The legal status of Maine’s Indian tribes is again under challenge. The state is attempting to deal with the federal Atlantic States Marine Fisheries Commission’s warning that it may shut down the elver fishery if Maine doesn’t come up with a conservation plan that reduces the allowed catch by one-third, from 18,000 pounds to 12.000.
The state knows what it wants to do. Gov. Paul LePage’s administration proposed a bill, LD 1625, that would eliminate the tribes’ ability to issue their own licenses by requiring them to be first approved by the Department of Marine Resources.
Commission Pat Keliher says the bill is needed to ensure that Maine gets a handle on the overall catch, but there would be a “constitutional issue” if penalties were different for tribal members. Keliher is ignoring, however, whether the four Wabanaki tribes can legally issue fishing licenses independently of the state. That issue hasn’t been resolved, nor is it likely to be in time for this year’s fishing season.
First, some facts. Elvers, or “glass eels” are an incredibly valuable catch, second only to lobsters. The stratospheric prices, as much as $1,000 a pound, are the result of a severely diminished supply in Japan, where they are a highly sough-after delicacy; Americans, by contrast, have little taste for eels.
Maine is now a key seller. With prices this high, it’s an obvious temptation for over-fishing.
Of the 18,000 pounds harvested in 2013, nearly 16,000 came from non-tribal licenses, with 654 were issued. Although all four tribes grant their own licenses, the bulk of the tribal catch comes from the Penobscot tribe (592 pounds) and the Passmaquoddies (1,653 pounds.)
The state is particularly concerned about Passamaquoddy licenses, of which there are 575. The tribe, which has been catching sea-run elvers for thousands of years, believes each of its members has a right to sustenance fishing. That’s a topic covered – though not with the detail needed to resolve this dispute – in the federal Maine Implementing Act of 1980.
The Maine Indian Tribal-State Commission, the body charged with resolving these issues, has seen many stormy controversies. Many of them stem from the fundamental ambiguity of tribes’ “sovereignty” under federal and state law.
To what degree are tribes independent, self-governing bodies, and to what extent to they have to comply with state and federal laws? We sometimes have answers. Although the tribes have representatives in the Maine House, they are non-voting, and the districts that include reservations include tribal members in the population count.
About fishing rights, there’s a lot that’s unclear. LD 1625 is the latest blunt instrument in the state’s long-standing efforts to deal with the ambiguities about sovereignty by pretending they don’t exist. The state, for instance, seized fishing gear from Passamaquoddy tribe members last year, though the charges were later dismissed.
This approach isn’t going to work.
No one knows just how the elver issue will be resolved. It seems unlikely the federal fisheries commission will shut down elver fishing altogether – or that it views the Indians’ catch as the primary issue.
One logical approach would be to reduce everyone’s catch from last year by a third, and then determine the means needed to establish compliance. Instead of using logic, the state sometimes seems to be reviving past discriminatory practices. Consider: Passamaquoddies took less than 10% of last year’s elver catch, yet 25% of alleged licensing violations were filed against tribal members.
There’s a lot of history here, and little of it involves any favoritism toward Indians, despite Keliher’s supposed “constitutional issue.”
Maine, to its credit, has created a Child Welfare Truth and Reconciliation Commission to investigate the wholesale removal of Indian children from their parents for placement in substandard schools, or with white families – a practice that continued into the 1960s.
And, as Mainers cannot failed to have noticed, we now have two gambling casinos, passed through referendums backed and now owned by out-of-state interests. There are no Indian casinos; those were rejected by voters or vetoed by former Gov. John Baldacci.
Maine is the only state with a substantial tribal presence that doesn’t have casinos, which are allowed under the 1988 Indian Gaming Regulatory Act. Federal courts ruled that Maine Implementing Act supercedes IGRA here, and tribes need the state’s consent to open a casino. Whatever else Maine’s current gambling policy is, it lacks a fundamental element of fairness.
So, concerning elvers: The state might tread softly, rather than throwing its weight around. Listening carefully to what the tribes are saying would be a good start.
Douglas Rooks is a former daily and weekly newspaper editor who has covered the State House for 29 years. He can be reached at firstname.lastname@example.org.