to approach the courts to do any kind of problem solving,” said Jamie Bissonette Lewey, who chairs the commission.

The report also criticizes the state for the passage of laws in 2013 and 2014 that limit tribal participation in the elver fishery, each of which it said “violates both the spirit and the law of both” the federal and state Settlement Acts.

Vera Francis, a member of the Passamaquoddy Fisheries Advisory Committee, called on legislators to repeal both laws. “These laws were solely intended to interfere with the Passamaquoddy governance process and ignores our cultural identity as a marine-based culture,” she told the Press Herald. “The Passamaquoddy are not asking for a handout. … (We’re) merely requesting a handshake.”

The report calls on all parties to return to good-faith negotiation. “We recommend the state look at the marine resources laws and that everybody come back to the table and try to develop mutually beneficial solutions,” Bissonette Lewey said.

Patrick Keliher, commissioner of the Maine Department of Marine Resources, said the department takes the report very seriously.

“I, the department, and the administration are very committed to staying at the table and working through these issues with the tribes,” he said. “It’s a matter of give and take, and I hope we will continue moving forward.”

 

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