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September 15, 2010

Passamaquoddy fishermen seek federal fishing rights

by Craig Idlebrook

A confrontation between the Coast Guard and a fishing boat owned by Passamaquoddy Native Americans may begin a legal showdown to determine whether the tribe has fishing rights in federal waters.

Two Eagles, a Passamaquoddy fishing company based in Pleasant Point has been operating a fishing fleet of some 20 boats in federal waters in the Gulf of Maine and Georges Banks, said Kani Malsom, one of the company's owners. Two Eagles fishermen carry only permits issued by the tribal council. While Passamaquoddy fishermen are allowed access to permits to fish in some Maine state waters, Two Eagles has no federal fishing permits.

Malsom says he started the venture to create jobs for his tribe and for others in Washington County. Fishing gave his employees hope in an economically-depressed region, he said.

"They got off welfare and they were making livings for their families," Malsom said.

In August, a Two Eagles boat was stopped by the U.S. Coast Guard off Nantucket and cited for lacking federal permits and equipment. No fines were levied, according to a report on the incident in the Gloucester Times.

Later that month, the National Oceanic and Atmospheric Administration (NOAA) sent out a stern letter warning fishermen and dealers that the agency does not recognize Passamaquoddy claims to fish in federal waters. The letter stated that anyone who used tribal permits to fish in federal waters would face legal consequences.

"Any member of the Passamaquoddy tribe who acts in violation of federal fishing laws at this time risks seizure and forfeiture of any species illegally harvested as well as possible related charges," stated the letter from NOAA Regional Administrator Patricia A. Kurkul.

Malsom believes the letter is economic harassment and a continuation of destructive policies by the U.S. government against Native Americans. It's harassment, he argued.

"Now, we can't sell our products and our captains won't go there to fish," he said.

Pleasant Point Passamaquoddy Governor Rick Phillips-Doyle said in an email that the tribe has no comment on the incident.

Passamaquoddy Native Americans have long asserted the right to fish in all waters under 18th century treaties signed with the English and American governments. Those treaties supersede more current laws, argued Malsom, including the Magnuson-Stevens Act which governs federal fishing.

This isn't the first time northeastern tribes have argued they are exempt from federal fishing regulations. Micmac fishermen have had a long dispute over fishing rights with the Canadian government, and Passamaquoddy members have tried to assert the right to fish porpoises, saying they are exempt from the Endangered Species Act.

Treaties are considered the highest law of the land, said Pat Parenteau, an environmental law professor at Vermont Law School, but that doesn't mean tribal access to hunting and fishing grounds is guaranteed. Federal judges often don't rule in favor of tribal rights over environmental law.

"That almost never happens," said Parenteau. "As [former Supreme Court] Justice [William] Douglas once said, a treaty doesn't give you the right to fish the last salmon into your net."

More often, tribal governments and the federal government negotiate a middle ground, trying to balance tribal rights with conservation concerns. This back-and-forth negotiating has established firm legal framework for deciding tribal access to resources in the west, but fewer legal compromises have been hashed out in the northeast, Parenteau said.

The state of Maine and the Passamaquoddy tribe have an agreement in place to allow tribal fishermen to fish in state waters, said George Lapointe, commissioner of the Maine Department of Marine Resources. Under state law, a limited number of licenses are issued by the tribe for lobster and urchin fishing. The arrangement has worked out well, Lapointe said.

But groundfish might prove trickier, he added. Unlike the lobster and urchin fisheries, there is a cap on the number of pounds of each species of groundfish that fishermen are legally able to harvest during the fishing season.

"If there are ten people catching a million pounds and two new people come in, that just means the million has to get divided more," Lapointe said.

The New England Fishery Management Council hasn't discussed the incident formally, said Patrica Fiorelli, the council's public affairs officer. But, she says, some groundfish stocks are recovering and may have room in the catch limit.

A little space may be more than enough, said Malsom. He estimates there would only be some 24 tribal members interested in fishing in federal waters. Under the tribal permissions, non-Passamaquoddy tribal members may be on the boats, as well.

"We're just a drop in the bucket," he said.

NOAA has known about the Passamaquoddy plan to fish federal waters for some time and was in discussions with the tribe even before the incident occurred, said Maggie Mooney-Seuss, regional communications director for the agency.

Observers say this issue most likely will be resolved in protracted negotiations and may involve a court battle.

"I think these discussions are going to go on for a while," said Fiorelli

Coverage of Washington County is made possible by a grant from the Eaton Foundation.

Craig Idlebrook is a freelance writer based in Cambridge, Mass.

click to enlargeKani Malsom, one of the owners of Two Eagles, poses with a fleet vessel.
Kani Malsom, one of the owners of Two Eagles, poses with a fleet vessel. Photo: Kani Malsom

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