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Trial Judge Rules Judges Retain Fishing Rights

August 15, 1989

MONTPELIER, Vt. (AP) _ Vermont’s Abenaki Indians won a victory Monday in their centuries-old fight for rights and land when a judge ruled the tribe retains its aborginal fishing rights.

″This is a very major victory for the Abenakis,″ said Gabor Rona, the lawyer who represents the tribe, which numbers about 2,000, primarily in northwestern Vermont.

The ruling by Vermont District Judge Joseph Wolchik dismisses fish and game violations filed two years ago by the state against several tribe members. The state contended the tribe members had no right to fish without the state license required of all others.

Wolchik found otherwise, saying the tribe retained the fishing rights it has had for centuries.

He said the state failed to prove the tribe ″abandoned or ceded their Missisquoi homeland or that their aborginal rights were extinguished by either an express act or an act clearly and unambiguously implying any sovereign’s intent to extinguish those rights.

″Accordingly, the Missisquoi’s aborginal right to fish in their Missisquoi homeland continues to exist today,″ the judge wrote.

Homer St. Francis, the tribal chief, who has said ″we are a nation and we own the state,″ was ecstatic following the ruling.

″This victory is for fishing rights,″ he said. ″Now we’ll be fighting for our land.″

Although Monday’s ruling dealt only with the issue of fishing rights, Rona said ″what makes this so monumental for the Abenakis is that the issues the court needed to address and did address in this fishing case are precisely the same as would be addressed in a land claim.″

Wolchik’s ruling, however, indicated that the judge felt there were limits to the Abenaki claims.

Specifically, the judge found the Abenakis do not meet the federal definition of a dependent Indian community, a finding that could affect any future land claims.

″The available evidence leads this court to conclude that neither the Missisquoi homeland or any part of it is Indian country,″ the judge said. ″The thrust of the evidence is that the Missiquoi community is thoroughly mixed if not blended into the non-native American community.″

Andrew Eschen, the assistant attorney general handling the case, said his initial reading of Wolchik’s decision gave him some satisfaction. While the Abenakis have been contesting the fishing charges on the grounds that the state lacked criminal jurisdiction over the tribe, Wolchik found the state does have jurisdiction, he said.

But he said he had not read the 96-page ruling through, much less decided its impact.

″It’s a case that took a lot of time to prepare and present, and deciding what the effects of this are, and what needs to be done next, is going to take some time as well,″ he said.

The state could appeal to the Vermont Supreme Court.

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