Former Shinnecock leader asserts ancient fishing rights

A former Shinnecock Indian tribal leader is seeking to have charges of illegal fishing dismissed in a case that reasserts the tribe’s ancient fishing rights.

David Taobi Silva was fishing for eels in the headwaters of Heady Creek in Shinnecock Bay on April 20 when two officers with the state Department of Environmental Conservation stopped him, seized his nets and catch, and charged him with possession of undersized eels, according to court papers.

Arguments are scheduled for Jan. 17 in Southampton Town justice court in Hampton Bays, Silva said.

Silva has pleaded not guilty in the case and has separately filed a discrimination complaint against the DEC and the Suffolk County district attorney’s office. He alleges a “cycle of harassment, abuse of process and malicious prosecution” by state officers and the district attorney’s office.

One of the officers who issued the appearance ticket had ticketed tribal members in cases that were dismissed because of long-established tribal fishing rights, according to court papers.

The “tactic seems to be one of intimidation and expense burden, with the cost of litigation being the primary tool to effectively suppress or cause harm to the application of our fishing rights,” Silva said in his discrimination complaint. He added, “This tactic could not work unless the DA was complicit.”

A DEC spokesman declined to comment, citing the pending litigation.

Suffolk District Attorney Timothy Sini, who takes over the case from predecessor Thomas Spota, also declined to comment on the litigation, said Justin Meyers, Sini’s chief of staff.

However, Meyers said Sini met with the Shinnecock tribal leaders during his campaign and has an “ongoing dialogue” with the tribe.

The tribe has long asserted ancient and unrestrained rights to fish in and around Shinnecock Bay.

Court papers cite the Shinnecock tribe’s rights to free trade under the 1664 Fort Albany Treaty, and the 1659 Wyandanch Deed with Southampton Town. That agreement provides for the tribe to keep “our privilege of fishing, fowling or gathering of berries, or any other thing for our use,” Silva’s court papers say.

A state map cited in the court records as being used by the state showed “Silva was ticketed for fishing in the traditional Shinnecock fishing grounds of the Shinnecock Bay estuary, an area of retained fishing rights, whether or not outside Shinnecock Reservation waters,” according to Silva’s motion to dismiss the original violation.

In the motion, Scott M. Moore, an attorney for Silva, said three prior cases against tribal members who fished tribal waters were dismissed on the grounds of the tribe’s ancient fishing rights.

In one, Southampton Town Court Justice Deborah Kooperstein noted DEC officers’ “failure to have clarity with regard to the exact boundaries constituting tribal fishing territory.”

Silva’s court papers include trial transcript in which the officer who had issued tickets to others said he was “trained that the Shinnecock Reservation is ‘off limits’ and he was not sure how far the reservation boundaries extended into the surrounding waters.” The DEC spokesman declined to discuss the assertion.

In an interview, Silva said he believes the tribe’s fishing rights extend to all New York State waters, and perhaps farther, “as far as the whale could swim.”

He said tribal leaders have met with top DEC officials before and since his case, and that the leaders have been assured of a “new spirit of cooperation” with the tribe on recognizing fishing rights, to no avail. The DEC spokesman wouldn’t address the assertion.

“There’s an active denial of Shinnecock fishing rights at the state level, and it’s systemic,” Silva said.

Correction: A previous version of this article misidentified Heady Creek and misspelled David Taobi Silva’s name in a headline.

By Mark Harrington

mark.harrington@newsday.comMHarringtonNews

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