{"id":57323,"date":"2024-08-21T01:00:55","date_gmt":"2024-08-21T09:00:55","guid":{"rendered":"https:\/\/civileats.com\/?p=57323"},"modified":"2024-08-30T12:27:56","modified_gmt":"2024-08-30T20:27:56","slug":"on-cape-cod-the-wampanoag-assert-their-legal-right-to-harvest-the-waters","status":"publish","type":"post","link":"https:\/\/civileats.com\/2024\/08\/21\/on-cape-cod-the-wampanoag-assert-their-legal-right-to-harvest-the-waters\/","title":{"rendered":"On Cape Cod, the Wampanoag Assert Their Legal Right to Harvest the Waters"},"content":{"rendered":"

This is the first of a two-part series.<\/em><\/p>\n<\/div>

On a recent spring afternoon, CheeNulKa Pocknett\u2019s truck rattled slowly across Monomoscoy Island, the engine roar swallowing the caw of seabirds. It caught the attention of a gray-haired woman working in her garden who popped up from behind a wall of red and yellow tulips, a scowl shading her face. <\/p><\/div>

\n

\u201cShe knows me and doesn\u2019t like me,\u201d Pocknett said, casting a half-hearted wave in her direction. Pocknett, a member of the Wampanoag tribe, is a regular here on Mashpee\u2019s\u00a0 Little River, a stretch of Cape Cod ringed by multi-story homes, each with its own private dock. He knows all the good fishing spots\u2014or at least, what were once good fishing spots\u2014along the murky perimeter.<\/p>\n

Pocknett steered down a gravel driveway and parked between two wind-worn wooden houses, unfurling his 6\u20197\u201d frame from the driver\u2019s side, boots first. He hefted a 50-pound rake and stack of plastic baskets from the bed of his truck and tramped toward the river, ignoring the \u201cprivate property\u201d warnings staked around the backyard. Like his ancestors for 12,000 years, he had come to this river in search of a hard-shelled clam known as a quahog, and no amount of anti-trespassing signs could keep him away.<\/p>\n

\u201cThey\u2019re preventing us from practicing our culture, our right of ways, our livelihood.\u201d<\/p>\n<\/div>\n

Pocknett sloshed through the shallows, waders dredging up brown clouds of mud. \u201cThis is nothing like \u2018black mayonnaise,\u2019\u201d he said, referring to other areas where once-sandy bottoms are now thick sludge. \u201cHere it\u2019s actually not so bad.\u201d<\/p>\n

Low-lying Mashpee is carved from water: from mosquito-bogged marshes, pine-shrouded ponds, and rivers that wind in brackish ropes past condos and golf courses. Since the 1970s, much of the town\u2019s waterfront has been privatized and developed by nonmembers of the Wampanoag tribe.<\/p>\n

The manicured and serene landscape above the waterline belies tremendous damage below, where shellfish and finfish have thinned\u2014and in some cases disappeared\u2014due to nitrogen pollution emitted from multi-million\u2013dollar developments and their septic tanks. Stripped of land and resources, a dwindling group of Mashpee\u2019s Wampanoag is committed now more than ever to asserting their rights to hunting and fishing.<\/p>\n<\/div>

\"The<\/a>

The Monomoscoy Island beach on Mashpee\u2019s Little River, where CheeNulKa Pocknett frequently digs for wild quahogs (pictured right), with a private dock that extends into the water. (Photo credit: Emma Glassman-Hughes)<\/p>\n<\/div><\/div>

\n

These \u201cAboriginal rights,\u201d as they\u2019re legally known, are reflected in treaties between the U.S. and sovereign Indigenous nations, and grant unlimited harvests, even from private property. But not everyone on Cape Cod respects these rights, sometimes resulting in screaming matches and 911 calls. Wampanoag fishers, like Pocknett, are forced to shrug it off. Their work, they say, is to both triage a dying ecosystem and continue an essential expression of their heritage, sovereignty, and lifeways.<\/p>\n

Under the April gloom, Pocknett waded deeper into the river, the current pulling at his knees. With a grunt, he plunged his rake into the water and dug in.<\/p>\n

People of the First Light<\/h4>\n<\/div>

For thousands of years, the Wampanoag<\/a>\u2014the \u201cPeople of the First Light\u201d\u2014have harvested fish for food, trade, art, and fertilizer.\u00a0A shellfish farmer as well as a fisherman, 39-year-old Pocknett\u00a0can trace his lineage on these Atlantic shores well into the past, before poquauhock, in Algonquin, became \u201cquahog,\u201d before his ancestor, Massasoit<\/a>, would be known as the first \u201cIndian\u201d to meet the pilgrims, and long before federal recognition<\/a> (won by the Wampanoag in 2007) held any meaning for the Indigenous nations of this continent. For most of that time, the Wampanoag stewarded a thriving waterway. <\/p><\/div>

\n

When he isn\u2019t raking for wild quahog, Pocknett manages the tribe\u2019s shellfish farm, using modern aquaculture practices that are a footnote in the Wampanoags\u2019 millennia-old relationship to the waterways of the Cape. Generations before Pocknett\u2019s great uncle founded the First Light Shellfish Farm<\/a> on Popponesset Bay, in the 1970s, Pocknett says it\u2019s likely the tribe cultivated bivalve species and maintained the shallows with ancient clam gardening techniques, constructing \u201creefs\u201d out of rocks in the sandy bottoms of the bays and rivers. The abundant eelgrass that once grew in those same waters fostered eels, scallops, and fish species like striped bass, all important elements of the Wampanoag diet, culture, and worldview.<\/p>\n

\"\"<\/a>

CheeNulKa Pocknett reached down to grab the handle of a 50-pound bull rake used to dig quahogs on the Monomoscoy Island beach along Mashpee\u2019s Little River. (Photo credit: Emma Glassman-Hughes)<\/p>\n<\/div><\/div>\n

The natural abundance of the bay, however, has been severely diminished by development and nitrogen pollution. Today, Pocknett and his cousins receive funding from U.S. Fish and Wildlife to raise the tribe\u2019s quahogs and oysters in that pocket of the Popponesset, a small body cradled on the Cape\u2019s southwestern arm. Instead of clam reefs, the farmers use oyster cages and clunky steel rakes to manage their crop.<\/p>\n

This helps the local ecosystem somewhat, as shellfish remove nitrogen from the water by absorbing<\/a> small amounts into their shells. But the eelgrass is already gone from this bay, as are most of its wild fish. And First Light is not nearly big enough to replace what\u2019s been lost, Cape-wide.<\/p>\n

Off the farm, other bays and rivers that sustained past generations with abundant wild shellfish have been radically transformed, too. Areas that were once quahog hotbeds are now so mucky from nitrogen-fed algae that they\u2019re inhospitable to growth. Aboriginal rights allow Wampanoags to cross public and private land to fish, but they don\u2019t guarantee that there will be any fish in the water once they arrive.<\/p>\n

Those sites that remain viable have limited fishing access. Many have been blocked by private developers, fences, or overgrown brush. But there are psychological deterrences, as well. The prospect of aggravated non-Indigenous neighbors is enough to keep some Wampanoags out of the water.<\/p>\n

One of Pocknett\u2019s cousins, Aaron Hendricks, worries that for Wampanoag youth, the once-proud practice of fishing is now entangled with shame. He recently recalled a day from his childhood when he was about four. His Aunt June took him fishing in Simons Narrows, down a dirt path that had previously \u201calways been a way to the water.\u201d A strange woman burst out of the property, \u201ccussing, yelling, screaming that you can\u2019t park here.\u201d<\/p>\n

Now 42, Hendricks has his own children to teach\u2014except instead of taking the well-worn paths \u201cmy people showed me as a puppy,\u201d he said, they sneak through \u201ca briar patch and a thousand mosquitoes and poison ivy\u201d to avoid confrontation. \u201cHalf the kids don\u2019t even want to go because they hear the stories,\u201d he said. \u201cI don\u2019t want to show them that. It scars them, type shit.\u201d<\/p>\n

Pocknett\u2019s fishing trips can also devolve into ugly confrontations, pitting his tribe\u2019s ancient claims to fishing grounds against the rights of property owners in newer developments. Pocknett often live-streams these encounters on Facebook, as he did four years ago, when a homeowner reported him and his brother for trespassing on a Monomoscoy Island driveway.<\/p>\n

In that encounter, Pocknett accused the Mashpee police and natural resources officers of impeding his rights. In the footage, Pocknett\u2019s voice throbs with rage: \u201cWe fish every day, they don\u2019t care. They tell us that we\u2019re nothing but a bunch of dumb Indians.\u201d When asked about the incident, he was only slightly more measured. \u201cThey\u2019re preventing us from practicing our culture, our right of ways, our livelihood,\u201d he said.<\/p>\n

\"Photo<\/a>

The beach at Punkhorn Point on Popponesset Bay, where the First Light aquaculturists load their boats. (Photo credit: Emma Glassman-Hughes)<\/p>\n<\/div><\/div>\n

Such confrontations<\/a> are likely to continue. As of April, the tribe has 321 total acres of reservation land, designated by the Supreme Court when it ended a protracted legal battle that began in 2015. All but one of those acres, however, are landlocked. To fish as they\u2019ve always fished, Wampanoags have no choice but to assert their Aboriginal rights on private property. So, Pocknett walks through yards.<\/p>\n

Legal Precedent<\/h4>\n<\/div>

Not everyone in Mashpee respects the rights of the Wampanoag. Non-Indigenous officials have historically misunderstood these rights\u2014or ignored them. In recent years, for example, the local Shellfish Commission began discussing tribal fishing rights in its monthly meetings at the Mashpee Town Hall. Minutes from a January 2019 meeting note: \u201cCan anyone pass through private property based on the colonial ordinance? It is still unknown.\u201d <\/p><\/div>

\n

A few months later, minutes show that the commission discussed a statement issued by Wampanoag police claiming the tribe \u201chas the right to access water to fish through any property.\u201d The Commission\u2019s response was firm: \u201cThe town manager has notified both the police and the tribal council that this is not where the town of Mashpee stands,\u201d those minutes say. \u201cNo-one [sic] can access the water through private property.\u201d<\/p>\n

\u201cPutting up a bunch of fences and denying somebody access to a parcel of land or water that they have a property interest in\u201d goes against fundamental rules of law.<\/p>\n<\/div>\n

Legal experts on Indigenous affairs disagree. A landmark 1999 appeal in the Massachusetts Supreme Judicial Court favored the Mashpee tribe\u2019s extensive Aboriginal rights and forever clarified the state\u2019s stance, according to a New England\u2013based lawyer who is working with the tribe on current litigation and asked not to be named to avoid appearing biased.<\/p>\n

The 1999 case, Commonwealth v. Maxim<\/em><\/a>, determined that Aboriginal rights supersede a town\u2019s shellfish bylaws, which set rigid standards and limits for non-Indigenous hunting and fishing. The decision relied primarily on protections outlined in the Treaty of Falmouth, signed in 1749.<\/p>\n

Other cases, including the 1974 \u201cBoldt Decision<\/a>\u201d in Washington State, have firmly set legal precedent for sovereign fishing rights. In Massachusetts, in 1982, the state House of Representatives adopted a resolution<\/a> recognizing \u201cthe ancient and aboriginal claim of Indians\u201d to \u201chunt and fish the wildlife of this land for the sustenance of their families.\u201d<\/p>\n

Matthew Fletcher, director of Michigan State University\u2019s Indigenous Law and Policy Center and member of the Grand Traverse Band of Ottawa and Chippewa Indians, spent seven weeks as a visiting professor of Federal Indian Law at Harvard Law School this spring and sits as a judge on the Mashpee tribe\u2019s appellate court. In an interview, he said anyone who claims Wampanoag fishing rights are unclear is willfully overlooking decades of precedent. Aboriginal fishing rights are property rights and should be understood as such, he said.<\/p>\n

\u201cPutting up a bunch of fences and denying somebody access to a parcel of land or water that they have a property interest in\u201d goes against fundamental rules of law, Fletcher said. The property interest of the Wampanoags in this case is their Aboriginal fishing right, which extends to those lands and waters.<\/p>\n

\u201cUnder every rule of law, going back to England before there was the United States, people have a right to access, within reasonable limits, other people\u2019s property in order to get to their property,\u201d Fletcher said. \u201cYou learn that in the first year of law school. And Indian people are denied that basic right every single day.\u201d<\/p>\n

The denial of rights in Mashpee can be subtle, as with \u201cNo Trespassing\u201d signs, or overt, as when local homeowners involve police. Attitudes vary, but the town is marred with distrust.<\/p>\n

On a summer day at Mashpee Neck Marina, I took a walk down a residential street crowded with large homes, each with a neatly trimmed yard and picture windows looking out on the Santuit River, where a fleet of chrome yachts and speedboats winked under the midday sun. At one home, I met a seasonal resident named Kathy, who declined to give her last name, but said she tries to keep Wampanoag fishers from crossing her yard. She and her husband had stapled \u201cNo Trespassing\u201d signs to the pitch pines that gird a narrow path from the front of the house to the river in the back.<\/p>\n

\u201cThey\u2019re tribal people, and they carry buckets down there and take oysters in bulk,\u201d Kathy said, standing in her doorway, a small dog drooped over her feet. \u201cThey think they own the land. They think it\u2019s theirs.\u201d<\/p>\n

Nearby, in another doorway, an older man said the Wampanoag have \u201calways been respectful\u201d of him and his property. His wife, who joined him at the door, was less amiable. \u201cWe won\u2019t say anything about the Wampanoags in any newspaper,\u201d she said angrily, motioning for her husband to come inside. \u201cWe don\u2019t want any trouble,\u201d she said, then slammed the door.<\/p>\n

The Meaning of Sustenance<\/h4>\n<\/div>

In late September, a row of sullen three-story homes stood guard over the Mashpee River, flat as a sheet of glass. Down a gravel path, the beach at Punkhorn Point bid its quiet farewell to summer, the sand populated now by a large blue crab, belly-up in surrender, and a silent procession of fiddler crabs creeping through tufts of beachgrass. <\/p><\/div>

\n

Nearby, Pocknett measured out bolts of hazard-orange mesh, a cigarette affixed to his bottom lip. He pulled a few bull rakes from his truck and dragged them to a small motorboat in a clatter of steel, tossing them in the boat along with plastic baskets, a coil of rope, and enough cigarette packs for each of his three cousins, who had also come to work.<\/p>\n

In 2022, the tribe was awarded an aquaculture grant of $1.1 million<\/a> through the Economic Development Administration, part of the American Rescue Plan\u2019s Indigenous Communities program. The cousins were preparing for the arrival of Pocknett\u2019s uncle, Buddy, who was driving in with a truckload of baby quahogs. They would plant the clams out near a sandbar in Popponesset Bay, knowing that each mollusk would clear out some nitrogen, if only a little, as it grew.<\/p>\n

\"\"<\/a>

Two million baby quahogs sat in sacks in the back of Vernon \u201cBuddy\u201d Pocknett\u2019s truck, ready to be seeded into the Popponesset Bay off Punkhorn Point. (Photo credit: Emma Glassman-Hughes)<\/p>\n<\/div><\/div>\n

When Buddy arrived, the men transferred a dozen sacks containing 2 million baby quahogs into the boat, and cast off for where the murky water ran clear.<\/p>\n

Here, Pocknett dropped anchor. The men disembarked, water up to their knees. A couple of them set the mesh in a giant rectangle in the bed of the bay, then sprinkled the tiny shellfish over the water like seeds. As his cousins scattered the new crop, Pocknett attached a rake to his waist with a rusty chain and shuffled to the side a few feet to dig for larger clams. The rake\u2019s cage allowed small clams to slip through the bars, giving the next generation a chance to grow.<\/p>\n

In legal terms, the Mashpee tribe\u2019s traditional hunting and fishing rights are protected acts of \u201csustenance.\u201d The state understands that to mean pure calories. But Fletcher, of Michigan, argues the Indigenous interpretation honors full livelihood.\u00a0\u201cIt is deeply cynical and cramped for non-Indians to say sustenance is merely calories,\u201d he said.<\/p>\n

To Pocknett, true sustenance means much more. Out on the sandbar, he leaned back 45 degrees, driving his rake into the mud with coordinated thrusts of hips and arms. Sustenance means to \u201cprovide life,\u201d he said. \u201cNot just food.\u201d<\/p>\n

<\/div><\/span>","protected":false},"excerpt":{"rendered":"

This is the first of a two-part series. \u201cShe knows me and doesn\u2019t like me,\u201d Pocknett said, casting a half-hearted wave in her direction. Pocknett, a member of the Wampanoag tribe, is a regular here on Mashpee\u2019s\u00a0 Little River, a stretch of Cape Cod ringed by multi-story homes, each with its own private dock. He […]<\/p>\n","protected":false},"author":1356,"featured_media":57347,"comment_status":"open","ping_status":"closed","sticky":false,"template":"","format":"standard","meta":{"_acf_changed":false,"footnotes":""},"categories":[10,6920,4369],"tags":[],"coauthors":[43533],"class_list":["post-57323","post","type-post","status-publish","format-standard","has-post-thumbnail","hentry","category-food-justice","category-indigenous-foodways","category-seafood"],"acf":[],"yoast_head":"\nOn Cape Cod, the Wampanoag Assert Their Legal Right to Harvest the Waters | Civil Eats<\/title>\n<meta name=\"description\" content=\"Not everyone respects that right. 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