Tribe asserts rights to fish in offshore, near-shore waters

The Passamaquoddy Tribe is asserting its fishing rights in both near-shore and offshore waters, from Point Lepreau to Cape Ann, Mass., as its develops a new fisheries management plan that may place the tribe at odds with the state of Maine and the U.S. and Canadian governments.
"We are not out to have fights," says Fred Moore III of Pleasant Point, who is a tribal councillor coordinating the changes in the tribe's fisheries plan. However, noting that the tribe has never given up its rights to hunt and fish, he says, "We are looking to promote a means of economic and cultural survival for the Passamaquoddy. No one owns the ocean is our position."
"An effort is under way in the tribe to develop commercial fisheries as a culturally relevant industry," points out Moore. Observing that the tribe's economic outlook is "grim," he points to 50% to 60% unemployment on the reservations, the inability to create businesses on the reservation because of the tax status, and the "false hope" of a casino that has been repeatedly denied. "The tribal government has spent millions chasing the dream of a casino, and they've ignored the value of a resource-based economy," he says. "We have been forced into a situation of survival."
Now the tribe is recognizing the importance of the marine resources, and the Passamaquoddy Joint Tribal Council has formed a fisheries advisory committee made up of tribal councillors and marine resource users to recommend a management plan. The committee has compiled historic evidence and catalogued the resources that the tribe has a right to harvest. The joint council has enacted a framework adjustment procedure for replacing the current fisheries ordinance with a comprehensive fisheries plan. The committee is now developing specific rules for the different fisheries, which will need to be approved by the joint council. Hearings were held in January at Pleasant Point and Indian Township for reviewing those rules.

Differences with state arise
In 1998, the state enacted a law that had been sponsored by then Rep. Moore that exempted members of the Passamaquoddy Tribe from state licensing when taking marine resources and provided for the taking of marine resources for sustenance and ceremonial uses in state waters, which extend three miles from shore. The law, though, requires that tribal members are subject to the state's marine resource laws and enforcement. The joint tribal council also enacted its fishing ordinance in 1998 to recognize licenses issued by the tribe, while adopting Maine conservation laws.
Although Moore and then Marine Resources Commissioner George Lapointe agreed in 2010 that the agreement over fishing rights between the state and the tribe had worked out well, differences are now arising. "To the extent that Maine conservation laws are consistent with tribal culture, we will support them, but we reserve the right to determine whether industry-driven regulations are ones we'll adopt," says Moore. "In those instances where Maine laws are not consistent with tribal culture, we are going to adhere to tribal culture."
Moore says the 1998 tribal ordinance was "purely a temporary measure," but it has been neglected during the past 14 years. Meanwhile, the state has amended its marine resource laws but has not honored the "spirit of the agreement." Under the 1998 state legislation, the tribe was allotted 24 lobster and sea urchin licenses. Moore says that number was only for that year and that under the lobster apprenticeship program more licenses could be added. The state, though, is now saying that the tribe is only allowed the 24 licenses.
Although the 1998 law allows for sustenance use by tribal members, Moore notes that the state's new recreational fishing law makes no mention of Passamaquoddy sustenance use. Also, the state has added new licenses for fisheries since 1998, such as for sea cucumbers, that do not recognize tribal licenses, and the state sought to add an amendment to limit the number of scallop licenses that the tribe can issue. In 2001, the state enacted a law requiring that urchin license-holders had to be on the fishing vessel, closing a loophole that allowed for the leasing of licenses, including by tribal members.
"The state treats amendments to marine resource laws that are more restrictive as applicable to us, but when they expand the fisheries, they are not applicable to us," asserts Moore.
Specific tribal rules need to be reconciled with state laws, and the state will need to adopt legislation to reconcile differences, too, says Moore. "How is your garden going to produce if you don't tend to it?" he asks, adding that the relationship between the tribe and state "needs to be cultivated."

Near-shore fisheries
Under the fisheries management plan, the tribe has established both a near-shore and offshore fisheries. The near-shore plan establishes a fisheries department and covers penalties, eligibility criteria for fishermen, vessel suitability requirements, vessel lease and ownership criteria, and a vessel registration program for permitting boats. Noting that the plan increases the threshold for suitability criteria for vessels, Moore says, "Our laws are intended to facilitate tribal members' entry into the fishery in a safe and responsible manner." The tribe has instituted training programs for entry into the fisheries, and the plan has zero-tolerance provisions for drug use, theft of fishing gear or molesting lobster traps.
Concerning the Cobscook Bay scallop fishery, Moore says that last year the tribe informed the state that it was headed for imminent collapse and immediate action needed to be taken. "We moved our fisheries out of Cobscook Bay," he says. "We're willing to make sacrifices to protect the resource."
Offshore fisheries
Vessels owned by Passamaquoddys also are fishing offshore, although Moore declines to say how many boats or what species they are fishing for. The offshore fisheries include scallops, groundfish, lobsters, herring, mackerel and crabs. The Passamaquoddy Marine Resource Zone extends from Point Lepreau, N.B., along a line running south to the southern extreme of the Hague Line then to Cape Ann, Mass., and then below the head of tide to Point Lepreau. Moore notes that, in the Gray Zone around Machias Seal Island, the U.S. and Canada are fighting over "one piece of bottom that happens to be ours."
"Our rules are as strict or stricter" than U.S. or Canadian restrictions, Moore says, noting that a good portion of the territory "is in the area claimed by Canada." For instance, the Passamaquoddy minimum scallop shell size is 4", while it is 3.5" for the offshore fishery under National Marine Fisheries Service (NMFS) regulations. Also, the tribe's near-shore maximum lobster size, the same as Maine's, covers all Passamaquoddy territory, while U.S. federal management areas have a larger maximum size limit.
Concerning the bycatch issue, Moore says the discarding of fish that have been killed "is a violation of tribal law." While U.S. groundfish boats may be required to shovel over the side any fish that are not part of their quota, Moore says tribal vessels must bring in those fish and have them deducted from their quota. "The only differences between a Passamaquoddy vessel and a federally licensed vessel are the name on the top of the license, the requirement to throw back dead fish and we don't target undersized fish."
Moore maintains that, if the federal offshore scallop quota is increased, 50% of the increase in the total allowable catch, or 2.5 million pounds, is the tribe's share. The tribe has established its own quotas for the fisheries that "are based on a determination by the tribe to meet the current economic needs of the tribe." Moore adds that the science concerning the resources supports the quotas. "Our rules are based on information from users over a long period of time," he says. "Now we have to codify tribal culture. The tribal government has to step in to protect the interests of the tribe and future generations."
The tribe's assertions about quotas in federal waters have raised concerns about how they might affect federal management, particularly in the scallop and groundfish industries. Moore says there are ongoing communications with NMFS about the tribe's fishing in offshore waters. In 2010 NMFS cited a non-tribal member for fishing off Nantucket without a federal scallop license and for not having an electronic vessel monitoring system. The captain said he was fishing under a Passamaquoddy license. NMFS Regional Administrator Patricia Kurkul then wrote to all federal fisheries permit holders, stating that NMFS "does not recognize any claims that Passamaquoddy tribal members are not subject to federal fishing laws and regulations," although NMFS was exploring the basis for those assertions in government-to-government discussions with the tribe.
According to Moore, Passamaquoddy Chief Clayton Cleaves recently wrote to the U.S. secretaries of Interior and Commerce asking that they respect the rights of the tribe.
"We adhere to the most restrictive rules if there are overlapping jurisdictions, no matter whose rule it is, if it's not inconsistent with tribal culture," says Moore. But he adds, "We won't allow for restricting the rights of future generations. That's not negotiable."
"We are not trying to do anything but be what we are," he says. "We are not looking for any unfair advantage over someone who may be fishing next to us."
"We have been fishing all areas of Passamaquoddy Bay for millennia," he observes. "We're not asking for permission to be Passamaquoddy. We are simply being Passamaquoddy. To be Passamaquoddy is to be a user of the resource. That's who we are."