Wabanaki Legal News
| A publication of Pine Tree Legal Assistance |
Winter 2000
Native American Legal Briefs
--Tribal Sovereignty--
--Aboriginal Fishing Rights--
Table of Contents
Note: Last summer, the Supreme Court of the United States denied the Petition for a Writ of Certiorari in the case of Penobscot Nation v. Fellencer. This means that the decision of the First Circuit Court of Appeals in that case will remain in effect and is binding law.
On June 15, 1995, the Passamaquoddy Housing Authority hired Pamela Francis to serve as its Executive Director for a five-year term. Ms. Francis is a member of the Passamaquoddy tribe. A little over one year later, the Authority first suspended Ms. Francis without pay. Later, she was fired. Ms. Francis then sued the Authority in Maine Superior Court. She claimed that she had been fired illegally. The Housing Authority also brought claims against Ms. Francis. It claimed that she had not performed her duty properly and had unjustly enriched herself at the expense of the housing authority.
The Superior Court judge handling the case decided that this case should not be heard in state court. Therefore she dismissed the case. She made that decision after the First Circuit Court of Appeals decided a case called Penobscot Nation v. Fellencer (See the article about that case in the Wabanaki Legal News, Volume 3, Issue 2; or check our website. The judge found that Ms. Francis’s position "involves an important human resource aspect of the [Passamaquoddy] Nation." Therefore, the judge ruled that this was an "internal tribal matter" which could not be heard in state court.
On appeal, the Maine Supreme Court reversed the Superior Court decision. However, the Court did not ever discuss whether the facts of this case involved an internal tribal matter. The Court noted that, under the Maine Indian Claims Settlement Act, Indian Tribes had authority over internal tribal matters. The Court reasoned that the Housing Authority was not part of the Passamaquoddy Tribal Government. It was instead organized under Maine law. The Authority is governed by a Board of Commissioners appointed by the Passamaquoddy Governor and confirmed by the Tribal Council. However, the Court found that Maine law specifically allows this arrangement. The Court concluded that because the Housing Authority is not the Tribe, it could not take advantage of protections designed for the Tribe. The case was then sent back to Superior Court to continue the trial.
In September of 1999, the Supreme Court of Canada held that a 1760 treaty gave a limited right to Micmacs in Nova Scotia to fish and sell the proceeds for "necessaries," such as food, housing and clothing. The case involved the arrest of Donald John Marshall, Jr. for fishing for and selling eels. Mr. Marshall was convicted of selling eels without a license, fishing without a license, and fishing during the closed season with illegal nets. On appeal, the Supreme Court reversed the convictions.
In November, the Supreme Court issued another decision in this case. The West Nova Scotia Fisherman’s Coalition, an interested party, had asked the Court to rehear the case. The Court refused this request, but the second decision is important. In the second decision, the Court emphasized the limited nature of its original judgment. The original decision did not mean that Micmac treaty rights could not be limited. It also did not guarantee the Micmacs an open season in the fisheries. The Court noted that aboriginal and treaty rights might be regulated, as long as the regulation can be justified for conservation or other grounds of public importance. In this case, however, the prosecutor did not make any effort to justify the regulations under which Mr. Marshall was prosecuted. Therefore, the Court did not have a chance to decide whether the regulations were justified.