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3 Shinnecock men sue DEC, Suffolk DA over fishing rights

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. Credit: Newsday / Mark Harrington

Three fishermen from the Shinnecock Indian Nation have sued the state Department of Environmental Conservation and the Suffolk district attorney’s office, seeking relief from what they term a “pattern of criminal prosecutions” against tribal members exercising their native fishing rights.

In the federal lawsuit, the men — including David Taobi Silva, a former tribal trustee who had already filed a complaint with Suffolk County against the DA and the DEC — say the agencies have repeatedly ticketed and prosecuted Shinnecock fishermen, deterring them from their aboriginal rights to fish in Shinnecock Bay and estuaries adjacent to their Southampton reservation.

The suit, which also alleges racial discrimination, seeks $102 million in punitive damages “to deter and punish” the government agencies for preventing the men from fishing for eel in 2017 and 2018.

Silva’s prior complaint with the Suffolk County Office of Minority Affairs alleged a “cycle of harassment, abuse of process and malicious prosecution” after he was charged last year with fishing illegally for undersized eels, for which there is a lucrative overseas market.

Jason Elan, a Suffolk County spokesman, said the case had been referred to District Attorney Timothy Sini’s office. A spokeswoman for Sini didn’t immediately respond to a request for comment.

The federal suit, filed Friday in U.S. District Court in Central Islip, also named as defendants DEC commissioner Basil Seggos, DEC enforcement officers Brian Farrish and Evan Laczi, and Jamie Greenwood, an assistant district attorney in Suffolk.

DEC spokesman Sean Mahar said the agency “cannot comment on pending litigation.”

The Shinnecock suit notes that colonial deeds and other pacts “clearly support the right of the Shinnecock and the native peoples of eastern Long Island to fish in the waters adjacent to their communities.”

The newly filed federal complaint comes four months after the Unkechaug Nation and its chief, Harry Wallace, filed a similar suit against Seggos and the DEC, 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.

Silva was ticketed April 20, 2017, while eel fishing in the headwaters of Heady Creek in Shinnecock Bay. The two named DEC officers seized his nets and catch, and charged him with possession of undersized eels, according to court papers.

Silva operates an eel harvesting, processing and shipping venture with Jonathan K. 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.

Silva is scheduled to stand trial on the eel case Aug 30.

Another Shinnecock plaintiff, Gerrod T. Smith, was charged in 2009 with possession of undersized flounder, blackfish and porgies, a case that also was dismissed.

The fishermen “are 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,” their suit says.

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