1 

# Assessment of

# the 

# Intergovernmental

Saltwater Fisheries Conflict 

# Between Passamaquoddy and the State of

# Maine

Maine Indian Tribal State 

# CommissionSpecial 

## Report 

# 2014 1 June 

# 17 20142 

### Table of 

### Contents The Maine Indian Tribal State 

### Commission 

## 4 Acknowledgements 

## 5 Executive 

## Summary 6 Introduction 

## 7 Section 

## I Emergence of the Conflict 

### and Attempts to Resolve Saltwater Fishery Issues 

## 9 Passamaquoddy Bring Emerging Saltwater Conflicts to the MITSC 9 Increasing Tension 

## 19941996 9 The 

### 1997 “Task Force on Tribal State

# Relations” 10 

### LD 273 “Resolve Directing the Commissioner of Marine Resources to Negotiate with the Passamaquoddy Tribe Regarding Fishing Rights” 10 Meeting the Requirements of

## LD 273 118th Legislature The Department of Marine Resources Report 11 

### GovernmenttoGovernment Negotiations 12 Section II Defending 

### Passamaquoddy Saltwater Rights in 

### Court State 

## v Beal 

### 13 State 

## v Beal 13 30

# MRS

# A 6204 in Deciding State 

## v Beal 14 Public and Legislative Discourse 

### on 30

# MRS

# A 6204 in 

### 1997 14 30

# MRS

# A 6206.1 Internal Tribal Matters and State 

## v Beal 15 30

# MRS

# A 6206.1 Recognition of Licensing as an Internal Tribal Matter in Negotiating a Solution to the Passamaquoddy Saltwater Fishery

# Conflict 15 The 

### 1980 State of Maine Legislative Record on the Maine Indian Land Claims and State 

## v Beal 16 Section III Looking fora Legislative Solution 

### 18 LD 2145 118th Legislature 

### An Act Concerning the Taking ofMarine Resources by Members ofthe Passamaquoddy Tribe 18 Bill Approved for Introduction with 

### Added Tribal Approval Provisions 19 

### LD 2145 Public Hearing 19 The 

### Work Sessions Delimiting Tribal Authority and Redefining Sustenance 20 The Joint Standing Committee on the Judiciary Determines That 

### LD 2145 

### Amends the 

### MIA 21 

### OPLA 

## Memo on 

### Amendment 

# ALD 2145 is an 

### Amendment to the 

## MIA 22 

### OPLA Reviews the “

## Blow up” Clause 23 The Legislative Record on 

## LD 2145 23 Office ofthe Attorney General’s Responsibilities to Inform Legislative Matters 24 Section 

## IV State Legislation to Further Limitthe 

### Passamaquoddy Saltwater Fishery— 

## LD451 LD 1625 and 1723 in the 126th 

### 26 Amending 12

# MRS

# A 6302A 26 

### MITSC Concerns 26 

### LD 

## 451 Limiting Passamaquoddy Participation in the Elver Fishing Industry 27 The 

### 2013 Elver FishingSeason 27 

### LD 1625 

## AND 1723 Further Erosion ofthe 

### MIA Amendment Provisions 27 Passage of

### LD 1625 28 Section 

# V Impact of Racism 

### on TribalState Relations 

### 29 Section 

## VI Identifying Solutions 

### 30 Section VII Findings 

### 31 Section VIII 

### Recommendations 34 Appendix 

## I Addenda 36 Appendix II 

### 39 Maine Implementing Act 

## MIA

# MRSA Title 

## 30 Chapter 601 393 Public 

## Law c 708 

### LD 2145 An Act Concerning the Taking ofMarine Resources by Members of the Passamaquoddy Tribe 39 Public 

## Law c 84 Second Regular Session –1995 

### LD 1667 Resolve To Improve Tribal and State Relations 39 At Loggerheads— the State ofMaine and the Wabanaki Final report ofthe Task Force on Tribal State Relations 40 Public 

## Law c 45 First Special Session

–1997 

### LD 1269 Resolve to Foster the Selfgoverning Powers of Maine’s Indian Tribes in a Manner Consistent with Protection of Rights and Resources of the General Public 40 State ofMaine 

## v Beal 4th Dist

### Ct

## No 96957 et seq 40 Penobscot Nation 

## v Fellencer 164 

## F3d 706 1st Cir

## 1999 40 Penobscot Nation 

## v Fellencer 999 

## FSupp 120 

# D Me 1998 41 5

# MRS

# A Chapter 9 Attorney General 414 

## The Maine Indian 

### Tribal State 

## Commission

Jamie Bissonette 

## Lewey Chair Healing Justice 

### Program in

## New England American Friends Service 

### Committee Denise Altvater 

### Passamaquoddy Appointee American Friends Service 

### Committee Maine Wabanaki Program John 

## Banks Penobscot Appointee Department of Natural 

### Resources Penobscot Nation 

### Harold Clossey State 

### Appointee Maine Development Foundation 

## Mathew Dana II 

### Passamaquoddy Appointee Public Safety Coordinator 

### Passamaquoddy Tribe Gail 

## DanaSacco 

# PhD 

# MPH State 

### Appointee Assistant Research Professor University of 

### Maine 

## Hon Richard 

## Gould State 

### Appointee FormerState Legislator 

## Hon Joan 

## Nass State 

### Appointee FormerState Legislator 

# H Roy Partridge 

# MS

# WMAM Div 

# PhD State 

### Appointee Office of the President 

### Bowdoin College 

### and Visiting Assistant Professor of Sociology 

### Robert “Bert” 

### Polchies Penobscot Appointee Tribal 

### Elder Cultural Interpreter 

### and Spiritual Leader 

### Linda 

## Raymond Maliseet 

### Appointee Maliseet Tribal Council 

### Brian Reynolds Maliseet 

### Appointee Tribal AdministratorHoulton 

### Band of Maliseet Indians 

## Hon Henry 

## Bear 

## ExOfficio Maliseet Tribal Representative to the 

### Maine State Legislature 

## Hon Wayne Mitchell 

# ExOfficio Penobscot Tribal Representative to the 

### Maine State Legislature 

## Hon Madonna Soctomah 

# ExOfficio 

### Passamaquoddy Tribal Representative to the 

### Maine State Legislature 

## Norman Bernard Observer Aroostook 

### Band of 

### Micmacs Tribal Council 

### Peggy Caparotta Observer Aroostook 

### Band of 

### Micmacs Tribal Council


### John Dieffenbacher Krall Staff Executive Director5 

## Acknowledgements

The Maine Indian TribalState 

### Commission wishes to thank the principal authors of this report JamieBissonette

## Lewey Chair 

### and 

## Dr Gail 

## Dana Sacco CommissionerJohn Dieffenbacher Krall Executive Director provided research assistance developed the extensive appendices 

### and prepared the report for publication Robert 

### Checkoway provided legal review while 

### Roy Partridge 

### Commissionerand Phyllis

### Cohen Gately of the 

### American Friends Service 

### Committee assisted in the editing process 

### MITSC commissioners reviewed 

### and provided direction 

### on several preliminary drafts

### As part ofour preparation process the 

### MITSC metwith the offices of the 

### Governor the 

### Passamaquoddy Chiefs

### from Motahkomikuk and Sipayik the Chief ofthe Penobscot Indian 

### Nation the Vice Chief ofthe 

### Passamaquoddy from Motahkomikuk the President ofthe 

### Maine Senate the Speaker ofthe 

### Maine 

## House the 

### house chair of the Judiciary 

### Committee both chairs ofthe 

### Marine Resources 

### Committee and Tribal Councilors 

### from Sipayik In addition the Office of the 

### Maine Attorney General 

### was briefed 

### on the contents ofthe report 

### The MITSC extends its appreciation to the staff ofthe 

### Maine State 

## Law and Legislative Reference Library the 

### Maine State Archives 

### and the Office of Policy 

### and Legal Analysis for assistance with locating primarymaterial 

### The MITSC thanks the Honorable 

### Donald Soctomah Tribal Historic Preservation Officer of the 

### Passamaquoddy Tribe for use ofthe photograph of Pulpit Rock inthe 

### Passamaquoddy Bay for the cover of this report 

### The MITSC Commissioners formally reviewed this report 

### on April 

## 30 2014 and approved the final version for release 

### on June 

## 17 20146 Executive 

## Summary This report reviews the intergovernmental saltwater fisheries conflict 

### between the 

### Passamaquoddy Tribe 

### and the State of 

### Maine attempts 

### by the Tribe 

### and the State to negotiate solutions resulting litigation 

### Maine legislation affecting Tribal 

### management of the fishery 

### and the impact of this conflict 

### and the legislation 

### on TribalState relations

### from 1997 to 

## 2014
The conflict arises from opposing interpretations of

## how the 

### 1980 federal 

### Maine Indian Claims Settlement Act 

## MICSAand the Act to 

### Implement the 

### Maine Indian Claims Settlement



# MIA impact the 

### Passamaquoddy saltwater fishery 

### The Passamaquoddy Tribe stands 

### on its retained Aboriginal rights to fish within its traditional territory 

### beyond reservation boundaries without interference 

### from the state 

### They hold that these rights have never 

### been abrogated since they are not mentioned in the extinguishment provisions in the 

## MICSA The State of 

### Maine maintains that the Tribes have 

### no rights except as specified inthe 

## MIA and that the State of

### Maine has the authority to regulate the 

### Passamaquoddy saltwater fishery

### and prosecute 

### Passamaquoddy fishers 

## who fish according to 

### Passamaquoddy law rather than state 

### law The articles ofconstruction in the 

### MICSA read “In the event a conflict of interpretation 

### between the provisions of the 

### Maine Implementing Act

### and this Act should 

### emergethe provisions of this Act shall govern.”

In 

## 1997 LD 297 

## was passed to require the 

### Department of Marine Resources to negotiate with the 

### Passamaquoddy By June thirteen 

### Passamaquoddy were charged with various violations of state commercial fishing 

### laws In 

## 1998 despite objections by 

### Maine legislators a 

## new law 

### was passed This 

### law 12

# MRS

# A 6302

# A changed the sustenance definition specified inthe 

## MIA and included a “

## blowup” clause designed 

### by the Office of the Attorney General 

### which overrode the authority of the Tribe to approve or reject 

### amendments to the 

## MIA In 

### 2013 and 

## 2014 the state legislature further 

### amended 12

# MRS

# A 6302A and further subverted the Tribe’s equal participation with the legislature in 

### amending the Settlement Acts 

### The legislative 

### and executive branch processes 

### employed to resolve the intergovernmental saltwater fisheriesconflict have failed to achieve tribal state cooperation 

### and undermined potential forthe 

### development of mutually beneficial solutions in a sustainable fishery

Aftera complete review of these events the 

### Maine Indian TribalState 

### Commission 

## MITSC recommends a process of seeking mutually beneficial solutions that are 

### grounded in respect for

### and adherence to the 

### MICSA articles ofconstruction 

### and the mutual approval processes for 

### amendments to the 

## MIA Recommendations to accomplish this 

### aim include federaltribal state 

## comanagement of marine resources development of a

# MOU to address unresolved issues regarding the saltwater fishery conflict 

### and replace 

### 12

# MRS

# A 6302

# Adevelopment of clear responsibilities

### and reporting standards for the 

## OAG and the 

### MITSC 

## when reviewing 

### any aspect of the 

## MIA or

## MICSA and fully resourcing further inquiry regular reporting 

### and information sharing 

## among the concerned parties 

# We conclude that

### open dialogue negotiations 

### and formal agreements are 

### mechanisms that
are both pragmatic 

### and constructive 

### and have value forall of the people of

### Maine 

## We offer this report with sincere 

### hope for a 

### renewed commitmentto 

### advance conflict resolution 

## among all ofthe peoples

## who live within the State of

### Maine7 Introduction In 

## 1980 legislation passed at both the state 

### and federal levels that established specific legal parameters forthe settlement of claims 

### bythe 

### Passamaquoddy Tribe 

### and the Penobscot Indian Nation forthe return of 12.5 million acres of

### land roughly

# 60 of the state of

### Maine and damages of

## 25 billion dollars 

## A settlement negotiated 

## among the parties

### became law with the passage of 

### two separate pieces of legislation the Act to 

### Implement the 

### Maine Indian Claims Settlement 

### commonly 

## known as the 

### Maine Implementing Act 

# MIA and the 

### Maine Indian Claims Settlement Act 

## MICSA The 

## MIA 

# MRSATitle 

## 30 Chapter

## 601 created the 

### Maine Indian TribalState 

### Commission 

## MITSC 30

# MRS

# A 6212

# 3 an intergovernmental organization charged in part

## to Continually review the effectiveness of the Act 

### and the social economic 

### and legal relationship between the Houlton 

### Band of Maliseet Indians 

### Passamaquoddy Tribe the Penobscot Indian Nation 

### and the State 

### 30

# MRS

# A 6212

# 3 1 

### The Maine Indian Claims Settlement 

### Act 

## MICSA 25U S

# C 1721 1735 was passed in October ofthe 

### same year The MICSA gave federal permission for the 

## MIA to take effect while retaining intact the federal trust relationship 

### between the federally recognized tribes of

### Maine and the 

## US Congress and placed constraints 

### on the implementation of the 

## MIA Of particular interest to the inquiryinto the saltwater fishery conflict 

### between the 

### Passamaquoddy Tribe 

### and the State of 

### Maine are the following provisions of the federal act 

# 1 MICSA 25

# US

# C 1735 

# a provides that “In the event a conflict of interpretation 

### between the provisions ofthe 

### Maine ImplementingAct 

### and thisAct should 

### emerge the provisions of this Act shall govern.” 

### The provisions ofthe federal 

### MICSA thus override the 

## MIA provisions 

## when there is a conflict 

### between the 

## two 

# 2 MICSA 25

# US

# C 1725 

# e

# 1 provides that tribal approval is required for

### any amendments to the 

## MIA that relate to “the enforcement or application of civil criminal or regulatory laws” of the tribes

### and the state within their respective jurisdiction or the allocation of responsibility orjurisdiction over governmental matters 

### between the tribes

### and the state

This report 

### reviews 

# 1 The emerging conflict of interpretation 

### over the saltwater fishing rights of the 

### Passamaquoddy Tribe beginning in 

## 1983 shortly after the Settlement Acts 

## became law 

# 2 The evidence of 

### good faith negotiations 

## among the 

### Passamaquoddy Tribe the 

### Maine Department of

### Marine Resources 

# DMR and Governor King’s administration to arrive at a solution

1 Originallythe 

### MITSC included representation 

### from the 

### Passamaquoddy Tribe Penobscot Indian Nation 

### and the State of 

### Maine It 

### was amended in 

### 2009 to include the Houlton 

### Band of Maliseet Indians8 

# 3 State 

### law enforcement responses in 

### Passamaquoddy territory 

## and subsequent criminal charges 

### brought against 

### Passamaquoddy fishers 

# 4 The Passamaquoddy response to jurisdictional disputes 

## and resulting litigation 

# 5 The passage of state legislation regarding the 

## management of the 

### Passamaquoddy saltwater fishery 

## LD 

# 2145 6 The role of the 

### Maine Office of the Attorney 

### General as advisor to the 

### Maine legislature

## when they consider 

## new lawthat

## mayimpact the 

### Maine Implementing

## Act

The MITSC ‘s charge to further 

### examine and report 

### on the 

### Passamaquoddy saltwater fishery 

### was specifically included in 

## LD2145 and reads in part 

### The Maine Indian TribalState Commission shall study any question or issue regarding the taking of marineresources by 

### members of the 

### Passamaquoddy Tribe 

### and the Penobscot 

### Nation The commission shall report any findings 

### and recommendations to the Joint Standing Committee 

### on Marine Resources by 

### December 

## 15 1998 To carry out this 

### charge the 

### MITSC formed a Marine Resources 

## Ad Hoc Committee charged with 

### making recommendations on marine resource issues to the full 

### commission The MITSC issued its report to the Joint Standing 

### Committee on Marine Resources as 

### mandated on December 

## 15 1998 The report Taking of Marine Resources by 

### Passamaquoddy and Penobscot Tribal 

### Members indicated that marine resource issues

### were likely to be ongoing 

### and stated that “

### The 

## Ad

## Hoc committee will discuss these issues 

### and questions undertake 

### any research required 

### and bring forward the issues 

### and questions as agenda topics forthe meetings of 

### MITSC MITSC will share 

### any findings 

### and recommendations with the Joint Standing 

### Committee on Marine Resources 

### and the Tribal Councils.” 

## Addendum 

# 1

In the preparation of this report the 

### MITSC conducted 

### an extensive search for

### and a comprehensive review of primary material available in the public 

### domain The primary 

### documents examined by the 

### MITSC 

## were for the 

### mostpart State of

### Maine records While this report focuses specifically 

### on the saltwater fishery

### one of

## many areas of interestto the 

## MITSC more materialsfrom these 

### and other federal 

### and tribal sources 

### need to be comprehensively 

### examined in order to fully assess the tribal state relationship relative to the settlement acts Relying 

### on both its statutory responsibility in 

### 30

# MRS

# A 6212

# 3 and its charge pursuant to 

### 12

# MRS

# A 6302

# A the 

### MITSC offers the following report9 Section 

## I Emergence of 

### the Conflict 

## and Attempts to 

### Resolve Saltwater Fishery Issues 

### Passamaquoddy Bring 

### EmergingSaltwater Conflicts to the 

## MITSC A review ofthe 

### MITSC minutes reflects that the 

### Passamaquoddy Tribe 

### began raising the saltwater fishing issue as earlyas 

### 1984 

## Addendum

# 2 The MITSC’s participation inthe resolution of saltwater fishery

### and marine resource issues relative to the 

### MICSA and the 

## MIA commenced in earnest in 

### 1994 

## when at the request of the 

### Passamaquoddy Tribe the 

### MITSC hosted 

### and staffed a meeting attended by Cliv 

## Dore Passamaquoddy governor at Pleasant Point Fred 

### Hurley MITSC commissioner State of

## Maine and William 

### Brennan commissioner ofthe 

# DMR A set of notes taken 

### by then 

### MITSC Executive Director Diana Scully during this meeting reflect the following issue areas 2 

## Addendum 

# 3 1 Passamaquoddy saltwater licensing provisions 

# 2 Increased 

## DMR law enforcement presence in 

### Downeast Maine resulted in the first arrest of a 

### Passamaquoddy fisherforfishing without a license 

# 3 Dealers 

### were not buying 

### Passamaquoddy harvested clams because 

### Passamaquoddy harvesters 

### were not licensed 

### bythe state 

# 4 Regulatory restrictions 

### on the sea urchin fishery that 

### were passed 

### by the 

### Maine State Legislature without consultation with the 

### Tribe Although the parties disputed the extent of the Tribe’s reach in regard to the saltwaterfishery the notes reflect that the Tribe

### and the 

## DMR were in agreement that saltwater issues

### were not addressed in the 

### MICSA or the 

## MIA Yet they 

### came to opposing conclusions about 

## how to apply that fact to the determination of 

### Passamaquoddy saltwater fishing rights


### The notes 

### summarizenext steps Governor 

### Dore would put 

### Maine Assistant Attorney General 

# AAG Tom Harnett in touch with tribal attorneys at the Native American Rights 

### Fund 

# NARF in Colorado to discuss sustenance in aboriginal matters 

### vs commercial fishing with respect to licensing 

### and the 

## DMR would ask

## AAG Harnett to clarify the state’s interpretation of the Settlement Acts 

### and potential statutory changes in commercial fishing Increasing Tension 

## 1994 1996 Between 1994 and 

## 1996 tension surrounding this issue increased until 

### on October 

## 25 1996 Passamaquoddy Governor 

### Dore issued 

### an order to the Pleasant Point 

### Passamaquoddy Police ChiefJoseph 

### Barnes directing 

### him to “intervene in any actions 

### by any 

### and all 

### person

# s or entity interfering with our people pursuing their Aboriginal Rights to harvest 

### from our Territorial Seas with the strongest possible response.” 3 

## Addendum 

# 4 This order resulted in a 

### December

# 3 1996 letter

### from the 

### DMR’s Director of 

## Law Enforcement Joseph 

# E Fessenden advising Governor 

### Dore that the “

### Marine Patrol 

### would fully enforce all laws of 

### Maine and that any obstruction of justice of a 

### Marine Patrol officer in the course of his duties 

### by any

2 

### MITSC Notes taken by Diana Scully 

# 1121 94 

## Addendum 

# 3 3 Cliv 

### Dore Tribal 

### Governor Interoffice 

## Memorandum to Joseph 

### Barnes Chief of Police October

## 25 1996

## 10 individual including Tribal Police officers will 

### be referred forcriminal prosecution 

### and for any appropriate civil action.” 4 Fessenden 

### went on to suggest a meeting 

### on December 

## 12 1996 to discuss the October 25th “

## memoand underlying saltwater fishing issues.”5 

## Addendum 

# 5 The MITSC was unable to locate evidence of the suggested 

### December meeting or

### any subsequent meetings 

### between the Tribe 

### and the 

# DMR
The 1997 “Task Force 

## on TribalState Relations” 

### The January

## 15 1997 final report of the Task Force 

### on TribalState Relations At 

### Loggerheads— the State of 

### Maine and the

### Wabanaki identified seven areas of conflict including three that reflect the concerns in this inquiry differing views 

## on treaties 

### and aboriginal rights marine issues 

### and sustenance fishing 6 At Loggerheads also indicated that the 

### MITSC minutes reflected that “

### Passamaquoddy concerns about 

### marine issues” 

### were discussed in seven meetings during five separate years7 

### LD 273 “

### Resolve Directing the 

### Commissionerof 

### Marine Resources to Negotiate with the 

### Passamaquoddy Tribe Regarding Fishing Rights” 

### Pembroke Representative to the 

### Maine State Legislature Albion 

## Goodwin became concerned that the 

## DMR was not negotiating with the 

### Passamaquoddy Tribe 

## On January

## 21 1997 he introduced 

## LD 273

## A Resolve Directing the Commissioner of Marine Resources to Negotiate with the 

### Passamaquoddy Tribe Regarding Fishing Rights 

## Addendum 

# 6 LD 273 introduced as 

### emergency legislation directed the 

### Commissioner of Marine Resources to request meetings with 

### Passamaquoddy leadership to discuss the Tribe’s claims to fish in coastal waters 

### and to 

### work out 

### an agreement The bill 

### had its public hearing 

### on January

## 30 1997 Eleven people testified at the hearing 

### Ten testified in favor ofthe bill with 

### Penn Estabrook 

### Deputy Commissionerof Marine Resources testifying against the bill saying “Because there is a

### good faith effort in negotiations 

### underway

it is our sense that the proposal serves 

### no purpose 

### and 

## maycloud the very process 

## we are involved in.” 8 

## On February 

# 6 1997 John Kelly legislative analyst from the Office of Policy 

### and Legal Analysis



## OPLA for the Joint Standing 

### Committee on Marine Resources 

### summarizedthe testimony

### on 

## LD 273 Addendum 

# 7 He recorded the following 

## among the 

### comments ofthe 

### proponents coastal fishing rights

### were not discussed in the 

## MICSA Governor King 

### had led the Tribe to believe there

### would be a meaningful 

### agreement the Tribe’s traditional ability to harvest 

### from the sea is questioned the inherent right of the 

### Passamaquoddy to harvest 

### from the 

### sea lack of 

### good faith 

### on the part of state policymakers the 

### need for legislative oversight the Tribe’s

4 Letter 

### from Joseph 

# E Fessenden to Pleasant Point 

### Passamaquoddy Governor Cliv

## Dore December

# 3 1976 5 ibid 6 

### The Joint Task Force

## on TribalState Relations “At 

### Loggerheads— the State of 

### Maine and the Wabanaki,” 

## p

# 11 12 7 Ibid 

## p 16 8 Testimony of

# E Penn Estabrook 

### Deputy Commissionerof Marine Resources January 

## 30 1997

## 11 need to issue its 

## own licenses that are as stringent or

## more stringent than the state’s the 

### Passamaquoddy are a unique 

### people the negotiations 

### have involved 

### two separate cultures trying to talk with each 

### other the importance the 

### Passamaquoddy give to the 

### spoken word over the written 

## word and the lack of evidence that the 

### Passamaquoddy signed 

### away their fishing rights

# Mr Kelley recorded the following 

### two points 

## made by

# DMR in opposition to the bill the 

## DMR had negotiated in 

### good faith 

### and the 

## DMR had dealt with the issues 

### The Joint Standing 

### Committee on Marine Resources 

### amended 

## LD 273 on February 12th to direct the 

### Commissioner of Marine Resources to file a report 

### on the status of their negotiations with the 

### Passamaquoddy Tribe with the committee by 

## May 

# 1 1997 On February 13th 

## LD 273 was voted out of committee as “Ought to Pass as 

### Amended.” Twelve Committee members voted in favor ofthe bill with Senator 

### MacKinnon recorded as 

### absent

## LD273 as 

## amended passed the 

### House and the Senate 

### and became effective 

### on March 

## 28 1997 Meeting the 

### Requirements of 

### LD 273 118th Legislature 

### The Department of 

### Marine Resources 

### Report 

## On April

## 24 1997 Robin Alden 

# DMR Commissioner summarized the 

### outcomes of the discussions 

### between the 

### Passamaquoddy Tribe 

### and the 

## DMR in a letter 

## Addendum 

# 8 to 

### Passamaquoddy governors Cliv 

### Dore of Pleasant Point 

### and Richard Stevens of Indian 

### Township The letter outlined a 

## DMR draft proposal subject to legislative approval to resolve the saltwater fishery conflict 

### DMR’s proposed legislation

### was offered as a starting point for negotiations 

### The 

## DMR stipulated that all commercial fishermen including 

### members ofthe 

### Passamaquoddy Tribe 

### had to be subject to the 

### same conservation laws “concerning 

### time method and manner of harvesting the resource.” 9 

### The proposal included provisions fora joint State of 

### Maine and Tribal Council License the Tribe could issue a license in addition 

### to but not as a replacement for a State of

### Maine license 

### The Passamaquoddy licenses 

### would be regulated as 

### an internal tribal matter 

### and could only be available to 

### Passamaquoddy citizens but a 

### Passamaquoddy citizen could also get a license directly 

### fromthe state 

### Even though the 

## DMR acknowledged the 

### Passamaquoddy authority to issue commercial fishing licenses along with the state the 

## DMR expected that only they 

### would have license revocation authority 

### The 

## DMR agreed to

### work with the Tribe to eliminate barriers fortribal fishersto 

### meet commercial qualifications 

### and to collaborate 

### on a species 

### by species review ofthe personal use provisions for marine resources already preserved in 

## law 10 

## On May 2nd Robin 

### Alden Commissionerfor 

### Marine Resources filed a 

### three paragraph report with the Joint Standing 

### Committee on Marine Resources 

### The report referenced the requirement to report 

### on the status of negotiations with the 

### Passamaquoddy Tribe in 

## LD 273 and attached a copy of her April 24th letter to the 

### Passamaquoddy governors 

## Addendum

# 9 and the 

### DMR’s proposed legislation

9 Letter 

### from Robin Alden to the 

### Passamaquoddy governors April

## 24 1997 10 Ibid

## 12 Government toGovernment Negotiations 

### By June 

# 1 1997 thirteen 

### Passamaquoddy 

## who were participating in various saltwater fisheries

### under the 

### Passamaquoddy Tribe’s 

### management were charged with a 

### numberof violations of state 

## law Negotiations 

### between the Tribe 

### and the State stalled again At this point the Tribe circulated proposed legislation to resolve the conflict 

### and protect the Tribe’s sustenance activities 

### and their jurisdiction over commercial fishing enterprises 

## Addendum 

# 10 Governor King 

## moved to advance a resolution ofthe saltwater fishery conflict 

### by meeting directly with both 

### Passamaquoddy governors 

### on October 

# 2 1997 in 

### Bangor and then travelling to Pleasant Point 

### on October 

## 14 1997 to 

### meet with 

### Passamaquoddy Governor Rick Doyle 

### and the Pleasant Point 

### Passamaquoddy Tribal Council thus establishing direct 

### government

## togovernment negotiations In an October 

## 21 1997 letter to both 

### Passamaquoddy chiefs Governor King offered to 

## name a 

### team of senior officials to negotiate with the Tribe 

### and to pay for a mutually acceptable facilitator to advance the negotiations 

## Addendum 

# 11 Gov King 

### went on to say that 

### any arrangement 

### must 

## be “Consistent with the fundamental 

### framework ofthe 

### MILCSA sic).” 11 King agreed to have his staff review the Tribe’s proposal 

## and in 

### turn he requested that they review the 

# DMR proposal offered by Robin Alden in her April 24th letter 

## He suggested that these 

### two proposals be the focus of their first 

### meeting Additionally 

## Gov King 

## made it very clear that he 

### would not intervene in the prosecution of 

### Passamaquoddy fishers

### and that the legislation 

### would not address any violation of existing 

### Maine state 

### law 12 

# We could find 

### no record of

### any negotiations resulting 

### from 

## Gov King’s intervention

11 October 

## 21 1997 Letter

### from Governor 

### Angus King to both 

### Passamaquoddy Governors Rick Doyle Pleasant 

### Point and Governor Richard Stevens Indian 

## Township 12 Ibid 

### p2

## 13 Section II 

### Defending 

## Passamaquoddy Saltwater Rights in 

## Court State 

# v Beal

State 

# v Beal 

### The Passamaquoddy Tribe hired an attorney to defend the 

### Passamaquoddy fisherscharged in June of 

### 1997 and the 

### 13 cases 

### were joined into 

## one State 

## v Beal The defendants filed a 

### motion to dismiss the case based 

## on lack of subject matterjurisdiction13 over 

### Passamaquoddy Tribe fishers 

### They raised the federal protection of the 

### Passamaquoddy Tribe’s inherent authority citing the 

## US Senate 

### Committee Reports 

### from 1980 priorto the passage of the 

### MICSA that characterized the jurisdictional provisions of the Settlement 

## as An innovative blend of customary state 

### law respecting units of local 

### government coupled with a recognition of the independent source of tribal authority that is the inherent authority of a tribe to be selfgoverning Santa Clara Pueblo 

## v Martinez 

### 436 

# US 49 

## 1979 as quoted in

## S Rep supra at

## 29 emphasis 

### added in the 

### Passamaquoddy brief The Passamaquoddy brief 

## Addendum 

# 12 further asserted that saltwater fishing 

### was never addressed during the Settlement negotiations 

### By initiating these criminal cases it is apparent that the State claims that Congress gave it the 

### power to enforce state 

### law against 

### Passamaquoddy tribal 

## membersengaged in salt water fishing 

### The Defendants maintain that they have aboriginal or implied treaty fishing rights in the salt 

### water property rights 

### which were not extinguished in the Settlement 

### Act and therefore remain federally protected Although 

### no express 

### mention of salt water fishing appears in the Settlement 

### Act Defendants maintain that Congress clearly intended that matters vitally affecting the survival of tribal culture 

### were to 

### be an area of continuing tribal jurisdiction 14 This quote 

### was footnoted explaining that jurisdiction 

### on this issue 

### was a political issue not addressed in the Settlement Act 

## and as 

### such required the application of the 

### amendment provisions in

### 25

# USC 1725 

# e1 This briefdated 

### December 

## 13 1997 included an attached copy ofthe Tribe’s proposed legislation 

### from October 

# 1 1997 Judge John 

## Romei writing for the Fourth District Courtof State of 

### Maine rejected the 

### Passamaquoddy motion to dismiss the cases finding that the State 

### had jurisdiction over any violation of

### marine resources 

### laws 

## Addendum 

# 13 His decision rested 

## on two points of

## law 30

# MRS

# A 6204 Laws ofthe State to Apply to Indian 

## Lands and 30

# MRS

# A 6206.1



### Powers and Duties ofthe Indian Tribes Within their Respective Indian Territories General 

## Powers Links for all ofthe case 

### law referenced in this section will 

### be found in

### Appendix II

13 Subject matterjurisdiction is the requirement that the court have 

### power to hear the specific kind of claim that is brought to that court 14 

## Memorandum in Support of Defendant’s Motion to Dismiss State of 

### Maine

## v Beal

## 14 30

# MR

# S

# A 6204 in Deciding State 

# v Beal 

### Even though Judge 

### Romei acknowledged that both the 

## MIA and MICSA are “silent

### on the expressed issue of saltwater fishing rights,”15 he accepted the state’s 

### argument that the 

## MIA in 

### 30

# MRS

# A 6204 subjects “all Indians 

### and natural resources 

## owned by 

### them to the laws of 

### Maine and to the civil 

### and criminal jurisdiction ofthe courts except as provided inthe Act.” 16 Judge 

### Romei concluded that legal precedent resulting 

### from two earlier cases 

### Passamaquoddy Tribe 

## v State of 

### Maine and Penobscot Nation 

## v Stilphen 

### bound 

## him In both of these cases 

### 30 

# MRS

# A 6204 was cited to uphold the state’s jurisdiction over the subject matter ofeach lawsuit Therefore Judge 

### Romei relied 

### on 30

# MRS

# A 6204 to terminate “any inherent salt water fishing rights concerning 

## non reservation lands,” 17 

### and thus held 

### Passamaquoddy fishersto state 

## law

Public 

## and Legislative Discourse 

## on 30

# MRS

# A 6204 in 

### 1997 Exactly 

### one year earlier

### on January 

## 15 1997 the 

### Task Force 

### on TribalState Relations 

### Task Force issued its report At Loggerheads 

## Among its “Findings 

### and Analysis” the 

### Task Force looked at “Assimilation 

### and Sovereignty.” In this section it specifically looked at

### 30

# MRS

# A 6204 and heard testimony 

### Edward Bassett

### from the 

### Passamaquoddy Tribe at Pleasant Point explained “Section 

### 6204 refers to the laws of the State applying to the Tribes This is not self determination This is 

### an erosion of sovereignty 

### and should be amended.” 18

## Tom Harnett 

## AAG forthe State of

## Maine also found problems with the section “People never 

### want to talk about section 

## 6204 but there 

### mustbe an honest look at this especially since this is a section the State relies

### on over 

### and over again This 

### must be discussed if one party does not agree with it.” 19 At 

### one point the 

### Task Force even considered a proposal 

### recommending the repeal of

## 30

# MRS

# A 6204.20 Additionally 

### MITSC minutesdated June 

# 5 1997 read 

## Addendum 

# 14

Chair 

### Richard Cohen21 indicated that the major issue in 

### 1980 

## was the land claims very little else 

### was addressed other than section 

# 6204 the Settlement 

### was not intended to 

## mean that salt water rights 

### were not negotiable in the future there 

### was never any discussion about assimilatingthe culture 

### and MITSC was set 

### up to deal with all ofthese issues 

## He noted that the state negotiators 

### had all they could 

### do to extinguish the land claims 

## He said 

### MITSC could look at 

### and recommend things that should not be subject to section 

### 6204 and a big step forward 

### would be to have actions by the state affecting the tribes 

### come before 

## MITSC

15 State 

## v Beal p 

## 2 16 Ibid 

## p

# 3 17 State 

## v Beal 

## p

# 56 18 At Loggerheads January 

## 15 1997 p 18 19 Ibid 

## p 18 20 ibid 

## p 18 “

## One recommendation proposed for consideration 

### bythe 

### Task Force 

### was the repeal of Section 6204.” 21 Richard 

### Cohen was Attorney General forthe State of

### Maine at the timeof the 

### Maine Indian Claims Settlement Negotiations 

### and through the crafting ofthe 

## MIA and 

## MICSA

## 15 When the Task Force considered 

### recommending the repeal of

## 30

# MRS

# A 6204 Evan Richert the director ofthe 

### Maine State Planning Office 

### and a state representative 

## on the 

### 1997 Task Force 

### on Tribal State Relations 

### had this to 

### say Sovereignty stirs passion 

### and fear 

### on both sides Before the State 

### moves on this it has to think through all of the implications Sovereignty cuts across

## manyways and raises implications forothers For

### examplewhat are the implications for land 

### and water outside the reservation 

### and what are the implications for the Federal 

### Government with respect to 

## Maine I 

## am willingto think through these issues

### though If it is 

### assumed that there should 

### be sovereignty 

## we need to 

## know what this 

## means I’m not arguing 

### whether sovereignty is 

### good or

## bad 22 Ultimately the Task Force did not 

### recommend the repeal of 

### 30

# MRS

# A 6204 In 

## 1997 the 

### Passamaquoddy Tribe introduced 

## LD 956 “

## An Act to Repeal the 

## Law Providing the State 

### Laws Apply to Indian Lands.” While 

## LD 956 did not 

### pass

## LD 1269 enacted in the First Special Session 

## 1997 “Resolve to Foster the SelfGoverning 

### Powers of Maine’s Indian Tribes in a 

### Manner Consistent with Protection of Rights 

### and Resources ofthe General Public” did include a provision requiring the 

### MITSC to “consider the concerns that gave riseto the legislation proposed 

### bythe 

### Passamaquoddy Tribe to

## amend the Act to 

### Implement the 

### Maine Indian Claims Settlement 

### and determine 

## how those concerns 

## may be addressed.” 23


### 30

# MR

# S

# A 6206.1 Internal Tribal Matters 

## and State 

# v Beal 

### The Passamaquoddy defendants also argued that licensing Tribe 

### members to engage in commercial saltwater fishing 

### was an internal tribal 

### matterAgain Judge 

### Romei ruled against the Tribe utilizing the 

### framework for determining 

### an internal tribal matter that 

### was laid out in Akins 

## v Penobscot Nation 

### November 

## 17 

## 1997 in

### which the

# US Court of

### Appeals First Circuit found that the 

## MIA not federal Indian 

## common law must guide the determination of 

### what 

## was an internal tribal 

### matter To further bolster his conclusion Judge 

### Romei referred to Fellencer

## v Penobscot 

### Nation Fellencer

## was an employmentcase 

### where the 

### Maine Superior Court ruled that

### employment matters did not fall 

### under the internal tribal matters provisions of the 

## MIA On January 

## 19 1999 Fellencer 

### was reversed 

### on appeal to the 

# US Courtof Appeals First Circuit 

### and the case 

### was remanded forthe entry ofjudgment in favor of the Penobscot Indian 

### Nation 30

# MR

# S

# A 6206.1 Recognition of Licensing as 

### an Internal Tribal 

### Matter in Negotiating a Solution to the 

### Passamaquoddy Saltwater Fishery Conflict 

### The MITSC inquiryinto the 

### Passamaquoddy Saltwater Fishery Conflict 

### documents 

## how from 

### 1994 to 

## 1997 both Governor King 

### and the 

# DMR recognized that the issuance of saltwater licenses 

### was an internal tribal matter throughout their negotiations with the 

### Passamaquoddy Tribe while maintaining the state’s right to regulate as well This concept 

## was included in the 

### 1997 proposed legislation offered by Robin Alden in herApril 

## 24 1997 letter While the 

## MIA

22 Ibid 

## p 18 23 Resolve 

## c 45 First Special 

### Session— 1997

## 16 is silent

### on the saltwater fishery the regulation of sustenance fishing

### and hunting 

### on reservation land 

### had always 

### been an internal tribal matter 

### 30

# MRS

# A 6207

# 1

The 1980 State of 

## Maine Legislative 

### Record 

## on the 

### Maine Indian 

### Land Claims

## and State 

# v Beal In a footnote referencing the years of negotiations that resulted in a settlement to the 

### Maine Indian 

### Land ClaimsJudge 

### Romei quoted 

## AG Richard Cohen’s testimony before Maine’s Joint Select 

### Committee on the 

### Land Claims the Select 

## Committee The footnote refers to 

### one of Cohen’s answers to a set of questions posed 

### bythe Select 

### Committee 

## Addendum 

# 15 dated April

# 2 1980 when he 

### was Maine Attorney General 

### The Select 

### Committee had asked 

### Cohen to offer his opinion 

### on a set ofquestions that 

### had come up during the course of the development ofthe 

## MIA When asked “

### What is the effect of the settlement 

### on State 

### and Federal authority over coastal or 

### marine resources?” 

### Cohen had answered that the Pleasant Point 

### Passamaquoddy Tribe could regulate shellfish gathering 

### on 

## mud flats that

### were adjacent to 

### Passamaquoddy land likening the Tribe’s 

### power to that of a municipality Richard 

### Cohen also 

### opined “

### The tribes will have 

### no other rights in coastal or marine resources than any other person or entity they 

### have no more rights inthe coastal lands or

### marine resources than 

### any other person.” 24 Judge 

### Romei cited this

### answer as evidence the state 

### had subject matter jurisdiction over the Tribe’s rights in saltwater fisheries in the 

### same

## way that the state 

### would have jurisdiction over 

### any municipality

In answering the Select Committee’s 

### query Richard 

### Cohen focused specifically 

### on the 

### management of

## clamflats in coastal lands adjacent to Pleasant Point 

### and thus did not address the largerissue of the Passamaquoddy’s reserved right to 

### manage their saltwater fishery

# We
can find 

### no evidence in the legislative record that the saltwater fishery issue 

### was discussed at any other time during the Settlement Act negotiations Cohen’s answers to the Select Committee’s questions referred to 

### above were included in the 

### 1980 “

## REPORT OF THE JOINT 

### SELECT 

## COMMITTEE ON INDIAN 

## LAND CLAIMS RELATING 

## TO LD 2037

‘

## ANACT to Provide for Implementation of the Settlement Claims by Indians in the State of 

### Maine and to Createthe 

### Passamaquoddy Indian Territory 

### and Penobscot Indian Territory.’” 

### The Select 

### Committee was comprised of ten state representatives 

### and three state senators 25 This ad hoc committee 

## was tasked with gathering information about the 

### Maine Indian Claims Settlement hearing 

### and recording public testimony 

### and communicating its final report 

### and recommendations to the state 

### and federal 

### governments it 

### was chaired by Senator 

### Samuel

# W
Collins

### and Representative 

### Bonnie Post

In their report the Select 

### Committee offered their understandings about 

## how the 

## MIA would be 

### implemented This report along with the committee’s queries 

### and Cohen’s responses 

### were sent to the 

# US Senate where they 

### became part ofthe legislative record 

### documenting the development ofthe 

## MICSA The report 

### was also submitted to the 

### Maine State Legislature 

### and

24 

## Memorandum dated April

# 2 1980 from Attorney General Richard 

## S Cohen to the 

## Maine Joint Select 

### Committeeon Indian 

### Land Claims 25 

### Even though both 

### Passamaquoddy and Penobscot Tribal Representatives 

### were seated in the 

## House neither

### was appointed to the Select 

### Committee

## 17 the 

### Maine 

## Law and Legislative Reference Library 

### The Select Committee’s report 

### was among hundreds of

### documents reflecting both state 

### and tribal positions that comprise the congressional record of the 

## MICSA Fundamental conflicts regarding tribal fisheries are reflected in policy development 

### and subsequent interpretations of the 

## law In a 

### 1997 letter to the 

## EPA Addendum 

# 16 Edward 

## Cohen Deputy Solicitor forthe

# US Department of the Interior characterizes aboriginal fishing rights as reserved rights ratherthan a grant of rights 

### by the State of 

### Maine and articulates the federal position 

## when he states According to the legislative history of 

## MICSA fishing rights are 

### an example of natural resources considered “expressly retained sovereign activities.” 

# HR Rep 

# No96 1353 at p 

# 151980 reprinted in 

### 1980

# US

# C

# CA

# N 7186 

## p 379126 emphasis in the original Additionally 

### MITSC records dated 

### March 

# 5 1997 

## Addendum 

# 17 indicate that

## when asked 

### whether the Settlement negotiations 

### encompassed saltwater rights Richard 

### Cohen 

## now the chair ofthe 

## MITSC issued the following clarification

It is 

## my recollection that salt water rights 

### and issues

### were not discussed during the settlement negotiations 

### These are legitimate issues for discussion 

## now 27

26 

### September 

# 2 1997 letter

# To John DeVillars Region 

## 1 AdministratorEnvironmental Protection 

### Agency 

## From Edward 

## Cohen Deputy Solicitor United States 

### Department ofthe Interior 

## p

# 5 Addendum 

# 16 27 Fax

### from Diana Scully to 

### Mike Best 

### March 

# 5 1997 

## Addendum 

# 17

## 18 Section III 

### Looking for

## a Legislative Solution 

### LD 

## 2145 118th Legislature 

## An Act Concerning the Taking of 

### Marine Resources 

### by 

## Members of the 

### Passamaquoddy Tribe In early January 

## 1998 while the 

### Passamaquoddy Tribe 

### was waiting forJudge 

### Romei to rule 

### on their

### motion to dismissthe criminal cases brought against tribal fishers in State of 

### Maine

## v Beal 

### Passamaquoddy Tribe Representative Fred 

### Moore submitted the draft legislation produced 

### by the 

### Passamaquoddy Tribe after negotiations with the 

## DMR and referenced in Governor King’s October 

## 21 1997 letter to the 

### Passamaquoddy chiefs 

## asAn Act Concerning the Taking of Marine Resources by 

### Members of the 

### Passamaquoddy Tribe 

### The bill 

### was 

## co sponsored 

### by Representatives 

### Goodwin of

### Pembroke Jones of Bar 

### Harborand Perkins of 

### Penobscot See 

## Addendum 

# 10 Representative 

### Moore explained the purpose ofthe legislation “

### The bill is calling for state recognition of tribal authority to issue its 

## own licenses to its 

### members it is intended to be a compromise.” 28 

## Addendum 

# 18 When he introduced the bill he 

### had strong support

### from the 

### Passamaquoddy Tribe’s leadership as evidenced in the record ofthe public hearing 

### on 

## LD 2145 

## Addendum 

# 19 and the notes taken 

### by

## OPLA analyst John Kelly 

## Addendum 

# 20 This proposed legislation 

## LD2145 acknowledged the 

### Passamaquoddy Tribe’s jurisdiction over saltwater fishing 

### and required the development ofa TribalState 

### compact The provisions included the following 

### terms 

# 1 The Passamaquoddy were authorized to take 

### marine resources 

### under the terms ofa licensing 

### compact to 

### be negotiated 

### between the state 

### and the 

### Passamaquoddy Tribe 

# 2 Until the compact 

### was achieved 

### no state license 

### would be required but 

### Passamaquoddy fishers

### would adhere both to State of

### Maine conservation measures 

### and an alternative regulation to 

### be determined by the 

## MITSC 29 

# 3 Tribally issued licenses 

### would be recognized for the taking transport 

### and sale of 

### marine resources 

# 4 Any Tribe 

## memberwith a 

### Passamaquoddy tribal identification card could take marine resources forsustenance 

# 5 Any Tribe 

## memberauthorized 

### by Passamaquoddy government could take marine resources forceremonial 

## use 

# 6 Enforcement ofthe compact provisions 

### on Passamaquoddy fishers fell exclusively to the 

### Tribe 

# 7 Any resource gathered in violation of

### Passamaquoddy tribal code 

### would be forfeited to the 

### Tribe 

# 8 The law 

### would be retroactive to June 

# 1 1997 the date ofthe 

### Passamaquoddy arrests

28 

### Baldwin Letitia “Tribe seeks to issue 

## own fishing licenses,” 

### The Bangor Daily

## News January 

# 9 1998 29 

### The reference to the 

### MITSC regulatory authority is unclear but 

### seems to indicate that if 

### compact negotiations stalled the 

### MITSC would develop interim operating regulations until negotiations 

### were completed This 

### stopgap measure would assure that 

### Passamaquoddy fishers

### would be able to fish if 

### compact negotiations extended into the lobster elver 

### and urchin seasons beginning in late 

### March of 

## 1998

## 19 Bill 

### Approved for Introduction with 

## Added Tribal Approval Provisions 

## An Act Concerning the Taking of Marine Resources 

### by Members of the 

### Passamaquoddy Tribe 

## LD 2145 

## Addendum 

# 21 was approved 

### bythe Reviser of Statutes for introduction pursuant to Joint Rule 

### 203 Cloture for Legislators at the 

### Second Regular 

### Session and referred to the 

### Committee on Marine Resources 

### on January 

## 20 1998 The Reviser of Statutes determined that
it 

### was necessary to 

### add a 

## new section 3 that required 

### Passamaquoddy Joint Tribal Council approval before the 

### law could take effect 

### and read
This Act does not take effect unless the Secretary of State receives written certification by the Joint Tribal Council ofthe 

### Passamaquoddy Tribe that the tribe has agreed to the provisions of this 

### Act copies of

### which must be submitted 

### bythe Secretary of State to the Secretary of the Senate 

### and the Clerk ofthe 

### House The approval requirement in section 3 mirrored the process 

### mandated by federal 

### law the 

## MICSA forall 

### amendments to the 

## MIA 25

# US

# C 1725 

# e

# 1 which reads 

# 1 The consent ofthe United States is hereby given to the State of 

### Maine to 

## amend the 

### Maine Implementing Act with respect to eitherthe 

### Passamaquoddy Tribe or the Penobscot 

### Nation Provided That such 

### amendment is 

## madewith the agreement of the affected tribe or nation 

### and that such 

### amendment relates to 

# A the enforcement or application of civil criminal or regulatory laws of the 

### Passamaquoddy Tribe the Penobscot 

### Nation and the State within their respective jurisdictions 

# B the allocation ordetermination ofgovernmental responsibility of the State 

### and the tribe or nation over specified subject matters or specified geographical areas or

### both including provisions forconcurrent jurisdiction 

### between the State 

### and the tribe or nation or 

# C the allocation of jurisdiction 

### between tribal courts 

### and State courts
This 

## new section 

### was an early

### acknowledgement that

## LD 2145 constituted 

### an amendment to the 

## MIA LD 2145 Public Hearing 

## On February 

## 10 1998 at the public hearing for 

## LD 2145 17 people testified 

### on the bill Only three testified in opposition Laura Taylor read 

### Penn Warren’s Acting 

### Commissioneron Marine 

### Resources testimony

### on behalf of the

# DMR Colonel Joe Fessenden 

# DMR is also listed as testifying against 

## LD 2145 although 

## we find 

### no record of his 

### commentary The 

## OPLA records also include a letter from 

## Norman Lemieux a private citizen of Cutler

# ME DMR opposed the legislation alleging that the 

## MIA extinguished saltwater fishing rights that this issue 

### had not 

### been fully reviewed by the 

## MITSC and finally that they 

### were concerned that the Tribe might not adhere to conservation regulations 

## Norman Lemieux objected to allowing tribal fishers to participate in the lobster

### and urchin industries 

### Fourpeople testified in the

“neither for nor against” category including 

### Donna Loring Penobscot Indian Nation Tribe Representative 

### and Greg 

### Sample the attorney of record for the 

### Passamaquoddy defendants in State 

## v Beal

## 20 At the public hearing 

### Passamaquoddy testimony

## was extensive 

# We include the following quotes as evidence of the importance the Tribe assigned to 

## LD 2145 John Kelly the legislative analyst 

### from the 

## OPLA assigned to the Joint Standing 

### Committeeon Marine Resources noted 

## Addendum 

# 20 You limit 

## myaccess to food 

### and limit 

## myfreedom This 

### is 30 a survival issue for

## us 

## I want food 

### on the table of every 

### Passamaquoddy there are only 3,000 of us 

## now

Governor John Stevens of Indian Township 

### Passamaquoddy The Settlement Act 

### is a subtle 

### and legal 

### form of genocide I 

## was part ofthe negotiation committee of the Settlement 

### Act 

## We presumed to take saltwater rights forgranted It didn’t 

## come up This bill is 

### an attempt to resolve a political conflict 

### Wayne Newell Indian Township 

### Passamaquoddy 

## member of the 

### Maine Indian Claims Settlement negotiation 

## team This bill is important to the entire tribe There is 

## much more to the bill than taking 

## fish— the message 

## is recognize difference 

### and respect that difference 

# We are 

### an endangered 

### species— I 

# am fearful 

## who will speak the language 

### The 

## amended 

# 16 b31 sic in 

## the claims 

### act Any future federal legislation for the benefit of Indians will not apply in 

### Maine 

## The harvest ofseafood is critical to 

## the existence of 

## the tribe Just like 

### an eagle hunts to kill it 

### is a

### duty Pleasant Point 

### Passamaquoddy Lieutenant Governor William Altvater 

### The 

## Work Sessions Delimiting Tribal Authority 

## and Redefining Sustenance In its 

## summaryprovided to the Joint Standing 

### Committee on Marine Resources 

## Addendum 

# 22 the 

## OPLA questioned whether conservation regulations 

### would apply to sustenance fishing

### and fishing forceremonial 

### purposes and drew attention to 

### amended language in the proposed bill that limited “sustenance” to the activities oftaking possessing transporting 

### and selling 

### and distributing It is important to note that “taking possessing transporting 

### and selling 

### and distributing” 

### were 

## now in both sustenance 

### and commercial fishing definitions Defining sustenance 

### and commercial fishing through a 

## common set of activities 

### would cause confusion in

## 2014 when the 

# DMR submitted a bill that criminalized all of these activities if the tribefisherdid not hold a tribal license that 

### was authorized by the

# DMR thereby inadvertently criminalizing sustenance saltwater fishing Sustenance is not defined by activity in either the 

### MICSA orthe 

## MIA Even though the 

### word is used inthe 

## MIA 30

# MRSA6207 there is 

### no language limitingsustenance to a set of activities 

### The Report ofthe Joint Select 

### Committee on Indian 

### Land Claims distinguishes sustenance as hunting or fishing for personal 

### consumption or

## use

30 Brackets are author inserted 31 

### Most likely a reference to 

### 25

# USC 1735 

# b Application of Federal law forthe benefit of Indians Indian nations or tribes or

### bands of Indians”

## 21 The provisions relating to Indian sustenance hunting 

### and fishing apply only to hunting or fishing for personal orfamily 

### consumption They do not apply to hunting or fishing to maintain a livelihood or other commercial 

### purpose 32 

## Addendum 

# 23 The limitation of sustenance to certain activities is important because sustenance is specifically protected in the 

## MIA 30

# MRS

# A 6207 

# 146 where it is stipulated that sustenance fishing is subject only to tribal ordinance 

### The 

## MIA does delineate a process to address any adverse effect 

### on a species as a result of tribal sustenance hunting or fishing ordinances 

### The burden of proof in this process rested entirely with the state 

### The process is outlined in 

### 30

# MRS

# A 6207

# 6 and closes with the following 

### paragraph

In 

### any administrative proceeding alleging tribal sustenance fishing regulations are inadequate or require state administrative action under this section the 

### burden of proofshall 

### be on the 

### commissioner33 

### The decision of the commissioner

## may be appealed in the 

### manner provided by the laws of the State forjudicial review of administrative action 

### and shall be sustained only if supported by substantial evidence 

### To date the state has never exercised this provision Specifying tribal sustenance activities in state statute 

## was and is a significant 

### amendment to the 

## MIA The Joint Standing 

### Committee 

## on the Judiciary 

### Determines That 

## LD 2145 

## Amends the 

## MIA On February 

## 25 1998 the Chairs ofthe Joint Standing 

### Committee on the Judiciary issued a 

## memo entitled “

### Amendments to the Act to 

### Implement the 

### Maine Indian 

### Land Claims Settlement” 

## Addendum 

# 24 This 

## memo addressed 

## LD 2145 stating “

## We have determined that if the effective date of legislation is contingent 

### on ratification 

### by the 

### Passamaquoddy Tribe the Penobscot Nation or 

### both that legislation is in effect 

### an amendment to the Implementing Act 

### and should therefore 

## amend Title 30.” 

## Work Session of the 

### Marine Resources 

### Subcommittee 

## on LD 2145 The Creation of 

### 12 

# MRS

# A 6302 A34 

## Amendment

# A

At the 

### March 

# 3 1998 work session the Marine Resources 

### subcommittee on 

## LD 2145 released extensive revisions to the proposed 

## law Addendum 

# 25 1 The compacting requirement 

### was removed 

## and in its place specific 

### and significant limitations 

### were placed 

### on Passamaquoddy fishers’ participation in the lobster crab 

### and urchin fisheries 

# 2 The definition ofsustenance heretofore recognized as 

### an internal tribal matter 

### and left to the 

### Passamaquoddy Tribe to 

### determine 

## was now limited

### by the state to the

32 Report of the Joint Select 

### Committee on Indian 

### Land Claims

# 4280 signed by Senator 

### Samuel Collins

### and Representative Bonnie Post 33 In this

### case the statute refers to the 

### Commissionerof Inland Fisheries 

### and Wildlife 34 

## LD 2145 amended 12

# MRS

# A 6302 by adding a Subsection “A” titled “Taking of marine organisms by 

### Passamaquoddy tribal 

## members LD 2145 was often referred to simplyas

“

## Amendment A” in the notes 

### and records of public 

### debate

## 22 activities oftaking possessing transporting 

### and distributing This left out 

### two components ofsustenance barter 

### and exchange thus impacting the Tribe’s ability to participate in the commercial fishery 

# 3 State conservation regulations 

### were to apply to 

### Passamaquoddy sustenance fishing 

# 4 Sustenance heretofore defined in 

### Passamaquoddy Tribal statute as provided for 

### by the 

## MIA 30

# MRS

# A 6207

# 1 would 

## now be defined instead in 

### Maine state 

### law

## 12 

# MRS

# A 6302Athat governs the taking of marine resources 

# 5 Enforcement ofthe laws governing the taking of 

### marine resources 

### was assigned entirely to the state thus eclipsing tribal authority to enforce its 

## own regulations 

# 6 Sec 

# 3 the 

### MICSA language requiring approval of the 

### Passamaquoddy Joint Tribal Council forthe enactment ofchanges to the 

## MIA was removed from this draft 

# 7 A new section directing 

### MITSC to study 

### any ongoing questions 

### was added 

# 8 The section requiring the 

### Passamaquoddy Tribe approval of

## LD 2145 priorto enactment35 

### was removed with this revision



## OPLA 

# Memo on Amendment 

# A LD 2145 is 

## an Amendment to the 

# MIA On March 

# 9 1998 John Kelly Legislative Analyst forthe Joint Standing 

### Committee on Marine Resources sent a 

## memo to the 

### members of their 

## LD 2145 Subcommittee 

## Addendum 

# 26 in 

### which he writes “Jon Clark OPLA’s attorney reviewed the subcommittee’s proposed 

## amendment aswell asthe federal 

### and state land claims act 

### laws and concluded that the 

### amendment would require ratification of both the state 

### and the tribe.” Addition of the “

## Blowup” Clause to 

## LD 2145 By March 

## 10 John Kelly’s notes reflect that the 

## OAG had recommended a “

## Blowup Clause.” 

## Addendum 

# 27 In legal terms this is a severability clause that 

### means one defect in a contract or law “

### blows up” or destroys the 

### whole ora part of

### any contract or 

## law36 

### The 

## blowup clause replaced the 

## MIA language requiring the 

### Passamaquoddy Tribe’s approval of

### any amendments to the Settlement Act in 

### Sec 3 

### and read
This Act is not 

### an amendment to the 

### Maine Revised Statutes Title 

### 30 chapter 

## 601 An Act to 

### Implement the 

### Maine Indian ClaimsSettlement 

### and is not subject to ratification by the 

### Passamaquoddy Tribe pursuant to United States 

## Code Title 

## 25 Section 

### 1725



# e1 If a court of competent jurisdiction finds that this Act or any portion of Title 

## 30 chapter 60137 so as to constitute 

### an amendment to Title 

## 30 chapter 

## 601 thisAct or that portion of this 

### Act if separable that constitutes an 

### amendment to Title 

## 30 chapter 

### 601 is 

### void

In other

### words if 

## LD 2145 were found 

### bya “competent court of law” to 

### be an amendment to the 

## MIA the portion of the law affected orthe 

### whole law 

### would bevoid In this 

### case the “

## blow

35 Since this law only affected the 

### Passamaquoddy Tribe only the 

### Passamaquoddy Tribe’s approval 

### was needed 36 Michael 

### Dorf Robert 

## S Stevens Professor of

## Law Cornell University The Puzzling Insistence on a 

## Non Severability Clause June 

## 27 2011 37 

### Maine ImplementingAct 

# MIA

# MRS

# A Title 

## 30 Chapter 

## 601

## 23 up” clause allowed the legislature to 

### work around the statutorily 

### mandated requirement for 

### Passamaquoddy Joint Tribal Council approval for changes to the 

## MIA and to proceed with 

## LD 2145 against the 

### recommendations of

## OPLA and the Joint Standing 

### Committee on the Judiciary It also 

### meant that the 

### Passamaquoddy Tribe 

### would have 

### no authority to reject subsequent 

### amendments to the 

### law other than to bring legal suit 

## OPLA Reviews the “

## Blow up” Clause 

## On March 

## 12 1998 a 

## memo Addendum 

# 28 authored by John Kelly

### was sent to Greg 

### Sample Attorney forthe 

### Passamaquoddy Tribe 

### and Paul Stern 

## AAG forthe State of

### Maine Despite the 

### March 9th advice that

## LD 2145 

## was an amendment to the 

## MIA OPLA now indicated that the addition of the “

## blow up” clause 

### had the following effect “

### Any claim that the Act requires ratification orthat it is an 

### amendment to the ClaimsSettlement Act 

### would be finally settled in a court.“ 

### With the inclusion of the “

## blow up” clause the 

### Passamaquoddy Tribe’s capacity to approve or reject 

### amendments to the 

## MIA as 

### mandated in the 

## MICSA was nullified Their only recourse 

### would be to prove in a “court of competent jurisdiction” that 

## LD 2145 improperly 

### amended the 

## MIA In other

## words the “

## blowup” clause allowed the State of

### Maine to unilaterally define the tribal state relationship with regard to the 

### Passamaquoddy saltwater fishery

### The tribe could only overturn these provisions through further litigation 

### The Legislative 

### Record 

## on LD 2145 

## On March 

## 23 1998 as

## Amendment A to 

## LD 2145 was debated in the 

## House Representative David Etnier chair of the Joint Standing 

### Committeeon Marine Resources offered the minority report of the 

### committee explaining that

## LD 2145 was an 

### amendment to the 

## MIAand should be treated as such 

## Addendum 

# 29 He states There is also 

### one of

## my favorite parts of the 

### Committee 

## Amendment as 

### what is 

## known to the Attorney General’s Office asthe 

## blowup clause It is an attempt to get 

### around the fact that this is an 

### amendment to the settlement act 

### The Attorney General’s Office of the state told us it 

### was an amendment to the settlement act 

### Our 

## OPLA staff told us it 

### was an 

### amendment to the settlement act 

### and yet the Majority 

### Report the 

### Committee 

## Amendment refuses to acknowledge that it is 

### one of the 

### most peculiar 

### means of addressing or not addressing the sustenance issue I have ever 

### seen Later 

## Rep Richard 

## Thompson chair ofthe Joint Standing 

### Committee on the Judiciary 

### echoed 

## Rep Etnier’s statements 

### The problem I have with this bill is not only that it has not 

### gone through 

### what I consider the proper process but that it is clearly 

### an attempt to whatever 

### you want to call it 

## amend the act clarify the act or

### whatever It is related to the act I feel very strongly that if changes are going to be 

## made on 

# an issue pertaining to the act then they should 

### be

## made in the 

## way prescribed 

### bythe act That if it is going to be something passed 

### by this Legislature then it should be designated as a change to the act 

### and should be subject to ratification by the tribes 

### The tribe 

### does not 

### have to ratify this bill 

### Therefore there is

## a strong 

### argument that they 

### are not subject to

## 24 this bill 

## and that if they 

### have inherited sovereignty rights they 

### can go on pursuing 

## them Emphasis 

## added 38 

## On March 

## 24 1998 the debate 

## moved to the 

### Senate 

## A similardiscussion 

### ensued regarding the 

## blowup clause Senator Benoit explained his

### concerns
Pretty self serving it 

### seems to saywell the reason this is general 

### law is because the 

### Compact is a

### cumbersome process It’s a 

### cumbersome process for a very 

### good reason You do not change the laws relating to the Tribe

### and the Nation lightly such as intended 

### here bythis 

### end run play in the general 

### law I'm disappointed that there's 

### no written formal Opinion of the Attorney General that I've 

### had the opportunity to 

### read that indicates that this is a valid 

## way to go about this business 

## Addendum 

# 30

Over these objections the law 

### was passed in the 

### House on March 23rd 

### and in the Senate 

### on March 25th 

## On April

# 3 1998 LD 2145 was signed into 

## law Thus the stage 

### was set to further codify 

### amendments to 

## MIA in 

### 12

# MRS

# A 6302

# A rather than through the process required 

### by both state 

### and federal law in 

### which both the tribes 

### and the state 

### would formallyapprove any changes to 

## MIA

After

## LD 2145 was passed Jon Clark legal counsel for the 

## OPLA would write 

### The amended version that 

### came out of committee 

### was hotly 

### debated 

## some believed strongly that it 

### was not legally possible to enact this

### law without 

### amending the 

### Maine Land Claims Settlement 

### Act The law directly confronts this issue in 

### Sec 

# 3 It appears that this 

## law if it is not struck 

## down may well 

### mark a 

## new direction in tribal state relations 39 

## Addendum 

# 31

Office of the Attorney General’s Responsibilities to 

### Inform Legislative Matters 

### The 

## OAG consistently plays an important role both in defining the tribal state relationship 

### and in the development of

### lawand policy that affect the negotiated agreement that is reflected in the Settlement 

### Acts The 

## OAG has the responsibility to protect the interests ofthe state 

### and its collective citizenry In order to accomplish this task the 

## OAG provides theiradvice 

### on matters of

## law This is a statutory responsibility ofthe 

## OAG found in

# MRS

# A Title 

# 5 chapter 

## 9 195 The Attorney General shall give his written opinion 

### on questions of 

## Law submitted to 

### himby the 

### Governor by the 

### head of 

### any state departmentor

### any of the state agencies or by either branch of the Legislature or any 

## memberof the Legislature 

### on legislative matters

38 This quote references “tribes” 

## when discussing the 

### amendment provisions of the 

## MIA and refers to “tribe” in referring to 

## how Passamaquoddy ratification is not required in

## Amendment 

# A 39

## Memo from Jon Clark to Susan Johnson 

### NCSL National Congress of State Legislators June 

# 5 1998 inthe 

### remarks section 

### on the fax cover sheet

## 25 When the 

## OAG provides awritten opinion in writing all parties benefit 

### from a deeper discussion of the crucial legal issues at play 

### and a

## more informed conversation about the issues can take place In the review of available public materialthe 

### MITSC could not find a written opinion 

### from the 

## OAG regarding the saltwater fisheriesconflict 

### The notes 

### and 

## memos ofJohn Kelly the legislative analyst assigned to the Joint Standing 

### Committee on Marine Resources indicate that significant questions 

### were posed 

### bythe Joint Standing 

### Committee on Marine Resources regarding the impact of the 

## LD 2145 on the 

## MIAand that

## AAG Paul Stern participated in the 

## LD 2145 workgroup 

## A written explanation ofthe OAG’s concerns about 

## LD 2145 and the basis for

### recommending the 

## blowup clause might illuminate the reasons for 

### moving away from negotiated agreements 

### and towards litigation to resolve conflicts Since the Settlement Acts both reflected negotiated agreements 

### among the tribes state 

### and federal 

### government and resulted 

### from the settlement ofa lawsuit it is crucial that policy decisions that affect this settlement are developed in a fully transparent

### and careful 

## way Given that opinions 

### on the 

### MICSA 

## andor the 

## MIA affect five sovereign 

### governments and involve federal statutory adherence 

### and given that tribe citizens are also state citizens it 

### would be important that

# MRS

# A Title 

## 5 Chapter 9 include provisions that both advance public understanding 

### and increase transparency

## 26 Section 

## IV State Legislation to Further Limit 

### the 

## Passamaquoddy Saltwater Fishery— 

## LD 

## 451 LD 

## 1625 and 1723 in 

### the 126th 

### Amending 12

# MRS

# A 6302

## A 

# We include here a brief narrative of subsequent 

### amendments to 

## 12

# MRS

# A 6302Awhich constitute further erosion ofthe required 

### amendment process outlined inthe 

### MICSA 25

# USC

1725 

# e1 regarding 

### Passamaquoddy authority to approve or reject any changes in the Tribe’s jurisdictional relationship to the state

In 

### 2013 and again in 

## 2014 the 

### Maine State Legislature 

### amended 12

# MRS

# A 6302A LD 

## 2145 thus unilaterally 

### amending the 

## MIA in direct contravention to the provisions of 

## MICSA 

# We can find 

### no evidence in the legislative record that the 

## OAG offered the legislative history of 

## LD 2145 and the controversy surrounding that 

### law asthe legislature considered 

## new amendments
This illustrates the importance of institutional 

## memoryWhen the legislature considers legislation that will affect the federally recognized tribes it is vitally important that the committee that is reviewing the legislation 

### have a thorough grasp of the statute’s legislative history

### The state entities 

### most suited to prepare the legislative bodies are the 

## OAG the 

## OPLA and the 

## MITSC In this

### case the legislative history of 

## LD 2145 would have been important information forthe Joint Standing 

### Committee on Marine Resources to review as they 

### shaped the 

## law
MITSC Concerns The MITSC hasa unique responsibility to review the effectiveness of the negotiated agreements 

### between the tribes

### and the state as reflected inthe Settlement Acts 

### and to 

## make recommendations to the tribes

### and to the state In order to carry out this 

### charge the 

### MITSC musthave the resources 

### and the opportunity to review legislation that impacts these Acts in any

## way In 

## 1998 the legislative record explains 

## why MITSC did not act 

### on 

## LD2145 In the 

### words of

## Rep Etnier

In the act 

### was a very important additional piece of information 

### that

## was the creation ofthe 

### Maine Union Tribal State 

### Commission 

## sic This 

## was meant to 

### be the 

### means for addressing all future disputes 

### between the state 

### and the tribe It has equal representation That is 

### where this bill should have 

### gone It did not 

### go there Let 

## me make that very clear It did not go there 

## We received nothing 

### from MITSC regarding this bill 

### and its 

### enormous magnitude

# Why It 

## was not brought before 

## them I think that is important to also 

### understand The legitimate 

### means for addressing these legitimate grievances concerns ofthe 

### Passamaquoddy Tribe

### were not brought before the Joint Indian Tribal State 

### Commission asthey should have 

### been 40

In 

### 2013 and 

## 2014 although the subsequent 

### amendments to 

## 12

# MRS

# A 6302

# A LD 451 LD 1625 and 

## LD 1723 were not referred to the 

### MITSC for 

### review the 

### MITSC became aware of the

40 

### Maine Legislative 

## Record— HOUSE March 

## 23 1998 

## Rep Etnierspeaking see 

## Addendum 

# 29

## 27 legislation 

### and did raise the issue that that these pieces of legislation significantly affect the jurisdictional underpinnings ofthe 

## MIA
LD 

## 451 Limiting 

### Passamaquoddy Participation in the Elver Fishing Industry 

## LD 451 An Act Relating to Certain Marine Resources Licenses initially focused 

### on limiting the participation of 

### Passamaquoddy fishers in the state’s lucrative elver fishing industry It 

### was later

### amended to 

### expand both the state’s 

## own fishery 

### by

## 25 licenses 

### and allow for the participation of fishers 

### from the Penobscot Indian 

### Nation the Houlton 

### Band of Maliseet Indians 

### and the Aroostook 

### Band of 

### Micmacs 

## LD 451 limited 

### Passamaquoddy participation heretofore unlimited to 

### 200 commercial elver licenses 

### The Passamaquoddy Tribe objected to this restriction arguing that their 

### management plan which limited the Tribe’s overall catch rather than the 

### numberof individual fishers 

### was a 

### moreefficient conservation 

### method than the state’s plan 

### which limitedthe 

### number of individuals entering the fishery 

### and the quantity ofgear permitted to each fisherwithout limiting the catch

In 

### 2013 the 

## MITSC acting 

### on its statutory responsibility raised its concern that

## LD 451 further constricted the saltwater fishing rights ofthe 

### Passamaquoddy Tribe 

### and constituted an 

### amendment to the 

## MIA which would therefore require Tribal Council approval At the request of Patrick Keliher

### Commissionerof

### Marine Resources Attorney General Janet Mills responded with a letter 

## re Regulation of Salt

### Water fishery Under the 

### Maine Indian Claims Settlement

### Act 

## Addendum 

# 32 The 1998 concerns ofthe 

## OAG OPLA and the Joint Standing 

### Committee on the Judiciary that

### amending the negotiated settlement acts 

### would require tribal approval 

### and the late addition of

## Amendment 

# A Section 

## 3 the 

## blowup clause 

### were never referenced in this letter Instead 

## AG Mills writes 

## “LD 2145 was enacted like 

### any other statute 

### and 

## maybe 

### amended or repealed orkept 

### on the 

### books like any other legislation in accordance with the will ofthe Legislature.” 

### The 2013 Elver Fishing 

### Season In 

## 2013 the legislature enacted 

### amendments to 

### 12

# MRSA 6302

## Aas codified in 

## LD 451 that essentially bypassed the legislatively

### mandated tribal approval process 

### and substantially 

### undermined the 

### Passamaquoddy Tribe’s jurisdiction over their saltwater fishery

### The Tribe acted 

### on their reserved rights to the saltwater fishery 

### and fished 

### under Passamaquoddy conservation guidelines that 

### were more stringent than those of the state in that they limited the catch 

### and the type of gear used in order to 

### have minimalimpact

### on the American eel These limitations reflected their culture 

### and ties to 

### land waters 

### and species Sixtyeight 

### Passamaquoddy were cited for fishing without a license in 

## 2013 All of these cases 

### were dismissed or filed without further action 

### LD 1625 

## AND 1723 Further Erosion of the 

## MIA Amendment Provisions In January

### and Februaryof

## 2014 as the 126th legislative session 

### came to a close the 

## DMR and the 

### Passamaquoddy Tribe 

### came to consensus 

### on management mechanisms that 

### would allow 

## comanagement of the fragile elver fishery

### These mechanisms were codified in 

### Passamaquoddy Tribal 

## law The Tribe 

### had put in place 

### an aggressive conservation plan that 

### would have a negligible impact 

### on

## non Native elver fishing 

### The structure of this agreement 

### was presented to the Atlantic States Marine Fisheries 

### Committee 

## ASMFC on February 

# 6

## 28 2014 in order to secure federal approval forthe State of 

### Maine to fish elvers in 

## 2014 The 

## ASMFC approved the state’s plan because it included the successful negotiation of 

### an agreement with the 

### Passamaquoddy Tribe 

### The Tribe submitted a proposed 

## Memorandum of 

### Agreement to 

## comanage the elver fishery to the 

## DMR that included the consensus 

### management mechanisms that 

### had been negotiated 

### Passage of

## LD 1625 

## On February 

## 12 2014 in the 

### week following these presentations to

## ASMFC at a legislative 

### work session 

### on 

## LD 1625 CommissionerPatrick Keliher

### announced that the 

## AG had “equal protection” problems with the negotiated 

### agreement The 

## DMR immediately

### withdrew support for the provisions it 

### had negotiated with the Tribe 

## When asked to explain the “equal protection” issues raised 

### bythe 

## OAG a representative ofthe 

## OAG explained that “all groups 

### mustbe treated the same.”41 

### Even though the 

## OAGwas asked by

## DMR to give an opinion 

### on the Tribe’s proposed 

## Memorandum of

### Agreement42

## we find 

### no evidence that a written 

## OAG opinion 

### was ever 

### produced Instead 

### AAGs were present at each public 

### work session to 

### answer questions 

### and 

## AAG Jerry Reid 

### met with 

### Passamaquoddy Tribal leaders 

### and their attorney to discuss the OAG’s equal protection concerns at the request of the 

### MITSC chair 

### The written legal opinion of the 

### Passamaquoddy Tribe that 

### was provided to the legislative 

### work session is included in this report 

### Addenda 

## 33 

# 34A written explanation ofthe OAG’s concerns might

### have dispelled confusion 

### and yielded a 

### more constructive conversation about the equal protection issue identified 

### bythe 

## OAG Fully understanding 

### any concerns that the tribes

## OAG the administration or the legislature have relative to 

### laws regulation or policy that 

## may affect the Settlement Acts is afundamental first step to resolving conflict Over objections by the 

### Passamaquoddy Tribe the state passed 

### two pieces of legislation 

## LD 1625 which requires the Tribe to 

### manage its fishery according to state regulations 

### and 

## LD 1723 which outlined 

## new compliance requirements enforcement provisions 

### and penalties in various commercial fisheries 

## LD 1723 was enacted 

### on March 13th 

### and 

## LD 1625 on March 18th four days in advance ofthe scheduled start of the elver 

### season This put the 

### Passamaquoddy tribal 

## law which reflected the earlier negotiated 

### agreement in direct opposition to the state’s 

## new law thus creating a crisis forthe Tribe’s fishery

### The Passamaquoddy Joint Tribal Council 

### met over four days of public meetings within the Tribe to avert a crisis In the 

## end the Tribe 

### amended Tribal law to assign individual quotas 

### and added the following language to all 

### Passamaquoddy licenses 

## Addendum 

# 35

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

41 Public 

## Work Session February 

## 19 2014 42 Patrick Keliher public testimony February 

## 12 2014

## 29 Section

# V Impact of 

### Racism 

## on TribalState Relations 

### The 1997 Report of the Task Force 

### on TribalState Relations listed racism 

## among its “Findings 

### and Analysis.” 43 “

### Racism is experienced 

### bythe 

### Wabanaki but generally is not recognized 

### by the majoritysociety 

### Racism is part ofthe context of tribal state relations.” 44 Later in the 

### same report the Task Force “

## urge

# d the 

### MITSC not to skirt the issue of racism in its deliberations.”45

In 

## 2000 the 

### MITSC minutes 

## Addendum 

# 36 reflected a discussion of racism by commissioners calling for a “real examination of 

### racism noting that it is easy to talk about racism 

## when it is far

## away but it is hard to talk about it here” 

### and that it 

## may not be possible to separate racism 

### from sovereignty 46 Throughout 

### 2013 and 

## 2014 the 

### MITSC received reports of unacceptable 

### and disrespectful language in public hearings 

### and work sessions

## on the saltwater fisheries conflict 

### Over the course ofthe legislative hearings five 

### MITSC commissioners the executive director

### and the chair reported several incidents in 

### which prejudice 

## was expressed in a public 

### forum After a particularly charged public 

### work session 

### on February

## 19 2014 the 

### MITSC discussed the 

### need to address 

### racism unacceptable language the disrespect of 

### Wabanaki leaders 

### and the impact these factors have 

### on tribal state relations 

## Addendum 

# 37 The MITSC contacted legislative leadership inthe 

### House and Senate in an effort to address these concerns 

## A significant lack of 

### knowledge about the governmental status offederally recognized tribes as sovereign nations 

### and confusion about the State of Maine’s responsibilities in implementing the negotiated agreement reflected in the Settlement Acts persists 

## A statutory 

### framework governs the relationship 

### and outlines responsibilities 

## among the parties to this 

### agreement Understanding the nature of this relationship 

### and these responsibilities is fundamentally important in order to address negative prejudicial attitudes 

### and the prevailing public opinion that the tribes are seeking “special treatment” ratherthan seeking the respect 

### due them as sovereign nations In this case racism occurs 

## when national 

### and state governing bodies 

### and citizens 

### do not consider these distinct rights as legitimate because they 

### do not exist for other racial 

### groups

While the issue of racism

### and its impact

### on tribal state relations is central to resolving 

### long standing conflicts it is too complex to address in this report 

### and requires a separate 

### and complete inquiry 

## A deeper understanding ofthe Settlement Acts the issues that the tribes confront 

### and the importance of treating each other with respect 

### and dignity will increase the prospects forresolving long standing issues 

### between the tribes 

### and the state

43 At 

### Loggerheads 

## p iv 

## p3536 44 Ibid 

## p35 45 Ibid 

## p36 46 

### MITSC Minutes

# 6122000

## 30 Section 

## VI Identifying Solutions 

### By examining these issues

## we have sought to 

### deepen understanding of a particular conflict arising 

### from the differing interpretations ofthe 

## MIA and MICSA held by the tribes 

### and the state Years of negotiations to resolve the saltwater fisheries conflict played out against a backdrop 

### where the state continued to assert criminal or civil jurisdiction over the 

### Passamaquoddy Tribe 

### and individual Tribe

## members In order forthe Tribe to protect its inherent rights they are often forced to argue their interests in state court 

### where a 

### body of case law has 

## now been established that significantly narrows the interpretation of both the 

### MICSA and 

## MIA as it is reflected inthe legislative 

### and congressional record 

### and in the 

### documented understandings of negotiators 

### on the state side aswell asthe tribal side 

### The state court decisions have failed to 

### uphold both the articles of construction in the 

### MICSA and in Federal Indian 

## Common 

## Law thus the federally recognized tribes in 

### Maine must rely 

### on federal courts to 

### uphold these provisions 

### The adversarial process of resolving conflicts in court that involve the negotiated settlement reflected in the 

## MIA and MICSA mitigates productive tribal state relations 

### The implementation ofthe 

## MIA has been determined by court decisions rather than through 

### good faith negotiation 

## among the parties as

## was intended 

# We undertook this examination to 

### shed light 

### on the saltwater fisheries conflict 

### and to advance constructive dialogue 

### and mutually beneficial solutions 

### Ourfindings are offered both as a 

### summaryof

### what 

## we have learned 

### and as a catalyst for the development of constructive solutions In our 

### recommendations 

## we offer a

## wayto proactively 

### and pragmatically address issues that 

### were not resolved in the 

### 1980 negotiations that settled the 

### Passamaquoddy and Penobscot land claims 

### and resulted in the 

## MIA and the 

## MICSA This is 

## why the 

### MITSC was created to bring focused effort to 

### recommendations that have the potential to resolve the issues that result in conflict 

### between the tribes

### and the state It is our goal not only to provide a 

### pathway to conflict resolution but also to 

### ground this process in mutual understanding 

### and genuine partnership Before the public release of this report the 

### MITSC 

## made efforts to 

### meet with all ofthe parties to the saltwater fishery conflict In these meetings

## we were reminded of

### numerous attempts to reach mutually beneficial agreements 

### and build productive working relationships 

### between the tribes 

### and the state 

# We conclude that

### open dialogue negotiations 

### and formal agreements are 

### mechanisms that are both pragmatic 

### and constructive 

# We offer this report with sincere 

### hope fora 

### renewed commitmentto advance conflict resolution 

## among all of the peoples 

## who live within the State of

## Maine

## 31 Section 

### VII Findings


# 1 The intergovernmental saltwater fishery conflict 

### between the 

### Passamaquoddy Tribe 

### and the State of 

### Maine arises 

### from cultural distinctions 

### and opposing interpretations of 

## how the federal 

### Maine Indian Claims Settlement Act of 

### 1980 

## MICSA and the 

### Maine Implementing Act 

## MIA impact the 

### Passamaquoddy fishery 

# 2 The Passamaquoddy Tribe stands 

### on its retained aboriginal rights to fish within its traditional territory 

### which extends 

### beyond the reservation boundaries without interference from the state 

### They contend that these rights have never 

### been extinguished 

# 3 The State of

### Maine through the 

## OAG counters that the 

## MIA Sec 6204 “

## LAWS OF THE STATE APPLY 

## TO INDIAN LANDS” means that the tribes 

### have no rights except as specified in the 

## MIA This position is 

### amplysupported in case 

### lawand the 

## OAG has advised that the 

### Passamaquoddy Tribe retains 

### no rights to the saltwater fishery 

### and that the State of

### Maine has the sole authority to regulate that fishery

### and to prosecute 

### Passamaquoddy fishers

## who fish according to 

### Passamaquoddy tribal law rather than State 

## law 

# 4 The articles of construction specified in the federal 

### MICSA 25

# US

# C 1735 

# a provide that “In the event a conflict of interpretation 

### between the provisions ofthe 

### Maine Implementing Act 

### and this Act should 

### emergethe provisions of this Act shall govern.” 

### The provisions of the federal 

### MICSA thus override the 

## MIA provisions 

## when there is a conflict 

### between the 

## two 

# 5 MICSA 25

# US

# C 1725 

# e

# 1 provides that tribal approval is required for

### any amendments to the 

## MIA that relate to “the enforcement or application of civil criminal or regulatory laws ofthe 

### Passamaquoddy Tribe the Penobscot Nation 

### and the State within theirrespective jurisdictions” orthe allocation of responsibility orjurisdiction over governmental matters

### between the tribes

### and the state 

# 6 Although the 

## MIA was passed first chronologically the

# US Constitution 

### and federal Indian law give Congress control over Indian Affairs 

### making the 

## MIAsubordinate to the 

## MICSA and the federal Act requires the approval of affected tribes to

## amend the 

## MIA Thus the 

## MIA is subordinate to the 

## MICSA 

# 7 The escalating conflict 

### between the 

### Passamaquoddy Tribe

### and the State of

### Maine about the reach 

### and jurisdiction ofthe 

### Passamaquoddy saltwater fishery described in this report illustrates that 

## a When saltwater fishery issues have 

### arisen— in the late 90’

## s and to 

### some extent over the last 

## year— the governor ofthe state 

## andor the 

### Commissionerof Marine Resources 

### have 

## made concerted efforts to cooperate negotiate in 

### good faith 

### and develop mutually acceptable 

### agreements 

# b Through these negotiations prospects for employing conservation based measures to ensure a sustainable fishery have 

### emerged and promising

## 32 strategies forcooperation 

### and 

## comanagement ofthe fisherythrough a formal TribalState agreement have 

### been developed 

## c LD 2145 constitutes 

### an amendment to the 

### Maine Implementing 

### Act In 

## 1998 both 

## OPLA and the 

## OAG provided legal opinions to the Joint Standing 

### Committee on Marine Resources that

## LD 2145 constituted 

### an amendment to the 

## MIA 

# d By passing 

## LD 2145 the state unilaterally codified contested jurisdictional issues without the approval of the affected tribe 

### and it arbitrarily changed the sustenance definition specified in

## 30

# MRS

# A 6207 

# 1 4 

# 6 8 LD 2145’ s 

## blowup clause designed 

### bythe 

## OAG created a legislative 

### pathway to avoid the statutory requirements of the 

### MICSA requiring tribal approval of

### amendments to the negotiated agreements codified in the 

### Maine Indian Claims Settlement 

### Acts 

# 9 The implementation of

## LD 2145’ s

## blowup clause leaves the 

### Passamaquoddy Tribe with 

### no recourse but to prove in a “court of competent jurisdiction” that 

## LD 2145 improperly 

### amended the 

## MIA Defending against persistentattempts to diminish legitimate tribal authority through the state’s legislative process produces an 

### undue burden on limited tribal resources 

## 10 In 

## 1998 2013 and 

## 2014 the state legislature voted to approve legislation that violates both the spirit 

### and the law of both 

### MICSA and 

## MIA 11 The 

## OAG is responsible for protecting the state’s interest 

### and the interests of all of its citizens 

### and the legal analysis of the 

## OAG is an essential perspective for the development of state policy that affects tribal state relations 

## 12

# MRS

# A Title

# 5 Chapter 

## 9 provides 

### no clearly articulated set of provisions regarding the OAG’s responsibility to provide guidance to state 

### government on the application of the 

## MIA and the 

## MICSA These provisions already exist inthe areas of hate crimes 

### and domestic violence 

## 13 In order to 

### promote good problem solving 

### and advance solutions to tribal state conflict

it is important that the 

## OAG be part ofseeking a solution Legal opinions offered in writing 

### would better inform discussions 

### and possiblyyield a durable result that 

### meets the needs ofthe tribes

### and the state 

## 14 Aftera hopeful beginning the extensive legislative judicial 

### and executive branch processes 

### employed to resolve the intergovernmental saltwater fisheriesconflict as 

### documented in this report 

### became costly ineffective 

### and adversarial 

### The tribal state relationship 

### was negatively affected as opportunities for cooperation 

### and the potential formutually beneficial solutions 

### eroded 

## 15 Although the 

### MITSC has completed a thorough review of extensive primarymaterial there remains

## much to study 

### The ongoing process of reviewing the negotiated agreements asthey are reflected in the Settlement Acts the Congressional Records 

### and the state records 

### and tribal records 

### and assessing ensuing laws 

### and public policy that affect the federally recognized tribes in 

### Maine is within the scope ofthe 

## MITSC 16 The state has a statutory responsibility 

## 30

# MRS

# A 6212 

# 5 to provide data to 

### MITSC to carry out its task 

## 17 The MITSC has identified a 

### need to address racism 

### and the impact it has

### on tribal state relations 

## 18 A significant lack of 

### knowledge about the governmental status offederally recognized tribes as sovereign nations 

### and confusion about the nature of the State of Maine’s

## 33 responsibilities in implementing the negotiated agreement reflected in the Settlement Acts affects the quality of tribal state relations 

## 19 A deeper understanding of the Settlement 

### Acts the issues that the tribes confront 

### and the importance of treating each otherwith respect 

### and dignity will increase the possibility of resolving longstanding issues 

### between the tribes

### and the state 

## 20 The ongoing review of the Settlement Acts 

### and the 

### mechanisms of implementation will better informlegislators courts 

### and the general public while advancing a climate of 

### problem solving 

### and creating 

### an environment in 

### which mutually beneficial solutions can 

### be developed 

### and implemented

## 34 Section VIII 

## Recommendations


# 1 The MITSC must be sufficiently resourced to carryout its role ofadvancing 

### recommendations that have the potential to resolve conflicts 

### and result in mutually beneficial solutions 

### between the tribes

### and the state Findings 

## 6and 

# 19 2 The articles of construction inthe 

### Maine Indian ClaimsSettlement Act outlined in

## 25 

# US

# CS 

### 1735 

# a must be applied 

### by all parties federal state 

### and tribal Finding

# 4 3 The statutory process to 

## amend MIA as specified in 

### MICSA 25

# USC 1725 

# e1 mustbe conscientiously followed by all parties Findings 

## 5 and 

# 10 4 A tribal federalstate 

### summitshould be held 

### on marine resource 

## comanagement Findings

# 2 3and 

## 7 a 

### and 

# b 5 Where the tribal state jurisdictional relationship remains contested the state 

### and the tribes should 

### committo 

### good faith negotiations at the highest level in order to execute 

### Memoranda of Understanding 

# MOU using 

### model 

# MOU that have proven to 

### be effective in other states Findings 

# 1 2 3 

### and 

# 7 6 The tribes 

### and the 

### Maine State Legislature should use formal 

## MOUs that specifically recognize 

### and reaffirm the equal standing of each of the partiesto enter into agreements for mutually beneficial 

### purposes Findings 

# 1 2 3 

### and

# 7 7 A

## MOU between the tribes 

### and the state should 

### be developed to address unresolved issues regarding the saltwater fishery conflict 

### and it should replace 

### 12

# MRS

# A 6302 

# A Findings 

# 1 23 and

# 7 8 The 

## OAG the tribes 

### and the 

### MITSC should routinely review proposed legislation that affects the 

## MIA or the 

### MICSA for adherence to the negotiated settlement reflected in the 

## MIA and 

## MICSA Finding 

## 8and 

# 9 9 All reviewing entities should 

## make their findings available inwriting to the relevant legislative committee in a timelyfashion so that these reports can inform the legislative process Finding 

# 8 9 12 and 

# 14 10 In order to advance mutually beneficial solutions 

### and build trust provisions forthe 

## OAG to provide advice 

### and counsel to the legislature 

### and the administration to provide formal 

### well reasoned written responses to legislative 

### and administrative requests 

### and to report 

### on actions that affect the negotiated settlement reflected by the 

## MIA and MICSA should 

### be incorporated into

# MRS

# A Title 

# 5 Chapter

# 9 Finding 

# 11 11 Since tribe 

### members are also citizens of the state the negotiated agreement reflected in the Settlement Acts should be supported 

### and protected by the state 

### and by the 

## OAG Findings 

### 11 and 

# 18 12 The Judiciary 

### Committeeof the 

### Maine State Legislature should consider the development of clear responsibilities 

### and reporting standards forthe 

## OAG and the 

### MITSC 

## when reviewing 

### any aspect ofthe 

## MIA or

## MICSA This legislation should 

### be introduced in the next legislative session in 

## 2015 Necessary funding should be available to 

## make this possible Findings 

### 11 and 

# 18 13 In order for the 

### MITSC to carry out its statutorily 

### mandated charge it 

### needs a

## way to evaluate the impact of legislative judicial 

### and administrative actions that affect tribal state relations 

## A process for regular reporting to the 

### MITSC and information sharing

## 35 with the 

### MITSC mustbe developed that includes the 

## OAG OPLA relevant legislative 

### committees and relevant 

### departments Findings 

## 15and 

# 16 14 In order to 

### deepen understanding ofthe Settlement Acts 

### promote constructive dialogue 

### and advance mutually beneficial solutions the 

### MITSC should continue its active review ofthe negotiated agreements as they are reflected in the Settlement Acts the congressional records 

### and the state records that

### were produced during the construction of these 

### Acts and ensuing laws 

### and public policy that affect the federally recognized tribes in 

### Maine This 

### review coupled with strong 

### recommendations rooted in conflict resolution 

### and the 

### development of mutually beneficial solutions should 

### be the foundation of any report or position that the 

### MITSC takes Finding 

# 16 15 The development 

### and implementation ofconcrete 

### recommendations to address racism are necessary in order to 

### deepen the potential for respectful relationships

### among all 

## who live inthe State of 

### Maine Findings 

## 17 18 19 and 

# 20 16 Every effort to maintain peace 

### and respect should be exercised in all public 

### venues and in the areas 

### where tribal fishers

## work Policies 

### and procedures 

### backed bythe force of law should 

### be legislated 

### by the tribes 

### and the state to accomplish this 

## aim Findings 

## 10 17 18 and 

# 19 17 All parties to the Settlement Agreements engage in pragmatic 

### and constructive dialogue with 

### renewed commitment to advance conflict resolution 

### openness negotiations formal agreements 

### and mutually beneficial solutions for all of the peoples 

## who live within the State of

### Maine Findings 

## 14 17 19 and 

# 20

## 36 Appendix 

## I Addenda

Addendum 1 Report Taking of Marine Resources by 

### Passamaquoddy and Penobscot Tribal 

## Members Report to the Joint Standing Committee on Marine Resources 119th 

### Maine Legislature by the 

### Maine Indian Tribal State CommissionPursuant to Public

## Law 1997 Chapter

## 708 

# 121598 

## Addendum 2 Meeting 

### minutes

## MITSC

# 6

# 784 

## Addendum 3 Meeting 

### minutes

## MITSC 

# 1121 94 

## Addendum 4

# Memo Governor Cliv 

### Dore Passamaquoddy Tribe of Pleasant Point to Joseph 

### Barnes Chief of Police 

### Passamaquoddy Tribe of Pleasant Point 

# 102596 Addendum 5 Letter Joseph 

# E Fessenden Director of 

## Law Enforcement Dept of Marine Resources to Governor Cliv 

### Dore Passamaquoddy Tribe of Pleasant Point 

# 12

# 396 

## Addendum 6 Bill 

## LD 273 Resolve Directing the 

### Commissionerof

### Marine Resources to Negotiate with the 

### Passamaquoddy Tribe Regarding Fishing Rights

# 121 97 

## Addendum 7

# Memo John KelleyLegislative Analyst Office of Policy 

### and Legal Analysis 

## LD 273 Resolve Directing the 

### Commissionerof

### Marine Resources to Negotiate with the 

### Passamaquoddy Tribe Regarding Fishing Rights

# 2

# 697 

## Addendum 8 Letter

## DMR CommissionerRobin Alden to Governor John Stevens 

### Passamaquoddy Tribe of Indian 

### Township and Governor Richard 

### Doyle Passamaquoddy Tribe of Pleasant Point

# 42497 Accompanying Bill Draft

# 42497 

## Addendum 9

# Memo DMR CommissionerRobin Alden to 

## Sen Jill Goldthwait Chair 

## Rep David Etnier Chair Joint Standing 

### Committeeon Marine Resources

# 5297 

## Addendum 10 Bill draft 

## An Act Concerning the Taking of

### Marine Resources by 

### Members ofthe 

### Passamaquoddy Tribe 

# 10

# 1 97 

## Addendum 11 Letter Governor 

### Angus King State of 

### Maine to Governor John Stevens 

### Passamaquoddy Tribe of Indian 

### Township and Governor Richard 

### Doyle Passamaquoddy Tribe of Pleasant Point 

# 1021 97 

## Addendum 12 Passamaquoddy Brief

## Memorandum in Support of Defendants’ Motion to Dismiss State v Beal 

# 121397 Addendum 13 Decision State v 

### Beal

# 32798 

## Addendum 14 Meeting 

### Minutes 

## MITSC

# 6597 Addendum 15 

# Memo Richard 

## S Cohen Attorney General to the Joint Select 

### Committeeon Indian 

### Land Claims

# 4280

## 37 Addendum 16 Letter

### Edward 

# B Cohen Deputy Solicitor Office of the Solicitor 

## US Dept of the Interior to John 

# P DeVillars Regional AdministratorEnvironmental Protection 

### Agency Region 

# 1 

# 9

# 297 Addendum 17 

# Memo Diana Scully Executive Director 

## MITSC to 

### Mike Best 

### MITSC Commissioner representing the 

### Passamaquoddy Tribe

# 3597 Addendum 18 Article “Tribe seeks to issue 

## own fishing licenses,” 

### Bangor Daily

## News 

# 1998 

## Addendum 19 Testimony 

### Sign In 

### Sheet Marine Resources 

### Committee 

## LD 2145

# 21098 

## Addendum 20 Notes 

### Taken by John Kelly

## OPLA Analyst Public Hearing for

## An Act Concerning the Taking of

### Marine Resources 

### byMembers of the 

### Passamaquoddy Tribe

# 21098 

## Addendum 21 Bill 

## An Act Concerning the Taking of

### Marine Resources 

### byMembers of the 

### Passamaquoddy Tribe 

## Addendum 22 

## Summary Summaryof 

## LD 2145 An Act Concerning the Taking of Marine Resources 

### by

## Members of the 

### Passamaquoddy Tribe Office of Policy Legal Analysis 

### 1998 

## Addendum 23 Report Report of Joint Select 

### Committee on Indian 

### Land Claims

# 4

# 280 

## Addendum 24 

# Memo Sen Susan Longley Senate Chair 

## Rep Richard 

## Thompson House Chair Judiciary 

### Committee to 

## Sen Jill Goldthwait 

### Sen Chair 

## Rep David Etnier 

### House Chair Marine Resources 

### Committee 

## reAmendments to the Act to 

### Implement the 

### Maine Indian 

### Land Claims Settlement

# 22598 

## Addendum 25 Bill Draft Revised version of 

## LD 2145 Title 

# 12 no tribal ratification based 

### on 

# 22698 meeting ofthe Marine Resources 

### Committee subcommittee

# 3298 

## Addendum 26 

# Memo John Kelley Legislative Analyst 

### Marine Resources 

### Committee to 

## Members LD 2145 Subcommittee 

# 3998 Addendum 27 Notes John Kelley Legislative Analyst 

### Marine Resources 

### Committee

# 31098 

## Addendum 28 

# Memo John Kelley Legislative Analyst 

### Marine Resources 

### Committee to Greg 

### Sample attorney 

## Drummond

## Woodsum 

# 31298 Addendum 29 Legislative 

### Record 

## House 

# 32398 Addendum 30 Legislative 

### Record Senate

# 32498 Addendum 31 

# Memo Jon Clark Office of Policy Legal Analysis to Susan 

### Johnson 

## NCSL 

# 6

# 598 

## Addendum 32 Letter Janet Mills 

### Maine Attorney General to Patrick Keliher

### Commissionerof Marine Resources 

# 31213 Addendum 33 Letter Michael 

# G Rossetti Akin 

## Gump to Janet Mills

### Maine Attorney General 

# 211 14

## 38 Addendum 34 LetterJoseph Socobasin 

## Sakom Passamaquoddy

–Indian 

### Township 

# R Clayton Cleaves 

## Sakom Passamaquoddy

–Pleasant Point to 

### Sen Christopher

### Johnson 

## Sen Chair 

## Rep Walter 

### Kumiega III 

### House Chair 

### Committee on Marine Resources

# 21814 Addendum 35 Press Release 

### Passamaquoddy Tribe

# 4414 

## Addendum 36 Meeting 

### minutes 

## MITSC

# 61200 

## Addendum 37 Meeting 

### minutes 

## MITSC

# 22614

## 39 Appendix II


### Maine Indian ClaimsSettlement Act 

## MICSA 25

# US

# C 1721 1735 

# http

# www mitsc

## orgdocuments

# 33FedSettActALL pdf 

### The federal law passed to 

### implementthe 

### Maine Indian ClaimsSettlement It ratified the 

### Maine Implementing Act 

### and specified that 

## when conflicts arise 

### between the state act 

### and the federal act the federal act 

### would prevail Section 

## 25

# USC 1725

# e gave federal consent to the State of 

### Maine to 

## amend the 

## MIA with respect to the 

### Passamaquoddy Tribe orPenobscot Nation provided the affected tribe or nation agrees with the 

### change

Maine Implementing Act 

# MIA

# MRSA Title 

## 30 Chapter 

### 601 

# http

# www mitsc

## orgdocuments

# 382010

# 106MIAtitle30ch601 pdf 

### The state law enacted in April 

### 1980 that explicates the jurisdictional relationship 

### between the Houlton 

### Band of Maliseet Indians 

### Passamaquoddy Tribe Penobscot Indian 

### Nation and State of 

### Maine under the 

### Maine Indian Claims Settlement 

### The 

## MIA took effect 

### upon passage ofthe 

## MICSA

Public 

## Law 

# c 708 LD 2145 

## An Act Concerning the 

### Taking of 

### Marine Resources 

### by 

## Members of the 

### Passamaquoddy Tribe 

# http

# www mitsc

## orgdocuments 

## 1401997

# PLc708 pdf Legislation sponsored 

### byPassamaquoddy Tribal Representative Fred 

### Moore to resolve the conflict 

### between the 

### Passamaquoddy Tribe 

### and State of

### Maine concerning saltwater fishing 

### The original bill 

### was dramatically altered during the legislative process 

### and ultimately contravened the required provisions to 

## amend the 

## MIA that are outlined in the 

## MICSA

Public 

## Law 

# c 84 Second Regular Session

–

### 1995 

## LD 1667 Resolve To Improve Tribal 

### and State Relations 

# http

# www mitsc

## orgdocuments 

## 1441995RES c084creationTaskFoceonTribal StateRelations pdf This legislation directed 

### MITSC to create the Task Force 

### on TribalState Relations 

### The Task Force

## was charged with exploring 

### ways to improvethe relationship 

### between the state 

### and MITSC and the state 

### and federally recognized Indian Tribes determining the appropriate role forthe Aroostook 

### Band of

### Micmacs and the Houlton 

### Band of Maliseet Indians inthe 

## MITSC evaluating the general effectiveness of the 

## MITSC engaging in other activities to improve tribal state relations

### and developing 

### recommendations

## 40 At 

### Loggerheads— the State of 

### Maine 

## and the

## Wabanaki Final reportof the 

### Task Force 

### on TribalState Relations 

# http

# www mitsc

## orgdocuments

# 771997

# 1 15AtLoggerheads TheStateofMaineandtheWabanaki pdf At Loggerheads the State of Maine 

### and the

### Wabanaki is the final report of the Task Force 

### on TribalState Relations 

### The Task Force 

### on TribalState Relations created 

### by the 

### 117th Maine Legislature 

### worked from June 

### 1996 through earlyJanuary 

### 1997 to explore 

### ways of improving the tribal state relationship 

### and the effectiveness ofthe 

## MITSC

Public 

## Law 

# c 45 First Special Session

–

### 1997 LD 1269 Resolve to Fosterthe Self governing 

### Powers of 

### Maine’s Indian Tribes in 

## a Manner Consistent with Protection of Rights 

## and Resources of the General Public 

# http

# www mitsc

## orgdocuments 

## 1451997RESc045LD1269 pdf 

### The legislation generated 

### bythe Task Force 

### on Tribal State Relations created in 

## 1996
It directed 

### MITSC to 

# 1 review the civil laws of the State of 

### Maine to determine the 

### manner and extent to

### which those 

### laws as enforced constrict orimpinge 

### upon the best interests ofchildren with respect 

## to traditional culture 

### and 

## way of life as practiced in tribal 

### communities the ability of tribes to regulate their 

## members lands schools 

### and other cultural institutions 

### and communities and the respect 

### and dignity appropriately given to all individual citizens inthe state 

### and members of the tribes

# 2 conduct the study over a period of

## 4 years notably considering in part the concerns that gave rise to the bill proposed 

### by the 

### Passamaquoddy Tribe to rescind section 

### 6204 of the 

## MIA

# 3 report its findings 

# 121597 

# 121598 and 

# 121500 and 

# 4 convene 

### an Annual Assembly ofGovernors 

### and Chiefs

State of 

### Maine

# v Beal 4th 

### Dist 

## Ct

# No 96957 et 

## seq 

# http

# www mitsc

## orgdocuments 

## 1391998

# 327StatevBeal pdf 

### The decision of 

### Maine District CourtJudge John 

### Romei to reject a motion to dismiss filed 

### bythe 

### Passamaquoddy Tribe

### on behalf of 

### 13 Passamaquoddy fishers

## who were charged with a 

### numberof violations of state 

### law related to saltwater fishing

Penobscot 

### Nation 

# v Fellencer 

### 164 

# F3d 706 1st Cir

## 1999 

# http

# www mitsc

## orgdocuments 

## 1421999

# 1 19PenobscotNationvFellencer1stCircuitdecision pdf Fellencer

## was an employmentcase 

### where the 

### Maine Superior Court ruled that 

### employmentmatters did not fall 

### under the internal tribal matters provisions of the 

## MIA On January 

## 19 1999 Fellencer 

### was reversed 

### on appeal to the 

# US Court of Appeals

## 41 First Circuit 

### and the case 

### was remanded forthe entry ofjudgment reversed in favor ofthe Penobscot Indian 

### Nation

Penobscot 

### Nation 

# v Fellencer 

### 999 

# FSupp 120 

# DMe 1998 

# http

# www mitsc

## orgdocuments 

## 1431998

# 3 13PenobscotNationvFellencerUSDistrictCourtdecision pdf Judge 

### Morton Brody’s decision to 

### uphold the 

### Maine Superior Courtruling that the 

### Maine 

## Human Rights 

### Commission had jurisdiction over 

### an employment dispute the Penobscot Nation 

### had with a former 

### employee The First Circuit Court of Appeals overturned this ruling 

### on January 

## 19 1999

5

# MRS

# A Chapter 9 Attorney General 

# http

# www mainelegislature

## org legisstatutes

# 5title5ch9sec0 html 

### The portion of 

### Maine law that deals specifically with the duties 

### and responsibilities of the Office of the 

### Maine Attorney General