## 201301

JANET

# T MILLS

ATTORNEY GENERAL



### TEL207 6268800 TTY USERS CALL MAINE RELAY 711 

### STATE OF 

### MAINE OFFICE OF THE 

### ATTORNEY GENERAL 6 

### STATE HOUSE STATION 

## AUGUSTA MAINE 

## 043330006
March 

## 122013

Patrick 

### Keliher Commissioner Department ofMarine Resources 

# 21 State 

### House Station 

### Augusta Maine 

## 043330021 REGIONAL OFFICES 84HARLOW 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 

### ofSaltwater Fishery

### under the 

### Maine Indian 

### ClaimsSettlement 

### Acts
DearCommissionerKeliher 

## 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 Tribal

### State 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 

# Areading 

### ofthe statutes 

### and the legislative history

### ofthe 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 

### ofWatertown is irrelevant to the saltwater fishery issues

State Regulation 

### ofthe Saltwater Fishery 

### Those 

## who negotiated 

### and drafted the Indian 

### ClaimsSettlement 

### Acts dealt directly with natural resources issues 

### which were a critical 

### component of the negotiations as fully 

### documented in the legislative history 

### The issue ofwhether the tribes 

### were subject to licensing 

### and regulation regarding 

### marineresources has also 

### been addressed 

### bythe 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 

### ofattributes 

### ofsovereignty United States 

## v Wheeler 435

# US 313 323 

# 1978 As a result 

### ofthe lengthy negotiations leading 

### up to the Settlement 

### Acts and with the

### agreement ofthe 

### 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 

### ofthe 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 

### Forexample 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 

### ofnatural 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 ofthe 

### Maine Legislatures Joint 

### Committeeon 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 

### ofthe settlement 

### on State 

### and Federal authorityover 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 

### amunicipality 

### could subject tothe approval ofthe 

### CommissionerofMarine Resources Otherwise 

## Ithe Tribes will 

### have no other rights in coastal or

### marineresources 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 forviolating

# DMR laws and regulations inthe 

### same manner as other

### Maine citizens
Prior Litigation In 

## 1996 13 

### members ofthe 

### Passamaquoddy Tribe brought 

### a test case regarding 

## Maines jurisdiction over 

### marine resources 

### The tribal 

## members engaged in various

2unlicensed 

### 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 afterthe 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 uniformlythroughout 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

### bythe 

### 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 

## c708 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 fortribal 

### 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 

### ofthe 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 

### byand is part 

### ofthe 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 ofthe shoreline iswithin Indian Territories but it has 

### no authority over 

### marine resources or shellfish 

### Id at § 

## 62073 

# 9 The law requires the 

### CommissionerofInland Fisheries 

### and Wildlife to consult with 

## MITSC when the 

### Commissioner believes that 

## MITSCs own regulations 

## maybe 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 

### CommissionerofInland 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 

### bythe 

### 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

3Treaty 

### ofWatertown
The Treaty 

### ofWatertown signed

### by the 

### Governors ofthe State 

### ofMassachusetts 

## Bayand the Delegates 

### ofthe 

### 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 

### bythe Settlement Acts 

### and the Legislature is free to

### change 

## them

Please let

## meknow if this office can 

### beoffurther assistance



## Cc Governor Paul

# R LePage Senate President Justin

# LAlfond House Speaker 

## Mark

# W Eves Senator Christopher

# KJohnson Representative Walter

# AKumiega III Representative 

### Henry

## J Bear Representative 

## Wayne

# T Mitchell Representative 

## Madonna

# M Soctomah 

## MITSC Respectfully


# R44NET T

# M117eLS Attorney General



### 4