On July 5, 1995, Michael Maxim and David Greene, Wampanoag Indians and natural descendants of the original American Indian inhabitants of the region known as Cape Cod, Massachusetts, were gathering clams by hand and rake in the area known as Little Buttermilk Bay in the Town of Bourne. Their activities were for the purpose of subsistence for themselves and their families and were carried out in accordance with customary Wampanoag cultural practices and beliefs.
Michael and David believed their shell-fishing was consistent with prior understandings and agreements reached between tribal members and legal authorities. A court decision in October, 1984, [Commonwealth v. Hendricks, et al., Barnstable D. Ct. No. 84-3415] had decided in favor of Wampanoag Indians' rights to hunt and fish, holding specifically that the Wampanoag have the right to hunt and fish in order to sustain themselves, without obtaining any permits from the towns or the state. That decision became the basis for a consensus among Wampanoag people and most law enforcement agencies not to interfere with Wampanoag fishing and hunting.
On the day in question, however, Michael Maxim and David Greene were cited for violation of a Town of Bourne shellfishing by-law styled "Recreational Permit Regulations: Authorized Harvest Season/Days/Limits." They were accused of fishing for clams on a "non-day," which refers to the weekly schedule in the by-law as to what type of shellfish may be taken on each day. July 5 was a Wednesday, which the schedule listed as a day for quahogs, not clams.
At the time of their citation, Bourne police officer Carl Merritt later testified, Michael and David had in their possession "approximately half to three quarters of a peck each of soft-shell clams."
On this same day and in this bay there were commercial fishing boats with an unknown number of fishermen taking the same kind of soft-shell clams by means of hydraulic jet pumps, which leave behind uncounted numbers of dead clams in the process of extracting what the by-laws allow under a commercial permit: three bushels of clams per fisherman per day.
Officer Merritt testified at trial that he "did not observe any permits" and cited Maxim and Greene for "taking shellfish without a permit" and for violation of the "Recreational Permit Regulations" permitted days schedule. The taking-without-permit citations were subsequently withdrawn by the town, consistent with previous rulings in the court.
Michael and David were also observed that day by Town of Bourne Selectman Thomas Barlow, who testified at trial that he "was looking to see if there was any licenses on them." Not seeing any licenses, Selectman Barlow initiated action by Officer Merritt. There was conflicting testimony at trial as to the extent of the involvement of the selectman in the decision to issue citations to Maxim and Greene. Officer Merritt acknowledged under cross-examination that the selectman's involvement was "not normal procedure." Barlow testified about his personal involvment with commercial shellfishing and stated that for this reason he has "not sat (at selectman hearings) on those rules and regulations."
The charges against Michael and David were consolidated in the District Court and they moved to dismiss for lack of jurisdiction, on the grounds that each of them is a Wampanoag, a natural descendant of the original American Indian inhabitants of the region, with an aboriginal right to take shellfish.
The trial was held May 15, 1996, with further argument on June 11, 1996. In a written Finding and Decision, the District Court denied the motion to dismiss and found Maxim and Greene guilty, on the grounds that the by-law in question is not a permit requirement, but a conservation regulation and that the Town has authority to regulate Indian shell-fishing for conservation purposes.
The only mention at the trial of any "conservation" purpose behind the by-law was Selectman Barlow's assertion under cross-examination that the purpose of the recreational shellfish by-law is "conservation." Barlow's assertion was not supported by any evidence, nor under further cross-examination was he able to articulate any conservation rationale for permitting commercial hydraulic jet clamming while prohibiting hand-harvesting of the same resource.
There was explicit testimony that the by-law in question was designed solely for "recreational" purposes. Maxim distinguished Wampanoag shellfishing practices from "recreational" shellfishing and this distinction was also testified to by Wampanoag Chief Vernon Pocknett.
Final trial court disposition occurred on October 22, 1996, when the court sentenced Maxim and Greene to pay a fine of $50.00 (fifty dollars) each. These sentences were stayed pending appeal.
Rights to hunt, fish, and gather have been held by the Wampanoag Native American Indian people of this area from time immemorial, and remain an important aspect of Wampanoag life, providing food, service to the community, and an ingredient of cultural identity. These rights have been acknowledged in law since before the founding of the United States, recognized in treaties, statutes, and judicial decisions of the Commonwealth of Massachusetts. Appellants Michael Maxim and David Greene, Wampanoag persons, were exercising these rights at the time of their citation by officials of the Town of Bourne for violating a "recreational shellfishing" regulation.
It is established United States law that although conservation regulation of fishing is ordinarily within the police power of a state, additional burdens exist which states must bear in order to regulate American Indian fishing. Ordinary state fisheries management programs are not ipso facto applicable to Indian fishing. The Commonwealth must demonstrate that application of the Bourne regulation to Wampanoag fishing is "appropriate and essential for conservation," as specially defined in Supreme Court rulings. The tests of "appropriate and essential" require evidentiary proof specifically articulated as to a species: (1) that the viability of the species is in danger, and (2) that restriction of non-Indian fishing has been insufficient to assure survival of the species.
The Court below was in error when it upheld on an a priori basis, without any evidentiary foundation, the application of the Bourne shellfishing regulation to Wampanoag shellfishing, and when it rejected the fundamental standards set forth for state regulation of Indian fishing by the United States Supreme Court.
There is no evidence in the record that the Bourne by-laws were passed in consideration of any "specifically identified conservation measure" related to the "perpetuation of a particular run or species of fish," nor that the town "has proved unable to preserve a run by forbidding the catching of fish by other citizens." It is arguable that the town shellfishing regulations do not evince any coherent conservation purposes at all.
The record shows that the Commonwealth did not argue, let alone establish that applying "recreational" restrictions to Wampanoag shellfishing in the circumstances of this case is in any way "appropriate," "essential," or even useful for the preservation of soft-shell clams or any other species of shellfish. Without such evidence there is not even a prima facie argument for applying the shellfish regulations to Wampanoag fishing.
On June 11, 1998, two years after the final argument in the trial, the Appeals Court for the Commonwealth of Massachusetts reversed the judgments of the trial court, set aside the trial court findings, and entered judgment for Maxim and Greene, on the basis that Wampanoag fishing is protected by treaties and is an aboriginal right, subject to regulation only if there is proof of "conservation necessity." The Appeals Court decision was issued by a unanimous three-judge panel.
On June 30, the Commonwealth applied for further appellate review in the Massachusetts Supreme Judicial Court, which was granted. The Attorney General's office filed an amicus brief on December 22, 1998, in support of the Town of Bourne. Oral argument occurred on January 4, 1999, before all seven justices.On April 7, 1999, the Supreme Judicial Court issued a unanimous decision and opinion upholding Wampanoag shellfishing rights.
Attorneys for Michael Maxim and David Greene were
Peter P. d'Errico and
Robert T. Doyle, Jr. [Ashfield, MA 01330]
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