Interview with Penobscot Nation Chief- “Elver legislation is aimed at prosecuting Indians”

Last week I called Penobscot Nation Chief Kirk Francis to get his take on the recent developments in the elvers saga. On Tuesday, March 18 the state legislature passed new laws for Maine’s elver fishery which will result in- among other things- at least a two week delay to the start of the elver fishing season.

Penobscot Nation Tribal Chief Kirk Francis on Indian Island in 2010. Photo credit- John Clarke Russ, BDN

Penobscot Nation Tribal Chief Kirk Francis on Indian Island in 2010. Photo credit- John Clarke Russ, BDN

As BDN staffer Bill Trotter put it:

“The bill approved Tuesday by the House and Senate, LD 1625, establishes the percentage of the statewide catch limit that will be reserved for Maine’s Indian tribes and gives DMR authority to set individual quotas for non-tribal fishermen. According to the bill, it will be up to the tribes to decide the amount that each individual tribal fisherman will be allowed to catch.

The bill also sets penalties for any fisherman who exceeds his or her catch quota. It requires the department to suspend a fisherman’s license for a year for a first offense and to revoke it permanently for a second offense. It sets a mandatory fine of $2,000 for anyone who continues to fish after reaching his or her quota.

Another bill approved last week by the Legislature, LD 1723, gives DMR the authority to implement a swipe card system that will keep track of reported landings as each fisherman sells his or her catch to a licensed dealer. That bill also allows the department to postpone the start of the annual season, which traditionally lasts 10 weeks, beyond the usual March 22 opening date.”

Photo credit- Robert F. Bukaty, AP

Photo credit- Robert F. Bukaty, AP

Anytime I’ve ever tried to call a high ranking government official I’ve never actually wound up speaking with the person directly. So I was surprised when I called Chief Francis’s office and the voice on the other end answered with, “Hi, this is Kirk Francis.”

I was even more surprised (and delighted) when, rather than issuing me some generic statement, Chief Francis spoke candidly with me for over twenty minutes about his nation’s ongoing struggle for the respect and powers of independent sovereignty that are supposed to be guaranteed to them Constitutionally.

It went like this:

CS- “Mr. Francis, as someone who works on the water I’ve heard a lot of stories about what happens up there in the elver fishery. I actually have extended family living on the reservation (called Indian Island) and I also have some Native ancestry. It’s an honor to have the chance to speak with you. I was hoping to get your take on LD 1625 and LD 1723.”

KF- “While we understand that the conversation needed to take place about how to protect the sustainability of the fishery moving forward, we were really disappointed that the government to government approach was not supported by the attorney general’s office and the legislature.

The attorney general’s office in particular has raised some constitutional concerns. They’ve failed to recognize the tribes as the distinct political entities that we are.

Our frustration isn’t about feeling treated differently based on race. It’s recognizing the political separation between sovereigns, we’re really concerned that so many folks in Augusta seem fit to legislate a restrictive fishery on the tribes.

Overall I just think it’s a poor way to go about determining tribal and state agreements and solving tribal/state issues. We need to have meaningful conversations and we need to formulate agreements.

It shouldn’t be one government legislating against another and so I think that when you look at the bills (LD 1625 and LD 1723) basically they were put in place for two reasons: one is to be able to control the reduction that was promised to the Atlantic States Fisheries Commission and the other is to strengthen the law to be able to prosecute tribal based fisheries.

So we’re concerned on a lot of levels, it’s indicative of the overall problems between tribal/state relations in terms of getting the attorney general’s office to acknowledge the fact that there are distinct governments in this state and that we need to be treated as an independent nation  because we have self governance responsibilities as a people.

Our point has always been that it’s an intrusion into self governance in a very sensitive area. A lot of the fishing takes place in ancestral waters. It’s frustrating when tribal communities with ancestral ties to these waters that are experiencing 30-80% unemployment rates are told that they’re going to be put under state law and restricted in terms of how we access the fishery.

 We’re concerned that this law is really aimed at prosecuting Indians and controlling what should be self-governance activities.

Photo credit- Bill Trotter, BDN

Photo credit- Bill Trotter, BDN

CS- “So how would you like to see things run?”

KF- “If you look at the Passamaquoddy’s fishery plan for example, you’ll see that what this boils down to is much different approaches in terms of philosophy.

As governments we don’t have the right to restrict access to sustenance or cultural based activities such as fishing, hunting, and gathering. Those rights are housed within the individual, we have a responsibility to make sure that the resources around those activities are protected in a sustainable way for future generations.

If you look at the state’s approach it’s really about restricting access and managing the fishery based on the restriction of that access. When you look at it as a whole the problem is that the state is taking a public resource and assigning it to an individual. We just simply don’t feel that’s the appropriate way to do it.

Nobody’s presented us with the science that says the species is in danger, in fact we have letters from the federal government stating that they’re not concerned with listing the American eel. So there’s no science behind the reduction.

We’re caught in this inter-state political entity of the Atlantic States Fishery Commission.

This issue is highly political, some states want inclusion in the fishery and some don’t. Some states are upset that Maine is in the fishery, so there’s a lot of behind the scenes stuff going on and a lot of concessions wind up getting made and the tribal states get caught up in that.

What we think is a better approach is to focus on the total allowable catch and providing as much access to that catch as possible and that the total allowable catch be determined on what the science tells us so that we’re not creating these inequities in who can access and who can’t.

What the tribes were proposing was to have a derby style catch, and then when we get to 80% of that allowable catch we notify our fishermen that the season is closed until we reallocate the remaining 20% to all of our licensed fishermen.

With the state’s plan we’ll have a sliding scale which is going to result in an inequity in prosecution. So you’ll have people being criminalized, penalized, and forced to lose their license over small amounts of elvers, and you’ll also have people being punished for over fishing by very large amounts.

In either case the fine is $2000, but the guy who over fishes by 150 pounds can eat that fine amount no problem because he made over 250 thousand dollars that year. At the same time the guy who only over fished by a few pounds only made maybe 10 thousand dollars that year, so it’s a lot harder for him to come up with the money for the fine.

So basically the system discourages small time fishermen from breaking the rules, but doesn’t really do much to stop the guys with the bigger operations and they’re the ones who are actually doing the harm to the fishery. The whole thing just feels thrown together.”

CS- “Yea I gotta’ say, your plan certainly would be more respectful towards your nation’s sovereignty, and it also sounds like it makes more sense for the fishery in general.”

KF- “You’re right, but ultimately it boils down to self governance, the ability to have good government-to-government agreements, and the lack of the attorney general’s willingness to acknowledge a sovereign governmental status among Maine tribes. We strongly oppose that kind of intrusion into our governmental affairs.

They’re using the legislative process to get one government’s point of view over to another’s and that’s been extremely frustrating.”

Chris Shorr

About Chris Shorr

Chris is a lifelong Portlander who works on a lobster boat, advocates for the marginalized and downtrodden, and occasionally ruffles feathers in City Hall and Augusta.