Panel finds Maine Legislature erred in passing laws on tribal fishing rights, calls parties back to negotiating table

Posted July 11, 2014, at 8:50 p.m.
Last modified July 12, 2014, at 6:27 a.m.

BANGOR, Maine — The Maine Indian Tribal-State Commission released a report Friday in which it found the Maine Legislature circumvented the amendment process set forth in the Maine Indian Claims Settlement Act when it passed laws on saltwater fishery matters without the consent of the Passamaquoddy Tribe in 1998, 2013 and 2014.

The 41-page report examines the saltwater fishing conflict between the tribe and the state from the passage of the settlement act in 1980 through the legislative session that ended in April of this year.

The report documents the differing interpretations over saltwater fishing rights from as early as 1984. The conflict persisted and was cited as an issue in a report published in 1997 titled “At Loggerheads: the State of Maine and the Wabanaki.”

In one of many efforts to resolve the saltwater fishing conflict, LD 2145, or An Act Concerning the Taking of Marine Resources by Members of the Passamaquoddy Tribe, was introduced in the Maine Legislature.

The original bill included a licensing agreement between the tribe and the state governing the taking of marine resources, the commission noted.

The initial version of the bill acknowledged enacting legislation related to saltwater fishing would constitute an amendment to the state law that implements the federal settlement act, but the provision requiring Passamaquoddy approval of any laws proposed in the contested area of jurisdiction over the saltwater fishery later was stripped from the bill, the commission noted.

The legislation also changed the definition of “sustenance” without the required approval of the tribe, the commission contends.

Patrick Keliher, commissioner of the Maine Department of Marine Resources, could not be reached for comment Friday.

To that end, the commission has called all parties back to the bargaining table to resolve the conflict and reminded the Maine Legislature it must follow the amendment process specified in the settlement act, according to a news release the commission issued Friday about its findings.

“The central [tribal-state commission] role is to continually review the effectiveness of the Maine Implementing Act,” MITSC Chairman Jamie Bissonette Lewey noted.

“This led us to examine the long-standing and pervasive conflict between Passamaquoddy and the state of Maine over the tribe’s management of their fishery,” she said.”This report sheds light on the costly, ineffective and adversarial attempts to resolve this conflict,” including circumvention of the legally mandated process for amending the implementing act, she said.

MITSC Commissioner Gail Dana-Sacco, co-author of the report, added, “We encourage the parties to the settlement agreements to engage in pragmatic and constructive dialogue, with renewed commitment to advance conflict resolution, openness, negotiations, formal agreements and mutually beneficial solutions for all of the peoples who live within the state of Maine.”

The commission’s report makes 17 recommendations for improving tribal-state relations and resolving the saltwater fishing conflict. In addition to returning to the bargaining table, the report suggests engaging in conflict resolution measures.

The report noted the state and the tribes should negotiate memoranda of understanding where the tribal-state jurisdictional relationship remains contested. In addition, the Office of the Attorney General, the tribes and the tribal-state commission should routinely review proposed legislation that could be considered a potential amendment to the settlement act.

The commission has briefed key leaders — namely Passamaquoddy and Penobscot tribal officials, state Senate and House leaders, both chairs of the legislature’s Marine Resources Committee and the Office of the Attorney General — on the contents of the report.

“The Passamaquoddy people view saltwater fishing as an inherent right,” Chief R. Clayton Cleaves of the Passamaquoddy Tribe’s Pleasant Point community. “This right was not given to us by the state of Maine or any other state. We have always said that right was never discussed during the Settlement Act negotiations, therefore it is retained.”

Cleaves said the report “proves what we have always known. Yet we recognize other peoples now live within our traditional territories. We remain committed to discussing how to share these resources in a manner that does not harm the fish. As Passamaquoddy, we follow the fish — their health is the foundation of our well being, and everyone else’s, for that matter.”

Chief Joseph Socobasin of the Passamaquoddy Tribe at Indian Township agreed, reminding the commission saltwater fishing has sustained the tribe throughout all its history.

“Fishing in the ocean is not a commercial venture: It is our culture. Our relationship with the ocean is core to our concepts of sustenance as a people living on this bay that bears our name,” he said.

“For us, sustenance has always included components of barter and exchange,” he said. “At the same time, we are very worried about the damage to our intertidal zones and to the saltwater fishery. This is why we have set a high standard of conservation and encouraged the state to do likewise,” he said. “This report sheds light on some hard truths, some very disturbing truths, about the relationship between the Passamaquoddy and the state of Maine.”

Chief Kirk Francis of the Penobscot Nation added the report justifies the complaints of the Wabanaki people in Maine.

“This report documents total disregard of the statutory rights of the tribes that require our consent to any change in the negotiated settlement,” he said. “By using legal instruments that are not in the spirit of the law to influence legislation on aboriginal rights and place these rights under state law, the legislature is trying to make the tribes perpetual wards of the state.”

House Judiciary Committee Chairman Charles Priest said the report shows the need for Maine’s tribes and state government to continue to work out conflicts together.

“Both parties know that the ocean’s resources are not infinite,” he said. “Both sides must recognize the Passamaquoddy’s historical dependence on the ocean. Both sides recognize the state and the Passamaquoddy interest in ensuring that those ocean resources continue in abundance into the future.”

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