Tribal fishing rights across Turtle Island are usually protected by state or federal obligations, and at times become the subject of heated discussions on regulating those rights. On April 5, two tribes in Virginia appeared to be denied those tribal rights.
Marine police, acting on behalf of the Virginia Marine Resources Commission (VMRC) and the Virginia Department of Game and Inland Fisheries traveled to the Mattaponi and Pamunkey Reservations to enforce a 2013 opinion issued by Virginia’s then Attorney General Kenneth Cuccinelli. (The Pamunkey are currently in the process of becoming the first federally recognized tribe in the state of Virginia.)
The officers, who came to the territories without permission, threatened tribal members with confiscation of their fishing nets, fishing boats and wrote summons and fines of $500 per fish. “The VMRC and the Virginia Department of Game and Inland Fisheries were trying to deny us our treaty rights,” Kevin Brown, chief of the Pamunkey Indians said.
Brown and Chief Mark Custalow, Mattaponi, went to the King William County Commonwealth’s Attorney Matthew R. Kite, complaining that the officers had violated fishing rights outlined in the Articles of Peace Treaty of 1677, an agreement between Prince Charles II, King of England, Scotland, France and Ireland and several Indian Kings and Queens, including those of the Pamunkey and Mattaponi.
Kite met with the head of the marine police and local officers. “My understanding is that they were distributing the attorney general's opinion, which came out last summer. The question presented by this opinion was, 'Do Native folks need licenses to go fishing and hunting?' The answer to that question is, No, they don't.”
Kite was clear on the enforceability of the opinion issued by Cuccinelli in 2013. “Attorney General opinions are just that, they are persuasive on what the law might say, but they are not binding like a statute or a court case decision.”
Kite said that Cuccinelli’s letter does state that Virginia Indians are bound by the trapping, hunting and fishing laws and regulations of the Commonwealth, yet he does not see things the same way as the former Attorney General. “If we go back to our 1677 Treaty, that the Mattaponi, the Pamunkey and several other tribes are party to, if I look at that treaty, my opinion is not the same as the Attorney General's was. I think that that treaty specifically exempts Native folks from hunting, trapping and fishing regulations,” Kite said.
Kite also says if any officer ever cites a tribal member in his county, he would not honor it.
John Bull, the recently appointed Virginia Marine Resources Commissioner, said he understood where the tribes were coming from and that he was only enforcing the opinion of Cuccinelli in the hopes that “there would not be any surprises for the tribe.”
Shortly after the letters had been distributed, Bull issued a permit to the Pamunkey Tribe authorizing members to collect American Shad, in spawning condition, to stock the Pamunkey Reservation Hatchery.
Brown doesn’t like the wording of the permit because it imposes a restriction: the tribe is permitted only for hatchery work. In years past, the tribe would file a letter of request for funding the hatchery operations for migrating American shad that would receive a response of approval. This year though, Bull said he issued the permit even though the usual correspondence was not received and that Cuccinelli’s opinion created a gray area between treaty rights and the law.
Following a collapse in the river herring population along the coast, the Atlantic States Marine Fisheries ordered states to declare a moratorium on the harvesting of river herring – Bull felt compelled to enforce it on all people including tribal members. “Due to the moratorium and the tribal members who catch herring in the spring along with the American Shad, the question at hand was, the tribal members, are they treated differently from this moratorium? Does state law require everyone to abide by this moratorium and the other moratorium on other saltwater species? That was the question that was a gray area,” Bull said.
“The tribes have a long record of environmental stewardship, they respect the resources. The issue that has the tribes worked up is whether or not their tribal history and tribal fishing rights are bound within the laws and regulations when it comes to the size and season of the species and whether they can be taken under a moratorium,” Bull said. “My intention was that I did not want there to be any surprises, there had been this legal ruling, and that it would have been possible to encounter a law enforcement officer who was in an uncompromising position and would have issued a ticket to the tribal members surprise. I didn't want the tribes surprised.
“I didn't expect it to be hand delivered, I just told the marine police to let the tribes know this was going to be enforced gently,” Bull said.
Attorney Matt King disagrees with Bull. “As long as I have lived in this county, and for everyone that I have spoken to that has lived here their entire lives, say that the Native people in particular have always been able to fish however they wanted.
“It has been interpreted very broadly, as I told Chief Brown and Chief Custalow, if there were any citations issued by VMRC or DGIF, if they came to court they would be dismissed by my office.”
Since the time the officers had visited the Pamunkey and Mattaponi territories, Brown says some VA agencies were told to back off.
Current Attorney General Mark Herring’s office issued the following statement, “In matters such as this, the Attorney General's office provides attorney-client privileged advice to our client agencies about what the law requires and it is up to them to implement the law in the way they believe is best.”
For a copy of Kenneth Cuccinelli’s opinion visit here.