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Judge tosses $102 million Shinnecock fishing case alleging discrimination by DEC

Jonathan K. Smith, left, and David Taobi Silva

Jonathan K. Smith, left, and David Taobi Silva with their eel net in April on the Shinnecock Indian Reservation in 2018. Credit: Newsday/Mark harrington

A federal judge has thrown out a lawsuit by three Shinnecock Indian Nation fishermen who accused state and local law enforcement of a "pattern of racially motivated criminal prosecutions" against them for exercising their aboriginal fishing rights.

In a seven-page ruling issued Wednesday in U.S. District Court in Central Islip, Judge Sandra Feuerstein adopted a report by a court magistrate judge who reviewed the case, agreeing that the men "have not put forward sufficient evidence to establish that the state proceeding is motivated by a desire to harass or is conducted in bad faith." The state proceeding refers to a criminal fishing case against one of the men in state court.

The three men, David Taobi Silva, Jonathan Smith and Gerrod Smith, asserted in their 2018 federal suit that the DEC and Suffolk District Attorney’s Office, then under former District Attorney Thomas Spota, repeatedly ticketed and prosecuted Shinnecock tribe members who fished in the waters around their Southampton reservation. The suit, which alleged a continuing pattern and practice of racial discrimination by law enforcement, sought $102 million in punitive damages to "deter and punish" the agencies for preventing the men from fishing.

The suit also sought temporary and permanent injunctions to end the alleged racially discriminatory practices.

A lawyer for the three men, Scott Moore, said, "My Shinnecock clients are reviewing their options in response to the judge’s disappointing ruling, and fully intend to tirelessly work to vindicate their Shinnecock fishing rights their people have enjoyed since time immemorial."

Silva in 2018 had been the subject of a DEC sting operation for weeks before he was ticketed for netting undersized eels in waters near the tribe's reservation, court papers showed, with briefings on its progress relayed to the state "executive chamber," a reference to Gov. Andrew M. Cuomo’s office.

Shinnecock tribal trustee Randy King at the time called the revelations of the sting and the state’s prosecution "deeply concerning." Silva, who was acquitted on two of three charges, which included overharvesting undersize eels, in Southampton Town Court in 2019, never denied fishing for the eels, but, like the other men, asserted tribal fishing rights guaranteed in Colonial-era deeds and treaties.

The DEC, in a statement, said the ruling "affirms that DEC’s environmental conservation police officers conducted themselves in a professional and non-discriminatory manner consistent with the laws and regulations of New York State."

Silva on Monday said he "could not disagree more," with the judge’s ruling and the DEC’s statement that its officers acted lawfully. He criticized the ruling for centering on "technicalities" rather than the merits of the case.

"It’s a yes or no question: does the Shinnecock Nation have a right to fish? We’ve never gotten an answer to that," Silva said, adding "until there’s a ruling stating otherwise I’m going to proceed as if our fishing rights exist in full force."

A separate federal case by the neighboring Unkechaug Nation, which challenges the state’s authority to regulate or restrict the Mastic Beach tribe’s historic fishing rights, remains ongoing.

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