Did Maine's 2013 AG opinion say the State or the Wabanaki tribes have authority to regulate saltwater fishing under the Maine Indian Claims Settlement Acts?

Plain-English summary

The Commissioner of Marine Resources asked whether the State could regulate Passamaquoddy tribal members who take saltwater fish, clams, scallops or elvers; whether the Maine Indian Tribal-State Commission (MITSC) had a role in saltwater fishing disputes; and what effect the 1776 Treaty of Watertown had. The AG answered all three.

Reading the statutes and the legislative history of the Indian Claims Settlement Acts, the AG concluded that tribal members are subject to Maine's regulatory authority over marine resources to the same extent as any other Maine citizen. Title 30 M.R.S. § 6204 makes the tribes, their members and natural resources subject to Maine's civil and criminal jurisdiction except as the Implementing Act otherwise provides, and "natural resources" includes fishing. Congress ratified that allocation in 25 U.S.C. § 1725(b)(1). The sustenance fishing rights the Settlement Acts reserved (30 M.R.S. § 6207(4) and (9)) applied only to inland waters within the reservations and, per the legislative committee report, excluded commercial fishing. Saltwater fishing was not an "internal tribal matter" under § 6206(1).

The AG also concluded MITSC has no regulatory role over saltwater fisheries (its inland authority under § 6207 does not reach marine resources) and that the 1776 Treaty of Watertown, superseded by the 1980 Settlement Acts, was irrelevant. Although the Legislature had voluntarily granted some saltwater licensing privileges to tribal members (P.L. 1997, c. 708), the opinion noted those privileges were not required by the Settlement Acts and the Legislature was free to change them.

Currency note

This opinion was issued in 2013. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.

Background and statutory framework

The Maine Indian Claims Settlement Acts (1980) settled the tribes' aboriginal land and resource claims. As part of that settlement, Congress extinguished tribal aboriginal claims to Maine's marine resources, and 30 M.R.S. § 6204 placed the tribes, their members and natural resources under Maine's civil and criminal jurisdiction "to the same extent as any other person." The AG relied on United States v. Wheeler, 435 U.S. 313 (1978), for Congress's plenary power to divest tribes of attributes of sovereignty.

The opinion drew on prior litigation reaching the same result: the Maine Law Court in Penobscot Nation v. Stilphen, 461 A.2d 478 (Me. 1983), held that regulation of natural resources is not an internal tribal matter, and the First Circuit in Maine v. Johnson, 498 F.3d 37 (1st Cir. 2007), held that Maine's environmental regulatory jurisdiction applies uniformly across the State, including tribal lands and waters. A 1998 District Court decision (State v. Beal) had earlier concluded the Passamaquoddy retained no aboriginal saltwater fishing rights after the Settlement Acts.

The reserved sustenance fishing rights under § 6207(4) and (9) were inland-only and excluded commercial fishing. The Legislature later authorized special tribal licenses for marine resources (P.L. 1997, c. 708), but the AG read that as a voluntary grant, not a Settlement Act requirement.

Common questions

Could a Passamaquoddy member take saltwater fish, clams or elvers without complying with Maine licensing?
Under the AG's reading, no. Tribal members were subject to Maine's marine-resources regulation to the same extent as any other Maine citizen, except where the Legislature had separately granted privileges.

Did the reserved sustenance fishing right cover saltwater?
No. The opinion read the sustenance fishing right as limited to inland waters within the reservations, and it excluded commercial fishing entirely.

Did the Maine Indian Tribal-State Commission have a say over saltwater fishing?
The AG concluded MITSC had no authority over marine resources. Its regulatory role under § 6207 reached only certain inland ponds, streams and rivers, not coastal waters.

Citations

• 30 M.R.S. § 6204
• 30 M.R.S. § 6203(3)
• 30 M.R.S. § 6206(1)
• 30 M.R.S. § 6207
• 30 M.R.S. § 6212
• 25 U.S.C. § 1722(b)
• 25 U.S.C. § 1725(b)(1)
• United States v. Wheeler, 435 U.S. 313 (1978)
• Penobscot Nation v. Stilphen, 461 A.2d 478 (Me.), appeal dismissed, 464 U.S. 923 (1983)
• Maine v. Johnson, 498 F.3d 37 (1st Cir. 2007)

Source

• Landing page: https://www.maine.gov/ag/about/ag_opinions.html

Original opinion text

MAINE STATE LEGISLATURE

    The following document is provided by the
   LAW AND LEGISLATIVE DIGITAL LIBRARY

at the Maine State Law and Legislative Reference Library
http://legislature.maine.gov/lawlib

Reproduced from scanned originals with text recognition applied
(searchable text may contain some errors and/or omissions)
 2013-01
REGIONAL OFFICES
84 HARLOW ST. 2ND FLOOR
BANGOR, MAINE 04401
Tn: (207) 941-3070
FAX: (207) 941-3075
JANET T. MILLS
ATTORNEY GENERAL 415 CONGRESS ST., Sn. 301
PORTLAND, MAINE 04101
TEL: (207) 822-0260
FAX: (207) 822-0259
STATE OF MAINE
TEL: (207) 626-8800 14 ACCESS HIGHWAY, Sn. 1
OFFICE OF THE ATTORNEY GENERAL
CARIBOU, MAINE 04736
TTY USERS CALL MAINE RELAY 711 6 STATE HOUSE STATION TEL: (207) 496-3792
AUGUSTA, MAINE 04333-0006 FAX: (207) 496-3291

                                            March 12, 2013

Patrick Keliher, Commissioner
Department of Marine Resources
#21 State House Station
Augusta, Maine 04333-0021

Re: Regulation of Saltwater Fishery under the Maine Indian Claims Settlement Acts

Dear Commissioner Keliher:

       You have asked this Office for an Opinion regarding the State's regulatory jurisdiction

over marine resources, in particular, whether the State has the authority to regulate
Passamaquoddy tribal members who take saltwater fish, clams, scallops or elvers, and whether
the Maine Indian Tribal-State Commission (MITSC) has a statutory role in resolving questions
over saltwater fishing matters involving the Maine tribes. You have also asked about the effect of
the 1776 Treaty of Watertown.

       A reading of the statutes and the legislative history of the Indian Claims Settlement Acts

leads to the conclusion that tribal members are subject to Maine's regulatory authority over
marine resources to the same extent as other Maine citizens and that MITSC has no particular
authority or role regarding saltwater fishing issues. In addition, the 1776 Treaty of Watertown is
irrelevant to the saltwater fishery issues.

State Regulation of the Saltwater Fishery

       Those who negotiated and drafted the Indian Claims Settlement Acts dealt directly with

natural resources issues, which were a critical component of the negotiations, as fully
documented in the legislative history. The issue of whether the tribes were subject to licensing
and regulation regarding marine resources has also been addressed by the courts, and the Maine
Legislature has exercised its authority in this area to enact statutes affording tribal members
privileges not available to other Maine citizens.

      Statutes. The United States Supreme Court has determined that Congress has plenary

power to divest tribes of attributes of sovereignty. United States v. Wheeler, 435 U.S. 313, 323
(1978). As a result of the lengthy negotiations leading up to the Settlement Acts, and with the

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agreement of the Maine tribes, Congress specifically extinguished tribal aboriginal claims to
( Maine's marine resources. Title 30 M.R.S. § 6204 establishes that Maine tribes and their
members, lands and natural resources are subject to Maine's civil and criminal jurisdiction "to
the same extent as any other person or lands '?r land or other natural resources," ''[e]xcept as
otherwise provided in" the Maine Implementing Act. "Natural resources" includes fishing
rights. 25 U.S.C. § 1722(b); 30 M.R.S. § 6203(3). The Maine Implementing Act was
specifically "approved, ratified, and confirmed" by Congress in 25 U.S.C. § 1725(b)(l) (the
;M:aine tribes, members, lands and natural res.ources "shall be subject to the jurisdiction of the
State of Maine" as set forth in the Maine Act). Therefore, Congress confirmed Maine's
regulatory jurisdiction over marine resources and extinguished any claims to those res·ources by
the Maine tribes that are based upon ancient or aboriginal title or use.

        There is nothing in the Maine Implementing Act that would limit state jurisdiction over
marine resources or that would grant tribal members rights to those resources distinct from those
enjoyed by other Maine citizens. For example, saltwater fishing is not considered an "internal
tribal matter" under 30 M.R.S. § 6206(1), a provision which preserved tribal authority over tribal
governance. See Penobscot Nation v. Stilphen, 461 A.2d 478 (Me.), appeal dismissed, 464 U.S.
923 (1983). Regulation of natural resources is not an internal tribal matter. Maine v. Johnson,
498 F.3d 37, 42-47 (1 st Cir. 2007) (tribal resources are subject to Maine's regulatory
jurisdiction).

       Sustenance fishing rights were reserved to the tribes, but only on inland waters, 30
M.R.S. § 6207(4) & (9), within the reservations themselves. The right to "sustenance fishing"
excludes commercial fishing, see Report of the. Maine Legislature's Joint Committee on Indian

( Land Claims (109 th Legislature, 2d Sess.) (1980) at 2, and does not allow unlicensed fishing in
waters outside the reservations.

        Legislative history. In an April 2, 1980, memorandum to the Legislature's Joint Select
Committee on Indian Land Claims which is attached to the Committee's Report, Attorney
General Richard Cohen addressed a direct question concerning "the effect of the settlement on
State and Federal authority over coastal and marine waters." Attorney General Cohen explained
that to the extent the Passamaquoddy Tribe owned coastal land at Pleasant Point Reservation it
could enact shellfish conservation ordinances just as a municipality could, subject to the approval
of the Commissioner of Marine· Resources. Otherwise, "[t]he Tribes will have no other rights in
coastal or marine resources other than any person or entity." Cohen Memo, at 9. The tribes were
aware of this contemporaneous intei:pretation of the Settlement Acts and expressed no
disagreement with it.

     · Marine resources activity under the Settlement Acts. After the 1980 Settlement Acts,
Passamaquoddy tribal members sought and receiyed licenses from the Maine Department of
Marine Resources ("DMR") and were prosecuted for violating DMR laws and regulations in the
same manner as other Maine citizens.

       Prior Litigation. In 1996, 13 members of the Passamaquoddy Tribe brought a test case
regarding Maine's jurisdiction over marine resources. The tribal members engaged in various

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unlicensed and illegal activities, including clamming, taking urchins, scalloping, selling clams,
( taking clams from closed areas, taking undersized clams, and placing elver nets in violation of
state regulations.

         After reviewing extensive briefs by both sides, District Court Judge Romei concluded
 that the Passamaquoddy Tribe retained no aboriginal saltwater fishing rights after the Settlement
 Acts were enacted and that the Tribe's right to govern its own "internal tribal matters" did not
 encompass marine fishing rights. State v. Beal (1998). Similarly, in 2007 the federal appeals
 court ruled in Maine v. Johnson, 498 F.3d at 42-46, that Maine's environmental regulatory
 jurisdiction applies uniformly throughout the State and that it covers Maine's tribes and tribal
 lands and waters.

         State legislation following the Settlement Acts. The 1998 court decision prompted a
 legislative effort by the Passamaquoddy Tribe to obtain saltwater fishing privileges that would be
 unique to its members, in the form of a bill sponsored by then Passamaquoddy Tribal
 Representative Fred Moore. 1997 LD 2145. After several necessary redrafts, the bill was
 enacted. P.L. 1997, c. 708. The new law provided that the Tribe could issue special licenses and
 permits to its own members to take marine resources for commercial purposes, for sustenance
 and for tribal ceremonies, in accordance with certain specified terms. Otherwise, tribal members
 continued to be treated the same as other Maine citizens. This law was enacted like any other
 statute and may be amended or repealed or kept on the books like any other legislation in
 accordance with the will of the Legislature.

 MITSC's Role Regarding the Saltwater Fishery

(
The Maine Indian Tribal-State Commission (MITSC) has no regulatory role regarding
saltwater fisheries and nothing in law requires consultation with MITSC prior to the Legislature
taking any action. MITSC was created by and is part of the State Implementing Act. 30 M.R.S.
§ 6212. MITSC does have authority to promulgate fishing regulations for certain inland ponds,
streams or rivers where a requisite amount of the shoreline is within Indian Territories, but it has
no authority over marine resources or shellfish Id at § 6207(3) & (9). The law requires the
Commissioner of Inland Fisheries and Wildlife to consult with MITSC when the Commissioner
believes that MITSC's own regulations may be harming inland fisheries but there is no such
requirement regarding marine resources because MITSC has no jurisdiction over· marine
resources. Id at§ 6207(6). MITSC may consult with the Commissioner of Inland Fisheries and
Wildlife "and the Legislature with respect to implementation of fish and wildlife management
policies on non-Indian lands in order to protect fish and wildlife stocks on lands and water
subject to regulation by the Passamaquoddy Tribe, the Penobscot Nation or [MITSC]." Id. at §
6207(8). But this permissive "consultation" has nothing to do with marine resources or coastal
waters. Id. at § 6207(9). Moreover, while this provision authorizes MITSC to make
recommendations to the Legislature, it in no way limits the constitutional authority of the
Legislature to act without such a recommendation.

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 Treaty of Watertown

       The Treaty of Watertown, signed by the Governors of the State of Massachusetts Bay and
the Delegates of the St. John's and Mi'kmaqu Tribes of Indians in 1776, was a profession "of
Alliance and Friendship," and included an agreement for the provision of soldiers by those
Tribes. This Treaty, which was superseded by the Settlement Acts of 1980, does not address
saltwater fishing matters and has no relevance to these issues.                 ·

                                      Conclusion

        Nothing in the Maine Settlement Acts or in other state or federal law limits the
jurisdiction of the Maine Legislature to address the marine resource issues presented in the
pending legislation. The committee of jurisdicti<;m should follow all normal procedures in
reviewing legislation regarding marine resources. Although the Legislature has voluntarily
granted certain privileges to tribes in saltwater fisheries licensing, these provisions are not
required by the Settlement Acts and the Legislature is free to change them.

       Please let me know if this office can be of further assistance.

                                                     Respectfully,

(
XANET T. MIL'--c.-L~S~--
Attorney General

Cc:    Governor Paul R. LePage
       Senate President Justin L. Alfond
       House Speaker Mark W. Eves
       Senator Christopher K. Johnson
       Representative Walter A. Kumiega III
       Representative Henry J. Bear
       Representative Wayne T. Mitchell
       Representative Madonna M. Soctomah
       MITSC

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