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Mashpee Wampanoag Member Files Suit to Fish

In the 1960s and 1970s, controversial “fish-in” protests and courtroom battles in the Pacific Northwest and upper Midwest pushed the issue of American Indians’ aboriginal fishing rights into public awareness. The fish-ins were always controversial, sometimes violent, and often led to raids of Indian homes and arrests by Fish and Game agents. When the late actor Marlon Brando and activist/comedian Dick Gregory joined Indians for fish-ins in Washington state in the mid-1960s, they were arrested and made newspapers all over the world. Those fish-ins led directly to a landmark legal case, U.S. v. Washington, also known as the Boldt Decision, which was a near-total vindication of Indian treaty rights claims, but didn’t end the controversy.

And now the battle may be fought again, this time on the East Coast, after an new arrest and lawsuit by David S. Greene, an enrolled member of the Mashpee Wampanoag Tribe. Greene has filed a lawsuit in Plymouth Superior Court in Massachusetts against Kenneth R. Pacheco, the former deputy shellfish warden for the town of Mattapoisett, Massachusetts and members of its board of selectmen for violating his right “to fish without interference, obstruction or regulation by any government authority other than the sovereign Wampanoag Tribe.” The lawsuit also alleges that the town government was negligent in failing to properly train Pacheco to enforce the law protecting Indian fishing rights. Greene is seeking damages, injunctive and declaratory relief and a vindication of his “aboriginal and usufruct rights as a Native American.” (Usufruct is the legal term for the right to use and derive profit or benefit from property that belongs to another person as long the property is not damaged.)

The lawsuit describes a tense encounter between Greene and Pacheco. It says Greene, a lifelong fisherman who fishes “both because of its spiritual meaning for him and to provide sustenance for his family,” was shellfishing for quahogs with a non-Indian friend on October 11, 2010, off Reservation Road in Mattapoisett. His wife Kathleen was along enjoying the day at the beach when Pacheco arrived and, “without provocation aggressively confronted” her and asked if the men wading in the water had fishing licenses. Kathleen says she told him her husband was a member of the Mashpee Wampanoag Tribe [meaning , he didn’t need one] and his friend did have a fishing license. “Mr. Pacheco replied: ‘Oh, he’s an Indian,’ went off to make a phone call, then returned and began shouting at Kathleen, saying that despite her husband’s tribal status, he ‘had to follow the rules.’ ”

The lawsuit claims that Pacheco continued shouting and making insulting remarks about Greene’s American Indian status. David claims that as he approached the shore, he asked Pacheco to stop shouting at his wife, but instead Pacheco challenged Greene to ‘make a move’ and warned that if he did, ‘it would be his last.’?” David claims that Pacheco then told him he was violating town rules by not properly measuring the shellfish and by not using an oversized basket. Greene responded that he believed the town’s fishing regulations did not apply to him. Greene remained calm, according to the lawsuit, but the situation got uglier after Pacheco called John Mendes, of the Division of Marine Fisheries, who confirmed that Greene had legitimate fishing rights, and told Pacheco not to interfere with the two men. The lawsuit claims that Pacheco continued to threaten to arrest Greene, then “violently” tried to seize his fish bucket, striking Greene in the throat with his forearm and knocking him back.

Kathleen, meanwhile, was openly recording the events on her mobile phone camera. Pacheco said he didn’t care that the incident was being recorded and continued to make insulting remarks, calling Greene “Joe Video” and “Joe Wampanoag.” When police arrived at the scene, they reviewed the footage Kathleen had shot and told Greene he could file criminal charges against Pacheco. Subsequently, Greene did file criminal charges against him in Plymouth District Court, accusing Pacheco of assaulting him based on his national origin. Pacheco was scheduled to be arraigned in early April.

Greene, who is unhappy with how his case has been covered in the mainstream press, declined to be interviewed for this story. However, Mashpee Wampanoag Chairman Cedric Cromwell backed Greene’s action. “The lawsuit brought by tribal member David Greene in Plymouth Superior Court seeks to vindicate basic rights which are critically important to the Mashpee Wampanoag Tribe and all Native Americans,” Cromwell said. “All too often, our aboriginal rights are overlooked and ignored as though we do not exist or as if, like other people who live in the community, we came from somewhere else. Public officials must understand and respect that we are the original inhabitants of these lands and waters. We are a sovereign nation. We have never compromised our right to fish and hunt our ancestral lands, and for generations we have been responsible and respectful stewards of our natural resources. It is unacceptable that a member of our tribe could be treated by a public official in the manner in which Mr. Greene was treated for simply fishing as we have always had the right to do.”

The Mashpee Wampanoags’ fishing rights have been recognized for hundreds of years in treaties, statutes, executive orders and case law. In 1727, when the Massachusetts Province extended all the way north to what would become the state of Maine, the colonial government signed the Treaty of Falmouth, which acknowledges the rights of “the Penobscot, Norridgewock and other Tribes, with his Majesties Province aforesaid, and their Natural Descendents, respectively…the Privilege of Fishing, Hunting, as formerly.” Other treaties in 1749 and 1795 reiterated the indigenous peoples’ inherent right to hunt and fish in their aboriginal homelands.

“The problem is, state and local agencies have failed and refused to uphold the law,” said attorney Peter d’Errico, who represents Greene along with attorneys Howard M. Cooper and Brendan M. Hare of Todd & Weld, a Boston-based firm. D’Errico [who occasionally writes a column for ICTMN] was one of the lead attorneys in a pair of cases—Commonwealth v. Maxim and its companion case, Commonwealth v. Greene—in the state’s Appeals Court and Supreme Judicial Court a decade ago, in which lower court decisions convicting Mashpee Wampanoag members of violating local fishing regulations were reversed. (Greene was the defendant in one of those cases.) The Appeals Court ruled that the 1727 and 1749 treaties with the colonial government applied to the Mashpee Wampanoag and concluded that they “possess aboriginal rights to fish even in the absence of treaty protection.” The decision was based on the “reserved rights doctrine,” that says even when hunting and fishing rights were not specifically guaranteed in treaties, Indian peoples retain any rights­­—including the right to hunt and fish—that are not explicitly abrogated by treaty or statute. The Supreme Judicial Court decision noted the “long history of recognition of the fishing rights of Native Americans by the Commonwealth,” and cited statutes from 1795, 1836 and 1933 that acknowledged Natives’ right to fish without a permit, as well as a 1976 executive order and a 1982 Resolution in the Massachusetts House of Representatives that recognized the aboriginal right of Indians to hunt and fish in the Commonwealth. These rulings were widely publicized.

Yet town officials in Mattapoisett insist that Greene violated the law that day he was confronted by Pacheco. David Jenkins, the town’s attorney, told the Boston Globe that “[The] town’s position is that local regulations apply to Native Americans as much as they apply to anyone else.” Jenkins said Greene had “an illegal basket” and Pacheco only sought to check Greene’s catch because his oversized basket did not comply with local regulations. “Massachusetts law gives wardens the right to inquire of anyone shell-fishing that they are complying with local law. There is no statute in Massachusetts that says Native Americans have an unfettered, unrestricted right to fish or hunt. The Division of Marine Fisheries has issued no policy to local wardens giving Native Americans unfettered rights to fish or hunt.”

D’Errico said the almost-300 years since the 1727 Treaty of Falmouth might be considered a sufficient amount of time to work out enforcement of the Wampanoags’ treaty rights, “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.”