Ahead of the spawning season: Aboriginal rights on and off the reservation

HARWICH — In May 2020, Earl Cash, along with his son, Julian, was fishing for herring at the Herring River herring run.

A woman appeared and accused them of poaching.

As she ordered them out of the herring run, Cash refused – claiming his sovereign fishing rights as a Mashpee Wampanoag tribal member. The woman threatened to call police.

“We tried to tell her that we are tribal members, and we are allowed to take the fish,” he said. “When I approached her to explain, she told me to stop and said I might rape her. This all happened in front of my son.”

Because Cash and his family are frequently harassed at the herring run, his wife Natasha Cash said they started using a go-pro device – as a form of protection – to capture the encounters. The entire incident with the woman was caught on tape.

“It’s sad because Julian doesn't even want to go anywhere near that run anymore,” Natasha, also a Mashpee Wampanoag tribal member, said. “This kind of treatment prevents him from practicing his culture.”

Confrontations like this have been ongoing for the Cash family and many other tribal members since a moratorium on fishing river herring was introduced in 2005 in Massachusetts due to a decline in the fish’s population. That ruling remained in effect until 2009 and was renewed again in 2012 for another three years.

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When that third round of three-year moratoriums expired, and the herring population remained in decline, the state enforced an indefinite moratorium

Who has the right to fish for herring on the Cape?

Because indigenous tribal members have sovereign hunting and fishing rights, which were granted in 1984, they are not prohibited from harvesting herring. The determination grants tribal members the right to hunt and fish, in order to sustain themselves, without obtaining permits from town or state municipalities. A 1905 federal case, United States v. Winans, found that tribe members have access to take fish even if they are on privately owned land, according to the Mashpee Wampanoag Tribe website.

An ongoing battle: Tribal members still harassed for pursuing aboriginal fishing rights

Although that decision should ensure that law enforcement agencies and members of the public don’t interfere as tribal members fish at herring runs across the Cape, it doesn’t always pan out that way, said Carlton Hendricks Jr., vice chairman of the Mashpee Wampanoag Tribe.

“People need to come to grips and acknowledge that these are our birth-given rights,” he said. “This new tribal leadership is dedicated to fighting for our Aboriginal rights on land and water.”

For years, Hendricks said tribal leadership throughout the different Wampanoag bands of government have been meeting with state and town officials to ease tension between tribal members and private citizens to no avail.

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Hendricks said the tribe and state and town municipalities disagree on what sovereign rights and sustenance actually means for tribal citizens. While state and town leadership define sustenance as the amount of food a tribal member needs to feed their family, Hendricks said sustenance extends to life-giving ways. Those conflicts have strained government-to-government relationships for decades.

“We need to be able to sell our food so we can pay bills. Hunting and fishing is our livelihood,” he said. “That's been a big argument with the state and the EPO (Massachusetts Environmental Police).”

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Amy Croteau, senior resource officer and shellfish constable for the town of Barnstable’s Natural Resource Program, remembers catching herring with her grandfather on Route 149 in Barnstable. But times have changed, she said.

“Indigenous people who also have a tribal card that states that they're a member of the federally recognized tribe, have an indigenous right to fish,” she said. “That’s not a right we can impede on.”

Some of the conflict between tribal members and the public, happens when tribal members are questioned, Croteau said.

“I have the ability to ask to see a tribal card. A member of the general public has no right asking someone to show who they are,” she said.

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If a citizen believes a violation is occurring, Croteau said people can merely observe and gather information and report to an enforcement officer. Members of the general public can also take a picture of a license plate, which will then be submitted to tribal police to determine if an individual fishing is a tribal member.

The problem with those suggestions, said Hendricks, is that a tribal member could be driving with a non-tribal member or the car they are driving may be registered to someone else. The entire scenario means the tribe will sink its own time and financial resources into an investigation that isn’t necessary, he said.

“Instead of spending these resources on tickets, violations, and investigations, we could be sending our kids to college or helping our elders coming out of a pandemic, or on a substance abuse issue,” he said. “We're spending resources that really shouldn't be spent on acknowledging something that is already there.”

Hendricks said many times tribal members are met with racial slurs.

“We are 100% racially targeted,” he said.

Like Cash, CheeNulKa Pocknett, a member of the Mashpee Wampanoag Tribe, said he is always approached by people who don’t know the laws of the land. In addition, he said he's been threatened and racially targeted by environmental enforcement agents across the Cape. A particular incident that stands out in his mind was when he was fishing for herring at the Herring Run Recreation Area in Bourne, and he was confronted by a member of the U.S. Army Corps of Engineers.

“He told me that I do not look like an American Indian,” he said. “I told him my son has blonde hair and blue eyes and he has a tribal identification card, so what does an American Indian look like?”

All signs point to tribal sovereignty

Because of that incident, which was caught on video in 2019, Pocknett said he lodged verbal complaints with the towns of Wareham, Sandwich, Bourne and the U.S. Army Corps of Engineers Park Rangers. As a result, signs were placed at the recreation area, and at surrounding herring runs to indicate sovereign rights of tribes.

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“It took all of that for them to just put signage up. That’s a little extreme – but it’s a taste of what I deal with on a daily basis,” he said.

The incident with Cash also prompted Kevin Clayton, captain and deputy chief of enforcement for Massachusetts Environmental Police, to not only launch an investigation but to also replace small, laminated signs with larger metal signs that outline sovereign tribal hunting and fishing rights.

“The past two years, we have been trying to get more consistency and increase the messaging regarding access for Indigenous people,” Clayton said in a phone interview.

Katelyn Cadoret, assistant conservation agent for the town of Mashpee, said the number of signs has also increased throughout the three herring runs in Mashpee.

“ That's our best way to try to combat the ignorance of the public on Aboriginal rights,” she said.

Teaching the public about tribal fishing rights

Training sessions are also conducted for community members in partnership with the Mashpee Wampanoag Tribe, said Cadoret. The first workshop was held March 19, as a part of the town’s 2022 Herring Count Program and and featured feature Dale Oakley Jr., of the Mashpee Wampanoag Tribal Natural Resource Department.

Croteau said it’s not just on the public’s end to be educated on tribal rights. She said there needs to be some sort of consensus and guidance to bridge gaps between the public and tribal members.

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“Not everybody (all tribal members) is approachable, not everybody thinks that they should have to produce identification to do what they're doing,” she said. “Those kinds of situations make it tricky and make it – I think – more muddy. It would be nice to also see guidance from the top tiers of the hierarchies on all ends. Their governments and ours.”

In terms of overall education, Hendricks said tribes do need to play some part in that process but said Indigenous people have been teaching and guiding private citizens for 400 year with no acknowledgment.

“At what point do we say, no, it’s not a lack of education – it’s a lack of acknowledgment of what these rights are,” he said.

For now, Hendricks said he’s focused on protecting tribal members and advises all Indigenous people to carry video devices to record all incidents of harassment. If tribal members feel unsafe, he said they can also call tribal police.

“We're trying to build a log of all these harassment issues. That's what’s going to help our kids in the future,” he said.

This article originally appeared on Cape Cod Times: As herring begin to run, tribes prepare to exercise sovereign rights