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 2014

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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 StateRelations” 10

LD 273 “Resolve Directing the Commissionerof 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 MRSA 6204 in Deciding State v Beal 14

Public and Legislative Discourse on 30 MRSA 6204 in 1997 14

30 MRSA 6206.1 Internal Tribal Matters and State v Beal 15

30 MRSA 6206.1 Recognition of Licensing as an Internal Tribal Matter in Negotiating a

Solution to the Passamaquoddy Saltwater FisheryConflict 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 of Marine Resources by Members of the

Passamaquoddy Tribe 18

Bill Approved forIntroduction 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 A LD 2145 is an Amendment to the MIA 22

OPLA Reviews the “Blow up” Clause 23

The Legislative Record on LD 2145 23

Office of the Attorney General’s Responsibilities to Inform Legislative Matters 24

Section IV State Legislation to Further Limitthe Passamaquoddy Saltwater Fishery—LD 451

LD 1625 and 1723 in the 126th 26

Amending 12 MRSA 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 of the 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 39

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Public Law c 708 LD 2145 An Act Concerning the Taking of Marine 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 of Maine and the Wabanaki Final report of the 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 of Maine v Beal 4th Dist Ct No 96957 et seq 40

Penobscot Nation v Fellencer 164 F3d 706 1st Cir1999 40

Penobscot Nation v Fellencer 999 F Supp 120 D Me 1998 41

5 MRSA Chapter 9 Attorney General 41

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The Maine Indian Tribal State Commission

Jamie Bissonette Lewey Chair

Healing Justice Program inNew 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 Dana Sacco PhD MPH State Appointee

Assistant Research Professor University of Maine

Hon Richard Gould State Appointee

Former State Legislator

Hon Joan Nass State Appointee

Former State Legislator

H Roy Partridge MSW MA M 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 KrallStaff

Executive Director

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Acknowledgements

The Maine Indian TribalState Commission wishes to thank the principal authors of this report

JamieBissonette Lewey Chair and Dr Gail Dana Sacco Commissioner John Dieffenbacher

KrallExecutive Director provided research assistance developed the extensive appendices

and prepared the report for publication Robert Checkoway provided legal review while Roy

Partridge Commissioner and 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

of our preparation process the MITSC met with the offices of the Governor the

Passamaquoddy Chiefs from Motahkomikuk and Sipayik the Chief of the Penobscot Indian

Nation the Vice Chief of the Passamaquoddy from Motahkomikuk the President of the Maine

Senate the Speaker of the Maine House the house chair of the Judiciary Committee both

chairs of the Marine Resources Committee and Tribal Councilors from Sipayik In addition

the Office of the Maine Attorney General was briefed on the contents of the report

The MITSC extends its appreciation to the staff of the 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 of the photograph of Pulpit Rock in the 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 2014

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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 MICSA and 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 in the 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 of construction in the MICSA read “In the event a conflict of

interpretation between the provisions of the Maine Implementing Act and this Act should

emerge the 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 MRSA 6302 A changed the sustenance definition specified in the

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 MRSA 6302 A 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 for the development of mutually beneficial solutions in a sustainable fishery

After a complete review of these events the Maine Indian TribalState Commission MITSC

recommends a process of seeking mutually beneficial solutions that are grounded in respect

forand adherence to the MICSA articles of construction 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 MRSA 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 for all of the people of Maine We offer

this report with sincere hope for a renewed commitment to advance conflict resolution among

all of the peoples who live within the State of Maine

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Introduction

In 1980 legislation passed at both the state and federal levels that established specific legal

parameters for the settlement of claims by the Passamaquoddy Tribe and the Penobscot

Indian Nation for the return of 12.5 million acres of land roughly60 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 M RSA 6212 3an 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 MRSA 6212 31

The Maine Indian Claims Settlement Act MICSA 25U SC 1721 1735 was passed in October

of the 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 inquiry into the saltwater fishery conflict between the Passamaquoddy Tribe and the

State of Maine are the following provisions of the federal act

1 MICSA 25 USC 1735 aprovides that “In the event a conflict of interpretation

between the provisions of the Maine ImplementingAct and this Act should emerge the

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

2 MICSA 25 USC 1725 e1provides that tribal approval is required forany

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 or jurisdiction 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 Indians

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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 law that mayimpact the Maine

ImplementingAct

The MITSC ‘s charge to further examine and report on the Passamaquoddy saltwater fishery

was specifically included in LD 2145 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 forand a

comprehensive review of primary material available in the public domain The primary

documents examined by the MITSC were for the most part State of Maine records While this

report focuses specifically on the saltwater fisheryone of many areas of interest to the MITSC

more materials from 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 MRSA 6212 3 and its charge pursuant to

12 MRSA 6302 A the MITSC offers the following report

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Section I Emergence of the Conflict and Attempts to Resolve Saltwater Fishery

Issues

Passamaquoddy Bring EmergingSaltwater Conflicts to the MITSC

A review of the MITSC minutes reflects that the Passamaquoddy Tribe began raising the

saltwater fishing issue as early as 1984 Addendum 2 The MITSC’s participation in the

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

of the 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 fisher forfishing without a license

3 Dealers were not buying Passamaquoddy harvested clams because Passamaquoddy

harvesters were not licensed by the 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 saltwater fishery

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

Chief Joseph 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.” 3Addendum 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 112194 Addendum 3 3 Cliv Dore Tribal Governor Interoffice Memorandum to Joseph Barnes Chief of Police

October 25 1996

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individual including Tribal Police officers will be referred for criminal 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 Commissioner of 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 Commissionerof 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 of the 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 may cloud 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 of the 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 ClivDore

December 3 1976

5 ibid

6 The Joint Task Force on TribalState Relations “At Loggerheads—the State of Maine and the

Wabanaki,” p 1112

7 Ibid p 16

8 Testimony of E Penn Estabrook Deputy Commissionerof Marine Resources January 30

1997

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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 Commissionerof 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 of the bill with Senator MacKinnon recorded as absent LD 273 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 April24 1997 Robin Alden DMR Commissioner summarizedthe 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 of the 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 fishers to meet commercial qualifications and to

collaborate on a species by species review of the personal use provisions for marine resources

already preserved in law10

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 April24 1997

10 Ibid

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Government toGovernment Negotiations

By June 1 1997 thirteen Passamaquoddy who were participating in various saltwater

fisheriesunder the Passamaquoddy Tribe’s management were charged with a number of

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 of the saltwater fishery conflict by meeting

directly with both Passamaquoddy governors on October 2 1997 inBangor 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 of the 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 fishersand 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

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Section II Defending Passamaquoddy Saltwater Rights in Court State v Beal

State v Beal

The Passamaquoddy Tribe hired an attorney to defend the Passamaquoddy fishers charged 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 matter jurisdiction13 over Passamaquoddy

Tribe fishers They raised the federal protection of the Passamaquoddy Tribe’s inherent

authority citing the US Senate Committee Reports from 1980 prior to 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 self governing Santa Clara Pueblo v Martinez 436

US 49 1979 as quoted inS 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 members engaged

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 brief dated December 13 1997 included an

attached copy of the Tribe’s proposed legislation from October 1 1997

Judge John Romei writing for the Fourth District Court of 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 MRSA 6204 Laws of the State to Apply to Indian Lands and 30 MRSA 6206.1

Powers and Duties of the Indian Tribes Within their Respective Indian Territories General

Powers Links for all of the case law referenced in this section will be found inAppendix II

13 Subject matter jurisdiction is the requirement that the court have power to hear the specific

kind of claim that is brought to that court

14 Memorandum inSupport of Defendant’s Motion to Dismiss State of Maine v Beal

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30 MRSA 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 MRSA 6204 subjects “all Indians and natural resources owned by them to the laws of

Maine and to the civil and criminal jurisdiction of the courts except as provided in the 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

MRSA 6204 was cited to uphold the state’s jurisdiction over the subject matter of each

lawsuit Therefore Judge Romei relied on 30 MRSA 6204 to terminate “any inherent salt

water fishing rights concerning non reservation lands,”17 and thus held Passamaquoddy

fishers to state law

Public and Legislative Discourse on 30 MRSA 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 MRSA

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 for the State of Maine also found problems with the section “People never want to talk

about section 6204 but there must be 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 MRSA 6204.20

Additionally MITSC minutes dated 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 of these 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 by the 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 of the MIA and MICSA

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When the Task Force considered recommending the repeal of 30 MRSA 6204 Evan

Richert the director of the 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 many ways and raises

implications forothers For example what 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 MRSA 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 of the General Public” did include

a provision requiring the MITSC to “consider the concerns that gave riseto the legislation

proposed by the Passamaquoddy Tribe to amend the Act to Implement the Maine Indian

Claims Settlement and determine how those concerns may be addressed.” 23

30 MRSA 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 matter Again 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 inwhich the U S 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 employment case 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 Court of Appeals First Circuit and the case

was remanded forthe entry of judgment in favor of the Penobscot Indian Nation

30 MRSA 6206.1 Recognition of Licensing as an Internal Tribal Matter in Negotiating

a Solution to the Passamaquoddy Saltwater Fishery Conflict

The MITSC inquiry into 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 her April 24 1997 letter While the MIA

22 Ibid p 18

23 Resolve c 45 First Special Session—1997

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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 MRSA 6207 1

The 1980 State of Maine Legislative Record on the Maine Indian Land Claimsand State v

Beal

In a footnote referencing the years of negotiations that resulted in a settlement to the Maine

Indian Land Claims Judge 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 by the Select Committee Addendum 15 dated

April2 1980 when he was Maine Attorney General The Select Committee had asked Cohen to

offer his opinion on a set of questions that had come up during the course of the development

of the 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 in the coastal lands or marine resources than any

other person.” 24 Judge Romei cited thisanswer 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 larger issue 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 ‘AN ACT to Provide for Implementation of the Settlement Claims by Indians in the State of

Maine and to Create the 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 Collinsand 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 of the legislative record documenting the

development of the 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

EPA001423
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 for the US Department of the Interior characterizes aboriginal

fishing rights as reserved rights rather than 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 No 96

1353 at p 151980 reprinted in 1980 USCCAN 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 of the 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 of the

Interior p 5 Addendum 16

27 Fax from Diana Scully to Mike Best March 5 1997 Addendum 17

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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 for Judge Romei to rule on

theirmotion 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 as An 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 Harbor and Perkins of

Penobscot See Addendum 10 Representative Moore explained the purpose of the

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 of the public hearing on LD 2145 Addendum 19 and the notes taken by OPLA

analyst John Kelly Addendum 20

This proposed legislation LD 2145 acknowledged the Passamaquoddy Tribe’s jurisdiction

over saltwater fishing and required the development of a TribalState compact The provisions

included the following terms

1 The Passamaquoddy were authorized to take marine resources under the terms of a

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 fisherswould 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 member with a Passamaquoddy tribal identification card could take marine

resources for sustenance

5 Any Tribe member authorized by Passamaquoddy government could take marine

resources for ceremonial use

6 Enforcement of the 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 of the Passamaquoddy arrests

28 Baldwin Letitia “Tribe seeks to issue own fishing licenses,” The Bangor DailyNews 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

fisherswould be able to fish if compact negotiations extended into the lobster elver and

urchin seasons beginning in late March of 1998

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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 by the 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 of the Passamaquoddy Tribe that the tribe has agreed to the

provisions of this Act copies of which must be submitted by the Secretary of State to

the Secretary of the Senate and the Clerk of the House

The approval requirement in section 3 mirroredthe process mandated by federal law the

MICSA for all amendments to the MIA 25 USC 1725 e1 which reads

1 The consent of the United States is hereby given to the State of Maine to amend the

Maine Implementing Act with respect to either the Passamaquoddy Tribe or the

Penobscot Nation Provided That such amendment is made with 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 or determination of governmental responsibility of

the State and the tribe or nation over specified subject matters or specified

geographical areas or both including provisions for concurrent 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 CutlerME 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 Four people 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

EPA001426
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 my access to food and limit my freedom 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 of the 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 inMaine The harvest of seafood 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 summary provided to the Joint Standing Committee on Marine Resources Addendum

22 the OPLA questioned whether conservation regulations would apply to sustenance

fishing and fishing for ceremonial purposes and drew attention to amended language in the

proposed bill that limited “sustenance” to the activities of taking 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

tribefisher did 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 or the MIA Even though the word is

used in the MIA 30 MRSA 6207 there is no language limitingsustenance to a set of

activities The Report of the 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”

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21

The provisions relating to Indian sustenance hunting and fishing apply only to hunting

or fishing for personal or family consumption They do not apply to hunting or fishing

to maintain a livelihood or other commercial purpose32 Addendum 23

The limitation of sustenance to certain activities is important because sustenance is

specifically protected in the MIA 30 MRSA 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 MRSA 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

proof shall be on the commissioner33 The decision of the commissionermay 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 of the 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

MRSA 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 of sustenance heretofore recognized as an internal tribal matter and left

to the Passamaquoddy Tribe to determine was now limitedby the state to the

32 Report of the Joint Select Committee on Indian Land Claims4280 signed by Senator

Samuel Collinsand Representative Bonnie Post

33 In this case the statute refers to the Commissionerof Inland Fisheries and Wildlife

34 LD 2145 amended 12 MRSA 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

EPA001428
22

activities of taking possessing transporting and distributing This left out two

components of sustenance 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 MRSA 6207 1 would now be defined instead in Maine state law 12

MRSA 6302Athat governs the taking of marine resources

5 Enforcement of the 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 of changes 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 as well as the 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 or a part of any contract or law36 The blow up 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 by a “competent court of law” to be an amendment to

the MIA the portion of the law affected or the whole law would be void 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 M RSA Title 30 Chapter 601

EPA001429
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 for the 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 or that 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 fisheryThe 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 MIA and 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 as the 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 of the 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 by the 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

EPA001430
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

blow up clause Senator Benoit explained his concerns

Pretty self serving it seems to say well 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 by this 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 April3 1998 LD 2145 was signed into law

Thus the stage was set to further codify amendments to MIA in 12 MRSA 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 law and policy that affect the negotiated agreement that is reflected in

the Settlement Acts The OAG has the responsibility to protect the interests of the state and its

collective citizenry In order to accomplish this task the OAG provides theiradvice on matters

of law This is a statutory responsibility of the OAG found inMRSA 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 department or any of the state agencies

or by either branch of the Legislature or any member of 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 inAmendment

A

39 Memo from Jon Clark to Susan Johnson NCSL National Congress of State Legislators June

5 1998 in the remarks section on the fax cover sheet

EPA001431
25

When the OAG provides a written 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

of John Kelly the legislative analyst assigned to the Joint Standing Committee on Marine

Resources indicate that significant questions were posed by the Joint Standing Committee on

Marine Resources regarding the impact of the LD 2145 on the MIA and that AAG Paul Stern

participated in the LD 2145 workgroup

A written explanation of the OAG’s concerns about LD 2145 and the basis for recommending

the blow up 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

of a 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 MRSA Title 5 Chapter 9 include provisions that both advance

public understanding and increase transparency

EPA001432
26

Section IV State Legislation to Further Limit the Passamaquoddy Saltwater

Fishery—LD 451 LD 1625 and 1723 in the 126th

Amending 12 MRSA 6302 A

We include here a brief narrative of subsequent amendments to 12 MRSA 6302 A which

constitute further erosion of the required amendment process outlined in the 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 MRSA 6302 A 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 as the 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 has a unique responsibility to review the effectiveness of the negotiated

agreements between the tribes and the state as reflected in the Settlement Acts and to make

recommendations to the tribes and to the state In order to carry out this charge the MITSC

must have 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 LD 2145 In the

words of Rep Etnier

In the act was a very important additional piece of information that was the creation

of the 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 of the Passamaquoddy Tribe were not brought before the Joint

Indian Tribal State Commission as they should have been 40

In 2013 and 2014 although the subsequent amendments to 12 M RSA 6302A 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 Etnier speaking see Addendum

29

EPA001433
27

legislation and did raise the issue that that these pieces of legislation significantly affect the

jurisdictional underpinnings of the 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 number of individual fishers was a moreefficient conservation method than

the state’s plan which limitedthe number of individuals entering the fishery and the quantity

of gear permitted to each fisher without limiting the catch

In 2013 the MITSC acting on its statutory responsibility raised its concern that LD 451

further constricted the saltwater fishing rights of the 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 of the 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 blow up clause were never

referenced in this letter Instead AG Mills writes “LD 2145 was enacted like any other

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

accordance with the will of the Legislature.”

The 2013 Elver Fishing Season

In 2013 the legislature enacted amendments to 12 MRSA 6302 A as codified in LD 451

that essentially bypassed the legislatively mandated tribal approval process and substantially

undermined the Passamaquoddy Tribe’s jurisdiction over their saltwater fisheryThe 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 February of 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 fisheryThese 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

EPA001434
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 co manage 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 by the OAG a representative of the OAG explained that “all groups

must be treated the same.”41 Even though the OAG was 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 34 A written explanation of the OAG’s

concerns might have dispelled confusion and yielded a more constructive conversation about

the equal protection issue identified by the 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 a fundamental 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 of the

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 fisheryThe 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

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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 by the Wabanaki but generally is not recognized by

the majoritysociety Racism is part of the 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 faraway 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 of the 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 February19 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 in the House and Senate in an effort to address these concerns

A significant lack of knowledge about the governmental status of federally 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” rather than 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 of the 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 p35 36

44 Ibid p 35

45 Ibid p 36

46 MITSC Minutes 6122000

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Section VI Identifying Solutions

By examining these issues we have sought to deepen understanding of a particular conflict

arising from the differing interpretations of the 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 for the 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 in the legislative and congressional record and in the

documented understandings of negotiators on the state side as well as the tribal side

The state court decisions have failed to uphold both the articles of construction in the MICSA

and inFederal 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 of the 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

summary of what we have learned and as a catalyst for the development of constructive

solutions In our recommendations we offer a way to 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 of the 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

commitment to advance conflict resolution among all of the peoples who live within the State

of Maine

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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 amply supported in case law and 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 fisherswho fish according to Passamaquoddy tribal law rather than

State law

4 The articles of construction specified in the federal MICSA 25 USC 1735 a

provide that “In the event a conflict of interpretation between the provisions of the

Maine Implementing Act and this Act should emerge the 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 USC 1725 e1provides that tribal approval is required forany

amendments to the MIA that relate to “the enforcement or application of civil criminal

or regulatory laws of the Passamaquoddy Tribe the Penobscot Nation and the State

within theirrespective jurisdictions” or the allocation of responsibility or jurisdiction

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 MIA subordinate 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 of the 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 of the 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

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32

strategies for cooperation and co management of the fishery through 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 MRSA 6207 1 4 6

8 LD 2145’ s blow up clause designed by the 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’ sblowup 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 persistent attempts 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 MRSA 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 in the 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 of seeking a solution Legal opinions offered in

writing would better inform discussions and possiblyyield a durable result that meets

the needs of the tribes and the state

14 After a 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 remainsmuch to study The ongoing process of reviewing the negotiated

agreements as they 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 of the MITSC

16 The state has a statutory responsibility 30 MRSA 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 of federally recognized

tribes as sovereign nations and confusion about the nature of the State of Maine’s

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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 other with 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

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Section VIII Recommendations

1 The MITSC must be sufficiently resourced to carry out its role of advancing

recommendations that have the potential to resolve conflicts and result in mutually

beneficial solutions between the tribes and the state Findings 6 and 19

2 The articles of construction in the Maine Indian ClaimsSettlement Act outlined in 25

USCS 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

must be conscientiously followed by all parties Findings 5 and 10

4 A tribal federalstate summit should be held on marine resource co management

Findings2 3 and 7 a and b

5 Where the tribal state jurisdictional relationship remains contested the state and the

tribes should commit to 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 parties to 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 M RSA 6302

A Findings 1 2 3 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 8 and 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 for the

OAG to provide advice and counsel to the legislature and the administration to provide

formal wellreasoned 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 MRSA 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 for the OAG and the

MITSC when reviewing any aspect of the 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

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with the MITSC must be developed that includes the OAG OPLA relevant legislative

committees and relevant departments Findings 15 and 16

14 In order to deepen understanding of the Settlement Acts promote constructive

dialogue and advance mutually beneficial solutions the MITSC should continue its

active review of the 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 of concrete recommendations to address racism

are necessary in order to deepen the potential for respectful relationships among all

who live in the 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 fisherswork Policies and procedures backed by the 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

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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 TribalState CommissionPursuant to Public Law 1997 Chapter 708

121598

Addendum 2 Meeting minutesMITSC 6784

Addendum 3 Meeting minutesMITSC 112194

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 12396

Addendum 6 Bill LD 273 Resolve Directing the Commissionerof Marine Resources to

Negotiate with the Passamaquoddy Tribe Regarding Fishing Rights 12197

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 2697

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 of the

Passamaquoddy Tribe 10197

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 102197

Addendum 12 Passamaquoddy Brief Memorandum inSupport of Defendants’ Motion to

Dismiss State v Beal 121397

Addendum 13 Decision State v Beal32798

Addendum 14 Meeting Minutes MITSC 6597

Addendum 15 Memo Richard S Cohen Attorney General to the Joint Select Committeeon

Indian Land Claims4280

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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 9297

Addendum 17 Memo Diana Scully Executive Director MITSC to Mike Best MITSC

Commissionerrepresenting 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 by Members of the Passamaquoddy Tribe 21098

Addendum 21 Bill An Act Concerning the Taking of Marine Resources by Members 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 4280

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 of the 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 DrummondWoodsum 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

6598

Addendum 32 Letter Janet Mills Maine Attorney General to Patrick Keliher Commissionerof

Marine Resources 31213

Addendum 33 Letter Michael GRossetti Akin Gump to Janet Mills Maine Attorney General

21114

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Addendum 34 Letter Joseph 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

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Appendix II

Maine Indian ClaimsSettlement Act MICSA 25 USC 1721 1735

http www mitscorgdocuments 33FedSettActALL pdf

The federal law passed to implement the 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 or Penobscot Nation provided the affected tribe or nation agrees

with the change

Maine Implementing Act MIA MRSA Title 30 Chapter 601

http www mitscorgdocuments 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 of the MICSA

Public Law c 708 LD 2145 An Act Concerning the Taking of Marine Resources by

Members of the Passamaquoddy Tribe

http www mitscorgdocuments 1401997PLc708 pdf

Legislation sponsored by Passamaquoddy 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 mitscorgdocuments 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 improve the relationship between the

state and MITSC and the state and federally recognized Indian Tribes determining the

appropriate role for the Aroostook Band of Micmacs and the Houlton Band of Maliseet

Indians in the MITSC evaluating the general effectiveness of the MITSC engaging in

other activities to improve tribal state relations and developing recommendations

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At Loggerheads—the State of Maine and the Wabanaki Final report of the Task Force on

TribalState Relations

http www mitscorgdocuments 771997 115AtLoggerheads

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 early January 1997 to

explore ways of improving the tribal state relationship and the effectiveness of the

MITSC

Public Law c 45 First Special Session –1997 LD 1269 Resolve to Foster the Self

governing Powers of Maine’s Indian Tribes in a Manner Consistent with Protection of

Rights and Resources of the General Public

http www mitscorgdocuments 1451997 RES c045LD1269 pdf

The legislation generated by the 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 or impinge upon the best

interests of children 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 in the 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 of Governors and Chiefs

State of Maine v Beal 4th Dist Ct No 96957 et seq

http www mitscorgdocuments 1391998 327StatevBeal pdf

The decision of Maine District Court Judge John Romei to reject a motion to dismiss

filed by the Passamaquoddy Tribe on behalf of 13 Passamaquoddy fishers who were

charged with a number of violations of state law related to saltwater fishing

Penobscot Nation v Fellencer 164 F3d 706 1st Cir1999

http www mitscorgdocuments 1421999 1

19PenobscotNationvFellencer1stCircuitdecision pdf

Fellencer was an employment case 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

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First Circuit and the case was remanded forthe entry of judgment reversed in favor

of the Penobscot Indian Nation

Penobscot Nation v Fellencer 999 F Supp 120 D Me 1998

http www mitscorgdocuments 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 MRSA Chapter 9 Attorney General

http www mainelegislatureorglegisstatutes5title5ch9sec0 html

The portion of Maine law that deals specifically with the duties and responsibilities of

the Office of the Maine Attorney General

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