A dispute over Native rights to fish in federal waters is heating up, with the Passamaquoddy Tribe asserting that while tribal members will follow federal fishery conservation laws, they do not need federal licenses. An incident off Nantucket last month, in which a boat was scalloping under a Passamaquoddy license but did not have a federal license, spurred the National Marine Fisheries Service (NMFS) to tell all federal fisheries permit holders that members of the tribe, at least at this time, are subject to all federal fishing laws and that they could face federal charges if they don't comply. Members of the tribe, though, are continuing to fish in federal waters, using tribal fishing permits.
     The flare-up was triggered by an August 25 incident involving the Paulo Marc, a Maine-based boat that was scalloping off Nantucket. Kani Malsom of Sipayik, who owns Two Eagles Inc., an owner of the vessel, says the boat went into Nantucket during a storm and was boarded by the U.S. Coast Guard, and the Coast Guard said it was OK to fish, after checking the captain's tribal permit. Later while the boat was fishing, the Coast Guard and NMFS law enforcement officers boarded the boat again and said they needed federal permits. The captain was cited for fishing without a federal permit and for not having an electronic vessel monitoring system required on boats fishing in federal waters.
     The next day, NMFS Regional Administrator Patricia Kurkul wrote to federal fisheries permit holders, stating that members of the Passamaquoddy Tribe are asserting "that they, and possibly those for whom they fish or operate a vessel, are not subject to the Magnuson-Stevens Fishery Conservation and Management Act (Magnuson-Stevens Act) and all federal regulations while fishing the Exclusive Economic Zone (EEZ). Although NOAA [National Oceanic and Atmospheric Administration] is exploring, in government-to-government discussions with the tribe, the basis for these assertions, NOAA, at this time, does not recognize any claims that Passamaquoddy tribal members are not subject to federal fishing laws and regulations."
     Kurkul reminded the fishermen that anyone fishing in the EEZ must comply with federal fishing regulations. "Any member of the Passamaquoddy Tribe who acts in violation of federal fishing laws at this time risks seizure and forfeiture of any species illegally harvested as well as possible related charges. Anyone who is not a member of the tribe can anticipate facing such consequences even if it were later determined that tribal members, including those fishing from or operating boats owned by others, are exempt from any fishing laws."
     However, Malsom says the members of the tribe "have inherent rights to fish there" and had the blessing of the Passamaquoddy tribal governor and council. "We've been fishing here for thousands of years. For us there are no federal waters, no state line."
     According to Fred Moore, a member of the Sipayik Tribal Council, the tribe took a position in the 1990s maintaining the right of tribal members to hunt and fish in territorial seas. He says that position was affirmed by the 1999 Marshall decision, in which the Supreme Court of Canada upheld Native fishing rights. More recently the Passamaquoddy Joint Tribal Council acknowledged that tribal commercial fishing licenses are to be used in the state's waters, up to three miles from shore, and that there was some question about whether they are valid in the federal waters beyond that. In July of this year, the Joint Tribal Council stated its support for tribal members to fish beyond the state's three-mile limit and directed that a licensing program be established by the tribe to fish in federal waters.
     Moore points out that, if a commercial fishing vessel is operating beyond the state's waters under a tribal license, the boat must still observe all gear restrictions and conservation laws that are required by the federal government. Any tribal member who is apprehended for operating outside of those requirements will not receive legal support from the tribal government. "The only difference between tribal and non-tribal licenses is the name on the top," he maintains.
     However, federal management plans include quotas and provisions for limited entry into the fisheries, which the tribal licenses would not appear to address. Moore says that the tribe is open to discussions on quotas and limited entry with federal regulators, but he adds, "It's not for us to ask for permission to do what we've done for thousands of years. The issue of limited entry is not our problem. We didn't create it, but we're more than willing to participate in the solution."
     "We desperately want to work with all governments to create a level playing field for all users of the resource," Moore says. "We do not propose to create an unfair advantage of tribal members over non-tribal members." But he notes that groundfish quotas fluctuate, and he says that tribal members on fishing vessels have seen tens of thousands of pounds of pollock being thrown over the side of boat by federally licensed fishermen who do not have federal fisheries observers on board. "There's more pollock thrown over the side than the entire tribe could catch in a year. Where's the conservation there?" he asks.
     According to Moore, the tribal government has periodically issued licenses for fishing in waters that are regulated by the federal government, although he does not know the number of licenses that have been issued.
Malsom says his company leases or owns 12 boats that are fishing out of ports in Maine for groundfish, scallops and lobsters. Two Eagles has lease agreements with the boat owners to pay them a percentage of the catch, and they operate the boats under the tribal licenses. The company employs 24 tribal members, who are either fishing or working on the docks or in processing plants. They are being trained how to fish and eventually will run their own boats, he says. Two Eagles is also looking at purchasing a fish-processing plant in Maine, possibly in Washington County.
     Moore, who also owns and operates a seafood company, Native Harvest Seafood, based at Pleasant Point, notes that his company was not involved with the August 25 incident, although his company's boats "occasionally operate in federal waters." He adds, "Our operation is not a legal reform operation. We're trying to create jobs for people that desperately need them."
     Moore says the tribe's position concerning fishing in federal waters is "getting off to a bad start, since some believe they don't need to operate under any rules C federal, state or tribal."
     He also maintains that NMFS, by sending a letter to all federal fisheries permit holders stating that they must hold federal permits to fish in federal waters, is attempting to place the burden of proof on the tribe and is engaging in "fear-mongering and the politics of fear and division that we had hoped that the current [U.S.] administration would not support."
     Moore says the best example of the tribe's pursuit of fishing as an industry can be seen in the relationship between the tribe and the state. Under a state law enacted in 1998, tribal members are subject to the state's marine resource laws but are exempt from licensing by the state. Also, 24 lobster and sea urchin licenses were allocated to tribal members, as those fisheries are subject to limited entry provisions. "Relations between the tribe and the state have never been better on tribal fisheries," says Moore, who notes that the legislature agreed that the tribe never gave up its right to fish under the Maine Indian Claims Settlement Act.
     Maine Department of Marine Resources Commissioner George Lapointe agrees with Moore that the agreement on fishing rights between the state and the tribe has worked out well, with the tribe following the state's conservation laws and licensing its own fishermen and with a limited number of licenses set aside for tribal members for the lobster and urchin fisheries. Lapointe believes the concern about tribal members fishing in federal waters is that certain management measures, in particular limited entry and quotas, may be undone for the scallop and groundfish industries. "The concern is, if you go to a worst case scenario, that it may unravel management systems that people have built and worked on for a long time." He says the state is watching how negotiations proceed between NMFS and the tribe.

A fundamental difference
     "We believe that no one owns the sea and so no one can deny us access to a resource that is vital to our survival," says Moore.
     "There's a fundamental difference among the parties at the table. We're Passamaquoddy C people who catch pollock. Somehow we need someone's permission to be Passamaquoddy?" he asks rhetorically. He explains that the federal government is stating that the tribe is not going to be allowed to harvest pollock, since the resource is depleted and tribal members now must fish in federal waters to catch them.
     "Pleasant Point is so desperate for economic opportunity that tribal members are forced to look to their culture and the resource-based economy that's sustained the tribe for so long as a means of survival," says Moore. "Tribal members are feeling better about themselves because they can feed their families through an activity that's culturally relevant. More tribal members will look to the sea as a means of survival. Anyone saying that we don't have a right to fish can either respect our right to feed ourselves through the ocean or they can feed us in jail."
     According to Moore, initial discussions between the NMFS and the Pleasant Point tribal government have taken place, but there is no plan yet on what the next steps will be.
     Malsom says that an attorney who is an expert on federal Native law, who has been retained by his company, maintains that the Passamaquoddys have "every right to be out there fishing."
     Two Eagles' boats are still fishing and will continue to fish, Malsom says. "This is our livelihood, our spirituality, our way of life. It's even in our name -- Passamaquoddy -- people who spear pollock."