April 28, 2014






Elver charges challenged by tribal members
by Edward French


   Efforts by Passamaquoddy fishermen to help a tribe in New York state bring back its traditional eel fishery have led to felony charges against three tribal members from Pleasant Point and five other Natives. Fred Moore III, a member of the Passamaquoddy Fisheries Advisory Committee, and his two sons are among the eight men who are being charged with illegally fishing for elvers on the south shore of Long Island, N.Y. A former tribal representative in Maine, Moore had sponsored the Passamaquoddy fisheries bill that was signed into law in 1998.
     Moore says the officers who apprehended them "were concerned we were here to take eels" and sell them back in Maine, where there is a state-approved elver fishery. Moore, though, states emphatically that he and his sons were not poaching elvers. "We have not and will not engage in fishing for glass eels outside of Passamaquoddy territory."
     Moore says he was asked by the Unkechaug Indian Nation on Long Island to help the tribe learn how to fish for glass eels under their eel management and restoration plan. In 1994, the Unkechaug, Passamaquoddy and Mi'kmaq tribes signed a fisheries cooperation and trade agreement at Sipayik, which was the basis for the request. Unkechaug Chief Harry Wallace confirms that the Passamaquoddys were "consulting, not fishing."
After the tribal members were charged, the two Passamaquoddy chiefs, Clayton Cleaves of Pleasant Point and Joseph Socobasin of Indian Township, wrote to Chief Wallace, stating, "We are deeply saddened to learn of recent attempts by the state of New York to hinder implementation of the Unkechaug Indian Nation American eel management restoration plan." They added that, in keeping with the spirit of the agreement signed by the three tribes, "we stand committed to working closely with you in defense of the marine environment, its resources and fishing rights of indigenous people."
     In New York, the state is "trying to limit tribal eel fishing to the reservation" of the Unkechaug, which is on Moriches Bay, Moore says. The men were apprehended outside of the reservation's territory. Only four Unkechaug tribal members are licensed by the tribe to fish for eels under its management plan, and the Passamaquoddys were showing them how to set up their fyke nets and use dip nets, Moore says. "We wouldn't be down here if we didn't think they had the right to do it."
     The state of New York, though, does not acknowledge the tribe's management plan. However, under a New York state policy approved in 2009, the Department of Environmental Conservation (DEC), which brought the charges, is required to consult with tribal representatives "on a government-to-government basis regarding matters affecting Indian Nation interests," including hunting, fishing and gathering. The policy states, "The department is committed to collaborating with Indian Nations to develop written cooperative agreements that protect the rights of such nations to engage in these activities consistent with the department's interest in protection and management of the state's natural resources."
     Moore expects that the tribe will be bringing a lawsuit against the state over that issue. "It's another example of a lack of communication or understanding."
     Moore says he was "doing the same thing here that we did in Maine -- helping to get tribal members actively fishing." He adds, "They're trying to restore a resource-based economy. They never have given up their right to fish." Although Chief Wallace observes, "We've always fished for eels, since time immemorial," in more recent years the fishery had "slowed down dramatically," Moore says. He says that tribal members were afraid to eat the eels because of contaminant levels, but "they didn't want to abandon their culture."
     Moore says a number of tribes on the East Coast are contacting him about being involved with the eel fishery. "It has nothing to do with poaching," says Moore, who predicts that the tribes will be filing lawsuits to "defend their traditional rights." He adds, "We won't stop until the tribes have 50% of the fishery on the East Coast."
     Moore says the issue is the same as the one that arose last year in Maine --"white people are trying to take rights away from Indians."

Tribe's management plan
Wallace says that, although no glass eels or adult eels are currently being harvested by tribal members, the tribe plans eventually to fish for both. Along with a restoration program, the tribe may grow out the eels to a certain size before marketing them.
     The tribe's plan does not allow the taking of any eels larger than 4" in length. However, the state of New York authorizes a recreational fishery for eels that are 6" or longer, and 32,295 pounds were harvested in 2012, according to the National Marine Fisheries Service. "The state can take 32,000 pounds, but the tribe can't reconstitute its traditional economy," says Moore. "It's absolutely ludicrous."
     The tribe's management and restoration plan to rebuild the fishery calls for restoring 50% of all glass eels harvested back into local estuaries over a period of years, to help ensure the survival of the species. Wallace notes that elvers have a very high natural mortality rate, so the tribe's plan "guarantees more survival than under natural conditions."
     The plan states that "decades of pollution have rendered American eels unfit for human consumption, resulting in the inability of Unkechaug nation members to consume American eels in accordance with historic and cultural and spiritual practices without significant health risks."
     "People have come to our land and poisoned our waterways and then say their conservation plan is to protect our waters," says Wallace, who is angry about the issue. "If we try to protect ourselves, suddenly we're poachers."
      Wallace says the tribe has submitted a draft memorandum of agreement for joint management of the eel fishery to the state legislature. Under the draft co-management agreement for 2014, the Unkechaug would restrict tribal members to the use of dip nets for taking glass eels, require tribal members to be issued permits and report their landings, which would be provided to the state. The state would refrain from taking any action to limit the harvest by tribal members. Following the 2014 season, the state and tribe would prepare a comprehensive cooperative management agreement. Wallace says the tribe has not heard from the state about its plan.
     Tribes in other states have reached memorandums of agreement for fisheries management, and the Passamaquoddys had proposed one for the elver fishery in Maine this year, although it was not accepted by the state.

Charges outlined
     The eight men were apprehended on Friday night, March 28, by New York State Department of Environmental Conservation officers, who observed the fishermen harvesting a large amount of elvers, according to information from Aphrodite Montalvo, citizen participation specialist with the DEC in Stony Brook, N.Y. They were charged at that point with fishing without a foodfish permit. Later, on April 8, the fishermen surrendered to New York State DEC officers at the New York State Police barracks at Riverside, N.Y.
     Those charged, along with Frederick Moore III, 53, and his two sons, Frederick Moore IV, 21, and Kyle Lewey, 21, are: Wallace Wilson Jr., 34, of Mastic, N.Y.; Michael Cardoze, 43, of Brooklyn, N.Y.; Gordell Wright, 41, of Southampton, N.Y.; Daniel White, 52, of Akwesasne, N.Y.; and Ginew Benton, 33, of Hope Valley, R.I. Each faces the following felony charges: no foodfish permit; possession of over the limit American eels; possession of undersized American eels. Those charges are felonies under the Environmental Conservation Law because the value of the catch was over $1,500. They also are charged with the misdemeanor of conspiracy to commit a crime and a Environmental Conservation Law violation of using an eel trap with mesh smaller than 1" x 1/2". According to Montalvo, if they are convicted of the felony charges they can face fines up to $5,000 and possible jail sentences.
     Arraignments for all of the defendants are scheduled for June 25 at Suffolk County 1st District Court in Central Islip, N.Y. According to Montalvo, no other information is being released by the state about the case.


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