7-year-old case seeks to assert Shinnecock aboriginal fishing rights

As the Shinnecock Indian Nation fights to assert long-held sovereignty over a parcel of land known as Westwoods for economic development, another contingent of that nation has quietly continued a yearslong battle to assert tribal fishing rights well beyond its borders.

A case that has moved through the federal court for seven years is gearing up with written arguments this spring and could result in a decision later this year. A lot is at stake.

For David Taobi Silva, one of three men who filed the lawsuit, the best outcome would be that Shinnecock fishermen are included in state quota discussions for fisheries in the waters around Long Island. Many commercial fishery licenses are now closed.

"We are indelibly interwoven with the bounty of the sea," said Silva, the lead plaintiff in the lawsuit, which he filed in federal court in Central Islip with two other Shinnecock fishermen, his uncle Jonathan Smith and Gerrod Smith.

Their suit seeks to affirm the Shinnecock Nation’s aboriginal fishing rights after the state charged Silva with illegal fishing in 2017. (He was convicted in Southampton Town Justice Court of fishing without a commercial license, but acquitted on two other charges brought by the state Department of Environmental Conservation. He was fined $250.)

Silva in 2017 had been fishing for tiny glass eels at Heady Creek in Southampton Village, a waterway adjacent to the Shinnecock territory, when a sting by state DEC officers led to his being ticketed for illegal fishing. His suit names the officers and former DEC Commissioner Basil Seggos, along with the Suffolk District Attorney’s Office, which prosecuted him.

The fishermen’s case argues the state’s efforts to regulate and limit Shinnecock Nation members’ fishing rights threatens rights to fish that they say are sovereign. Silva and his fellow tribe members have pursued the case seeking a lasting affirmation of rights they say they never gave up — enshrined not in treaties, but in their unbroken aboriginal sovereignty.

"This case is about the continued existence of the aboriginal rights held by the Shinnecock Indian Nation and its members’ efforts to continue exercising those nonexclusive rights in common with non-natives in New York waters," according to papers recently submitted by the men in a pending motion for summary judgment.

The filing states that Shinnecock members have occupied their homeland on eastern Long Island and "they have never left." It points to a recent letter by the federal Department of the Interior — one that has become the core argument in Shinnecock Nation’s defense of a concurrent gas station and billboard cases — that the tribe has resided here from "time immemorial."

"For thousands of years and prior to European contact, the Shinnecock have routinely fished the waters around Long Island for their sustenance, economic livelihood, and cultural and religious practices," the filing said. "But New York State, which regulates the ocean waters within three miles from the State’s coastline, has refused to recognize retained aboriginal Shinnecock fishing rights."

A spokesman for the DEC declined to comment.

In its filings in the case, the New York Attorney General’s Office, which is defending the DEC employees, said the tribe’s claims of aboriginal fishing rights "have no basis."

The Shinnecock Nation members "do not possess aboriginal fishing rights within the Town of Southampton because the Shinnecock tribe does not possess aboriginal title to the territory in which plaintiffs claim these rights," the state argues in a filing that lists state Attorney General Letitia James as the attorney. "Any aboriginal title was lost when the Shinnecock Tribe conveyed land to non-Indians."

The state argues aboriginal title and rights were "conclusively extinguished by the then-sovereign, Great Britain, through Royal Determinations and Patents." And it said the Shinnecock Nation possesses "no reserved off-reservation fishing rights as they can point to no treaty or agreement that reserved such rights."

The statements mirror to a degree arguments the state and the Town of Southampton have made in cases that seek to dismantle tribal billboards on their Westwood property on Sunrise Highway — provided a basis for Southampton to challenge the tribe’s gas station/travel plaza, which is stalled by a state Supreme Court ruling in favor of the town.

Fighting such cases isn’t cheap. Legal costs have accumulated in the tens of thousands dollars, even hundreds of thousands of dollars. And the stalled work at the gas station is costing the tribe about $22,000 a day, vice chairman Lance Gumbs said. That project is being funded by loans guaranteed by the federal Bureau of Indian Affairs.

In an amicus brief filed on behalf of the Shinnecock fishermen, the United South and Eastern Tribes Sovereignty Protection Fund, a native rights group, argued aboriginal fishing rights "require no grant from a colonizing force" and can only be lost if tribal nation "voluntarily and legally relinquish them," which they say the Shinnecock members did not.

New York State’s position, the group's amicus brief states, "flips Tribal Nations’ inherent sovereignty on its head — wrongly framing the question presented as whether some agreement with Britain, the United States, New York, or another third party affirmatively reserved Shinnecock’s aboriginal subsistence fishing rights."

Rather, the group said, such rights are "inherent and retained, separate from any question of land ownership, and they are secured by virtue of Tribal Nations’ inherent sovereignty and recognized by U.S. legal authorities, including the Constitution."

For Silva, the cost is worth the potential result. He noted many of the state commercial fisheries on Long Island have limited or closed access, and the glass eel operation that he and Jonathan Smith had launched was forced to shut down after the state prosecution.

They are pursuing the case not only for themselves, but for future generations of Shinnecock fishermen, Silva said.

"The New York regulations as currently drafted make no accommodation for the fishing rights of the Shinnecock Nation — specific rights to the New York fishery, different from those held in common by non-natives," Silva’s filing concludes. "And that is why [we] are challenging them."

Silva, in an interview, added aboriginal fishing rights are "my family’s and the entire tribe’s inheritance. It’s that succinct. It’s vital. It’s part of who we are."

By Mark Harrington

mark.harrington@newsday.comMHarringtonNews

Mark Harrington, a Newsday reporter since 1999, covers energy, wineries, Indian affairs and fisheries.