Elver dispute requires calm response

Gov. Paul LePage appears to have the law on his side in a dispute between Maine and the Passamaquoddy Tribe.

But the law isn’t always enough, especially when dealing with the strained relations between the state and a tribal government.

The icy relationship between the state and Native American tribes date back to hundreds of years and reached such a boiling point in the late 1970s that presidential action was required.

Since then, Maine governors and legislatures have tried to improve the relationship and balance the terms of the Maine Indian Claims Settlement Act of 1980 with claims of tribal sovereignty.

Flashpoints have erupted over issues ranging from gambling to fishing. At stake are questions of tribal sovereignty versus state law.

This week members of the Passamaquoddy tribe clashed with state law enforcement officers over rules regulating elver fishing. And then, in a short phone call with LePage, the already tense situation got much worse.

While the governor’s office has not commented on what was said during the call, tribal leaders have said that the governor threatened to withdraw his support for a number of unrelated tribal initiatives unless they agreed to obey state fishing laws regarding elvers.

The stakes are high for the tribal fishermen as the market for elvers has exploded to as much as $2,000 a pound. They are also high for the state as it tries to manage pressure to protect the fishery or risk its closing.

As part of the settlement act, the Passamaquoddy tribe agreed to an arrangement in which it would have limited sovereignty and would be treated, in most instances, as if it were a municipal government.

That’s a simple reading. In practice and implication, it’s a lot more complicated.

The act carves out certain areas of jurisdiction, including giving tribal governments the ability to make rules for hunting and trapping in their territories and for fishing on any point that is entirely within their territory. But it also says that the state can overrule those regulations if it can be proven that they put at risk the fish and wildlife resources in other territories.

The elvers dispute pits tribal methods of resource management against recently adopted state laws.

Attorney General Janet Mills issued an opinion in March, backing the state’s jurisdiction over the matter.

“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,” Mills wrote.

But the law only gets you so far.

The governor’s rhetoric, in which he’s accused of threatening things such as the Truth and Reconciliation Commission, earned the following response: Passamaquoddy leaders aren’t backing down.

On Sunday, when things started to heat up, Department of Marine Resources officers and state troopers began to enforce state law. They were confronted by a large number of people protesting their actions.

The incident ended peacefully.

But the potential for another clash is evident. Fred Moore III, a former Passamaquoddy representative, put it this way to the Bangor Daily News: “They can come and take a couple of us to jail, and 300 more will join in.”

The path forward won’t be easy and isn’t clear. The state has an obligation to enforce its laws. To do otherwise would undermine state authority.

For tribal leaders, the argument over the best way to manage a valuable fishery has now descended into a fight about sovereignty, culture and self-determination.

First, the governor must untangle this dispute from any other issues or projects. He needs to isolate the elvers from other issues, especially those in which the state and tribal governments can cooperate.

Second, he should make sure that his emotions don’t get the best of him and, if he said what tribal leaders say, he should apologize. That’s a tough order, especially since he appears to be right on the legal merits. But a sincere apology might move the state beyond a confrontation.

And, he should step lightly with the use of law enforcement personnel, perhaps instead seeking resolution through the courts or a negotiated agreement.

Tribal leaders must do their part as well. They should do their best to avoid physical confrontations with law enforcement. Fifty people showing up during an encounter with law enforcement creates a dangerous stew of emotions that could have serious consequences. That’s something all sides should agree upon.

Both sides should look for ways to de-escalate current tensions. An apology. A slowdown of the fishing. A deliberative, slower approach to pending legislation. Some show of good faith. Small steps, for sure. But it’s the only way forward.

David Farmer

About David Farmer

David Farmer is a political and media consultant in Portland, where he lives with his wife and two children. He was senior adviser to Democrat Mike Michaud’s campaign for governor and a longtime journalist. You can reach him at dfarmer14@hotmail.com.