Appeals court revives Shinnecock tribal fishing rights case

Jonathan Smith (left), owner of the Shinnecock Smoke Shop, with Taobi Silva, manager of the shop that intends to continue selling flavored e-cigarettes as a state-wide ban looms. Oct. 14, 2019. Credit: Newsday
A federal appeals court last week revived a case by three members of the Shinnecock Indian Nation who charged that a state agency and its officials unlawfully barred their treaty-enshrined fishing rights.
A three-judge panel of the U.S. Court of Appeals for the Second Circuit ruled Aug. 25 that U.S. District Court in Central Islip erred in previously dismissing the men's lawsuit in a summary judgment. The appellate panel sent the case back to the district court, saying it could continue against the officials, but not the state Department of Environmental Conservation itself.
The panel allowed the suit against the DEC officials because “the plaintiffs allege an ongoing violation of federal law and seek prospective relief against state officials.”
The appeals court dismissed a separate element of the fishermen’s case that alleged discrimination by the agency and its officials, saying there was “no evidence in the record that would permit an inference of discriminatory intent.”
The lawsuit by Gerrod Smith, Jonathan Smith and David "Taobi" Silva alleged the DEC, its commissioner Basil Seggos, and several local enforcement officials displayed a “pattern of criminal prosecutions” against the men for fishing in and around the waters of Shinnecock Bay in 2017 and earlier. It sought injunctions to stop the DEC prosecutions and $102 million in punitive damages to “deter and punish” the DEC officers for preventing them from fishing.
In their complaint, the fishermen said that as a result of the DEC's prosecutions, they operated “in fear of exercising those same usual and customary aboriginal fishing rights secured and retained for them by their ancestors when Shinnecock territory was ceded to the English” centuries ago.
A DEC spokeswoman said the agency is "reviewing the court’s decision and determining next steps."
Silva said he was optimistic the fishermen could win the case following the appeals court ruling. “We are going to move forward with whatever new tools are available to us” from the court, including potentially filing for an injunction to stop the officials from impeding their fishing.
Four months before the suit was filed in 2018, the Unkechaug Nation and its chief, Harry Wallace, filed a similar suit against the DEC and its officials, seeking to “categorically remove regulatory actions that restrict and criminally prosecute Unkechaug Indians from fishing” in waters in and around their Poospatuck Reservation in Mastic. That case is advancing in federal court.
The appeals ruling noted the DEC and its officers had for the prior decade "ticketed and prosecuted" the Shinnecock fishermen "for violating state fishing laws, and that they sought court relief from the agency "to prevent the further enforcement of those fishing regulations as well as damages based on allegations of discrimination in past enforcement.
As Newsday has reported, Silva was ticketed April 20, 2017, while eel fishing in the headwaters of Heady Creek on Shinnecock Bay, when two DEC officers seized his nets and catch, and charged him with possession of undersized eels, among other things.
A Southampton Town Justice Court later found Silva not guilty of two of three counts against him and ruled that the search and seizure by DEC officers to be unconstitutional. He was found guilty of one count of not having the proper license to fish for baby eels.
Silva operated an eel harvesting, processing and shipping venture with Jonathan Smith, a Shinnecock smoke-shop owner and medicine man who is also a plaintiff in the suit. He has previously been cited for operating a shellfish farm without a license, a charge that was ultimately dropped for non-prosecution.
Gerrod Smith was charged in 2009 with possession of undersized flounder, blackfish and porgies, a case that also was later dismissed.