Restricting Fishing Rights, Undermining Tribal Sovereignty

For centuries, the Passamaquoddy people of Maine have faced a violation of their inherent rights as Indigenous Peoples. They have been repeatedly displaced from their original lands by European settlers since the 16th century, eventually limited to their current reservation in eastern Washington County, Maine. Now their fishing rights —an intrinsic part of Passamaquoddy culture and sustenance —are threatened, under the ironic pretext of equal protection for state fishermen. At issue are two pieces of legislation, both in conflict with the Maine Indian Claims Settlement Act and the Maine Implementing Act. The Passamaquoddy refused to comply with LD-451, a law that limited the tribe to issuing just 200 elver licenses in 2013, and this year’s LD-1625, which requires state fishery officials to approve each individual tribal elver license in writing. The tribe has been in discussion with the state since January on ways the Passamaquoddy can maintain its cultural identity throughout the fishing season “because our fishery is based on culture, conservation, and preservation of the eel,” says Passamaquoddy Tribal Councilman Newell Lewey.

Conservation Requires Sacrifice

The price of elvers has risen steeply in recent years and non- Native fishers have pressed for licenses to fish them at their most abundant (and vulnerable) life stage, when they are determined to swim from salt to fresh water. This critical transition determines the health of the species. The Passama- quoddy fishing plan centers around conservation of the eel, prohibits the use of fyke nets (a fish trap that consists of cylindrical netting bags mounted on rings or other rigid structures), and reduces their total allowable catch to 1,650 pounds—1,000 pounds less than the top 50 state harvesters are taking under the new quota system. In 2013 the state’s Department of Marine Resources did not require its harvesters to take measures towards conservation of the eel, but instead implemented a complex quota system.

“The state had no conservation measures in their plan last year, and that virtually went unheralded,” Lewey says. “All they could talk about was the number of licenses that the Passamaquoddy were issued in defiance of LD-451. The state plan called for the state to have 432 licenses, but those 432 state licenses could land as many pounds of eels as they could get. The state limited gear, not catch. They could have caught a million pounds and it would have been perfectly fine in terms of the law.” In contrast, the Passamaquoddy’s proposal bore in mind the health of the species. “We said that we would have a communal eel fishery for the Passamaquoddy Tribe that allows us only to catch 3,600 pounds. We feel that [we have] inherent rights to fish in any marine resources available to us because of where we live, and because our rights have never been surrendered, including under the Land Claim Settlement Act. We cannot limit licenses to our people...[so] when the state said, ‘We’re going to issue you 150 licenses and 50 additional licenses for dip nets on the St. Croix River,’ we never agreed to it. We walked out of Augusta that day and said, ‘We don’t accept it.’ 

The Passamaquoddy’s defiance has not been quietly overlooked. Lewey recalls a violent scene from last year’s fishing season: “When we submitted our license list to the commissioner at the Department of Marine Resources, they came down on us pretty hard that first weekend, Easter Sunday, when they raided the fishing site in the Pennamaquan River in Pembroke, Maine. They had maybe 20 armed personnel on site and it escalated very quickly, but we did manage to speak to them. This year, with the eels, our number one concern is that we’ve got to have our limited licensing for the Passamaquoddy tribal people. We’re at a point again where our existing law is in conflict with state law: Passamaquoddy tribal law states that we will have a fishery with unlimited licenses, and we agreed to their 1,655 pounds of eel, but we said that we want to have an open fishery for 80 percent of those eels. The first 1,320 pounds would be an ‘open derby’ fishery, where every individual could go out and just catch as many eels as they could catch. When the total tribe reached that 80 percent quota we would shut the swipe card system down and reissue the remaining 335 pounds on a per capita basis.” 

Lewey says the Commissioner agreed with the proposal when the tribe presented it in January, as did the Atlantic State Marine Fishery Commission in Washington, D.C., but within a week of negotiating the new legislation, Commissioner Patrick Kelleher “had done a 180,” citing equal protection for the state fishers. The Attorney General argues that the tribe’s proposed agreement raises a constitutional concern and creates an equal protection problem because it creates a special class of people who would be dealt with differently should legal conflict arise. Federal Indian law governs Maine’s “special relationship” with the four sovereign Nations there (Passamaquoddy, Maliseet, Penobscot and Mi’kmaq), and explicitly states that equal protection concerns apply differently to Indian tribes. But for Lewey, “The equal protection thing doesn’t hold water with me. If you look at what our history is full of, is unequal protection.” 

The Maine Indian Claims Settlement Act of 1980 is a federal law that settled the land claim brought by the Penobscot, Passamaquoddy, and Maliseet tribes and lays out the legal basis for the Maine Implementing Act, which defines the relationship between the state and tribes. The settlement act outlines the rights and resources the tribes deliberately transferred; saltwater fishing is considered a reserved right over which the state has no jurisdiction. Lewey points out that the first thing LD-451 does is cap the Passamaquoddy tribal licenses. “Just the wording is really upsetting. It’s a state statute that’s directed to the Passamaquoddy tribal membership. It limits the number of licenses that we can obtain for all of our fishing. The claim about our sovereignty on the saltwater fishing issue, the state says that we gave that up in 1980. But nowhere in the Claims Settlement Act of 1980 does it say anything about saltwater treaty fishing rights. We know we never gave them up. Nor will we ever.” 

“The violations are just staggering,” Lewey says. “I’m trying to advise the tribe and tribal membership in my charge as being a tribal councilor and a fishery committee member, to say ‘Yes, we are a sovereign nation and we’re going to stand up.’ I hate to use that term ‘crying foul,’ but this is disgusting, what the state is doing to the tribes. I don’t know how to say it any more passionately. Passamaquoddy people are economically depressed. On the Passamaquoddy tribal reservation the unemployment rate is over 50 percent. We need economic development. We are doing what we can. The tribe is starting up a maple syrup business but it’s not going to be a money maker for us right off the bat; that’s going to take a couple of years to get going. We have a successful blueberry company that nets a good profit for us every year. That’s basically what we have for tribal resources. This is our 20th year of putting forth a casino initiative; we have been blocked every time. Why are resources so scarce? And I’m not talking just about eels. We’re talking about a mindset that you keep these people economically dependent on the state and they’re going to comply because they don’t have the ability to fight back. But we can always stand up. We may get knocked down, but we can always stand up.” 

Editor’s note: The interview with Newell Lewey was conducted prior to the start of this year’s fishing season. The Passamaquoddy did not fish on opening day, and as yet there has been no further interaction between the tribe and the state. 

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