Leaders of the Passamaquoddy Tribe were disappointed and frustrated when a proposed negotiated fishing agreement with the state was terminated at the last minute by Attorney General Janet Mills based on a claimed “constitutional” issue that Indian law experts say is not supported in the law.
A delegation of Passamaquoddy leaders traveled to the Maine capitol of Augusta on February 12 to attend a meeting of the legislature’s Joint Standing Committee on Marine Resources to finalize a Memorandum of Agreement (MOA) with the Department of Marine Resources for the 2014 elvers’ fishery season. The agreement had been hammered out over months of negotiation. Instead of finalizing the agreement, Department of Marine Resources Commissioner Patrick Keliher said that the department was backing off its support of the agreement because of “legal concerns” raised by the attorney general.
The broken agreement was just another example of the state’s refusal to deal with the tribe in good faith, tribal leaders said.
“It is so bad that if the Passamaquoddy Tribe came up with a new way to grow grass so it was greener and healthier, the state of Maine would reject it,” Tribal Councilor Newell Lewey said in a media release issued by tribal leaders. “They just don’t want us to succeed—even if we make it better for everyone.”
The MOA was to resolve a controversy over how the tribe and state would issue elver fishing licenses and address a conservation order from the Atlantic States Marine Fisheries Commission to reduce the catch of the tiny translucent baby American eels for this year’s 10-week elvers season, which begins the last week of March. The commission threatened to shut down the fishery if conservation measures were not taken. In early February the Marine Fisheries Commission met with the tribe and the state and approved the state plan and tacitly, the Memorandum of Agreement, to meet the commission’s conservation goal to protect the American eel population.
“We were cautiously optimistic [going into the meeting],” Chief Joseph Socobasin said. “We were coming out of a Joint Tribal Council Meeting [between the Passamaquoddy communities at Sipayik and Motahkomikuk where the MOA was approved by a nine to one vote. We had a reliable mandate to seal the agreement.”
“By lunchtime, the agreement had dissolved before our eyes,” said Vice-Chief Clayton Sockabasin, who is also the chair of the Fisheries Committee.
The controversy over elvers erupted last year over the number of licenses the tribe issued. While the tribe issued more licenses than the state permitted, it placed a limit on the total number of pounds that tribal members could catch, which is the basis of the tribe’s conservation plan. This year the state has caught up to the Passamaquoddy’s traditional knowledge and practice of conservation and agreed in the proposed MOA to a 35 percent cut to the 2013 total of 18,000 pounds, bringing the 2014 allowable catch to 11,750 pounds. The state agreed to limit the number of pounds caught by individual non-tribal license holders.
The tribe agreed to reduce its total catch this year by more than 50 percent, from 3,600 to 1,650 pounds, without placing quotas on individual members. The tribe also agreed that members would use only dip nets, not the large, funnel-shaped fyke nets that large numbers of elvers swim into, and that members would participate in a statewide program to use swipe cards when they sell their catch.
“Because we are fishers, the fish—in this case the American eel—comes first. We amended our law to further our conservation efforts,” said Vera Francis, a member of the Passamaquoddy Fisheries Committee. And then, the tribe carefully negotiated with the marine resources committee, the tribal leaders said.
“We went to great lengths to make this historic bilateral agreement possible,” Socobasin said.
But Mills claimed that the proposed Memorandum of Agreement may violate the equal protection clause in the state constitution by making Indians a “special class” of people who would be dealt with differently than non-Indians should legal conflicts arise. She claimed that prohibiting tribal members from using fyke nets while allowing nontribal fishermen to use them, and imposing penalties on nontribal fishermen who exceeded their individual catches—åbut not on tribal fishermen who had no individual catch limit—might violate the state constitution.
Akin Gump, the tribe’s Washington, D.C.–based firm that specializes in Indian law, wrote a nine-page letter to Mills on February 11, presenting fully articulated legal arguments about the Memorandum of Agreement that addressed her equal protection concerns and more, including the tribe’s reserved treaty fishing rights. Attorney Michael Rozzetti, former personal counselor to the secretary of the Department of the Interior, pointed out in the letter that the agreement would not violate the state or federal Constitution because the U.S. Constitution recognizes that Indian tribes occupy a separate political status in the U.S. That special status is “the legal justification for federal courts to mandate the execution of cooperative agreements between tribes and states, and for other tribes and states to enter into voluntary agreements to settle longstanding disputes,” Rozzetti wrote. Such agreements are commonplace in Alaska, the northwest, and elsewhere and have “passed constitutional muster,” Rozzetti wrote. He cited various examples of case law that show how the separate classification of federally recognized Indian tribes and their members is based on their status as political entities, not racial identity.
“The Supreme Court has expounded on what it meant for federal law to treat tribes and their members differently under federal law,” Rozzetti said. “Indian tribes are unique aggregations possessing attributes of sovereignty over both their members and their territories … [T]hey are a separate people possessing the power of regulating their internal and social relations,” he said, quoting from a Supreme Court ruling.
It’s not clear how the state will move forward now that the attorney general has pulled back the MOA. The agreement was critical to amendments to Legislative Document 1625, a bill to codify the rules over elvers fishing. According to the Bangor Daily News, Keliher cautioned the committee about the ramifications of not coming to agreement on a bill. If a divided recommendation comes out of the committee, it likely will be harder to get the bill approved by two-thirds majorities in the House and Senate, which is required for the measure to become law before the season starts. The marine resources committee is expected to continue discussing the bill on Wednesday, February 19.
Meanwhile, the Passamaquoddy leaders plan to continue their traditional conservation-centered approach to the fishery.
“So, once more, the state is on the precipice of the elver season with no road forward,” the leaders said in their release. With all this uncertainty, the Passamaquoddy Tribe is certain that it will manage its own salt-water fisheries, they said.
“Yes, this is our reserved treaty right,” Chief Socobasin said. “But more importantly, it is who we are, who we always have been and who we will be as long as we are on this earth.”