Passamaquoddy Tribe Amends Fishery Law to Protect Its Citizens From State Threat

[node:summary]Passamaquoddy and three other tribes battle Maine for elvers fishing rights.

The Passamaquoddy Tribe’s fishery law has been amended to implement individual catch quotas for the lucrative elver season that began on April 5. While the quota system conforms to a new state law, Passamaquoddy leaders stressed that the change was made to both protect tribal citizens and conserve the tiny baby eels.

“We’re changing our tribal fishery law, and I’m not addressing state law at all,” Newell Lewey, a member of the Tribal Council and the tribe’s Fisheries Committee, told Indian Country Today Media Network. “We amended our laws to reflect individual catch quotas. We didn’t want conflict. We vehemently disagree with the state in their approach to elver fishing.”

The decision to amend the tribe’s fishing law comes after a roller-coaster legislative session that started out with high hopes that the tribe and state would reach an agreement over elvers fishing after a rancorous season last year. In 2013, state law enforcement agents had confiscated equipment from about 60 Passamaquoddy fishermen and charged them with various violations that were later tossed out of court. The controversy centered on the number of licenses 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. The state, in contrast, limited the number of licenses but allowed unlimited caches by individuals or commercial fishing entities.

Elvers have been important to the state only since 2011, when prices for the tiny “glass eels” increased tenfold, from about $185 per pound in 2010—when the statewide harvest was less than $600,000—to more than $1,850 per pound in 2012, when the statewide harvest was worth more than $38 million.

This year, as part of a conservation plan to reduce the overall elvers catch mandated by the Atlantic States Marine Fisheries Commission, the Passamaquoddy and the other three Wabanaki tribes—the Penobscot, Maliseet and Micmac—hammered out a Memorandum of Agreement (MOA) with the state Department of Marine Resources that would have met the commission’s conservation goal to while respecting the tribes’ inherent rights to sustenance hunting and fishing as affirmed in treaties such as the Maine Indian Claims Settlement act of 1980.

The state this year also caught up to the Passamaquoddy’s traditional knowledge and practice of conservation, agreeing in the proposed MOA to a 35 percent cut to the 2013 total of 18,000 pounds. This brought the 2014 allowable catch to 11,750 pounds and limited 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, because it believes that all members have an equal right to fish. 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. The Passamaquoddy also agreed that members would participate in a statewide program to use swipe cards when they sell their catch.

Those hopes for an agreement were dashed when the state reneged on the MOA after Attorney General Janet Mills raised alleged “constitutional” issues that Indian law experts said were not supported in the law.

Related: Mills Kills Passamaquoddy-State Elvers Agreement

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The legislature then went ahead and passed a bill containing provisions that did not have the tribes’ free, prior and informed consent as required by the United Nations Declaration on the Rights of Indigenous Peoples. The Declaration, which governs land and other rights and was endorsed in a joint resolution by both the Maine Senate and House of Representatives in April 2008.

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“We come to the table and negotiate with full transparency and intent to live up to our commitments,” Vera Francis, Fishery Committee member, said in a statement from Passamaquoddy leaders on April 5. “Each time, the state finds a way to force an unpalatable outcome. You would think that living up to their word would be a matter of honor. It is for us.”

Patrick Keliher, commissioner of the state Department of Marine Resources, could not be reached for comment. The decision to amend tribal law and limit individual catches was not easy and was based in part on threats from the state, Passamaquoddy leaders said.

 “Given the dire economic problems facing tribal members and the investment of two years in developing the elver fishery, the tribe made the difficult decision to amend their own law to assure safety for their fishers,” said Chief Joseph Socobasin, leader of the tribe’s Indian Township land, in the statement.

“It was important to do this, because when I met with [Maine] Governor [Paul] LePage on March 12, he threatened to bring in the National Guard at any hint of a disturbance on the river,” said Chief Clayton Cleaves of Sipayik (Pleasant Point). “We want our people to be safe. This is of paramount importance.”

Eel fishing is a vital part of Passamaquoddy culture, with Passamaquoddy eel camps noted on the earliest maps of the region, the leaders said. The tribe has preserved access to the traditional fishery for the tribal members, “but none of us are comfortable with what has happened,” said Vice-Chief Clayton Sockabasin, chair of the Fishery Committee. The individual quota will be about four pounds with a total tribal catch of 1,650 pounds, Lewey said.

“It’s the same amount for each licensee in our case. In the state’s CASE, it’s not; they assign different poundage to different people,” Lewey said. “We’re issuing licenses to any tribal member who wants one.”

Tribal members won’t be using fyke nets, he said.

“We’re going with a dip net only fishery for conservation purposes,” Lewey said. “I would ask the state to do the same but they’re not going to.”

Non-tribal fishermen interviewed by ABC News affiliate WMTW 8 said they were not focused on conservation, telling the news station that the new individual-quota system imposed by the state “has put a damper on the season's opening but they will try and make as much money as they can,” the report noted.

Lewey said the tribe asserted its sovereignty in making the decision. Each tribal fisher will bear a tribally issued license and a statement from the tribal government that reads, “This license is issued pursuant to the inherent rights of the Passamaquoddy Tribe as secured under various treaties and federal law, and as implemented through the Tribe’s Fisheries Management Plan Governing Salt Water Hunting, Fishing and Gathering.”

Socobasin said tribal leaders have done everything in their power to ensure access and safety for tribal members who will fish on the rivers of Passamaquoddy territory.

“We have done our job,” Socobasin said. “We have the inherent power to regulate how our fishers engage with the state. We made a difficult but necessary decision, and we will go to the rivers where we have since the very beginning. We will never stop. It is who we are.”