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State v. Bear

Superior Court of Maine, Waldo

February 26, 2018

STATE OF MAINE,
v.
HENRY BEAR

          ORDER DENYING DEFENDANT'S MOTION TO DISMISS

          Robert E. Murray, Justice, Maine Superior Court

          Defendant filed a Motion to Dismiss the State's prosecution, alleging a lack of both personal and subject matter jurisdiction over him based on aboriginal fishing rights retained by the Houlton Band of Maliseet Indians pursuant to the 1776 Treaty of Watertown. The Court held a hearing on April 26, 2017, at which the Defendant and Douglas Luckerman[1] testified. The Defendant offered four exhibits for admission, only two of which were admitted into evidence. Those exhibits admitted into evidence were L.D. 953 (126th Legis. 2013), titled "An Act To Provide for and Recognize the Right of the Houlton Band of Maliseet Indians To Fish for Marine Organisms, " and H.P. 0395 (126th Legis. 2013), titled "Joint Resolution Acknowledging the Treaty of Watertown of 1776 on the Occasion of President George Washington's Birthday."

         After extensive review of the parties' legal memoranda, the state Maine Implementing Act, the corresponding federal Maine Indian Claims Settlement Act, and the intricacies of the law pertaining to retained aboriginal hunting and fishing rights pursuant to treaties, the Court renders the following decision as to the pending Motion.

         BACKGROUND

         The pertinent facts which gave rise to this prosecution are straightforward and not in dispute. Defendant, a member of the Houlton Band of Maliseet Indian Tribe and the tribal representative for the Houlton Band in the Maine House of Representatives, is charged with Fishing After Elver Individual Fishing Quota Has Been Reached, in violation of 12 M.R.S. § 6575-K(2) (Class D). He was cited for exceeding his elver fishing quota of 6.01 lbs. by 0.01 lbs. while fishing for elvers near Head of Tide Road in Belfast on the Passagassawakeag River. It is not a matter of dispute that Defendant was fishing for elvers within the State of Maine's territorial jurisdiction and was not fishing for them on tribal lands or lands held in fee simple by any of Maine's tribes.

         Defendant has challenged the State's jurisdiction to prosecute him, and the Court's jurisdiction to hear the case, based on the 1776 Treaty of Watertown between representatives from the State of Massachusetts Bay and the St. John's River Tribes and the Micmac Tribes.[2] He contends that the Treaty of Watertown reserved to the St, John's River Tribes, of which the Houlton Band of Maliseet derived, aboriginal hunting and fishing rights in what was then Massachusetts Bay and later became Maine upon its admission to the Union in 1820.

         For its part, the State contends that any treaty rights retained by the Maliseet under the Treaty of Watertown were abrogated in 1980 when Congress explicitly subjected the Houlton Band of Maliseet "to the civil and criminal jurisdiction of the State, the laws of the State, and the civil and criminal jurisdiction of the courts of the State, to the same extent as any other person or land therein, " and released the State of Maine from any obligations arising from any treaties with nations, tribes, or bands of Indians in Maine. 25 U.S.C. §§ 1725(a), 1731.

         LEGAL CONCLUSIONS

         The impetus and history behind the enactment of the Maine Implementing Act (30 M.R.S. §§ 6201-6214 (2016)) ("MIA") and the corresponding Maine Indian Claims Settlement Act (25 U.S.C. §§ 1721-1735)[3] ("MICSA") has been recounted numerous times in both Maine courts and federal courts. See, e.g., Aroostook Band of Micmacs v. Ryan, 484 F.3d 41, 44-47 (1st Cir. 2007) ("Aroostook II'); Aroostook Band of Micmacs v. Ryan, 404 F.3d 48, 53-55 (1st Cir. 2005) ("Aroostook I'); Houlton Band of Maliseet Indians v. Me. Human Rights Comm'n, 960 F.Supp. 449, 451-53 (D. Me. 1997); Me. Houlton Band of Maliseet Indians v. Boyce, 1997 ME 4, ¶¶ 9-10, 688 A.2d 908. Accordingly, the Court will only address the aspects of the MIA and MICSA relevant to the case at hand.

         Pertinent to this matter is the status of the Houlton Band of Maliseet Indians under the MIA and MICSA. When enacting the MIA, the Legislature made its intent clear "that in contrast to the arrangement with the Passamaquoddy and the Penobscots, ' [t]he Houlton Band ... will be wholly subject to the laws of the State.'" Aroostook II, 484 F.3d at 45 (quoting 30 M.R.S. § 6202). Although the MIA did not extend benefits to the Houlton Band of Maliseet and the Houlton Band was not a party to the land settlement between the State, the Passamaquoddy, and the Penobscot, Congress did extend federal recognition to the Houlton Band of Maliseet and provided $900, 000 in expenditures for a land acquisition fund to be held in trust for the Houlton Band of Maliseet.[4]See 25 U.S.C. §§ 1721, 1725(i), 1724(d)(1). Congress also made a point to state that it was ratifying the MIA. Id. § 1721(b)(3); see also S. Rep. No. 96-957, at 44 (1980) ("Under the circumstances, the Committee believes the Maine Implementing Act should be ratified without modification.").

         One important aspect of the enacted version of the MIA was the Legislature conditioning effectiveness of the MIA on Congress enacting legislation that "ratif[ied] and approv[ed] [the MIA] without modifications . . . ." P.L. 1979, c. 732, § 31. Defendant argues the provisions that Congress made for the Houlton Band of Maliseet in MICSA "modified" the MIA, meaning it never properly became effective. This is a proposition that this Court finds is not supported by the evidence or the analysis by other courts.

         As indicated in footnote 4, supra, the State was not hesitant to inform Congress of possible revisions to drafts of MICSA that would require alteration of the MIA and ones that would not. Further, while the Law Court has not been presented directly with this issue, it has amply analyzed the MIA in relation to MICSA and has not seen fit to view the MIA as legally infirm. See, e.g., Great N. Paper, Inc. v. Penobscot Nation, 2001 ME 68, ¶¶ 28-37, 770 A.2d 574; State v. Mitchell, 1998 ME 128, ¶ 5, 712 A.2d 1033; Penobscot Nation v. Stilphen, 461 A.2d 478, 487 (Me. 1983) (internal citations and quotation marks omitted) ("The federal settlement act was predicated upon state legislation addressing the same topic which Congress expressly approved, ratified, and confirmed.").

         Independent of the MIA, Congress explicitly provided that Maine law-such as the elver fishing quota law at issue here-would unequivocally apply to the Houlton Band of Maliseet. 25 U.S.C. § 1725(a) (emphasis added) (providing that "all Indians, Indian nations, or tribes or bands of Indians in the State of Maine, other than the Passamaquoddy Tribe [and] the Penobscot Nation, . . . shall be subject to the civil and criminal jurisdiction of the State, the laws of the State, and the civil and criminal jurisdiction of the courts of the State, to the same extent as any other person or land therein").

         Because Defendant is relying on fishing rights he contends were reserved to him and his tribe pursuant to a treaty, [5] it is Congress that has the authority to speak on this issue. S.D. v. Yankton Sioux Tribe,522 U.S. 329, 343 (1998) ("Congress possesses plenary power over Indian affairs, including the power to modify or eliminate tribal rights."). In other words, if § 1725(a) of MICSA amounts to an elimination of treaty rights under Supreme Court precedent on the issue, then by Congress's explicit provision members of the Houlton Band of Maliseet would be subject to Maine's criminal laws-including 12 M, R.S, § 6575-K(2), whose legal validity is not challenged here-and the jurisdiction of ...


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