State of Maine v. Bear

• Court: Superior Court of Maine
• Decided: February 26, 2018
• Docket: WALcr-16-636
• Status: Unpublished

Opinion

STATE OF MAINE UNIFIED CRIMINAL DOCKET WALDO,ss. DKT. NO. WALCD-CR-16-636

) STATE OF MAINE, ) ) ) ORDER DENYING DEFENDANT'S V. ) MOTION TO DISMISS ) HENRY BEAR )

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 ofMaliseet 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 Bilihday."

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 pnrsuant 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

1 The State and the Defendant stipulated to Mr. Luckerman's status as an expert on the Maine Implementing Act, the

Maine Indian Claims Settlement Act, and the Treaty ofWate11own.

I 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 ofMaliseet "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. §§ l 725(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

2 For the purposes of this Motion, the Court will assume the u·eaty was valid and that it confened the rights asserted by Defendant.

2 U.S.C. §§ 1721-1735) 3 ("MI CSA") has been recounted numerous times in both Maine courts and

federal courts. See, e.g., Aroostook Band ofMicmacs v. Ryan, 484 F.3d 41, 44-47 (1st Cir. 2007)

("Aroostook IF'); Aroostook Band of Micmacs v. Ryan, 404 F.3d 48, 53-55 (1st Cir. 2005)

("Aroostook I"); Houlton Band ofMaliseet Indians v. Me. Human Rights Comm 'n, 960 F. Supp.

449, 451-53 (D. Me. 1997); Me. Houlton Band ofMaliseet Indians v. Boyce, 1997 ME 4, ii~ 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.

Pe1iinent to this matter is the status of the Houlton Band of Maliseet Indians under the MIA

and MI CSA. 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 trnst for the Houlton Band of Maliseet. 4

See 25 U.S.C. §§ 1721, 1725(i), 1724(d)(l). Congress also made a point to state that it was

ratifying the MIA. Id § l 721(b)(3); see also S. Rep. No. 96-957, at 44 (1980) ("Under the

3 MICSA was removed from the United States Code in 2016, but it is still legally valid. See Editorial Reclassification-Title 25, United States Code, CJ[fice of Lmv Revision Counsel, U.S. House of Representatives, http://uscode.house.gov/editoria1reclassification/t25/index.html (last visited Feb. 13, 2018). All citations to MlCSA will be as it was enacted within Title 25. 4 A review of the relevant portions of the MIA's and MICSA's legislative histmy indicates that representatives from

the State were well aware of the inclusion of the $900,000 as pa1i of the land acquisition fund that would be used for the Houlton Band. While the State communicated with Congress about draft versions of MICSA-and it informed Congress of sections it was concerned would modify MIA-it considered the language regarding the land acquisition fund "sufficient and appropriate." Letter from Special Counsel for Maine Attorney General's Office to Cecil Andrus, Secretary of the Interior (July 21, 1980) (on file with the National Museum of the American Indian Archive Center, Smithsonian Institution); see also Memorandum from Timothy Woodcock to Senator William S. Cohen (July 21, 1980) (on file with the Raymond H. Fogler Library, Univ. of Me., Orono) ("The State does not object because [the portion of the land acquisition fund for the Maliseet] does not require alteration of the Maine Implementing Act and will not increase the size of 'Indian Country."').

3 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 ofMaliseet in MI CSA "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 MI CSA 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 MI CSA 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. § l 725(a) (emphasis added) (providing that "all Indians, Indian nations, or tribes or bands

oflndians 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 comis of the State, to the same extent as any other person or

4 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§ l 725(a) of

MI CSA 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 ofMaliseet 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 its courts. Other cases interpreting MICSA, particularly

§ 1725(a), provide helpful guidance on this issue along with Supreme Court precedent on

abrogation of native treaty rights.

In Aroostook II, the First Circuit analyzed the Aroostook Band of Micmacs' status under

MI CSA and the subsequently enacted state and federal settlement acts with respect to the Micmacs.

Although the Micmacs were not originally part of the settlement, there are some useful parallels

that can be drawn between the Micmacs and the Houlton Band because the State "gave the

Aroostook Band a status similar to that accorded the Houlton Band, and different from the status

given the Penobscots and Passamaquoddy." Aroostook II, 484 F.3d at 45-46. The Micmacs argued

that Maine's employment laws were not applicable to them on the basis of tribal immunity they

contended to have retained, similar to Defendant's argument that the elver fishing quota law is not

applicable to him based on retained fishing rights. 6 Despite the Micmacs' absence from

5 "[T]he reservation ofrights doctrine holds that a treaty between the federal government and an Indian tribe is not a grant ofrights to the Indians but, rather, a grant from them. In other words, the Indians ceded certain rights possessed by them at the time of making the treaty but reserved whatever rights were not expressly granted to the United States." State v. Buchanan, 978 P.2d 1070, I 078 (Wash. 1999) (citations omitted). 6 The Comt is cognizant of the heightened scrutiny given to abrogation of treaty rights as compared to abrogation of tribal sovereignty. Despite this, as will be discussed, the Court believes that MI CSA not only abrogated the Micmacs'

5 consideration during the initial state and federal legislation in the late 1970s and 80s, the First

Circuit found MI CSA to be clear in subjecting the Micmacs to Maine law:

In§ 1725(a) it not only made Maine Indians "subject to ... the laws of the State," and "subject to the civil and criminal jurisdiction of the State," but it expressly added the emphasizing phrase "to the same extent as any other person." And § 1725(a) not only applies to "Indians," but also to the "Indian nations, ... tribes[, and] bands oflndians" themselves. Shmi of using "magic words," it is hard to imagine how§ 1725(a) could have been clearer.

Id. at 50. The First Circuit also distinguished Menominee Tribe ofIndians v. US., 391 U.S. 404

(1968), from MI CSA, which this Court will do in detail.

Defendant has offered Menominee Tribe to argue that MICSA cannot be considered to

abrogate any reserved treaty rights. As the First Circuit found in Aroostook JI, A1enominee Tribe

was distinguishable from the Micmacs status under MICSA. Menominee Tribe is also

distinguishable from the case at hand, and arguably undercuts Defendant's argument. There, the

treaty in question-the 1854 Treaty of Wolf River between Wisconsin, the U.S., and the

Menominee Tribe-granted a reservation in Wisconsin to the Menominee Tribe which was "to be

held as Indian lands are held." Menominee Tribe, 391 U.S. at 405-06. The Treaty of Wolf River

was silent on the Menominee Tribe's hunting and fishing rights on that reservation ofland. 7

In 1954, Congress passed the Menominee Indian Termination Act ("MITA") which, among

other things, ceased federal supervision over the Menominee Tribe and transferred all prope1iy

held by the federal government for the tribe to the tribe. Id. at 408. Similar to§ 1725(a) of MI CSA,

MITA fmiher mandated that "the laws of the several States shall apply to the tribe and its members

in the same manner as they apply to other citizens or persons within their jurisdiction." Id. at 410

tribal sovereignty with respect to enforcement of employment laws, but that it also abrogated any retained fishing rights held by the Houlton Band ofMaliseet. 7 The words "to be held as Indian lands are held" were generally considered to encompass hunting and fishing rights

under a number of historic treaties. See Menominee Tribe, 391 U.S. at 406 n.2.

6 (internal quotation marks omitted). Wisconsin argued that this provision in MITA subjected the

Menominee Tribe's hunting and fishing rights on the land ceded to the Menominee Tribe under

the 1854 Treaty of Wolf River to state regulation and control.

However, the Supreme Court found it significant the Congress contemporaneously passed

Public Law 280, which was ultimately codified at 18 U.S.C. § 1162. Id. at 411. Public Law 280

granted designated States, including Wisconsin, jurisdiction over offenses committed in "Indian

country," but it also stated that '"[n]othing in this section ... shall deprive any Indian or any Indian

tribe, band, or community of any right ... afforded under Federal treaty ... ·with respect lo hunting,

trapping, or.fishing or the control, licensing, or regulation thereof." Id. at 410-11. The Supreme

Court determined that "Public Law 280 must therefore be considered in pari materia with the

Termination Act." Id. at 411. Thus, while MITA subjected the Menominee Tribe to state

jurisdiction, it did not abrogate the hunting and fishing rights the Menominee Tribe possessed on

the lands ceded to it under the 1854 Treaty of Wolf River. Put another way, it required a

contemporaneous statute passed by the same Congress exempting hunting, trapping, and fishing

treaty rights on reservation land from state regulation in order to interpret MIT A's jurisdictional

application as not abrogating retained treaty rights. The Supreme Court's determination was

further supported by "the legislator chiefly responsible for guiding the Termination Act to

enactment, Senator Watkins, who stated upon the occasion of the signing of the bill that it 'in no

way violates any treaty obligation with this tribe."' Id. at 413 (citation omitted).

Here, there is no contemporaneously passed federal statute to be considered in pari materia

with MI CSA comparable to Public Law 280 that would indicate implicit hunting and fishing rights

under a treaty are retained. 8 Nor is there the sort of statement in the legislative record that the

8 Notably, the retained hunting and fishing rights the Supreme Court found in the Menominee Tribe were specifically in relation to the land ceded to the Menominee Tribe under the 1854 Treaty of Wolf River. The Cornt did not go so

7 Supreme Court fow1d useful in Menominee Tribe. MI CSA explicitly states that the Houlton Band

ofMaliseet Indians "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." 25 U.S.C. § l 725(a).

Further, while "the intention to abrogate or modify a treaty is not to be lightly imputed to

the Congress," Pigeon River Improvement, Slide & Boom Co. v. Charles W. Cox, Ltd, 291 U.S.

138, 160 (1934), Congress does not have to explicitly state it is abrogating particular treaty rights;

use of an explicit statement is not "a per se rule ...." US. v. Dion, 476 U.S. 734, 739 (1986).

Instead, "where the evidence of congressional intent to abrogate is sufficiently compelling, the

weight of authority indicates that such an intent can also be found by a reviewing court from clear

and reliable evidence in the legislative history of a statute." Id. at 739-40 (internal citation

omitted). Absent an explicit statement, "clear evidence that Congress actually considered the

conflict between its intended action on the one hand and Indian treaty rights on the other, and chose

to resolve that conflict by abrogating the treaty" can show an abrogation. Id. at 740. Here, there

is compelling evidence that Congress was aware of the effect its actions would have on retained

hunting and fishing rights. Nonetheless, Congress still decided to treat the Houlton Band of

Maliseet differently under MICSA than the Passamaquoddy and Penobscot by subjecting the

Houlton Band to Maine law. See 25 U.S.C. § l 725(a).

There are a number of statements in the Senate Report that demonstrate Congress's intent

to implement the State's differing treatment of Passamaquoddy and Penobscot from the Houlton

far as to say that the Menominee Tribe retained hunting and fishing rights across the entire State of Wisconsin; the Tribe only retained those rights on the reservation land pursuant to the Treaty. Here, the Treaty ofWate1town did not create any sort of reservation in the then-State of Massachusetts Bay for the St. John's Tribe to which hunting and fishing rights could be in question. If anything, it created a mutual defense obligation. Further, the location of Defendant's alleged violation was not on any land acquired within the State of Maine for the Houlton Band ofMaliseet Indians pursuant to 25 U.S.C. § 1724(d)(4); the alleged violation occmTed on the Passagassawakeag River near Head of Tide Road in Belfast, which is not disputed to be State of Maine territorial jurisdiction.

8 Band, and that further demonstrate Congress's unequivocal intent to subject the Houlton Band

wholly to the laws and jurisdiction of the State. For instance, in response to a concern about the

sovereignty of the Passamaquoddy and Penobscot, the Senate Report noted that "[t]he settlement

also protects the sovereignty of the Passanmquoddy Tribe and the Penobscot Nation in other

ways," and gives retained hunting and fishing rights on tribal reservations as an example. S. Rep.

No. 96-957, at 14-15 (1980). The Senate Report details no equivalent protection of sovereignty

for the Houlton Band.

Additionally, Congress fully intended to implement the settlement agreement between the

State and the tribes, which ensured "that the Passamaquoddy Tribe and the Penobscot Nation will

retain as reservations those lands and natural resources which were reserved to them in their

treaties with Massachusetts and not subsequently transferred by them." Id at 18. This reference

to natural resources being reserved to the Passamaquoddy and Penobscot in their treaties with

Massachusetts is strong evidence that Congress was well aware of the reservation of rights

doctrine, and only intended for it to apply on Passamaquoddy and Penobscot reservation land. 9

There is no similar reference to the Houlton Band retaining hm1ting and fishing rights pursuant to

treaties with Massachusetts. On the contrary, the Senate Report reinforces the Houlton Band's

subjection to State of Maine law and jurisdiction.

The Senate Report's analysis of subsection 6(a) (what was codified at 25 U.S.C. § l 725(a))

clearly explains "that except for the Passamaquoddy ... [and] Penobscot ... , all Indians, Indian

nations, or tribes or bands of Indians and their lands or natural resources, shall be subject to the

laws of the State of Maine." Id. at 26. While the Senate Report does note specific exceptions for

the Houlton Band in subsection 5(d)( 4) (25 U.S.C. § l 724(d)(4)) and subsection 6(e)(2) (25 U.S.C.

9 In both the MIA and MICSA, "natural resources" is defined to include "hunting and fishing rights." 25 U.S.C. § l 722(b); 30 M.R.S. § 6203(3).

9 § 1725(e)(2)), they are nairnw and relate only to jurisdictional issues on lands acquired pursuant

to the land acquisition fund and held in trust for the Houlton Band. See id. at 24, 26, 29. These

narrow exceptions do not apply outside of the context of land acquired pursuant to the land

acquisition fund in MICSA. Otherwise, only the Passamaquoddy ai1d Penobscot receive "original"

treatment in the sense that they are accorded similar status to municipalities. Id. at 29. Further,

MI CSA provides U.S. consent to ainendment of the MIA's provisions regarding the enforcement

of civil, criminal, and regulatory laws within the State's jurisdiction with respect to the

Passamaquoddy and Penobscot only. See 25 U.S.C. § l 725(e)(l). The Houlton Band is notably

absent from this provision allowing amendment of the MIA relating to the application oflaws to

the Passamaquoddy and Penobscot within the State's jurisdiction.

Taken together with the other provisions of MI CSA and the related references in the Senate

Report, the result is a federal statute that makes its intent explicit that the Houlton Band and its

members would be completely subject to the application and enforcement of Maine criminal laws,

such as the elver fishing quota at issue here, within the State's territorial jurisdiction. While there

is no explicit statement concerning an abrogation of the Houlton Band of Maliseet's retained

fishing rights within MICSA or the legislative history, the inescapable conclusion is that Congress

intended the Houlton Band to be wholly subject to Maine's laws, irrespective of any previously

retained hunting or fishing rights. Accordingly, the Court must deny Defendant's Motion.

The entry is:

I. Defendant's Motion to Dismiss is DENIED. 2. '" M.R.U. c,im. P. 53(,). • K. The Clerk is directed to incorporate this Order into the docket by reference pursuant

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