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Controversy and Jurisdictional Disputes Regarding Elvers

The controversy over regulating the Passamaquoddy fisheries is part of a larger problem that arises under the Maine Implementation Act. The question is whether the state of Maine has jurisdiction to limit subsistence practices in open waters.

Elvers are baby eels, who migrate yearly through the ocean waters of Maine. They are prized as a delicacy in certain markets, and a lucrative fishery has developed here in Maine to harvest or catch elvers. Two types of tools are used to harvest elvers: dip nets and fyke nets. Dip nets are dipped into the water in order to catch the eels. Fyke nets are funnel shaped nets that are held open with hoops. These nets are used to trap the eels as they move down the river.

This past year the Maine legislature passed L.D. 451 “An Act to Cap Certain Marine Resource Licenses Issued by the Passamaquoddy Tribe.” This act stipulates that the tribe could issue 124 licenses that allow 1 piece of gear (fyke net or dip net), 26 licenses allowing two pieces of gear (fyke net or dip net) and 50 licenses that only allow the taking of elvers in the St. Croix River. In the past, the Passamaquoddy could issue as many licenses as they wanted. This year the Passamaquoddy issued 575 licenses, 425 of which the state labeled as illegal. The idea behind the license limitations is that there would be less gear in the water. However, the new state law placed no limits on the amount of eels that each licensee could take. Thus, many felt that this new license limit provided no conservation measures for the species.

This past March, the Passamaquoddy passed a law that provided conservation measures designed to protect the elver population. This law placed a 3,600 lb. seasonal limit on the amount of elvers taken by the entire tribe. This worked out to approximately 6.2 pounds of elvers per license holder. The tribe also took steps to regulate the spacing of fyke nets to ensure that there was a pathway for elvers to pass through. The Passamaquoddy are very concerned with preserving the elver population for future generations. Elver fishing has been a large part of Passamaquoddy culture for centuries. The eels have been used for subsistence and as a part of ceremonial practices.

The controversy over regulating the Passamaquoddy fisheries is part of a larger problem that arises under the Maine Implementation Act. The question is whether the state of Maine has jurisdiction to limit subsistence practices in open waters.

The State’s exercise of jurisdiction is generally restricted or non-existent with respect to “internal tribal matters.” A 1st Circuit case in 1997 found a number of areas where Maine jurisdiction is “curtailed.” While the decision in the Atkins v. Penobscot, 130 F.3d 482 (1st Cir. 1997) case was about the harvesting of timber on Penobscot land, it can arguably be applied to a number of other areas as well, including to Maine’s fisheries. Determining the application of Atkins to open waters fishing is the primary concern of those who seek to limit or challenge the State’s regulation of tribal elver fishing.

When on-reservation conduct involving only Indians is at issue, state law is generally inapplicable, for the State's regulatory interest is likely to be minimal and the federal interest in encouraging tribal self-government is at its strongest.” Some in the Passamaquoddy population say that as long as the tribe is not trying to regulate the hunting and fishing rights of non-Indians, the issuance of elver permits to tribal members is an “internal tribal matter.”
"Elver fishing has obviously become a contentious issue, but it has also become symbolic of the effort of Maine tribes to stand as sovereigns alongside the state of Maine."

The settlement act discussed jurisdiction, and gave examples of where the State could and could not regulate. However, the Atkins court noted that the criteria laid out in the settlement act are mere “examples and not exclusive” of what constitutes internal tribal matters. Asking, for example, whether other municipalities issued the same permits is too broad of a test to determine what constitutes an “internal tribal matter.” The Penobscot argued that to “truly . . . exercise its residual sovereignty, it must be free to act within the present marketplace and not be stereotypically restricted to ancient forms of economic support.” The Atkins court found that there was a 4 part test in any analysis of whether the State may exercise jurisdiction over a tribal matter: the effect on non-tribal members, the subject matter of the dispute, particularly when related to Indian lands or the harvesting of natural resources on Indian lands, the interest of the state of Maine, and prior legal analysis. The Court found a number of areas where Maine jurisdiction is scaled back, notably in regards to the harvesting of natural resources on Indian land. The Court found that issuing permits is a way a tribe can manage the resource on the land. “The issue . . . involves matters of . . . the economic use of natural resources inherent in the tribal lands…”

A Maine Superior Court case further clarified what an “internal tribal” matter is. Great Northern Paper, Inc. v. Penobscot Nation, 770 A.2d 474 (Me. 2001) identified a two-part test to identify whether something is an internal tribal matter. This case was about the Freedom of Access Act. The Court found that the Freedom of Access Act did not apply to tribes when they were acting in their municipal capacity with respect to internal tribal matters but did apply when they were interacting with “other governments or agencies in their municipal capacity.” Generally, state laws that apply to municipalities also apply to tribes, but there are a few exceptions. One is the “exclusive power to regulate certain aspects of the fishing and wildlife resources within their territories.” However, when a tribe’s actions cause them to interact or affect those outside the tribe they are no longer acting in respect to internal tribal matters.

Elver fishing has obviously become a contentious issue, but it has also become symbolic of the effort of Maine tribes to stand as sovereigns alongside the state of Maine. It is clear that Maine tribes have the rights of sovereigns with respect to “internal tribal matters.” The Passamaquoddy argue they are not trying to regulate non-Indians. Some members have claimed they are only trying to protect the health and safety of the tribe by allowing members to participate in a lucrative market while also maintaining traditional subsistence practices. In addition, they say, they are trying to implement conservation policies that will preserve the practice for future generations.  

Publication Volume: 
2013.1
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