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July 25, 2014





Report finds state unilaterally restricts tribe's fishing rights
by Edward French


      The Maine Legislature has unilaterally acted to restrict the saltwater fishing rights of Passamaquoddy tribal members by circumventing the required amendment process under the Maine Indian Claims Settlement Act, according to a recently issued report from the Maine Indian Tribal‑State Commission (MITSC). The MITSC report found that the legislature did not receive the consent of the tribe when it approved fishery legislation on three separate occasions -- in 1998, when the first tribal saltwater fishing bill was enacted, and in 2013 and 2014, when tribal elver fishing bills were passed.
     In the report, MITSC calls all parties back to the table to resolve the conflict and reminds the legislature that it must follow the required amendment process. The commission also recommends the use of memoranda of understanding between the tribes and the state to resolve long‑standing conflicts.
     "The central MITSC role is to continually review the effectiveness of the Maine Implementing Act (MIA). 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. This report sheds light on the costly, ineffective and adversarial attempts to resolve this conflict, including contravention of the statutorily mandated process to amend the MIA," says Jamie Bissonette Lewey, chair of MITSC. She notes, "These are not just ordinary laws" that the legislature is enacting to restrict the right of tribal members to fish. Instead, the laws are amending a negotiated settlement agreement approved by the state, federal and tribal governments.
     Rep. Madonna Soctomah of the Passamaquoddy Tribe, who attended many of the MITSC briefings, believes that the saltwater fishing rights of the tribes should not be addressed through legislation but instead belong "back on the negotiating table with the federal, state and tribal governments." She says the matter is an unresolved issue in the negotiated 1980 settlement agreement and should not have been introduced in the legislature back in 1997. Emphasizing her belief in the rights of tribal members to fish, she states that the fishery "is how the Passamaquoddy survived as a people," providing "a supplemental diet from the sea."
     Bissonette Lewey says that if the legislative path is taken for resolving the conflict, then the provision of the settlement act that requires tribal approval of any changes needs to be followed. However, she points out that memoranda of understanding might be a better tool for reaching a resolution that can be mutually agreed upon.
     "Unfortunately, the state's legislative process is a unilateral process," Bissonette Lewey says. In the 1998 tribal saltwater fishing bill, the language requiring Passamaquoddy approval of any changes was replaced by a clause offered by the Maine Attorney General's Office that allowed the legislature to decide contested issues in the fishery.
     The MITSC report examines the saltwater fishing conflict since the passage of the Maine Indian Claims Settlement Act in 1980. In one of many efforts to resolve the conflict, LD 2145, An Act Concerning the Taking of Marine Resources by Members of the Passamaquoddy Tribe, was introduced in the legislature in 1998 by then Rep. Fred Moore. The original bill featured the development of a licensing compact between the Passamaquoddy Tribe and the state governing the taking of marine resources. Though the initial version of the bill acknowledged that legislating in the area of saltwater fishing would constitute an amendment to the MIA, the provision requiring Passamaquoddy approval of any laws proposed in the contested issue area of jurisdiction over the saltwater fishery was later stripped from the bill through the creation of a "blow‑up" or severability clause offered by the AG's office. The use of a "blow‑up" clause allowed the legislature to unilaterally decide contested jurisdictional issues involving saltwater fishing. Concerning the impact of the state AG's office on the process, Bissonette Lewey notes that while well-reasoned opinions have been presented from the tribes, there have been few corresponding opinions issued from the AG's office. The report recommends that the AG's office should provide formal, well-reasoned, written responses to legislative and administrative requests.
     The MITSC report also makes numerous other recommendations for improving tribal‑state relations and resolving the saltwater fishing conflict. The report recommends that the articles of construction in the Maine Indian Claims Settlement Act must be applied by all parties -- federal, state and tribal -- and that the statutory process to amend MIA must be conscientiously followed by all parties. Where the tribal‑state jurisdictional relationship remains contested, the state and the tribes should execute memoranda of understanding, and the Maine Attorney General's Office, the tribes and the MITSC should routinely review proposed legislation that could be considered a potential amendment to the settlement agreement.
      "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," says Dr. Gail Dana‑Sacco, MITSC commissioner and co‑author of the report.
     MITSC briefed key state and tribal leaders about the report, which urges all of the governments to return to the table and engage in conflict resolution. Chief Clayton Cleaves of the Passamaquoddy Tribe at Sipayik stated, "The Passamaquoddy people view saltwater fishing as an inherent right. 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. The MITSC report proves what we have always known."
Chief Joseph Socobasin of the Passamaquoddy Tribe at Motahkmikuk commented, "Saltwater fishing has sustained the Passamaquoddy throughout all of our 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 added, "It is my hope that the contents of the report will bring us all back to the table with a newfound respect and commitment to finally resolve this conflict."
Chief Kirk Francis of the Penobscot Nation responded to the report saying, "It is clear from this report that the complaints of the Wabanaki in Maine have been justified. This report documents total disregard of the statutory rights of the tribes that require our consent to any change in the negotiated settlement. 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."
     After the MITSC briefed his senior staff, Governor Paul LePage commented, "I congratulate the members of the MITSC for their hard work in producing the report, and I look forward to the continuation of healthy dialogue between the state and tribal governments."
     "This assessment shows the urgent need for the Indian tribes in Maine and Maine's state government to continue to work out conflicts together," stated House Judiciary Chair Charles Priest. "The key to a fruitful relation between the state and the Passamaquoddy is respect."
     The report finishes with the following summation, "The MITSC concludes that open dialogue, negotiations, and formal agreements are mechanisms that are both pragmatic and constructive. We offer this report with sincere hope for a renewed commitment to advance conflict resolution among all of the peoples who live within the State of Maine."

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