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
This 2013 AG opinion addressed regulatory authority over saltwater fishing under Maine's Indian Claims Settlement framework. The general question: who regulates commercial and recreational saltwater fishing by tribal and non-tribal members in Maine's coastal waters?
The AG's analysis at the time concluded that the State retained primary regulatory authority over saltwater fisheries through the Marine Resources Law (12 M.R.S. section 6001 et seq.), even within or adjacent to tribal reservation areas. The Settlement Acts reserved sustenance fishing rights for tribal members but did not transfer broad fisheries-management authority to the tribes. Commercial saltwater fishing by tribal members was regulated under State law on the same basis as commercial fishing by non-members.
The opinion sat alongside the 2012-08-08 Penobscot River jurisdiction opinion in a series of state-tribal jurisdiction analyses during this period. Both reflect the State's broad reading of its retained authority under the Settlement Acts. The tribes' counter-readings (often more expansive of tribal authority) found mixed reception in subsequent litigation.
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
Maine's coastal saltwater fisheries are regulated by the Department of Marine Resources under 12 M.R.S. section 6001 et seq. Licensing, gear restrictions, season limits, and species-specific rules apply across the State's saltwater jurisdiction.
The Maine Indian Claims Settlement Acts (1980) divided regulatory authority between the State and the Wabanaki tribes. Sustenance hunting and fishing rights were reserved to the tribes for their own members. Commercial activity, by contrast, fell within the State's general regulatory framework.
The interaction between sustenance rights and commercial regulation has been an ongoing source of dispute. The AG's 2013 reading drew the line tightly: sustenance fishing for tribal members was reserved; everything else was state-regulated.
Common questions
Could a tribal member commercially fish for lobster without a Maine commercial license?
Under the AG's 2013 reading, no. Commercial saltwater fishing was state-regulated regardless of the fisher's tribal status. Sustenance fishing by tribal members was distinct.
Do the tribes have any role in saltwater fisheries management?
The Settlement framework contemplates state-tribal coordination through the Maine Indian Tribal-State Commission. Specific co-management arrangements have varied by species and over time.
Has the regulatory landscape changed since 2013?
Yes. Subsequent state legislation, federal court rulings, and Department of Marine Resources policy have shifted aspects of the framework. Anyone working with current saltwater-fisheries law should consult current statutes and current DMR rules rather than relying on this opinion.
Citations
- 30 M.R.S. section 6201 et seq. (Maine Indian Claims Settlement Act)
- 12 M.R.S. section 6001 et seq. (Marine Resources Law)
- 25 U.S.C. section 1721 et seq. (federal Settlement Act)
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)
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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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