The Pamunkey along with its neighbor tribe, the Mattaponi, have stocked Virginia’s rivers with American shad for almost 100 years, releasing hatchery-grown fry into their namesake rivers on reservations they’ve lived on since the time of English colonial expansion in the late 1600s.
In April, the Pamunkey released more than 2 million American shad fry into the Pamunkey River. To rear the fry, tribal fishermen first caught mature male and female shad on their way upstream to spawn, then stripped them of their eggs and sperm. After contributing to future fish generations, the fish that were caught became dinner for the fishermen’s family and friends.
Catching the shad is an ages-old practice for the Indians.
But when the Atlantic States Marine Fisheries Commission, which regulates migratory fish along the East Coast, and Virginia enacted a moratorium on the catch of river herring, former Virginia Attorney General Kenneth Cuccinelli issued a legal opinion meant to clarify Indian fishing rights — an opinion that has ruffled feathers and strained relationships between the Pamunkey, Mattaponi and Chickahominy tribes and the Virginia agencies charged with managing marine resources.
Shad and their river herring relatives — blueback herring and alewife — are an anadromous species that are caught in nets during their spring spawning runs. Populations of all three species have plummeted in recent years, resulting in management efforts, including moratoria on both shad and more recently, river herring.
Chickahominy Chief Stephen Adkins said, “When the moratorium on river herring was issued, we asked the Virginia Marine Resources Commission to clarify our right to continue fishing for herring and shad.”
The VMRC’s legal counsel, Adkins said, confirmed Indian fishing rights for sustenance, and the tribal council enacted its own internal registry to ensure that tribal members fishing for herring were not engaged in selling the fish.
But problems on the Chickahominy persisted, Adkins said, with conservation police often challenging the Indian fishermen’s rights to fish during spot checks on the water.
It was then that the VMRC and Department of Game and Inland Fish asked the attorney general’s office for clarification of Virginia Indians’ fishing rights.
The 1667 Peace Treaty between the tribes of the Powhatan confederacy and the colonial government — and eventually honored by the commonwealth of Virginia as successor to the English Crown — says that the Indians may “have and enjoy theire wonted conveniences of Oystering, fishing, and gathering...anything else for their natural Support not useful to the English.”
The agreement has been interpreted to mean that Virginia tribal members are allowed to hunt and fish in Virginia, on or off their reservations, practices that have defined their tribal cultures for thousands of years.
The treaty also refers to hunting and fishing for “sustenance,” which — both the Mattaponi and Pamunkey and nearby Chickahominy say — is what they have always done and still do.
But Cuccinelli’s opinion, issued in July 2013 after the spring shad and herring run was over, said that in spite of certain rights granted through the early treaty, “Virginia Indians must follow fish and wildlife laws and regulations with respect to seasons, moratoria, minimum size limits, possession limits, and method of take.”
In early April, with the Cuccinelli opinion in place, VMRC police delivered a warning to tribal fishermen on the Pamunkey and Mattaponi reservations that the opinion would be “enforced.”
John M. R. Bull, commissioner of Virginia Marine Resources, said in an Indian Times interview that Virginia marine police were perhaps overzealous in conveying the opinion to the Mattaponi and Pamunkey Indians when they came on their reservations in the spring.
When asked about whether the Mattaponi and Pamunkey tribal members could still fish for shad, Bull said in an e-mail to the Bay Journal, “The tribe’s shad are not impacted. They operate under a collection permit from VMRC and their work is beneficial to the stock, and yields scientific information.”
Pamunkey Chief Kevin Brown said that the Indians had never operated under a permit for collecting shad until this last year when a permit for collecting “American shad in spawning condition for use in the hatchery” arrived in the mail.
But local traditions may trump the opinion.
King William commonwealth attorney Matt Kite said, “If [an Indian] was cited for a violation for a right they have under the treaty, I would dismiss the charge. The former attorney general’s opinion is just an opinion, not a regulation.”
This spring, Adkins waited to hear what the commonwealth attorneys of the counties most affecting his tribe had to say about the moratorium. When the attorneys from Charles City, New Kent and King William counties all said they wouldn’t prosecute citations against Indians fishing for shad or herring, Adkins gave the go-ahead to tribal members to fish. It was late in the run, Adkins said, and not many fish were caught.
Chief Mark Custalow of the Mattaponi is also concerned. Though the Mattaponi fish hatchery did not operate this season because of late winter ice damage to the facilities, the Mattaponi will operate their hatchery next season.
“We are a reservated tribe [a term used by Indians to note they own and live on their reservations], and we have honored the treaty. The state is trying to make this hatchery-related, but we are stewards of these fish.”
Kate Taylor, fisheries manager with the ASMFC, said that many issues concerning Indian fishing rights pose “gray areas” about legal rights.
“It just depends, especially when you go back to old treaties, how you handle new issues that they weren’t even thinking about, but now we have to think about,” she said.
Taylor said it would be up to the state to regulate any tribal fishing, based on regulations and treaties with the tribes.
Brown said that federal recognition of the tribes would help, because federal courts understand Indian fishing rights, and ultimately, this may be what’s needed to clarify the Indians’ rights to fish — and even sell — shad.
Selling shad or herring could be seen as commercial fishing and a violation of moratoria. But from the Indian perspective, sustenance includes barter — and even the sale of fish, said Ashley Atkins, a Pamunkey Indian studying for her Ph.D. in anthropology at the College of William and Mary. Her specialty is the tribal economies of Virginia Indian tribes, including her own.
Meanwhile, scientists monitoring the shad populations have questions about the hatchery operations. Virginia Institute of Marine Sciences fishery biologist Eric Hilton oversees shad sampling in all of the Virginia rivers.
Hilton would like to know more about the hatchery operations of the two tribes. “Not knowing how many fish are being removed from the (York River) system and conversely how many they are putting back limits our understanding of what’s happening in this river system,” he said.
He noted that 2014 was a “big year” in the York, which is created by the confluence at West Point, VA, of the Mattaponi and Pamunkey rivers, on which the hatcheries are located.
“Last year we caught 240 fish in the York, but this year  we caught 600 over the course of five fewer fishing days than last year,” Hilton said.
Annual monitoring and catch data collected by VIMS is forwarded by the VMRC to the ASMFC as part of Virginia’s compliance with coastal management plans. These data will help when it comes time in the next several years for the ASMFC to update the stock assessment for American shad.
Tom Gunter, a retired DGIF biologist, who worked with the Mattaponi and Pamunkey on stocking efforts in the past, said that it’s hard to know what condition the stocks in the Pamunkey and Mattaponi would be in had the tribes not been operating the hatcheries.
But Pamunkey Indian Warren Cook, Ashley Atkin’s grandfather, thinks he knows. “I think the longevity of the fish in our river has to do with the hatchery we’ve been running since 1918. No other hatchery has been at it for so long. After all these years, we hope we’ve done a little good.”