The Wampanoag Nation met the pilgrims. . .

now they are fighting for their aborginal clamming rights

Photo by Chris Boese on Unsplash

Pilgrims: “Thanks for the turkey, clams and corn” (1620).

Pilgrim successors: “Now I’ll take your clams (and clamming rights), too” (1941- present).

Gathering clams at low tide has been a tradition of the Mashpee Wampanoag Native Nation since time immemorial. Although the right is recognized it is continually under assault by state and local pressures. Jurisdiction over natural resources usually works this way: While on reservation lands, gathering is managed exclusively by the Native Nation (in this case); but off reservation where gathering on traditional lands is protected, it is not exclusive, and in most cases not even co-managed. So in these clamming areas where traditional clamming is practiced by the Wampanoag, it is also open to others and regulated by state and local governments. This last area has led to conflicts that state and local governments tend not to want to resolve.

These clamming rights are aboriginal rights. Aboriginal rights are those rights that have existed since time immemorial and are connected to the land. Tribes that are fortunate enough to have remained on their own lands since time immemorial and through colonization can claim these rights. Unless these rights have been extinguished by treaty or federal statute, they remain. Further, hunting, fishing and gathering are implied rights that stay with the land in any reservation of land that forms treaty reservations.

So while the Mashpee Wampanoag Native Nation is federally recognized, their traditional clamming lands are regulated by state and local government, But can Citizens of the Mashpee Wampanoag who engage in traditional gathering rights be regulated by state and local governments? The answer should be “no”.

Wampanoag Clamming Rights Through Time

In 1727, the colonial government of Massachusetts Colony signed the Treaty of Falmouth, acknowledging the rights of “the Penobscot, Norridgewock and other Tribes, with his Majesties Province aforesaid, and their Natural Descendents, respectively…the Privilege of Fishing, Hunting, as formerly.” Treaties that followed in 1749 and 1795 confirmed this aboriginal right.

At least since 1836, the Commonwealth of Massachusetts acknowledged in state law that aboriginal rights had long been recognized in the Commonwealth.¹ However, in 1941 the provision exempting native Indians from state and local clamming regulations was omitted from the state statute.² This may have been intentional by the drafters in retaliation for the turn around in Indian Affairs during the federal Indian Policy period known as the Indian New Deal, where Pres. Roosevelt changed federal policy from forced assimilation to supporting the continuation of tribal culture and governance.³ This omission in Massachusetts’s statute created decades of conflict with the Wampanoag and local governments to this day.

In 1982, the Commonwealth of Massachusetts recognized in a resolution entitled, RESOI.UTIONS RECOGNIZING AND PROTECTING THE ANCIENT AND ABORIGINAL CLAIM OF THE INDIANS OF THE COMMONWEALTH, the aboriginal rights of the Mashpee Wampanaog to use the natural resources for subsistence and traditional hunting and gathering. References to the recognition of this right to the treaties of 1749 and 1795 further documented this recognition of this right.

In 1999, an arrest of a citizen of the Mashpee Wampanaog Native Nation was made for violation of a local ordinance of the town of Bourne regulating clamming. The case reached the Supreme Judicial Court of Massachusetts after Green and another defendant

“. . . were convicted in the District Court of taking soft-shell clams in violation of the shellfish regulations of the town of Bourne (town). After a timely appeal, the Appeals Court reversed and entered judgments for the defendants.⁴ We granted the Commonwealth's application for further appellate review, and reverse the judgment of the District Court, but for slightly different reasons than the Appeals Court's.”⁵

The “slightly different reasons” the court used turned on the ambiguity of the town’s ordinance that regulated commercial and recreational clamming. Since the defendants were claiming to be engaged in subsistence gathering, that was not among those statutorily regulated areas of clamming. One of the canons of criminal law is that when a criminal statute is ambiguous, ambiguities are resolved in favor of the defendant. Having decided the case on that analysis, the court never got to the question of recognizing the aboriginal rights of the defendant.

Green, one of the defendants in these cases, was confronted again in 2011 by a Town of Mattapoisett shellfish warden challenging him for using an outsized quahog basket. As reported by the Boston Globe, “[T]he confrontation between tribe member David Greene and the town official ended in shouting and pushing. . . ”⁶ The newspaper urged the state to begin to advise their local wardens about the aboriginal rights of the Wampanaog and other tribes with natural resource rights.

This year, another town in Massachusetts, the town of Mashpee is proposing new regulations and because of this history of harassment by local officials when the Wampanaog exercise their aboriginal rights for clamming, the Wampanaog leadership want the language in the new regulation to clearly state this right. The town has refused to include that language. The tribal Vice Chair, Mr. Hendricks is quoted as saying:

[T]ribal members are harassed “on a daily basis” and charged with civil and criminal infractions for practicing their aboriginal rights. The tribe then must spend money defending its members in court, he said.⁷

This continual harassment is widespread in the U.S. and conflicts over aboriginal and treaty fishing and hunting rights with state and local regulators as well as hostile local citizenry, is not unusual. The fishing wars that began in the 1960s was the start of a widespread movement for Native Nations to fight back against this constant harassment.⁸ In the 1980s, Wilbur Slockish Jr., a river chief of the Klickitat Band of the Yakama Nation, spent 20 months in federal prison for fishing in the Columbia River.⁹ Just in June 2020, two were spearfishing on the Little Saint Germain Lake when they were shot at by a local Wisconsin man. He was charged with a hate crime, but the county judge simply ordered the assailant to pay a fine of $343 with no jail time.¹⁰ The defendant, Johnson remarked to the press:

“It’s basically 300 and something dollars to shoot at us as we practice our treaty rights to fish.”¹¹

The harassment has continued and these conflicts have not been resolved with a few exceptions.

It is time for Massachusetts to take action to stop the harassment where the aboriginal right is so well documented. Massachusetts Native Nations should not be forced to reassert their rights and defend themselves repeatedly in state and local courts. There is a huge gap in the federal trust responsibility at the Bureau of Indian Affairs when it comes to resolving these kinds of conflicts between states and Native Nations, two sovereigns in our Constitution. Establishing an ombudsman’s office would be a good first step to fill the gap for resolving state and local conflicts with fishing and hunting rights, taxation and many other areas. Congress should also withhold funding for rivers where states fail to recognize aboriginal and treaty rights to hunting and fishing measured by the number of local arrests falsely made by uninformed or even bad intentioned regulators. The number of hate crime indictments that the state or local government dismisses with a civil fine, like the shooter in Wisconsin should also be a basis for withholding funding.

The Commonwealth of Massachusetts has made it clear they are not interested in resolving this conflict, but they are happy to take credit for the first Thanksgiving with the Tribe they chose to betray on a multi-generational scale. Do better, Massachusetts.

1. See, e.g., St. 1933, c. 329, ¶ 50; Rev. St. (1836), c. 55, ¶ 15.

2. St. 1941 c. 598, ¶ 1.

3. https://www.encyclopedia.com/education/news-and-education-magazines/american-indians-1933-1941

4. 45 Mass. App. Ct. 49, 695N.E.2d 212 (1998).

5. COMMONWEALTH vs. MICHAEL J. MAXIM, Commonwealth vs. David S. Greene, 429 Mass. 287; 708 N.E.2d 636 (1999).

6. http://archive.boston.com/bostonglobe/editorial_opinion/editorials/articles/2011/04/06/clam_digging_enforce_tribal_rights/ .

7. https://mashpeewampanoagtribe-nsn.gov/june-2022-mittark-blog/2022/5/31/tribe-presses-town-on-shell-fishing-rights

8. https://americanindian.si.edu/nk360/pnw-fish-wars-tactics/

9. https://www.kptv.com/2022/08/16/native-american-chief-shot-imprisoned-fishing-columbia-river/

10. https://www.greenbaypressgazette.com/story/news/2021/01/15/hate-crime-dropped-wisconsin-man-shot-gun-near-tribal-spearfishers/4178407001/

11. https://www.greenbaypressgazette.com/story/news/2021/01/15/hate-crime-dropped-wisconsin-man-shot-gun-near-tribal-spearfishers/4178407001/