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Maine Attorney General Under Fire Over Elvers

Maine’s Attorney General Janet Mills has been taken to task by Maine Indian Tribal-State Commission Chairwoman Jamie Bissonette Lewey for raising a questionable “constitutional concern” that could undermine an agreement between the Passamaquoddy Tribe and the state over elver fishing or even threaten to shut down the lucrative fishery altogether.

The Passamaquoddy Tribe, the state Department of Marine Resources and the legislature’s joint Marine Resources Committee are working on a proposed Memorandum of Agreement to resolve a controversy over how the tribe and state will 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 the 2014 fishing season. The commission has threatened to shut down the fishery if conservation measures are not taken.

On Jan. 29, Mills claimed that the proposed MOA would create an equal protection problem for non-Indians by making Indians a “special class” of people, who would be dealt with differently should legal conflict arise, the Bangor Daily News reported.

Jamie Bissonette Lewey, Chairperson of the Maine Indian Tribal-State Commission

“This is startling given that federal Indian law, the law that governs this state’s ‘special relationship’ with four sovereign nations, explicitly states that equal protection concerns apply differently to Indian tribes,” Bissonette Lewey said in an opinion piece in the Bangor Daily News. “The attorney general knows this yet chooses to advance an empty legal argument that will only serve to deepen enmity.”

The state’s four federally recognized sovereign Wabanaki nations are the Passamaquoddy, Penobscot Indian Nation, the Houlton Band of Maliseets and the Aroostook Band of Micmacs.

“Fishermen know that cutting bait is necessary preparation. And every fisherman knows there is a time when they must cut the line,” Bissonette Lewey continued. “The tribe, the department and the joint committee have worked hard to prepare a solution. Let’s hope that the actions of the attorney general do not force the Atlantic States Marine Fisheries Commission to ‘cut the line’ on Maine’s elver fishery.”

The attorney general’s office did not respond to an e-mail seeking comment on Bissonette Lewey’s article.

The controversy over Maine’s elvers began last year when the Maine legislature passed LD (Legislative Document) 451, a law that criminalized the violation of state laws limiting the taking of elvers. The state was restricted by the ASMFC to issuing 744 elver fishing licenses last year. The Passamaquoddy Tribe issued 575 licenses to tribal members, putting the tribe out of compliance with the 200-license limit that the state had imposed on the tribe. The Passamaquoddy maintained that the state had no jurisdiction over the tribe’s inherent sustenance fishing rights or the number of licenses it issued. More than 60 tribal members were cited for having licenses above the limit, but the charges were later dismissed in court.

RELATED: Maine Governor Allegedly Threatens Wabanaki Nations over Elvers

The state has become interested in elvers only during the last few years, as the price of the squiggly baby eels has shot up astronomically. According to Maine’s Department of Marine Resources, the elver harvest in 2010 was just over 3,000 pounds and worth $584,851 with a per-pound price of $185.20. In 2011, the total catch shot up to 8,585 pounds and was worth $7.6 million with a per pound price of $891.48. By 2012 more than 20,000 pounds of elvers were landed, earning $38.7 million with a per-pound price of more than $1,800. With the reduced catch last year, ASMFC officials recently estimated the value of Maine’s 2013 elver harvest at nearly $33 million, the Bangor Daily News reported.

While the tribe issued more licenses last year 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. Spurred by an order from the ASMFC to reduce the state’s total catch by up to 40 percent, the Department of Marine Resources has agreed to a 35 percent cut to the 2013 total of 18,000 pounds, bringing the 2014 allowable catch to 11,750 pounds, according to testimony heard at a Marine Resources Committee work session on the proposed MOA on January 26. The state will limit the number of pounds caught by individual non-tribal license holders.

The Passamaquoddy Tribe has agreed to cap the total amount caught by its members at 1,650 pounds, with no limits placed on individual catches. The tribe agreed to prohibit the use of fyke nets—large, funnel-shaped nets placed in the water that elvers swim into—but can issue an unlimited number of dip nets. Both tribal members and non-tribal members will be required to use swipe cards when they sell their catch.

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The 1,650-pound cap is a compromise for the Passamaquoddy, said Corey Hinton, a Passamaquoddy citizen and an attorney representing the tribe in the ongoing negotiations with the state. 

“Obviously we wanted a larger cap, but this is a piece of responsible stewardship and conservation, and we’ve carried that torch for a long time and are prepared to continue to do so,” Hinton said. The most important thing to the Passamaquoddy community is access to the water and its resources, Hinton said.

For the Passamaquoddy, as for all indigenous nations, place is inseparable from identity. The Passamaquoddy community is on the continent’s easternmost point on the Atlantic coast. Passamaquoddy means “the People who Spear Pollock.” The coastal community has survived since time immemorial by fishing the Atlantic Ocean and the rivers that empty into it. In a community where unemployment is as high as 75 percent, it’s important for every tribal member to be able to provide for him- or herself, and access to traditional marine resources is crucial.

“Last year we had elders who received a license, and they pinned it to their chest because they were proud of it,” Hinton said. “We have pregnant women and single mothers and literally generations of families who go out on the banks of the river and try to make a little bit of money whenever they can. And for them, it’s not a profession, it’s a way of life that we have held onto so, so closely for so long.”

The proposed MOA, if finalized, would go a long way toward protecting both the state and the tribe’s interests, according to Hinton.

“We do feel strongly that the MOA is the proper way to cooperatively manage the resource and to resolve this issue with the state,” Hinton said. “If what we’re truly interested in is protection of the American eel, what [the MOA] symbolizes and what it means is that these two governments will be committed to undertaking robust management mechanisms that ensure the protection of that resource.”

As for Mills’ claim that the MOA creates an equal protection issue, Hinton said the agreement is consistent with similar agreements that have been court- issued or court-mandated or otherwise voluntarily entered into between tribes and states and sometimes even the federal government.

“So this is something that’s happened around the country. But recognizing that this is an ongoing negotiation, we are prepared to address the concerns and work through them,” he said. “We don’t feel that this is the type of issue that should otherwise trump what is excellent policy that serves a couple of different policy objectives for both the tribes and the state.”

Mills has recently come under additional fire in a hard-hitting letter from the Maine Indian Tribal-State Commission to the Marine Resources Committee concerning LD 1625—a proposed bill the commission said is discriminatory, negatively impacts tribal sustenance fishing rights, and violates the UN Declaration on the Rights of Indigenous Peoples, which was endorsed unanimously by the Maine Legislature in 2008.

A significant part of the letter critiques Mills for her claims, among other things, that Congress extinguished tribal aboriginal claims to Maine’s marine resources, that the state has near total jurisdiction over tribes, and that the tribal-state commission has no statutory role. The commission was created under the federal Maine Indian Claims Settlement Act and its state companion, the Maine Implementing Act.

The letter was signed by Bissonette Lewey, commission Executive Director John Dieffenbacher-Krall and two former MITSC chairs—Paul Bisulca, chair from 2005 until 2010, and Cushman Anthony, chair from 1998–2004.

In a prepared statement, Bisulca pointed to a need for the state to move toward a more neighborly, solution-oriented approach and away from unilateral, legalistic interpretations.

“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,’” Bisulca recalled. “We need to move back toward that.”