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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
TEL: (207) 941-3070
JANET T. MILLS                                                                  FAX: (207) 941-3075
ATTORNEY GENERAL                                                               415 CONGRESS ST, STE 301
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


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