Protections for Glass Eels Spur Suit From Long Island Tribe

BROOKLYN, N.Y. (CN) – Facing criminal prosecution for harvesting valuable but critically overfished glass eels on their reservation, a Native American tribe asked a federal judge Wednesday to enjoin New York environmental regulators.

“The nation seeks a declaration that the Unkechaug Nation, including its officials and members, are not subject to the New York State Department of Environmental Conservation’s authority over fishing in reservation lands and Unkechaug customary fishing waters, by Unkechaug Indians based upon inherent native sovereignty, religious freedom and expression, treaties and federal laws,” the complaint states.

Represented in U.S. District Court for the Eastern District of New York by Queens attorney James Simermeyer, the Unkechaug note that their tribe has existed since “time immemorial.”

About 25 miles west of the Hamptons, on the southern coast of Long Island, the Unkechaug live on the Poospatuck Indian Reservation.

Though the tribe’s lands are surrounded by Suffolk County, the Unkechaug say that the New York has no authority over their fishing activity in light of “inherent native sovereignty, religious freedom and expression, treaties, and federal laws.”

Fishing and whaling on the Atlantic seaboard has been a way of life for the Unkechaug for religious, cultural and economic reasons since “centuries before the first European Colonization,” according to the complaint. The Unkechaug maintain that their right to make a living by fishing commercially has been protected since a May 1676 treaty with the colonial government and then-Governor Sir Edmund Andros.

In addition to glass eels, which are illegal to harvest in New York and inspired a federal crackdown called Operation Broken Glass, the tribe says state authorities have threatened their fishing of crustaceans.

The Unkechaug say they use purple-colored shells from the Moriches Bay on the Poospatuck reservation to make wampum, small beads used for trading as well as “religious and ceremonial purposes.”

Wednesday’s complaint also describes the quahog, a small clam with a white and purple shell, as a “religious artifact that symbolized how water provided life to the Unkechaug.”

The tribe says its tradition of burying bits of those shells to refortify shorelines makes their fishing an environmentally sound practice.

The complaint alleges members of the Unkechaug Nation have been threatened with criminal prosecution “for exercising their right to fish freely on reservation waters and in customary fishing waters.” Unkechaug Chief Harry Wallace, himself a bar-admitted lawyer in New York, has been threatened with “felony prosecution,” according to the complaint.

The tribe says its members were issued a criminal summons for fishing on reservation lands, and in the tribe’s “customary fishing waters,” in 2014. Two years later, Commissioner Basil Seggos and the New York State Department of Environmental Conservation confiscated fish and fishing equipment from Unkechaug Indian Nation members who were caught in the Forge River, located on the Poospatuck reservation.

Translucent and no bigger than a toothpick, the glass eels fetch as much as $2,500 a pound at peak times in Asian markets. They are also known as elvers,

Chief Wallace allegedly received a letter that March from the NYSDEC claimed the tribe’s fishing was unlawful.

Though the tribe says the state is interfering with its fishing, it notes that the state has done nothing to include the nation “in its environmental schemes and emergency planning for flood relief that impact reservation lands and the nation’s ability to obtain flood insurance.”

In an unrelated challenge by Unkechaug years earlier, the Second Circuit found that New York could collect taxes from the tribe’s sales of cigarettes to nontribal members on its reservation.

The court’s ruling noted that the Unkechaug Nation had about 376 members but bought roughly 5 million untaxed cartons of cigarettes in 2009.

“If only Unkechauge members had consumed these cigarettes, every man, woman, and child would have smoked 364 packs per day in 2009,” U.S. Circuit Judge Richard Wesley had said at the time, using an alternate spelling for the tribe.

The tribe’s attorney Simermeyer did not return a request for comment Friday.

A representative for New York’s DEC said the agency does not comment on pending litigation.

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