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Trial Judge Rules Judges Retain Fishing Rights

August 15, 1989

MONTPELIER, Vt. (AP) _ The chief of the Abenaki Indians said a judge’s decision to grant the group fishing rights is one step toward winning back land claimed by the tribe.

″This victory is for fishing rights,″ said tribal chief Homer St. Francis. ″Now we’ll be fighting for our land.″

The ruling by Vermont District Judge Joseph Wolchik recognized the Abenaki’s aboriginal fishing rights dating back 11,000 years.

It dismissed fish and game violations filed two years ago by the state against several tribe members. The state contended the tribespeople had no right to fish without the state license required of other people.

The Abenakis number about 2,500 and live primarily in northwestern Vermont.

Wolchik 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,″ he wrote.

Although the ruling dealt only with the issue of fishing rights, Gabor Rona, the tribe’s lawyer 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.″

But it was not clear whether the special status that Wolchik granted the tribe would translate into anything more than the right to fish.

The judge found the Abenakis do not meet the federal definition of a dependent Indian community, a finding that could impact 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, an assistant attorney general, said that while the Abenakis had contested the state’s criminal jurisdiction over the tribe, Wolchik found the state does have jurisdiction.

St. Francis said he would push, through the United Nations, for total autonomy for the tribe.

The Abenakis trace their tribe back to 9300 B.C. In recent decades they have begun pushing to assert their right over land in northern Vermont.

The fight has split the tribe itself, with one faction favoring more militant stands such as tribal courts, schools and law enforcement. That faction, led by St. Francis, is in power today.

The case originated in 1987, when Abenakis held a fish-in on the banks of the Missisquoi River in Swanton. More than 30 people were charged with fishing without a license or failure to display a license.

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