Panel endorses changes to tribal elver bill, deal ‘pretty much gone,’ says tribe

By: Bill Trotter

Glenn Bernard of Presque Isle fingers through his elver catch from the previous night to try and find eels small enough to sell in Brewer on Friday, May 31, 2013.Glenn Bernard of Presque Isle fingers through his elver catch from the previous night to try and find eels small enough to sell in Brewer on Friday, May 31, 2013.

AUGUSTA, Maine — Changes that a legislative panel made Wednesday to a tentative agreement state fisheries officials had made with the Passamaquoddy Tribe over elver fishing mean that the agreement is “pretty much gone,” according to a tribal official.

Newell Lewey, a Passamaquoddy tribal councilor at Pleasant Point, said Wednesday evening that the decision by the Legislature’s marine resources committee to require the tribe to impose individual quotas on its licensed elver fishermen made tribal officials “quite upset.”

In trying to negotiate an agreement with the Maine Department of Marine Resources, the Passamaquoddy Tribe had indicated it did not want to limit the number of elver licenses it can issue to its members or to set individual limits on how much each fisherman could catch. The tribe had agreed that it would limit its overall catch quota to 1,650 pounds, which is the same amount it caught in 2013.

What Wednesday’s move by the marine resources committee might mean for the upcoming elver season, which is scheduled to start on March 22, remains to be seen, Lewey said.

The committee made the change to proposed legislation that would set management measures for the 2014 elver season in response to concerns raised by the state attorney general’s office. State attorneys had told legislators that provisions that were included in a tentative agreement between DMR and the tribe might not be considered legal under the equal protection clause of the state constitution.

The proposals that concerned state attorneys would have barred Passamaquoddys from using large, funnel-shaped fyke nets — a ban that tribal officials said they would not object to — and would have allowed the tribe to avoid individual catch quotas for its members. The committee voted Wednesday to allow the Passamaquoddy Tribe to issue up to six fyke net licenses for the upcoming elver season.

Along with imposing individual quotas for all tribal and nontribal fishermen, the state is proposing to penalize each fisherman who catches more elvers than they are allowed. State attorneys were worried that any agreement with the tribe that did not require individual catch limits for licensed Passamaquoddys would not be constitutional and therefore would not be enforceable.

Last week, DMR officials backed off from some of the proposals it has negotiated with the tribe, saying that if the measures were considered unenforceable it could prompt an interstate fisheries commission to shut down Maine’s elver fishery altogether.

The state’s change of heart about the tentative agreement angered Indian officials with both the Passamaquoddy Tribe and with the Penobscot Nation — and even prompted Penobscot Nation Chief Kirk Francis to call for the Attorney General’s office to be investigated.

Tribal representatives have told state officials that because they are federally recognized, they have the ability to work out mutually beneficial agreements with the state of Maine and are not limited by how state officials interpret state law. Any agreed-upon difference in how tribal members are treated by Maine state government is not a result of discriminatory or preferential treatment based on race, they have said, but because the tribes have sovereign rights as separate political entities.

Last year Attorney General Janet Mills issued a legal opinion that the state does have authority over Passamaquoddy fishing licenses.

On Wednesday, some legislators said they felt Passamaquoddys should not be able to issue an unlimited number of dip-net licenses. All four of Maine’s Indian tribes — including the Maliseets and Micmacs — should face the same mandated catch reductions that nontribal fishermen are facing, some said.

The committee agreed to allow the Passamaquoddys to issue an unlimited number of dip-net licenses. Also, all four tribes will be able to catch the same amount, or slightly more, of eels that they harvested last year.

Rep. Wayne Parry of Arundel, who favored setting a 200-license limit for the tribe, also supported imposing the same mandated catch reduction on all fishermen, tribal and nontribal alike.

“I think we need to treat everybody the same,” he said.

Jeff Pierce, executive director of the Maine Elver Fishermen’s Association, told the committee that not requiring the tribes to reduce their catch wasn’t fair and that the Passamaquoddys should have a set license limit, as the other tribes do.

“We’re not good with that,” Pierce said.

Clayton Sockabasin, vice chief of the Passamaquoddy Tribe at Indian Point, told Parry that the tribe was not willing to limit the number of licenses it issues. Fishing is an age-old practice and a fundamental right of every Passamaquoddy, he said, and the tribe will not deny that right to any of its members.

Sockabasin added that, though the tribe would like to reach a deal with the state, the Passamaquoddys would not be willing to accept any and all changes the Legislature might want to make to the agreement the tribe thought it had reached with DMR. The more “distorted” and “unrecognizable” the draft legislation becomes, he said, the more likely the tribe “would have to oppose it.”

According to Lewey, the tribe had proposed to implement individual quotas once 80 percent of the Passamaquoddy allocation had been reached, but that language was struck from the bill.

He added that there already are many differences between how Passamaquoddy members and nontribal Mainers are issued fishing and hunting licenses. He has a fishing license and hunting license that he does not have to pay for, he said. Nontribal Maine residents have to pay the state for theirs.

“It’s not like these issues haven’t been addressed before,” he said. “It happens all the time.”

Lewey said the tribe hopes to avoid a repeat of the 2013 season, which included confrontations at the water’s edge and dozens of criminal cases against Passamaquoddys that prosecutors eventually dismissed.

But, he said, “it sure could [be].”