Dialogue urged between state, tribes on elver fishing

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On Monday the Maine Indian Tribal-State Commission (MITSC) released a letter addressed to the Marine Resources Committee joined by all of its former elected Chairs urging the legislators to reject changes proposed in LD 1625, An Act To Clarify the Law Concerning Maine’s Elver Fishing License, that would undermine contested Tribal salt-water fishing rights and strain tribal-state relations.  In its January 23 letter, the Commission puts the Legislature and Attorney General’s Office on notice that the Maine Indian Claims Settlement Act (MICSA) prohibits extinguishing Aboriginal unceded reserved rights through State legislation.

The Commission letter cites detrimental aspects of LD 1625 including its discriminatory nature, negative effects on statutorily guaranteed Passamaquoddy and Penobscot sustenance fishing rights, and violations of the UN Declaration on the Rights of Indigenous Peoples, a human rights instrument unanimously supported by the Maine Legislature in 2008.  The MITSC also warns potential amendments to LD 1625 under discussion could reduce the average Passamaquoddy elver harvester take from 2.9 lbs to 1.9 lbs.

“The MITSC recommends continued consultation with all of the federally recognized Tribes and the development of mutually beneficial agreements to advance self-determined solutions to the indisputable humanitarian crisis within the borders of the State of Maine,” stated Dr. Jamie Bissonette Lewey, Chair, MITSC.  “LD 1625 works against this recommendation. It was submitted as emergency legislation without Tribal input. This is unacceptable.”

The MITSC letter presents some eye-opening data concerning the 2013 elver harvest that casts serious doubt on claims Tribal elver harvesters threatened State compliance with Atlantic States Marine Fisheries Commission (ASMFC) conservation goals for the American eel population.  Based on information in the public record and collected by the MITSC from the Tribes it reports harvesters licensed by the State caught on average 24.4 lbs of elvers compared to 12.3 lbs harvested by Penobscot fishers and 2.9 lbs landed by Passamaquoddy harvesters.  The overall Passamaquoddy harvest amounted to a little more than 10% of the total catch, and individual Passamaquoddy harvesters landed on average less than an eighth of the quantity of elvers caught by individuals licensed by the State.  Yet more than 25% of all criminal and civil charges brought by the State of Maine alleging elver harvesting violations were levied against Passamaquoddy harvesters, raising questions of racial profiling.

“Right now, all of the Tribes within Maine experience extreme and deeply entrenched poverty. The only solution for addressing such stark disparities lies in allowing their respective governments the opportunity to implement solutions that they themselves develop. Even the United States government has acknowledged that in the recent past,” said Cushman Anthony, State Representative from 1987 – 1992, MITSC Chair from 1998 – 2004, and a MITSC State Commissioner from 2010 – 2012.

A significant portion of the MITSC communication critiques a March 12, 2013 letter by Maine Attorney General Janet Mills written at the request of DMR Commissioner Patrick Keliher.  Keliher sought opinions from the Attorney General on a number of issues related to the Marine Resources Committee’s consideration last year of LD 451, legislation that attempted in part to restrict the Passamaquoddy Tribe’s exercise of their salt-water fishing rights.  The MITSC offers a point-by-point rebuttal refuting many of the Attorney General’s assertions.  It also asks why the Attorney General would question MITSC’s involvement in offering recommendations to resolve a dispute between the Tribes and the State when that is the fundamental reason that the Commission exists.

Paul Bisulca, Penobscot Tribal Representative to the Maine Legislature from 1995 – 1997 and MITSC Chair from 2005 until 2010, pointed to a need for the State to move toward a more neighborly, solution oriented approach and away from unilateral, legalistic interpretations.  Bisulca observed, “During the 1980 Maine Land Claims Settlement hearings in Washington, DC, Maine’s Attorney General Richard Cohen testified that during negotiations with the Indians there existed, …” “a far greater mutual respect and understanding than has ever existed in the past in Maine.””[1]   Bisulca added, “We need to move back toward that.”

Cohen, who later became MITSC Chair, observed in an interview with the Working Waterfront/Inter-Island News, “There seems to be a belief that the Indian Land Claims Settlement Act was signed and that it’s carved in stone. There has to be some disabusing about that.”[2]   Bisulca continued, “One of those subjects was and still is sustenance fishing.  Dick Cohen, as a previous MITSC Chair, and I, as a later chair, believed in the Maine Indian Tribal-State Commission as a forum to discuss tribal-state problems and formulate mutually beneficial solutions.  Sustenance fishing is an appropriate subject for opening the conversation concerning changes to the Maine Implementing Act that MITSC, and ultimately the governments party to the agreement, should consider.” Agreeing with Bisulca, Bissonette Lewey said, “As introduced, LD 1625 is in conflict with the Passamaquoddy and Penobscot sustenance fishing rights delineated in the Maine Implementing Act.”

The MITSC concludes its letter to the Marine Resources Committee that the State can comply with ASMFC conservation goals “without resorting to discriminatory policies only applicable to the Tribes.”  It urges the Marine Resources Committee “to redirect their energy toward a collaborative approach. Better tribal-state relations and a sustainable elver fishery are more likely to be realized with such an approach.”

The Marine Resources Committee will resume work on LD 1625 at a work session scheduled for 1/29 at 10 am.