Maine must keep promises to tribes, protect elvers before they disappear

By Jamie Bissonette Lewey, Special to the BDN
Posted Feb. 02, 2014, at 2:04 p.m.

I spent significant portions of my childhood on Lake Champlain, a habitat for American eel, with my mother’s people. My grandmother enjoyed eel and prepared it well.

There came a time when the eel were elusive; for five or six years we did not see them. One day, when I was 12, we finished fishing and began to troll toward shore. My line was still in the water when I saw the reel spin. Whatever I’d hooked, it was big.

My grandfather knew that I’d hooked an eel. I became excited. “Grandma will be so happy!” I said. My grandfather’s face hardened, and he directed me to cut the line.

“This one goes free.”

It was my first conservation teaching: Conservation requires sacrifice. Today, the eel has all but vanished from Lake Champlain.

This story framed my thinking as the price of elvers skyrocketed and harvesters jockeyed for licenses to fish them at their most abundant and most vulnerable life stage when they are translucently miraculous and singularly determined to swim from the salt to the fresh water.

This is “first contact,” and what happens here will determine the health of the species.

Similarly, what Maine government decides now with regards to the elver fishery will have long-lasting impact.

The Maine Indian Claims Settlement Act, a federal law that returned land to the tribes, lays out the legal basis for the Maine Implementing Act, which defines the relationship between the state and tribes. Without the settlement act, the implementing act does not exist.

The settlement act lists the rights and resources the tribes deliberately transferred. Saltwater fishing is not listed. It is a “reserved right.” By definition, the state of Maine has no jurisdiction over reserved rights.

Last year’s LD 451 — which limited the Passamaquoddy Tribe to issuing 200 elver licenses — and this year’s LD 1625 — which would require state fishery officials to approve each individual tribal elver license in writing — are in conflict with the settlement act and the implementing act. The Passamaquoddy rightfully refused to comply with LD 451.

The Passamaquoddy wisdom teachings embrace conservation. Conservation and protection of the eel are central to their plan.

Last year, the state limited gear, not catch. In comparison, the tribe offered access to any Passamaquoddy who wanted to fish but managed the take through a total allowable catch of 3,600 pounds — less than the recorded take of the top 50 state harvesters. Amid claims that the Passamaquoddy were ruining the fishery, the tribe predicted reaching this total allowable catch would be difficult. The tribe’s take was 1,650 pounds.

Under pressure from federal and multi-state agencies, the Department of Marine Resources is struggling to retain a fishery that is devoid of conservation benchmarks. Over the past year, the department did not engage its harvesters in the necessary conversation about protection of the eel. Instead, it implemented a complex quota system and turned its attention to the “Passamaquoddy problem.”

The Passamaquoddy returned with stronger conservation markers. Their plan prohibits the use of fyke nets and reduces their total allowable catch to 1,650 pounds — more than 1,000 pounds less than the top 50 state harvesters take under the new quota system.

The department and the Joint Standing Committee on Marine Resources welcomed these changes and worked diligently with the Passamaquoddy to draft a memorandum of agreement in advance of this season.

On Jan. 29, the attorney general’s office raised a “ constitutional concern” stating the memorandum creates an equal protection problem because it creates a “special class” of people who would be dealt with differently should legal conflict arise.

This is startling given that federal Indian law, the law that governs this state’s “special relationship” with four sovereign nations, explicitly states that equal protection concerns apply differently to Indian tribes. The attorney general knows this yet chooses to advance an empty legal argument that will only serve to deepen enmity.

Fishermen know that cutting bait is necessary preparation. And every fisherman knows there is a time when they must cut the line. The tribe, the department and the joint committee have worked hard to prepare a solution. Let’s hope that the actions of the attorney general do not force the Atlantic States Marine Fisheries Commission to “cut the line” on Maine’s elver fishery.

Jamie Bissonette Lewey is chairman of the Maine Indian Tribal-State Commission, an intergovernmental body charged under Maine law to review the effectiveness of the Maine Implementing Act.

 

http://bangordailynews.com/2014/02/02/opinion/contributors/maine-must-keep-promises-to-tribes-protect-elvers-before-they-disappear/ printed on November 26, 2014