A tiny fish and a big problem: natives, elvers, and the Maine Indian Claims Settlement Act of 1980.

• Author: Sanders, John
• Position: NOTES

TABLE OF CONTENTS INTRODUCTION I. BACKGROUND A. Origins of the Lucrative Elver Fishery B. The Mystery of Eel Biology C. Current Conservation Status of the Eel D. Current Status of the Passamaquoddy Tribe II. LEGAL HISTORY OF THE ELVER FISHERY IN MAINE A. Maine Elver Legislation B. Special Elver Regulations for Maine's Native Tribes C. The ASMFC Regulations III. THE MAINE INDIAN CLAIMS SETTLEMENT ACT OF 1980 A. Background: Federal Law and Other Precedent B. The Settlement Acts C. Tense History of MICSA's Application to Fisheries D. More Support for the Tribes' Position: UNDRIP and the Rights of Indigenous Peoples IV. POTENTIAL SOLUTIONS A. Maintaining the Status Quo B. Brokering a Deal C. Concerted Management of the Fishery D. Appealing to the ASMFC E. Analysis CONCLUSION INTRODUCTION

On April 8, 2014, authorities arrested Frederick J. Moore, a member of Maine's Passamaquoddy Tribe, for illegally harvesting juvenile eels in New York State. (1) Moore was charged with three felony counts and two misdemeanors for poaching animals (2) scarcely the size of a thin shoelace. (3) The fish, called an elver, is the juvenile stage of the North American eel, and a pound of these tiny creatures has sold for as much as $2000 in recent years. (4) In fact, a well-equipped elver fisherman can make $10,000 in one night or over $100,000 in one season. (5) Despite the high price, elvers are not especially rare in the United States. (6) In fact, they are fairly common, but their migration goes relatively unnoticed by the millions of people living in the populous cities on the East Coast. (7)

The gold rush for elvers has brought attention to a previously lowly fish, and in the process amplified preexisting federal, state, and tribal tensions that have not been heavily explored in existing scholarship. This Note focuses specifically on Maine, the state with the largest elver fishery (8) and where the fish is at the center of a conflict at the nexus of conservation, jurisdiction, and tribal rights. The source of this conflict is the Maine Indian Claims Settlement Act of 1980 (MICSA), the legislation that outlines the relationship between Maine's natives and the State, (9) and which Maine's tribes have challenged in the elver context for its effect on aboriginal fishing rights and tribal sovereignty. (10) That a scarce resource would bring attention to these issues should not be surprising--the distribution of natural resource rights has in many ways defined the relationship between the United States and American natives since the country's early days. (11)

In this case, elvers are a way to explore the growing tension between Maine's native tribes and the State over MICSA. Although the tribe's argument for greater fishing rights is legally weak, (12) the fight over elvers reveals weaknesses and uncertainties in MICSA, especially regarding tribal rights. The cloud of uncertainty surrounding MICSA interferes with Maine's ability to effectively manage other resources. These problems require a solution, for the mounting tension between the tribes and the State is unlikely to abate. (13) Therefore, despite hardening stances on both sides of this issue, the time has come for Maine to reassess MICSA and find a solution that would make the boundaries of the law more certain and effective not only for its fisheries, but also for other regulatory areas. Failing to do so could cause excessive, effectively unregulated fishing of a species with significant conservation concerns.

This argument is important for four reasons. First, as the story at the beginning of this Note highlights, the tension between tribal and governmental authorities is not strictly a Maine issue. (14) The man charged with poaching, Frederick J. Moore, was a Maine native teaching New York natives how to fish for elvers. (15) Like Moore, the New York tribal official took issue with all state-imposed restrictions on the tribe's traditional activities. (16)

Second, although much scholarship exists concerning such issues in the Pacific Northwest, (17) there is not much written about tribal issues on the East Coast. (18) This Note examines an underexplored area of native law that could prove useful for tribes across the nation.

Third, understanding the scope and nature of MICSA is important even if conservation concerns lead to the fishery's closure. (19) For Maine, learning how to regulate elvers effectively could be useful in preventing the overexploitation of other fisheries, of which Maine has many. (20) In addition, it is not unfathomable that the rags-to riches story of the lowly eel could repeat itself for another junk fish. (21)

Lastly, although MICSA is unique to Maine, this Note's discussion about how to balance the rights of the tribes with a state's regulatory authority will provide useful guidance for federal and state fisheries regulations.

This Note proceeds in four parts. Part I provides background to the current controversy, including the reasons why the elver is particularly vulnerable to overharvesting. The overall success of this important species hinges on the ability of Maine's legislature to balance economic and environmental concerns. Part I also discusses Maine's tribes, with particular attention paid to the Passamaquoddy, the most vociferous opponent of the elver regulations. Part II discusses the legal history of the elver fishery in Maine. This Part will pay close attention to the interplay between federal, state, and tribal regulatory authority.

Part III explores MICSA and discusses the Act's provisions, state and tribal interpretations, and the challenges to its authority. Lastly, Part IV explores potential solutions to the problem, drawing from Maine's unique history as well as successful solutions implemented in other states. This Note will discuss the optimal solution to the problem: using the conflict over the elver fishery to strike a new compromise between the natives and the state that would clarify and reiterate MICSA. Such a deal would satisfy pressing needs for both parties: Maine would achieve greater oversight, and the natives would be able to participate at a greater level in a highly lucrative fishery or receive comparable consideration.

1. BACKGROUND

   1. Origins of the Lucrative Elver Fishery

      The great demand for eel does not come from the United States, but rather from foreign countries, particularly those in Asia and Europe. (22) In Japan, the eel's oily meat is a prized sushi centerpiece; (23) in several European countries, it is a smoked delicacy. (24) Although both of these places have native populations of eel, pressure on their fisheries has been so great that the fish is endangered. (25)

      The United States has capitalized on the enormous international demand for eel largely because Americans have not historically consumed significant amounts of eel. (26) As a result, commercial fishermen in the United States have, until recently, engaged in a limited commercial harvest, (27) making the United States a prime harvesting ground. (28)

      In order to satisfy the world demand for eel, fishermen catch the fish in their juvenile stage. (29) Eel are then shipped to Chinese fish farms where they are raised to marketable size. (30) Once big enough, the farmers sell them to distributors around the world. (31)

      With the increased pressure on the elver fishery, however, come well-founded worries that the American eel may soon become endangered. (32) The imperfect knowledge of eel biology has compounded these concerns. (33)

   2. The Mystery of Eel Biology

      Despite the fact that people have harvested eel for a long time, (34) there are still things about eels that leave scientists baffled. (35) In particular, not much is known about the fish's breeding habits. (36) What is known is that all eels in rivers on the East Coast are born in the Atlantic Ocean and migrate to the sea to spawn. (37) Specifically, the eel migrates out of its home waters to the Sargasso Sea in the middle of the Atlantic Ocean. (38) No one has witnessed an eel spawn, but scientists have narrowed the area where they believe the activity occurs to this calm, quiet two million square mile stretch of ocean named after the thick green mats of sargassum seaweed that periodically cover its surface. (39) Aside from eels and seaweed, the Sargasso is also known as the home of the Bermuda Triangle. (40) If finding a downed aircraft in this area has proved elusive, pinpointing exactly where a fish no bigger than a yardstick (41) spawns has proved all but impossible. Nevertheless, the spawn occurs every year and, in the spring, young elvers return to rivers across the East Coast of the United States. (42)

      The imperfect knowledge of eel biology is the reason why eel must be caught at the elver stage and raised in fish farms: it is very difficult, if not impossible, to commercially breed eel in captivity. (43) In addition, farming eel from a young age ensures that more market-sized eel can be produced for less cost than shipping live, full-sized eel overseas. (44)

   3. Current Conservation Status of the Eel

      Against the backdrop of an incomplete scientific knowledge is a highly successful and valuable commercial harvest that, in its present state, threatens the long-term success of the species. Historical evidence reveals, however, that elvers were once a common sight in the spring and could be seen migrating slowly upstream by the millions. (45) There was an abundance of eel throughout the eastern United States, including up the Mississippi and into the Midwest. (46) Today the eel population is "at or near historically low levels," (47) and evidence shows that eel harvests have declined drastically since the 1970s. (48)

      There are four primary reasons for the decline. The first culprit is dams. Dams make the spring migration of elvers more difficult by impeding the ease with which they can swim upstream. (49) In addition, adult eels, returning to the sea to spawn in the fall, often...