Discussion between the Town of Mashpee and the Mashpee Wampanoag Tribe continued during a public hearing on updated shellfish rules and regulations at the Mashpee Select Board meeting on Monday, May 23.
At issue was proposed language intended to protect tribal members’ aboriginal rights—federally protected rights Native Americans have to hunt, gather and fish in accordance with their customs, exempt from municipal and state regulations.
After the discussion, the public hearing was continued until the select board meeting on Monday, June 6.
Representatives from the select board and the Mashpee Department of Natural Resources will meet with members of the tribal council and the tribe’s Natural Resources Department in coming weeks to discuss the proposed language prior to the continued hearing.
Select board chairman Andrew R. Gottlieb said understanding the tribe’s concerns and ensuring its rights are protected in the shellfish regulations document is a “concrete step we can take to work together.”
The updated rules and regulations represent a major overhaul for the town’s shellfish policies. The Mashpee Shellfish Commission and the town’s natural resources department have been working on those updates for nearly two years.
Shellfish commission chairman Peter M. Thomas said aboriginal rights are important to the commission—and were the topic of almost all conversation during the hearing Monday night—but added that the majority of the document addresses topics such as public health, aquaculture and other “important items” for enforcing rules for nonnative shellfishermen in Mashpee.
Over the past two months, the town and the tribe have gone back and forth on specific language in the document as it relates to tribal members.
The select board first opened a public hearing on the final draft of the document at its meeting on March 21. It was continued, however, after the tribal vice chairman and liaison to the tribe’s Natural Resources Commission, Carlton Hendricks, raised concerns that tribal members’ aboriginal rights were not represented in the document.
The town’s legal counsel introduced the language “Native Americans with valid tribal identification cards who assert aboriginal rights to harvest for sustenance purposes” into a section of the document on recreational shellfishing at the commission’s meeting on April 12.
The tribe is proposing alternative language, to be included in three separate places in the document: “Nothing set forth in this chapter or regulation shall extend to deprive the free exercise of ancient and aboriginal fishing, harvesting, foraging, hunting, gathering and trapping rights exercised by members of federally recognized Indian tribes.”
Mr. Thomas said the commission had questions about the tribe’s language, including whether a member of any federally recognized tribe would be permitted to shellfish in Mashpee’s waters exempt from municipal regulations.
The commission voted against recommending the tribe’s proposed additions at a meeting on May 10, as no one representing the tribe was present at the meeting to answer questions, Mr. Thomas said.
Shellfish commissioners then invited tribe members to a joint meeting on May 18 at the Mashpee Public Library, he said.
Mr. Hendricks emailed the commission prior to the May 18 meeting, writing, “The language clearly states aboriginal rights as determined by the federal government in the courts, and therefore no other discussions are needed,” Mr. Thomas said.
The commission still held the May 18 meeting and stuck by its vote to recommend the select board approve the regulations as written rather than adding the tribe’s proposed language.
The document before the select board on Monday included the town’s language about “Native Americans with valid tribal identification cards.” Mr. Hendricks appeared before the board to ask that it not approve the document without the tribe’s proposed additions.
A memorandum from shellfish constable Donovan McElligatt to the select board, included in Monday’s meeting agenda packet, said the new language the commission added after April 12 “addresses inherent tribal rights to fish for sustenance.”
“I believe the language that is being presented is precedent-setting for the Commonwealth of Massachusetts,” Mr. Thomas said Monday. “I don’t believe through our research that this language exists anywhere else in the commonwealth.”
Mr. Thomas said it is not the commission’s place to tell tribal members what “sustenance” means—whether sustenance is defined as tribal members hunting, gathering and fishing to feed themselves and their families, or if the definition includes commercial hunting, gathering and fishing, with the money earned counting as sustenance.
Select board vice chairman and tribal member David W. Weeden said the tribe’s “reluctance to negotiate” is because “aboriginal rights are nonnegotiable.”
“They’re protected by federal laws,” Mr. Weeden said. “The town lacks the jurisdictional authority to impede upon those rights.”
Though the tribe will not come to the table to negotiate aboriginal rights, Mr. Weeden said, “You have some questions that need to be ironed out and do require additional conversation, but as far as anything around the rights and what they are, I don’t think that’s exactly what needs to be discussed.”
Mr. Gottlieb said the conversation should not be about negotiation, as the town cannot negotiate rights it does not have the authority to grant or take away. He asked Mr. Weeden if the discussion should instead be about how town staff understand tribal rights related to specific issues in the regulations.
“If we’re talking about having a better understanding of how the relationship is going to work and where the boundaries are and where they aren’t so that everybody’s protected, that’s a different conversation, right?” Mr. Gottlieb asked Mr. Weeden.
Mr. Weeden replied, “Absolutely.”
He said state and municipal regulations over the past 200 years have “failed in protecting the environment,” so tribal members are reluctant to “see that your way is the right way.”
“Our folks want to be able to go down and fish and practice their aboriginal rights that are inherent, that were given to us by the Creator—that’s who has the authority to grant them, is the Creator,” Mr. Weeden said.
Mr. Thomas said he does not see any prohibitive language in the draft regulation document and that the shellfish commission does not intend to take away anyone’s rights.
Mr. Hendricks asked the select board to hold off on voting on the regulations until the tribal council meets with the select board. The two government bodies are scheduled to meet about a range of topics on July 18.
“When he [Mr. Weeden] says we’re reluctant—the natural resource commission, who I support and am the liaison to, we see these meetings and continuously asking to discuss, negotiate, deal, we see that as impeding on our aboriginal rights,” Mr. Hendricks said. “It’s something that we’re just, quite honestly, not going to tolerate.”
He said tribal members are harassed “on a daily basis” and charged with civil and criminal infractions for practicing their aboriginal rights. The tribe then must spend money defending its members in court, he said.
“These regulations without our proposed language [are] in violation of federal law,” Mr. Hendricks said. “We had our legal [representative] ask for implementation of language that not only recognized but respected our aboriginal rights. The shellfish commission chose to not put them in.”
The tribe asked for the language to be inserted in the beginning, middle and end of the regulation document, he said, to be very clear that the document does not apply to tribal members.
Mr. Hendricks said if the select board chose to adopt the regulations without the tribe’s proposed language, the tribe would “have no choice” but “supporting and defending any tribal member that is found in violation of these regulations that are against federal law.”
In closing, he said the town has the chance to “take the lead” among Massachusetts towns on recognizing and respecting Native Americans’ rights.
“It’s not done with the town seal,” he said, referencing the recent change from the Mashpee town seal that depicted a Native American with a sword over his head to one designed with tribal members’ input that includes the tribe’s native language. “Aboriginal rights are at the top priority of this tribe.”
Mr. Gottlieb proposed meeting board to board with the tribe over the next few weeks prior to the next select board meeting and the continued public hearing. Tribal chairman Brian M. Weeden, who was also in attendance, agreed.
“I just think we need to talk. I haven’t heard anything that doesn’t sound surmountable here, but we’re not quite there yet,” Mr. Gottlieb said.
By Sam Drysdale | Mashpee Enterprise
