Could Penobscot Nation members use gill nets to catch Atlantic salmon for personal food within the reservation?

Plain-English summary

The chairman of Maine’s Atlantic Sea Run Salmon Commission asked whether Penobscot Nation members could place gill nets in the Penobscot River within the reservation and take up to twenty Atlantic salmon for their own consumption, even though state law generally prohibited gill nets in inland waters.

The Attorney General concluded that the proposed harvest was allowed on the facts presented. Section 6207(4) of Maine’s Indian claims settlement implementing law authorized Penobscot Nation and Passamaquoddy Tribe members to take fish within their respective reservations for “individual sustenance,” notwithstanding other state laws or commission rules. Because the proposed salmon would be consumed by Nation members and would not be sold or processed for sale, the opinion found that the state gill-net prohibition did not apply.

The opinion also explained that the state retained a response if tribal fishing activity threatened a fish or wildlife stock. Under Section 6207(6), the relevant state official could begin proceedings for remedial measures when an activity was adversely affecting, or was likely to adversely affect, the resource. The AG said the proposed taking of twenty salmon did not appear to pose that threat.

Currency note

This opinion was issued in 1988. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.

Who the opinion addressed at the time

Penobscot Nation members and government

The opinion treated a small harvest within the reservation for consumption by Nation members as fishing for individual sustenance under Section 6207(4). Its conclusion depended on the fish not being sold or processed for sale.

State fisheries officials

The opinion distinguished ordinary state fishing restrictions from the separate remedial process in Section 6207(6). It stated that state officials could initiate that process if tribal fishing activity threatened the stock of fish or wildlife.

Common questions

Q: Did the 1988 opinion allow commercial sale of the salmon?

A: No. The opinion relied on the facts that the salmon would be consumed by Penobscot Nation members and would not be sold or processed for sale.

Q: Why did the state gill-net ban not control?

A: The AG read Section 6207(4) as allowing reservation fishing for individual sustenance notwithstanding other state laws, including the general prohibition on taking fish with gill nets.

Q: Could Maine act if the harvest threatened the salmon stock?

A: The opinion said yes. It pointed to Section 6207(6), which provided a process for remedial measures when tribal activity adversely affected or was likely to adversely affect a fish or wildlife stock.

Background and statutory framework

The opinion identified 12 M.R.S.A. § 7608 as the general state prohibition on using gill nets in inland waters. It then applied the Act to Implement the Maine Indian Claims Settlement, 30 M.R.S.A. § 6201, et seq.

Section 6207(4), as quoted and described in the opinion, permitted members of the Passamaquoddy Tribe and Penobscot Nation to take fish within their respective reservations for individual sustenance, notwithstanding commission rules or other state laws. Section 6207(6) supplied a separate procedure for addressing fishing or hunting that threatened the stock of a resource.

Citations and references

• 12 M.R.S.A. § 7608, the general gill-net prohibition cited in the opinion
• 30 M.R.S.A. § 6201, et seq., the settlement implementing act
• Section 6207(4), reservation fishing for individual sustenance
• Section 6207(6), remedial measures for activity affecting fish or wildlife stocks

Source

• Landing page: https://www.maine.gov/legis/lawlib/lldl/agops/agops.htm
• Original PDF: https://lldc.mainelegislature.org/Open/AG/Opinions/1988/ag_19880216.pdf

Original opinion text

Best-effort transcription from a scanned PDF. Minor errors may remain — the linked PDF is authoritative.

JAMES E. TIERNEY
ATTORNEY GENERAL

STATE OF MAINE
DEPARTMENT OF THE ATTORNEY GENERAL
STATE HOUSE STATION 6
AUGUSTA, MAINE 04333

February 16, 1988

William J. Vail, Chairman
Atlantic Sea Run Salmon Commission
State House Station #41
Augusta, Maine 04333

Dear Chairman Vail:

I am writing in response to your inquiry of February 5, soliciting the advice of this office concerning whether there is any legal impediment to the taking of approximately twenty Atlantic salmon from the Penobscot River by the use of gill nets by members of the Penobscot Indian Nation. For the reasons which follow, it is the Opinion of this Department that, on the facts as we understand them, such action would not be prohibited.

As you indicate in your letter, and as we have verified with representatives of the Penobscot Indian Nation, members of the Nation intend, during the Atlantic salmon run this coming summer, to place gill nets in the Penobscot River within the boundaries of the Penobscot Reservation. The purpose of these nets is to catch up to twenty Atlantic salmon for the consumption of members of the Nation. Since the use of gill nets is generally prohibited within the inland waters of the State, 12 M.R.S.A. § 7608, you ask whether this activity would be legal.

In the opinion of this Department, it would be. Pursuant to Section 6207(4) of the Act to Implement the Maine Indian Claims Settlement, 30 M.R.S.A. § 6201, et seq., enacted by the Maine Legislature in 1980, members of the Passamaquoddy Tribe and the Penobscot Nation are authorized to take fish, within the boundaries of their respective Indian Reservations, and “[n]otwithstanding any rule or regulation promulgated by the Commission or any other law of the State,” so long as the fish so taken are used for “their individual sustenance.” On the facts as they are presented to us, the salmon to be taken this summer are few in number and will be consumed by members of the Penobscot Nation. They will not be in any way sold or processed for sale to others. That being the case, the activity in question would clearly fall within the purview of Section 6207(4) and would therefore not violate “any other law of the State,” including the prohibition against taking fish with gill nets.

This is not to say, however, that the State is without recourse in the event that fishing activity by an Indian tribe or nation threatens the existence of the resource in question. Pursuant to Section 6207(6), you, in your capacity as Commissioner of Inland Fisheries and Wildlife, have the power to initiate proceedings leading to the adoption of remedial measures applicable to activity by an Indian tribe or nation which is “adversely affecting or is likely to adversely affect the stock of any fish or wildlife.” While the taking of twenty fish this summer would not seem to pose such a threat, you should be aware of your powers in the event that such a threat should in the future arise.

I hope the foregoing answers your question. Please feel free to reinquire if further clarification is necessary.

Sincerely,

JAMES E. TIERNEY
Attorney General

CH/ec

cc: Priscella A. Attean,
Penobscot Indian Representative