Calling the 1980 Maine Indian Claims Settlement Act "a failed social experiment," Passamaquoddy Chief Fred Moore of Pleasant Point says the ongoing and increasing tension in tribal-state relations led to the decision by three of the Maine tribes to sign on May 27 a joint declaration of their right to govern themselves and the announcement by the Passamaquoddys and Penobscots that they were withdrawing their representatives in the Maine Legislature. They also called for a congressional review of the state's actions that have diminished the rights of the tribes. On the previous day, tribal members held a rally for tribal sovereignty and unity outside the State House in Augusta.
     Moore says the issues between the tribes and the state have been discussed by Wabanaki leadership for several years. "There's been a trend by the state away from meaningful or fruitful tribal-state relations." Among the issues have been saltwater fishing rights, which have "caused some strain in that relationship," and tribal gaming, which has been "a sore spot for over 20 years," Moore says. "We see the proliferation of gaming throughout the state and the rejection of tribal gaming. Tribal members are frustrated with the way things are going. They demand and deserve change."
     Among the reasons listed in the joint declaration for why the tribes are taking the action are Governor LePage's executive order issued in April that "wrongfully asserted the Penobscot Nation, the Passamaquoddy Tribe and the Aroostook Band of Micmac, our people, lands and resources are subjects of the State of Maine." Moore thinks that LePage decided to rescind a 2011 executive order that directed state agencies to communicate with the tribes on any matters affecting the tribes because of the lawsuit brought by the Penobscot Nation against the state over their right to fish in and police the waters of the Penobscot River. "We're told if there's a dispute to go to the courts, and if we do we're punished further C and not just that tribe but all of the tribes."
     Moore believes that LePage issued his April executive order in response to a letter from the U.S. Environmental Protection Agency that addresses the sustenance fishing issue. In the January 30 letter from the Office of the Solicitor for the U.S. Department of the Interior to the general counsel for the EPA, Solicitor Hilary Tompkins states that the right of all four Maine tribes "to take fish is well-founded under state as well as federal law." She says that the rights of the Passamaquoddys and Penobscots are expressly reserved fishing rights, with the Maine Implementing Act of the settlement act acknowledging the right of members of the two tribes to "take fish ... for their individual sustenance" within their reservations free of state regulations.
      The issue between the tribes and the state is centered around sustenance fishing, Moore says. "Tribal-state relations come down to the ability of a people to feed themselves," he says. "With the current arrangement with the state, we would be unable to feed ourselves right now, because of the state's position on sustenance fishing, which is inconsistent with Passamaquoddy culture and existing law."
     He says the state cannot define what constitutes sustenance fishing for the Passamaquoddy. Moore says that for the tribe "the disposition of the product is secondary to the undertaking." He explains, "Passamaquoddy hunting, fishing and gathering are participatory. You take what you need and leave the rest, you share with those less fortunate and you're thankful for what you've received." Moore notes that his father raised 10 people from fishing but insisted that he was not a commercial fisherman, since he only took what he needed. The European or "newcomer" system "grants you the privilege to take living creatures for the accumulation of personal wealth," Moore says. A definition of sustenance hunting, fishing and gathering, which states that it is "the undertaking of an activity which defines Passamaquoddy culture and community," will be presented to the Passamaquoddy Joint Tribal Council for formal adoption.
     Concerning the elver fishery, over which the tribe and the state have been at odds, Moore says that an understanding was reached this spring between the Department of Marine Resources (DMR) and Passamaquoddy officials in the dispute over sustenance fishing by Pleasant Point tribal members. The Pleasant Point tribal government had authorized the use of fyke nets for sustenance fishing this year, which prompted the DMR to adopt an emergency rule banning the use of fyke nets other than those used under the state's management plan for the fishery. The DMR was concerned that the sustenance fishery would lead to an overharvest in the fishery and place the state out of compliance with its elver quota. Moore says that he then suggested to the DMR that, since it was late in the season, the number of fyke nets used under sustenance permits would not increase. He says about 12 fyke nets were being used by tribal members with sustenance permits. If any more were deployed, the tribal government would address the issue. "It was a very cooperative relationship and it worked," Moore says of the discussions with the DMR. "There was great communication. That's what we want. We can't be told that the tribe is subject to a system that is not compatible with Passamaquoddy culture." Moore believes that more discussions between the DMR and the tribe concerning the elver fishery will be held soon.

Declaration outlined
      The May 27 declaration by the Passamaquoddy, Penobscot and Micmac nations states that they do not recognize the authority of the State of Maine, its governor, legislature or courts "to define our sovereignty or culture or to interfere with our self-governing rights." They do recognize the Maine Indian Claims Settlement Act and the Aroostook Band of Micmac Settlement Act "as confirming our sovereignty and call upon the United States, as our trustee, to convene a congressional inquiry and review of the actions of Maine that have resulted in a diminishment of our rights as federally recognized, sovereign Indian tribes and of the adverse impacts upon our cultures, rights and resources."
     The declaration states that Maine and its agencies, including the Attorney General's Office, have repeatedly attempted to assert authority over the tribes and "to perpetuate us as wards of the State of Maine" and that the legislature has enacted laws in violation of the tribes' self-governing authority and without any consultation with the tribes. Also noted is the state's denial of the application of beneficial federal legislation that is intended to advance tribal economies and promote the health, safety and welfare of native people, causing the tribal communities to lag far behind the state average for economic development, public safety, healthcare and basic human necessities.
     Moore does not believe the withdrawal of the tribal representatives from the legislature will have any effect, "except in being able to voice our displeasure in the strongest possible terms." He says the action is not unlike what occurs when two nations have problems and recall their diplomats to each other's country. He says the action was taken because "we're questioning the effectiveness of diplomacy in this relationship."
     The Passamaquoddy chief also does not believe the declaration and the withdrawal of the representatives will affect any funding from the state to the tribes, since he believes the state would have already withdrawn any funding it could in 1980, when the settlement act was enacted. Under the settlement act, the Passamaquoddys and Penobscots gave up their claims to nearly two‑thirds of the state and received an $81 million settlement, federal recognition, the right to purchase at least 300,000 acres of land and limited immunity from state laws. Moore says that with the settlement act the state "succeeded in maintaining a certain amount of control over the tribes with zero responsibility." The state was able to ratify "all of their takings and shed all of their obligations."