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2013 Maine Attorney General Reports and Opinions 1 (2013)

handle is hein.sag/sagme0062 and id is 1 raw text is: 2013-01 REGIONAL OFFICES 84 HARLow S. 2ND FLOOR BANGOR, MAINE 04401 TEL: (207) 941-3070 JANET T. MILLS FAX: (207) 941-3075 ATTORNEY GENERAL 415 CONGRESS ST, STE 301 PORTIAND, MAINE 04101 TEL: (207) 822-0260 STATE OF MAINE FAx: (207) 822-0259 TEL: (207) 626-8800 OFFIcE OF THE ATTORNEY GENERAL 14 ACCESs HIGHWAY, STE. 1 TTY USERS CALL MAINE RELAY 711 CAniBou, MAINE 04736 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 1

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