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Maine Elver Bill Raises Tribal Sovereignty Issue
01/29/2014   Reported By: A.J. Higgins

Maine lawmakers are considering a measure that would restructure the rules governing the state's lucrative elver industry. Under the proposed law, violators of elver fishing regulations would face thousands of dollars in fines, and members of Maine's Indian tribes would have to carry state-approved licenses while fishing on tribal land. As A.J. Higgins reports, the issue has reinvigorated the debate over tribal sovereignty.

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This week, the Maine Indian Tribal-State Commission warned that proposed changes in the state's elver fishing laws could open some old wounds between the state and the tribes. Just last year, the state seized some gear owned by Passamaquoddy fishermen in Pembroke who were harvesting the tiny glass eels using tribe-issued licenses. Some fishemen viewed the state's action as a challenge to their sovereign nation status.

Now as a new elver harvesting bill makes its way through the Legislature's Marine Resources Committee, DMR Commissioner Patrick Keliher says some progress is being made between the two groups during discussions mediated by the Maine Attorney General's Office.

"We've reached an understanding about the quota and about license type and activity," Keliher said. "But we still are dealing with now potentially a larger constitutional issue about how we treat non-tribal and tribal people on a penalty phase."

The arguments in the dispute are complex, and involve the state's constitutional authority to regulate the fishery in a way that addresses the needs of the commercial market while preserving the viability of the resource. But Penobscot and Passamaquoddy fishermen say if they acquiesce to these state laws on their sovereign lands, they will be extinguishing Aboriginal unceded reserved rights.

Keliher says if both sides can't resolve the issue, the state faces a larger threat from the Atlantic States Marine Fisheries Commission, or ASMFC, which is leaning heavily toward imposing a moratorium on the harvesting of elvers out of concerns for the preservation of the resource.

"This is really directed on kind of the constitutional questions surrounding this issue and can there be constitutional challenges?" Keliher says. "But at the end of the day, if those aren't resolved - and whether it's a tribal member or a non-tribal member and these things end up in court - if they raise the constitutional issues, these things are going to get thrown out, we're not enforcing our fishery and then that relates back to compliance with ASMFC."

"I don't think the question has been answered as to where the tribal rights piece is, where it fits and how we're determining that the salt water fishing rights of tribal nations in Maine have been ceded or given up," said Penobscot Chief Kirk Francis.

Francis says he wants to find a compromise with the state over new regulations for the fishery. But before that can happen, he says, there has to be some recognition by the state of Maine of tribal fishing rights.

"Tribes are unique and distinct political entities," Francis said. "If we weren't, we wouldn't be having these conversations."

How licenses will be allocated among the Maine tribes, and what their share of the elver harvest should be, are daunting issues for the Marine Resources Committee. Lawmakers are considering several new provisions, including a 35 percent reduction from last year's quota of 18,000 pounds to just under 12,000 pounds this year.

Then, there's the more complicated issues raised by some tribal members who want family members to be able to assist them in their elver harvesting operations without being subjected to the same regulation as those who are issued licenses.
Rep. Windol Weaver, a York Republican, is a committee member who's frustrated at the direction he sees the regulations heading.

"Seems like to me, right now we're going down the path to two different laws: one for the native Americans and one for our, this group, here," Weaver said. "I don't think that's a very good idea."

Members of the committee are expected to finalize their recommendations for the elver bill within the next week.

Photo:  Patty Wight


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