A Passamaquoddy tribal member who has filed a lawsuit in tribal court over an elver fishery dispute believes his case may be dismissed because of the court's lack of jurisdiction. But he feels the suit highlights a deficiency in the governing structure of the tribe that allows the government to abuse the rights of tribal members.
Chris Sepsa Altvater points out that within the current tribal governance system there are no checks and balances when it comes to the Passamaquoddy Joint Tribal Council. The council is "free to make laws or penalties that trample on the rights of our people's civil liberties without fear of being dragged into court," he says. Altvater says that tribal members are told that they cannot sue the Joint Tribal Council in tribal court and have to take the matter to state or federal court, where the tribal government argues that the issues are internal tribal matters. "We have no recourse," he says, for violations of the rights of tribal members by its government.
Altvater filed suit in tribal court over the joint council's decision on February 21 to impose a penalty on tribal members who did not turn in elver landing reports on time for the 2016 season. Those penalties include a $50 fine, a quota reduction by half for each person and a restriction to using dip nets only. Since the penalty was made retroactive to the 2016 season, the suit maintains that it is an "ex post facto" law, in violation of tribal, state and federal constitutions. The joint council's decision affects at least 178 tribal members, including Altvater. The suit requests that "all full fishing quotas be restored to all tribal members" for the 2017 season.
In requesting that the court dismiss the case, Craig Francis, legal counsel for the tribal government, argues that the tribal court has limited jurisdiction, having only "those powers given to it by the Joint Tribal Council." He notes that the tribal court has previously held that it has "no business being involved in deciding cases on this reservation unless [it has] the authority given [it] by the Joint Tribal Council." Francis argues, "Decisions and activities that are within the exclusive jurisdiction of the Joint Tribal Council cannot be contested in tribal court."
Of his objection to imposing a punishment after the fact, Altvater says, "Our leadership is aware of the many breaches of our civil liberties and refuses to do the ethical thing by simply changing the date in which penalties are imposed." He points out that the Indian Rights Act of 1968 forbids tribal governments from imposing ex post facto laws on their members. He adds, "Although I believe I would prevail in federal court, the fishing season will be over before the case is heard." That is also the case with the tribal court suit, since tribal court has been cancelled until June and the elver season is over at the end of May.
Although he may not be able to change the joint council's decision for this fishing season, Altvater states, "I will be using my lawsuit as a foundation in which to change the system. Both governments need to be held accountable for these serious infractions. We need a judicial branch that hears civil complaints against our leaders. Until this is corrected, our people are subject to the unethical laws and penalties of our own tribal governments."
Concerning possible ways to resolve the issue, he states, "The most sensible way to ensure civil rights and due process for tribal members is a Joint Tribal Council resolution to allow the tribal court to hear civil matters against the Joint Tribal Council."