January 30

With elver season at risk, Maine moves closer to deal with Indian tribes

But the proposal, which seeks to balance tribal sovereignty with conservation measures, is raising constitutional concerns.

By Steve Mistler smistler@pressherald.com
Staff Writer

AUGUSTA — The state and Maine’s Indian tribes are approaching a deal that would effectively allocate part of the lucrative elver fishery to the tribes, defusing tension that arose last year but creating separate regulations for tribal and non-tribal fishermen.

click image to enlarge

Patrick Keliher, Commissioner of the Maine Department of Marine Resources, left, addresses the Marine Resources Committee on Wednesday, Jan. 29, 2014 in Augusta as Attorney Michael-Corey Hinton, representing Native American elver fisherman, listens to the testimony.

Andy Malloy/Kennebec Journal

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The elver is a valuable commodity.

2012 Reuters File Photo

Additional Photos Below

Where the gubernatorial candidates stand

Gov. Paul LePage is supporting L.D. 1625 and his administration is attempting to broker a deal with tribes that will lead to a long-term management plan for the fishery.

LePage’s communications office declined to comment Wednesday and instead deferred to Patrick Keliher, the governor’s marine resources commissioner. Keliher said the deal and the new license regulations are critical.

“We’re under a tremendous amount of pressure to close the fishery,” he said. “If we can’t show solid progress I believe we’re jeopardizing the entire fishery for both tribal and non-tribal fishermen.”


Independent candidate Eliot Cutler said in a written statement that elvers “are a resource of suddenly enormous value that needs to be conserved for future generations of tribal and non-tribal fishermen,” but the issue much bigger.

“This dispute is part of an ongoing controversy between the state of Maine and the tribes regarding who has dominion and control over the rivers and the tributaries that run through the tribes’ federally recognized reservations. A U.S District Court case is now under way where the tribes seek adjudication of those rights. The state of Maine, many towns and cities and the federal government are all involved.

This dispute will be difficult to resolve, but all Maine citizens have a vital interest in both a resolution of the tribes’ dispute with the state and the protection of the elvers resource. I believe (L.D. 1625) is a good vehicle for a temporary resolution to this matter; however, it should be amended to provide for a sunset of the bill’s provisions in two to three years, during which time the state and the tribes should seek to resolve the dispute over the status of the rivers and the river-borne resources, either within or outside the pending litigation.”

Cutler said the state ought to promote the development of eel farms in Maine “so that the higher values from the elver farms will be captured in Maine, rather than in Japan.”


Democratic candidate U.S. Rep. Mike Mihaud said, “Issues of resource management between the state and tribal governments should be worked out cooperatively and negotiated in good faith, using science as our guide. Maine has a compelling interest in protecting natural resources, such as the elver fishery, but we also have an obligation to respect the tribes and to understand that they also have an interest in making sure that the fishery is protected. If we approach difficult issues like this with a commitment to work together, then we can avoid the conflicts that have arisen between the state and tribes.”

Significant sticking points that remain have hindered efforts by the LePage administration and lawmakers to steer the $40 million industry away from the brink of closure by federal authorities.

State officials are trying to balance conservation of the fishery with the sovereignty of the tribes, including the Passamaquoddies. The tribe issued 575 licenses last year, well above the state limit of 200, and that led to a clash between law enforcement officers and Passamaquoddy fishermen on the banks of the Pennamaquan River in Washington County.

A bill backed by the LePage administration and sponsored by Rep. Walter Kumiega, D-Deer Isle, would invalidate elver licenses issued by any tribe without ratification by the state, set catch limits for individual fishermen, and impose criminal penalties for all elver fishermen who violate state regulations.

Lawmakers’ consideration of the bill was complicated Wednesday as tribal representatives and members of the LePage administration met with the state Attorney General’s Office to discuss a deal that would exempt tribal fishermen from the catch quotas and the criminal penalties, while keeping the current regulations for all other elver fishermen.

The agreement also would allow tribal members to catch as many elvers, collectively, in the season that begins March 22 as they did in 2013.

In exchange, the tribes’ fishermen would participate in a new state-issued swipe card system designed to track the catch daily while assigning it to individual harvesters and dealers. Also, tribal fishermen would use only dip nets, not the fyke nets that typically ensnare more of the baby eels.

The Attorney General’s Office has constitutional concerns about the agreement, said Marine Resources Commissioner Patrick Keliher. The AG’s Office believes the agreement and Kumiega’s bill, L.D. 1625, could create unequal treatment of elver fishermen, Keliher said.

Such concerns ignore the tribes’ sovereignty, said Michael-Corey Hinton, a native Passamaquoddy and a Washington, D.C., lawyer who is working pro bono for the Joint Tribal Council of the Passamaquoddy Tribe.

“Over the course of history in this state, we have been subjected to unequal treatment at nearly every single turn,” Hinton told lawmakers on the Marine Resources Committee. “The legal system as it is dictated to us is fraught with inequity. As we approach these negotiations, as a federally recognized sovereign government with citizens who occupy a separate political class in the United States ... we recognize that we can’t simply have our own plan and do what we want. We need to work together.”

Hinton said the dip net restriction, swipe card compliance and a 1,650-pound catch limit outlined in the agreement are significant concessions that exceed the state’s conservation measures.

“We have bent over backwards,” he said. “We want this deal so terribly badly because this is what we need to allow our tribal members to exercise their rights to survive.”

Hinton and Keliher said the two sides are close to an agreement, but haven’t settled on a penalty provision if the tribes exceed their quota or continue to fish for elvers after the state shuts down the fishery.

Hinton expressed confidence that an agreement can be reached. Keliher was more cautious.

“We are yet so close but still so far away,” said Keliher, and any deal would have to clear constitutional hurdles and win approval from federal regulators with the Atlantic States Marine Fisheries Commission. He said federal authorities nearly shut down the fishery last year after the conflict between law enforcement and the Passamaquoddies.

(Continued on page 2)

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Additional Photos

click image to enlarge

Attorney Michael-Corey Hinton addresses the Marine Resources Committee on Wednesday, Jan. 29, 2014 in Augusta on behalf of Native American elver fisherman with Passamaquoddy Vice-Chief Clayton Sockabasin in the background.

Andy Malloy/Kennebec Journal

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In this March 2012 file photo, a man holds elvers, young, translucent eels, in Portland, Maine.

AP File Photo


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