When Maine lawmakers passed a law this spring that limited the Passamaquoddy Tribe’s jurisdiction over elvers fishing, they violated the Maine Indian Claims Settlement Act by acting without the tribe’s consent, an important new report says.
But that wasn’t the only time state legislators violated the treaty by which the Passamaquoddy Tribe and the Penobscot Indian Nation gave up their land rights claim to 12.5 million acres of land – roughly a third of Maine. The carefully researched 41-page report, called Assessment of the Intergovernmental Saltwater Fisheries Conflict Between Passamaquoddy and the State of Maine found that the legislature violated the MICSA by circumventing its amendment process when it legislated on saltwater fishery issues without the consent of the Passamaquoddy Tribe in 1998, 2013, and 2014. The amendment process requires tribal approval for any amendments to the Maine Implementing Act (MIA) – the state law that implements the federal Settlement Act – that relate to “the enforcement or application of civil, criminal or regulatory laws” that affect the tribe.
The report was co-written by Jamie Bissonette Lewey, chair of the Maine Indian Tribal-State Commission (MITSC) and Commissioner Dr. Gail Dana-Sacco and researched by MITSC Executive Director John Dieffenbacher-Krall. MITSC was created by the Settlement Act and mandated, among other things, with continually reviewing the effectiveness of the Maine Implementing Act.
“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,” Lewey said in a prepared statement. “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.”
The report documents the conflict surfacing as early as 1984. It remained unresolved and was included in a 1997 report by a Task Force on Tribal-State Relations called At Loggerheads – the State of Maine and the Wabanaki on the relationship between the Wabanaki nations and the state.
That report found racism to be at the core of the troubled tribal-state relationship. “Racism is experienced by the Wabanaki, but generally is not recognized by the majority society,” the 1997 report noted. MITSC’s current report says the issue of racism has not only persisted; it is “central” to the tribal-state conflict.
“Throughout 2013 and 2014, the MITSC received reports of unacceptable and disrespectful language in public hearings and work sessions on the saltwater fisheries conflict,” the report says. “Over the course of the legislative hearings, five MITSC commissioners, the executive director, and the chair reported several incidents in which prejudice was expressed in a public forum.” After a particularly charged public work session on February 19, 2014, the MITSC discussed the need to address racism, unacceptable language, the disrespect of Wabanaki leaders, and the impact these factors have on tribal-state relations, and contacted some legislators with its concerns.
The problem is based in part on ignorance of the status of sovereign tribal nations. “A significant lack of knowledge about the governmental status of federally recognized tribes as sovereign nations and confusion about the State of Maine’s responsibilities in implementing the negotiated agreement reflected in the Settlement Acts persists,” the report says.
According to the report, more work needs to be done. “While the issue of racism and its impact on tribal-state relations is central to resolving long-standing conflicts, it is too complex to address in this report and requires a separate and complete inquiry. A deeper understanding of the Settlement Acts, the issues that the tribes confront, and the importance of treating each other with respect and dignity will increase the prospects for resolving long standing issues between the tribes and the state.”
In one of many efforts to resolve the saltwater fishing conflict, Legislative Document (LD) 2145, An Act Concerning the Taking of Marine Resources by Members of the Passamaquoddy Tribe, was introduced in the Maine legislature during the 118th session (1996-1998).
The original bill included a licensing agreement between the tribe and the state governing the taking of marine resources, the commission noted. The initial version of the bill acknowledged enacting legislation related to saltwater fishing would constitute an amendment to the MIA – but the provision requiring Passamaquoddy approval of any laws proposed in the contested area of jurisdiction over the saltwater fishery later was stripped from the bill through the creation of a “blow-up” or severability clause offered by the Office of the Attorney General (OAG). The “blow-up” clause allowed the Maine legislature to unilaterally decide contested jurisdictional issues involving saltwater fishing. LD 2145 also changed the definition of “sustenance” without the required approval of the tribe, the commission found.
According to the report, the conflict centers on opposing interpretations of the MICSA and the MIA. The Passamaquoddy Tribe says it never abandoned its aboriginal rights to fish within its traditional territory beyond reservation boundaries without interference from the state. These rights have never been abrogated since they are not mentioned in the extinguishment provisions in the MICSA, the tribe says. The State of Maine says it has the authority to regulate the Passamaquoddy saltwater fishery and prosecute Passamaquoddy fishers who fish according to Passamaquoddy law rather than state law. The report points out that the articles of construction in the MICSA say, “In the event a conflict of interpretation between the provisions of the Maine Implementing Act and this (Settlement) Act should emerge, the provisions of this Act shall govern.” The state has ignored that requirement.
The MITSC report makes 17 recommendations for improving tribal-state relations and resolving the saltwater fishing conflict, including a return to the table by all government, conflict resolution, and development of beneficial solutions for all of Maine.
Attorney General Janet Mills did not respond to a request for comment.
The commission briefed tribal and state leaders on the report before releasing it on July 17 and reported their comments in a prepared statement.
After the MITSC briefed his senior staff, Governor Paul R. LePage said, “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.”
House Judiciary Chair Charles Priest said the report shows the urgent need for the tribes and state to continue to work out conflicts together. “Both parties know that the ocean’s resources are not infinite; both sides must recognize the Passamaquoddy’s historical dependence on the ocean. Both sides recognize the State and the Passamaquoddy interest in ensuring that those ocean resources continue in abundance into the future.”
Madonna Soctomah, the Passamaquoddy tribal representative to the state legislature, said, “Saltwater fishing is not a commodity, it is a treasured resource tied into being Passamaquoddy. Legislation that disconnects the Passamaquoddy from the saltwater is like legislation that would transform me, or my people, into non-Indians. … I will always be a Passamaquoddy woman. We will always fish in the saltwater.”
Supporting the MITSC call for continued dialogue, Priest said, “The key to a fruitful relation between the State and the Passamaquoddy is respect. The Passamaquoddy and the State will exist for the indefinite future. This respect must also exist into the future.”