What Are Aboriginal Rights? Mashpee Wampanoag Tribal Members Explain
GILDA GEIST reports in The Falmouth (MA) Enterprise
IN THIS POST: An October 5, 2023, article by Gilda Geist in The Falmouth (MA) Enterprise reported a panel of Mashpee Wampanoag Tribal members speaking at Mashpee Community Park; the panel was arranged by the organization Linking Indigenous and Non-Indigenous Knowledge (LINK)—was to raise awareness about aboriginal rights.
A panel of Mashpee Wampanoag Tribal members spoke to an audience of about two dozen people at Mashpee Community Park on Sunday, October 1, about the tribe’s aboriginal rights to hunting, fishing and gathering natural resources on Cape Cod.
“These are our cultural lands and have been historically for 12,000 years, but these resources that we’re trying to protect are also yours,” said Jason Steiding, panel moderator and director of natural resources for the Mashpee Wampanoag Tribe. “We have a moral obligation and a cultural obligation to protect these resources, but you folks do as well.”
The panel consisted of the tribe’s chief, Earl H. Mills Jr.; Natural Resources Commission chairman Vernon Pocknett Jr.; Natural Resources commissioner David Greene; and former Natural Resources commissioner Alan Maxim.
The purpose of the panel—put together by the organization Linking Indigenous and Non-Indigenous Knowledge (LINK)—was to raise awareness about aboriginal rights.
“Unless it’s taught, unless it’s passed on, knowledge becomes extinct,” Mr. Maxim told the audience. “That’s why we do this, in hopes that people outside of our own tribal community will come to understand what we assert to be our rights.”
What Are Aboriginal Rights?
Broadly, the term aboriginal rights describes the rights of Indigenous people to self-determination. Essentially, they protect the rights of Indigenous people to continue to live life as they have been doing for thousands of years.
For the Mashpee Wampanoag, aboriginal rights center largely around access to their land and resources. There are two main types of aboriginal rights: on-reservation and off-reservation.
On-reservation aboriginal rights allow members of the Mashpee Wampanoag to hunt, fish and trap on their reservation land. Anyone who is not part of the tribe cannot.
Off-reservation aboriginal rights allow members of the Mashpee Wampanoag to hunt, fish and trap anyplace they usually would. However, those who are not part of the tribe may also be able to hunt, fish and trap in those same areas. The difference is that members of the tribe do not have to buy licenses from the state to do so.
Where Do These Rights Come From?
First and foremost, the Mashpee Wampanoag’s aboriginal rights come from thousands of years of custom—Mashpee Wampanoag people were exercising those rights long before any settlers came to what is now the United States. But in order to prevent local, state and federal governments from infringing on these rights, they are also enshrined in laws, judicial decisions and treaties.
The Mashpee Wampanoag’s aboriginal rights were reaffirmed by the Supreme Judicial Court of Massachusetts in 1999. The cases the court was ruling on went back to 1995, when Mr. Greene and another tribal member, Michael Maxim, were fined $50 each for shellfishing without a license in Little Buttermilk Bay in Bourne. The two had been gathering clams by hand for dinner.
“The town environmental police came down and asked us for our licenses,” Mr. Greene said. “They knew we didn’t have licenses. They knew that we had tribal IDs.”
The police did not ask any of the commercial fishermen in Buttermilk Bay that day for their licenses, Mr. Greene said.
Mr. Greene and Michael Maxim refused to pay the fine on the basis that they were exercising their aboriginal rights. When they did not pay the fine, criminal charges were filed against them. They were losing their cases in every level of court until attorney Peter d’Errico took on their case. Mr. d’Errico had a lot of experience representing Indigenous tribes in the United States and in Mashpee, Mr. Greene said.
In 1998 the Appeals Court for the Commonwealth of Massachusetts ruled in favor of Mr. Greene and Michael Maxim, reversing the decision of the other courts. The state appealed to the Massachusetts Supreme Court, which upheld the Mashpee Wampanoag’s aboriginal rights.
“A lot of people testified in these cases, and then it was overturned, and then it was on record. There was precedent,” Mr. Greene said. “So in my opinion, it helped us.”
In his 12 years on the tribe’s Natural Resources Commission, Mr. Greene and his fellow commissioners have worked with the Division of Marine Fisheries to improve the state’s awareness and understanding of aboriginal rights. The environmental police have become more cooperative with the tribe as well, Mr. Greene said.
“We still have issues that we deal with, but we’re much more recognized at this point,” he said. “The state, to a certain extent, is more willing to sit down and talk with us when these issues come up.”
Cultural Significance Of Rights
Being able to hunt and fish is about more than food, Chief Mills said. It is also a means through which the Mashpee Wampanoag practice their culture, by fostering generations-old relationships with the earth and its creatures.
“When we kill an animal, it’s not because we like killing, any more than when a hawk kills a rabbit,” Chief Mills said. “It’s not because he likes killing rabbits. It’s a part of his way of life. And that’s what some people have a hard time understanding.”
And when governments prevent tribal members from exercising that part of their culture, it has an impact.
“It really is hurtful,” Mr. Steiding said. “You do lose part of your cultural identity when you can’t do these things like you’re used to.”
Environmental Barriers To Exercising Rights
Though Mashpee Wampanoag tribal members have the legal right to fish and shellfish on Cape Cod, their practical ability to do so has been diminished by environmental changes.
For example, Mr. Pocknett said, the loss of eelgrass in the bays and inlets has had a significant impact on the species that live in those waters.
“When that eelgrass is gone, it kills the bay,” Mr. Pocknett said. “Eels is our winter food.”
Chief Mills recalled a time before eels were scarce, when everyone on Cape Cod—Natives and non- Natives alike—looked forward to eel season.
“Pan-fried eels, or eel stifle, or pickled eels, or smoked eels—everybody ate eel,” Chief Mills said. “The eel was something and then suddenly it wasn’t....The tipping point came and the eels couldn’t survive because of the quality of their environment.”
Panelists reflected on many more of the foods they enjoyed in their younger years, but are hard to come by on Cape Cod today—flounder, herring, bluefish, scallops and more.
Chief Mills pointed out that this impacts non-Natives as well, which means that everyone should be working together to restore the environment on Cape Cod.
“The reasons that people came to Cape Cod are no longer here,” he said. “Together, we shape the future of our communities. We’re willing to do our part, but it takes everybody.”
To hear the full panel discussion, visit Mashpee TV’s YouTube channel.
