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Protecting Wampanoag Fishing Rights

Peter d'Errico
4/13/11

The 300th anniversary of treaties negotiated in the Massachusetts Bay Colony between the Indians and the British king is approaching. In those treaties Indian rights to “fishery, hunting, and fowling as formerly” were “saved” to the “Tribes of Indians within His Majesty’s Province…and their natural Descendants.” One might think 300 years would be sufficient to work out enforcement of these treaties; but then again, one remembers the violence that accompanied enforcement of similar treaties in the Pacific Northwest and upper Midwest some 30 years ago: Indian rights are always under pressure in America.

Mashpee Wampanoag fishing rights have been recognized by a long succession of laws—treaties, statutes, and decisions—from colonial days into modern times. The problem is, state and local agencies have failed and refused to uphold the law. That, too, echoes struggles in the Northwest: As one judge stated in U.S. v. Washington, the case that set the benchmark for federal protection of Indian fishing rights, “recalcitrance of Washington State officials (and their vocal non-Indian commercial and sports fishing allies)…produced the denial of Indian rights.… ”

About 10 years ago, in Commonwealth v. Maxim and its companion case, Commonwealth v. Greene, the Massachusetts Appeals Court and the Supreme Judicial Court decided unanimously in favor of Indian fishing rights. The Appeals Court decided the 1727 and 1749 treaties with the British Crown applied to the Mashpee Wampanoag, adding, “they possess aboriginal rights to fish even in the absence of treaty protection.” The Supreme Judicial Court emphasized the “long history of recognition of the fishing rights of native Americans by the Commonwealth.… ”

These decisions are remarkable for being rendered before federal acknowledgment of the Mashpee Wampanoag. Subsequent acknowledgment in 2007 strengthened the preexisting law, with references to hunting, fishing, and harvesting of natural resources essential to Mashpee Wampanoag way of life and existence as a people, from “contact” through “colonial” and “revolutionary” periods to the present.

Lower state courts have relied on Maxim and Greene to prevent interference with Mashpee Wampanoag fishing. Nevertheless, local interference continues, and at least one state agency, the Division of Marine Fisheries, has explicitly refused to honor the high court decisions. This continuing recalcitrance is now being challenged in a civil suit and a criminal complaint filed by David Greene, one of the defendants in the earlier case.

The alleged details of the challenge are shocking: Greene was digging for quahogs when a then–town deputy shellfish warden arrived. The deputy derided Native American identity and demanded that Greene return to shore and submit his catch for inspection. The deputy made no similar demand of a non-Indian man fishing with Greene. The deputy threatened to arrest Greene, and challenged him to “make a move,” warning him that if he did it would “be his last.” According to the court complaint, the deputy then violently seized Greene’s harvest basket, striking Greene in the throat with his forearm. When a local police officer arrived, he was shown a video that Greene’s wife had made of the entire incident (apparently with the deputy’s knowledge); the officer advised Greene to file a criminal complaint, which has now resulted in formal charges against the deputy.

Both the criminal complaint and a separate civil suit for damages, declaratory judgment, and injunction raise the fundamental issue of violation of Indian fishing rights by non-enforcement and active interference. Mashpee Wampanoag fishing rights, though strongly and authoritatively recognized by Massachusetts and federal law, are still subject to ongoing interference by state and local officials. The civil suit alleges the town government itself was negligent in failing to properly train the deputy to enforce the law protecting Indian fishing rights. The combination of criminal and civil actions raise the issue across the board for defending Mashpee Wampanoag fishing rights yet again.

The Mashpee Wampanoag are asking state and local officials to ensure that protection of Indian fishing rights becomes an integral part of the missions of state and local agencies, as required by law. The goal is to jointly develop a flexible, collaborative program to protect Indian fishing rights and sustain the fisheries for future generations. An already-negotiated Memorandum of Understanding on River Herring and joint agreements on shellfish with some local towns provide models and evidence that such collaboration is achievable and workable.

Editor’s Note: D’Errico was the lead attorney in the case that resulted in a unanimous decision by the Massachusetts Supreme Court in favor of Mashpee Wampanoag fishing rights based on treaties that predate the United States. He argued brilliantly before the court resulting in that victory.

Peter d’Errico graduated from Yale Law School in 1968. He was a staff attorney in Dinebeiina Nahiilna Be Agaditahe Navajo Legal Services, 1968-1970, and taught Legal Studies at University of Massachusetts, Amherst, 1970-2002. He is currently a consulting attorney on indigenous issues.

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