201301

JANET T MILLS

ATTORNEY GENERAL

TEL 207 6268800

TTY USERS CALL MAINE RELAY 711

STATE OF MAINE

OFFICE OF THE ATTORNEY GENERAL

6 STATE HOUSE STATION

AUGUSTA MAINE 043330006

March 12 2013

Patrick Keliher Commissioner

Department of Marine Resources

21 State House Station

Augusta Maine 043330021

REGIONAL OFFICES

84 HARLOW ST 2ND FLOOR

BANGOR MAINE 04401

TEL 207 9413070

FAX 207 9413075

415 CONGRESS ST STE 301

PORTLAND MAINE 04101

TEL 207 8220260

FAX 207 8220259

14 ACCESS HIGHWAY STE 1

CARIBOU MAINE 04736

TEL 207 4963792

Fmc 207 4963291

Re Regulation of Saltwater Fishery under the Maine Indian Claims Settlement Acts

Dear CommissionerKeliher

You have asked this Office for an Opinion regarding the States regulatory jurisdiction

over marine resources in particular whether the State has the authority to regulate

Passamaquoddy tribal members who take saltwater fish clams scallops or elvers and whether

the Maine Indian TribalState Commission MITSC has a statutory role in resolving questions

over saltwater fishing matters involving the Maine tribes You have also asked about the effect of

the 1776 Treaty of Watertown

A reading of the statutes and the legislative history of the Indian Claims Settlement Acts

leads to the conclusion that tribal members are subject to Maines regulatory authority over

marine resources to the same extent as other Maine citizens and that MITSC has no particular

authority or role regarding saltwater fishing issues In addition the 1776 Treaty of Watertown is

irrelevant to the saltwater fishery issues

State Regulation of the Saltwater Fishery

Those who negotiated and drafted the Indian Claims Settlement Acts dealt directly with

natural resources issues which were a critical component of the negotiations as fully

documented in the legislative history The issue of whether the tribes were subject to licensing

and regulation regarding marine resources has also been addressed by the courts and the Maine

Legislature has exercised its authority in this area to enact statutes affording tribal members

privileges not available to other Maine citizens

Statutes The United States Supreme Court has determined that Congress has plenary

power to divest tribes of attributes of sovereignty United States v Wheeler 435 US 313 323

1978 As a result of the lengthy negotiations leading up to the Settlement Acts and with the

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agreement of the Maine tribes Congress specifically extinguished tribal aboriginal claims to

Maines marine resources Title 30 MRS § 6204 establishes that Maine tribes and their

members lands and natural resources are subject to Maines civil and criminal jurisdiction to

the same extent as any other person or lands or land or other natural resources tejxcept as

otherwise provided in the Maine Implementing Act Natural resources includes fishing

rights 25 USC § 1722b 30 MRS § 62033 The Maine Implementing Act was

specifically approved ratified and confirmed by Congress in 25 USC § 1725b1 the

Maine tribes members lands and natural resources shall be subject to the jurisdiction of the

State of Maine as set forth in the Maine Act Therefore Congress confirmed Maines

regulatory jurisdiction over marine resources and extinguished any claims to those resources by

the Maine tribes that are based upon ancient or aboriginal title or use

There is nothing in the Maine Implementing Act that would limit state jurisdiction over

marine resources or that would grant tribal members rights to those resources distinct from those

enjoyed by other Maine citizens For example saltwater fishing is not considered an internal

tribal matter under 30 MRS § 62061 a provision which preserved tribal authority over tribal

governance See Penobscot Nation v Stilphen 461 A2d 478 Me appeal dismissed 464 US

923 1983 Regulation of natural resources is not an internal tribal matter Maine v Johnson

498 F3d 37 4247 18t Cir 2007 tribal resources are subject to Maines regulatory

jurisdiction

Sustenance fishing rights were reserved to the tribes but only on inland waters 30

MRS § 62074 9 within the reservations themselves The right to sustenance fishing

excludes commercial fishing see Report of the Maine Legislatures Joint Committee on Indian

Land Claims 109th Legislature 2d Sess 1980 at 2 and does not allow unlicensed fishing in

waters outside the reservations

Legislative history In an April 2 1980 memorandum to the Legislatures Joint Select

Committee on Indian Land Claims which is attached to the Committees Report Attorney

General Richard Cohen addressed a direct question concerning the effect of the settlement on

State and Federal authority over coastal and marine waters Attorney General Cohen explained

that to the extent the Passamaquoddy Tribe owned coastal land at Pleasant Point Reservation it

could enact shellfish conservation ordinances just as a municipality could subject to the approval

of the Commissioner of Marine Resources Otherwise Ithe Tribes will have no other rights in

coastal or marine resources other than any person or entity Cohen Memo at 9 The tribes were

aware of this contemporaneous interpretation of the Settlement Acts and expressed no

disagreement with it

Marine resources activity under the Settlement Acts After the 1980 Settlement Acts

Passamaquoddy tribal members sought and received licenses from the Maine Department of

Marine Resources DMR and were prosecuted for violating DMR laws and regulations in the

same manner as other Maine citizens

Prior Litigation In 1996 13 members of the Passamaquoddy Tribe brought a test case

regarding Maines jurisdiction over marine resources The tribal members engaged in various

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unlicensed and illegal activities including clamming taking urchins scalloping selling clams

taking clams from closed areas taking undersized clams and placing elver nets in violation of

state regulations

After reviewing extensive briefs by both sides District Court Judge Romei concluded

that the Passamaquoddy Tribe retained no aboriginal saltwater fishing rights after the Settlement

Acts were enacted and that the Tribes right to govern its own internal tribal matters did not

encompass marine fishing rights State v Beal 1998 Similarly in 2007 the federal appeals

court ruled in Maine v Johnson 498 F3d at 4246 that Maines environmental regulatory

jurisdiction applies uniformly throughout the State and that it covers Maines tribes and tribal

lands and waters

State legislation following the Settlement Acts The 1998 court decision prompted a

legislative effort by the Passamaquoddy Tribe to obtain saltwater fishing privileges that would be

unique to its members in the form of a bill sponsored by then Passamaquoddy Tribal

Representative Fred Moore 1997 LD 2145 After several necessary redrafts the bill was

enacted PL 1997 c 708 The new law provided that the Tribe could issue special licenses and

permits to its own members to take marine resources for commercial purposes for sustenance

and for tribal ceremonies in accordance with certain specified terms Otherwise tribal members

continued to be treated the same as other Maine citizens This law was enacted like any other

statute and may be amended or repealed or kept on the books like any other legislation in

accordance with the will of the Legislature

MITSCs Role Regarding the Saltwater Fishery

The Maine Indian Tribal State Commission MITSC has no regulatory role regarding

saltwater fisheries and nothing in law requires consultation with MITSC prior to the Legislature

taking any action MITSC was created by and is part of the State Implementing Act 30 MRS

§ 6212 MITSC does have authority to promulgate fishing regulations for certain inland ponds

streams or rivers where a requisite amount of the shoreline is within Indian Territories but it has

no authority over marine resources or shellfish Id at § 62073 9 The law requires the

Commissioner of Inland Fisheries and Wildlife to consult with MITSC when the Commissioner

believes that MITSCs own regulations may be harming inland fisheries but there is no such

requirement regarding marine resources because MITSC has no jurisdiction over marine

resources Id at § 62076 MITSC may consult with the Commissionerof Inland Fisheries and

Wildlife and the Legislature with respect to implementation of fish and wildlife management

policies on nonIndian lands in order to protect fish and wildlife stocks on lands and water

subject to regulation by the Passamaquoddy Tribe the Penobscot Nation or MITSC Id at §

62078 But this permissive consultation has nothing to do with marine resources or coastal

waters Id at § 62079 Moreover while this provision authorizes MITSC to make

recommendations to the Legislature it in no way limits the constitutional authority of the

Legislature to act without such a recommendation

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Treaty of Watertown

The Treaty of Watertown signed by the Governors of the State of Massachusetts Bay and

the Delegates of the St Johns and Mikmaqu Tribes of Indians in 1776 was a profession of

Alliance and Friendship and included an agreement for the provision of soldiers by those

Tribes This Treaty which was superseded by the Settlement Acts of 1980 does not address

saltwater fishing matters and has no relevance to these issues

Conclusion

Nothing in the Maine Settlement Acts or in other state or federal law limits the

jurisdiction of the Maine Legislature to address the marine resource issues presented in the

pending legislation The committee of jurisdiction should follow all normal procedures in

reviewing legislation regarding marine resources Although the Legislature has voluntarily

granted certain privileges to tribes in saltwater fisheries licensing these provisions are not

required by the Settlement Acts and the Legislature is free to change them

Please let me know if this office can be of further assistance

Cc Governor Paul R LePage

Senate President Justin L Alfond

House Speaker Mark W Eves

Senator ChristopherK Johnson

Representative Walter A Kumiega III

Representative Henry J Bear

Representative Wayne T Mitchell

Representative Madonna M Soctomah

MITSC

Respectfully

R44NET T M117eLS

Attorney General

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