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Judge finds Shinnecock tribe member guilty of illegal fishing

David Taobi Silva, a former Shinnecock Indian tribal

David Taobi Silva, a former Shinnecock Indian tribal trustee, stands on a dock in Heady Creek, on the Shinnecock Reservation on Jan. 3, 2018. The site is near  the spot where he received a ticket on April 20, 2017 for illegal fishing in Southampton. Credit: Gordon M. Grant

A Southampton Town judge on Wednesday found a Shinnecock Indian Nation member guilty of a single count of failing to have the proper state license to fish for baby eels but found him not guilty on two other counts.

In acquitting former tribal trustee David Taobi Silva of the primary charges of possessing 247 baby eels beyond allowable limits, Town Court Justice Gary Weber found the search and seizure of Silva’s catch by state Department of Environmental officers “was not proven to be constitutional.”

He was found guilty of failing to have a marine commercial food fishing license and the use of a fyke fishing net in the harvest of eels.

The case was seen as a test of Shinnecock tribal members’ colonial-era treaty and aboriginal rights to fish beyond their reservation boundaries, but Weber declined to be the final arbiter of that issue, saying “ . . . this court is without the power to alter the legally established boundaries of the Shinnecock Nation or of the State of New York.”

Silva, who faced tens of thousands of dollars in fines and two weeks in jail on the state charges, was sentenced to a $250 fine. His attorney, Scott Moore, said he would pay the fine but also appeal the verdict.

“We are disappointed and we look for justice on appeal,” said Moore.

Weber in an eight-page decision said there “appears to be no dispute” that the location of a net left by Silva to harvest eels was “outside the boundaries of the Shinnecock Nation.” Silva was charged on April 20, 2017 after state DEC officers conducted a sting near a fyke net that had been set in Taylor Creek in Southampton village.

Silva’s argument in the case mirrors two cases now moving through federal courts, including one by the Unkechaug tribe of Mastic. He and other Long Island tribal members contend that Shinnecock tribal members have aboriginal and treaty-recognized fishing rights that supersede state law, even outside the boundaries of their Southampton reservation.

“The court understands that tribal lore and tradition does not lend itself easily to the imposition of mapped boundaries, especially in dealing with the traditional Native American understanding of hunting and fishing rights,” Weber wrote in denying Moore’s earlier request to dismiss the case at trial.

But he added, “The world around us has changed . . . .”

In acquitting Silva of the undersize and over-the-limit eel charge, Weber noted that Silva initially refused to allow DEC officers to see what was in his catch bucket, but eventually consented to a search and a “voluntary” statement to police.

Weber noted that “submission to authority is not consent.” He also noted that three days elapsed between officers’ finding the eel net and their sting operation, “more than ample time” to obtain a search warrant, which they did not. Accordingly, Weber said, he did not consider the evidence, the bucket of eels, or Silva’s voluntary statement.

Weber also acquitted Silva of a second overfishing charge of possession a second batch of 98 eels later found in the net, noting that those eels were found “after” Silva had been ticketed and left the scene.

While planning to appeal the state charges, Moore said he expects “positive judgment” in his similar federal case “will moot what’s going on in state court.”

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