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Jul 3, 2018 4:18 PMPublication: The Southampton Press

Three Shinnecock Men File $102 Million Federal Lawsuit Against State Over Fishing Dispute

Jonathan Smith holds two nets that are used to catch glass eels from the sandy shores near the Shinnecock Reservation. GREG WEHNER
Jul 3, 2018 6:03 PM

A former Shinnecock Indian Nation leader who was ticketed last year for possessing undersized eels in disputed tribal waters filed a $102 million federal lawsuit against multiple people and agencies late last month.

According to the lawsuit, David Taobi Silva, 42, and two of his uncles, Gerrod T. Smith and Jonathan K. Smith, are seeking both a temporary and a permanent injunction from the U.S. District Court that would allow them to continue to fish in the disputed waters without being harassed by State Department of Environmental Conservation enforcement officers.

Mr. Silva and his uncles named the DEC, the Suffolk County district attorney’s office, two DEC enforcement officers, an assistant district attorney and the commissioner of the DEC, Basil Seggos, in the lawsuit, and claim that all parties are preventing them from exercising their right to fish in traditional native waters.

“They are personally liable for suppressing and doing harm to our rights,” Mr. Silva said.

He was ticketed by DEC agents in April 2017 for being in possession of juvenile eels, fishing without a license and exceeding the limit of eels. State law says that it is illegal for anyone to possess juvenile eels, defined as those less than 9 inches in length, and limits the catch of adult eels to no more than 25.

That day, Mr. Silva set up an eel trap near Taylors Creek, a tributary of Shinnecock Bay that feeds into Heady Creek, and used it to catch 247 eels that were undersized. He argued that the fishing area, which borders the Shinnecock Indian Reservation, just outside Southampton Village, is tribal waters, where state laws cannot be enforced. The DEC disagrees.

While he is fighting the charges in court, Mr. Silva said, he is missing out on big money by not harvesting the pricey eels.

Mr. Silva said that in 2017, juvenile eels, which are marketed as a delicacy overseas, were sold for $1,000 per pound. In 2018, they nearly tripled in price, to $2,700 per pound.

At that cost, he claims in his lawsuit that he missed out on approximately $12 million in 2017 and $24 million during the most recent season, which runs from March through the end of May.

He said he is asking for punitive damages, based on what he and his uncles missed out on financially—times three.

“We’re not playing—and that’s just for eels,” Mr. Silva said. “We’re looking for $102 million in punitive damages, and that compounds for each year that we can’t fish. We base those on real numbers. Let’s say this drags on for another year from today—we’ve missed another eel fishing season, and that would probably mean another $30 million.”

Mr. Silva argues that tribe members are exempt from the state’s fishing laws and regulations, and he insists that, as the original inhabitants of the region, members of the Shinnecock Indian Nation should have the legal right to continue hunting and fishing on land formerly owned by the tribe. When the land was sold, Mr. Silva maintains, the fishing and hunting rights stayed with the tribe.

In a previous case in 2009, Southampton Town Justice Deborah Kooperstein found Salvatore J. Ruggiero, a non-Native American who was fishing with Gerrod Smith, not guilty of possessing undersized flounder, blackfish and porgy, because it could not be proven whether he was fishing outside of tribal waters. Similar cases since, involving Mr. Silva’s uncles, also were dismissed.

In Mr. Silva’s lawsuit, it states that colonial deeds and documents held at the Office of the Secretary of State in Albany, in the Town of East Hampton and the Town of Southampton all support the rights of the Shinnecock and other Native Americans on the East End to fish the waters adjacent to their communities.

For the Shinnecock, they have fished the adjacent waters of Shinnecock Bay and the estuaries splitting away from the bay. But, according to Mr. Silva, they continue to be ticketed, prosecuted and have their equipment and fish seized.

Attempts to reach out to Suffolk County District Attorney Timothy Sini’s office seeking a reaction to the lawsuit were not immediately returned.

Bill Fonda, spokesman for the DEC, said the DEC will not comment on pending litigation.

Mr. Silva said he can’t fish for anything until his current charges are settled. He is expected to appear in Southampton Town Justice Court on August 30.

“Hopefully, this doesn’t go too long,” Mr. Silva said. “A pretty easy reading says Shinnecocks have the right to fish.”

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Really‽, The Tribe has had a pretty good reputation as stewards of their lands as well as the general environment... It's truly sad to see them cede any moral high ground that they may have had here.
By Just sitting on the taffrail (27), Southampton on Jul 4, 18 2:29 PM
The price per pound for Eel reached $2000 in 2012, these guys weren't stopped by the DEC until 2017. If they were able to make millions of dollars per year in the eel game why hadn't they done it yet?
By adlkjd923ilifmac.aladfksdurwp (524), southampton on Jul 5, 18 7:56 AM
All fisherman look alike.
By pw herman (1009), southampton on Jul 5, 18 8:18 AM
Not all fisherman are Shinnecock!
By salva60 (1), cornwall on Jul 5, 18 9:18 AM