MITSC Report Finds ME Leg. Circumvented MIA Amendment Process
Written by John Dieffenbacher-Krall
The Maine Indian Tribal-State Commission (MITSC) released a report on the saltwater fisheries conflict between Passamaquoddy and the State of Maine, finding the Maine Legislature circumvented the amendment process required under the Maine Indian Claims Settlement Act (MICSA, http://www.mitsc.org/documents/33_FedSettActALL.pdf) on three separate occasions when it legislated on saltwater fishery issues without the consent of the Passamaquoddy Tribe in 1998, 2013, and 2014. The MITSC calls all parties back to the table to resolve the conflict and reminds the Maine Legislature that it must follow the amendment process specified in the MICSA. The Commission also recommends the use of memoranda of understanding (MOU) between the tribes and the state to resolve long-standing and pervasive conflicts.
“The central MITSC role is to continually review the effectiveness of the Maine Implementing Act (MIA, http://www.mitsc.org/documents/38_2010-10-6MIAtitle30ch601.pdf). This led us to examine the long-standing and pervasive conflict between Passamaquoddy and the State of Maine over the Tribe’s management of their fishery. This report sheds light on the costly, ineffective and adversarial attempts to resolve this conflict, including contravention of the statutorily mandated process to amend the MIA,” said Jamie Bissonette Lewey, Chair of the MITSC. “We encourage the parties to the Settlement Agreements to 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,” added Dr. Gail Dana-Sacco, MITSC Commissioner and co-author of the report.
The MITSC report examines the saltwater fishing conflict from the passage of the Maine Indian Claims Settlement Act in 1980 through the legislative session that ended in April of this year. It documents the articulation of differing interpretations over saltwater fishing rights between the Passamaquoddy and State of Maine as early as 1984. The conflict persisted and was included as an issue area in the 1997 report At Loggerheads – the State of Maine and the Wabanaki. (http://www.mitsc.org/documents/77_1997-1-15AtLoggerheads-TheStateofMaineandtheWabanaki.pdf)
In one of many efforts to resolve the saltwater fishing conflict, LD 2145, An Act Concerning the Taking of Marine Resources by Members of the Passamaquoddy Tribe, was introduced in the Maine Legislature. The original bill featured the development of a licensing compact between the Passamaquoddy Tribe and the State governing the taking of marine resources. Though the initial version of the bill acknowledged that legislating in the area of saltwater fishing would constitute an amendment to the MIA, the provision requiring Passamaquoddy approval of any laws proposed in the contested issue area of jurisdiction over the saltwater fishery was later stripped from the bill through the creation of a “blow-up” or severability clause offered by the Office of the Attorney General (OAG). The use of a “blow-up” clause allowed the Maine Legislature to unilaterally decide contested jurisdictional issues involving saltwater fishing. LD 2145 also changed the definition of sustenance without the required approval of the Tribe.
The MITSC report makes 17 recommendations for improving tribal-state relations and resolving the saltwater fishing conflict. Some of the recommendations include:
• The articles of construction in the Maine Indian Claims Settlement Act outlined in 25 U.S.C. § 1735 (a) must be applied by all parties: federal, state, and tribal.
• The statutory process to amend MIA, as specified in MICSA 25 U.S.C. § 1725 (e)(1), must be conscientiously followed by all parties.
• Where the tribal-state jurisdictional relationship remains contested, the state and the tribes should execute Memoranda of Understanding (MOU).
• The OAG, the Tribes, and the MITSC should routinely review proposed legislation that could be considered a potential amendment to the Settlement Agreement.
• The Judiciary Committee should consider the development of reporting standards for the OAG when reviewing any aspect of the MIA or MICSA.
• All parties to the Settlement Agreements should engage in pragmatic and constructive dialogue.
• The MITSC must be fully resourced to carry out its role.
Because the central message of the report is a clarion call for all of the governments to return to the table, engage in conflict resolution, and develop mutually beneficial solutions for all of the peoples within Maine, the MITSC briefed key leaders: 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.
Chief Reuben (Clayton) Cleaves of the Passamaquoddy Tribe at Sipayik stated, “The Passamaquoddy People view saltwater fishing as an inherent right. This right was not given to us by the State of Maine or any other state. We have always said that right was never discussed during the Settlement Act negotiations therefore it is retained. The MITSC report proves what we have always known. Yet, we recognize other peoples now live within our traditional territories. We remain committed to discussing how to share these resources in a manner that does not harm the fish. As Passamaquoddy, we follow the fish—their health is the foundation of our well-being, and everyone else’s, for that matter.”
Chief Joseph Socobasin of the Passamaquoddy Tribe at Motahkmikuk added to the Passamaquoddy message, reminding the MITSC “Saltwater fishing has sustained the Passamaquoddy throughout all of our history. Fishing in the ocean is not a commercial venture: it is our culture. Our relationship with the ocean is core to our concepts of sustenance as a people living on this bay that bears our name. For us, sustenance has always included components of barter and exchange. At the same time, we are very worried about the damage to our intertidal zones and to the saltwater fishery. This is why we have set a high standard of conservation and encouraged the state to do likewise. This report sheds light on some hard truths, some very disturbing truths, about the relationship between the Passamaquoddy and the State of Maine.” Echoing the Commission’s call for the development of solutions, Chief Socobasin continued, “It is my hope that the contents of the report will bring us all back to the table with a newfound respect and commitment to finally resolve this conflict.”
Chief Kirk Francis of the Penobscot Nation responded to the report saying, “It is clear from this report that the complaints of the Wabanaki in Maine have been justified. This report documents total disregard of the statutory rights of the tribes that require our consent to any change in the negotiated settlement. By using legal instruments that are not in the spirit of the law to influence legislation on aboriginal rights and place these rights under state law, the legislature is trying to make the tribes perpetual wards of the State,” said Chief Francis. “What’s more deplorable is that the state takes this approach on the most important core right of the tribes which is their right to a subsistence and sustenance lifestyle and our right to self-govern it. It is crucial that all of the parties return to the table to resolve this conflict. ”
After the MITSC briefed his senior staff, Governor Paul R. LePage commented, “I congratulate the members of the MITSC for their hard work in producing the report, and I look forward to the continuation of healthy dialogue between the state and tribal governments.”
House Judiciary Chair Charles Priest reflected a similar sentiment, “This assessment shows the urgent need for the Indian tribes in Maine and Maine’s state government to continue to work out conflicts together. Both parties know that the ocean’s resources are not infinite; both sides must recognize the Passamaquoddy’s historical dependence on the ocean. Both sides recognize the State and the Passamaquoddy interest in ensuring that those ocean resources continue in abundance into the future.”
Passamaquoddy Tribal Representative Madonna Soctomah attended many of the MITSC briefings. She explained, “Although the Maine Implementing Act does address sustenance, it is silent on saltwater fishing. Legislation in this area can only be done with consent of the Passamaquoddy. Saltwater fishing is not a commodity, it is a treasured resource tied into being Passamaquoddy. Legislation that disconnects the Passamaquoddy from the saltwater is like legislation that would transform me, or my people, into non-Indians. This did not happen in 1980, 2013 or 2014. I will always be a Passamaquoddy woman. We will always fish in the saltwater.”
Supporting the MITSC call for continued dialogue, Representative Priest further commented, “The key to a fruitful relation between the State and the Passamaquoddy is respect. The Passamaquoddy and the State will exist for the indefinite future. This respect must also exist into the future.”
The report finishes with the following summation, “The MITSC concludes that open dialogue, negotiations, and formal agreements are mechanisms that are both pragmatic and constructive. We offer this report with sincere hope for a renewed commitment to advance conflict resolution among all of the peoples who live with the State of Maine.”
Maine Indian Tribal-State Commission (MITSC)
13 Commissary Point Road, Trescott Township, ME 04652
Paul Thibeault, Managing Director: 207-271-7762