COMMONWEALTH vs. MICHAEL J. MAXIM (and a companion case n1 ).
n1 Commonwealth vs. David S. Greene.
429 Mass. 287; 708 N.E.2d 636
SUPREME JUDICIAL COURT OF MASSACHUSETTS
January 4, 1999, Argued
April 7, 1999, Decided
CASE HISTORY:
Barnstable. Complaints received and sworn to in the Barnstable Division of the
District Court Department on February 9, 1996. The cases were heard by George
H. Lebherz, Jr., J. After review by the Appeals Court, the Supreme Judicial
Court granted leave to obtain further appellate review.
DISPOSITION: Judgments reversed, the findings are set aside, and judgments shall enter for
the defendants.
COUNSEL: Michael D. O'Keefe, Assistant District Attorney (Julia K. Holler, Assistant
District Attorney, with him) for the Commonwealth.
Peter P. d'Errico, of New Mexico, for the defendant.
Scott Harshbarger, Attorney General,
& Siu Tip Lam, Assistant Attorney General, for the Attorney General, amicus
curiae, submitted a brief.
JUDGES: Present: Wilkins, C.J., Abrams, Lynch, Greaney, Fried, Marshall,
& Ireland, JJ.
OPINION: LYNCH, J. The defendants are members of the Mashpee Wampanoag n2 tribe. They
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.
45 Mass. App. Ct. 49, 695 N.E.2d 212 (1998). 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.
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n2 It is unclear from the record whether the defendants' tribe is called the
Wampanoag, the
Mashpee, or the Mashpee Wampanoag. For purposes of this decision, the
distinction is immaterial.
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The District Court judge found that, on Wednesday, July 5, 1995, the defendants
were on a town beach collecting clams for personal consumption. The defendants
were cited for taking shellfish without a permit
n3 and for taking soft-shell clams on a day prohibited by local regulations for
recreational shellfishing. The parties agree, and the judge found, that the
defendants enjoy tribal status as Wampanoag Indians.
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n3 This charge was not pursued by the Commonwealth.
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The judge
ruled that the defendants violated
¶ II 2.2 of the Bourne shellfish regulations. n4 The defendants maintain, inter
alia, that this regulation cannot be lawfully applied to them in this instance
because they were exercising their aboriginal rights to fish.
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n4 The regulations provide:
"SECTION I
"GENERAL REGULATIONS
"1.1
Under the provisions of the
above-mentioned laws all persons are prohibited from taking eels, herring,
clams, quahogs, oysters, scallops or seaworms from the coastal waters or flats
of the Town without a current permit issued by the Board of Selectmen of the
Town of Bourne. The taking of eels, clams, quahogs, oysters, herring, scallops
or seaworms
shall be limited to the regulations set forth herein. [Fine $ 50.00]
Recreational and Commercial Permits shall expire on March 31 in each year.
"TYPES OF PERMITS AND FEES
"1.2
No more than one (1) recreational permit will be issued per family (a 'family'
is a person or
a group of persons, whether or not related by blood or marriage, residing under
the same roof in a dwelling unit.) The use of this permit is limited to the
person to whom the permit was issued or any member of the family as defined
herein. An application form may be required to be completed and approved prior
to issuance of permits. . . .
"1.3
COMMERCIAL PERMITS: Commercial shell fishing permits may be sold to individuals
who demonstrate to the satisfaction of the licensing authorities that the Town
of Bourne or Sandwich is their permanent place of domicile. Commercial shell
fishing permits shall be valid only for the period of time that the holder
maintains a permanent place of domicile
in either the Town of Bourne or Sandwich. An application form may be required
to be completed and approved prior to issuance of permits. Tenants upon
applying or renewing a Commercial permit must submit a current notarized lease.
The Department of Natural Resources must be notified of any change in address
immediately. Commercial permits shall only be issued during the months of
January, February, and March, except for the Commercial Scallop Permit.
Commercial permits are valid from April 1st of one year to March 31st of the
following year. Also, each boat owner will be required to submit a current
boat registration upon applying for a permit. . . ."
"SECTION II
"RECREATIONAL PERMIT REGULATIONS
"(General Regs., Sec. I also apply)
"2.1
Shellfish taken by the use of this permit are not to be sold. [Fine: $ 50.00]
"AUTHORIZED HARVEST SEASON/DAYS/LIMITS:
"2.2
Summer Season - (June thru September):
Sundays - total limit - 1 peck of quahogs
Wednesdays - total limit - 1 peck of quahogs
Saturdays - total limit - 1 peck of quahogs or clams
(may mix but total catch not to exceed 1 peck)
NOTE: 'Total Weekly Limit'
not to exceed 1 level peck per species - Sunday thru Saturday. [Fine: $ 25.00/$
50.00]" (Emphasis in original).
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The defendants cite a long history evidencing legislative and executive
recognition of their aboriginal right to shellfish for sustenance. See, e.g.,
St. 1795,
c. 71,
¶ 5 ("Provided that nothing in this act shall extend to deprive any native Indians of
the privilege of digging shell fish for their own consumption . . ."), repealed and codified at Rev. St. (1836), c. 55,
¶ 15; St. 1933, c. 329,
¶ 50 ("any
native Indian without a permit, may . . . take for his own family use, from the
waters of any city or town, eels, soft-shelled clams"); Executive Order No. 126 (July 8, 1976) (noting that Commonwealth has, for
over three centuries, maintained an unceasing
"special relationship with the
Native American people of the region," and ordering that
"State agencies shall deal directly with" appropriate tribal council on matters affecting the Mashpee, Gay Head
Wampanoag and other Wampanoag, and Nipmuc Indians); 1982 House Resolutions
recognizing and protecting the ancient and aboriginal claim of the Indians of
the Commonwealth (adopted November
9, 1982) (recognizing aboriginal claims of Indians within Commonwealth to hunt
and to fish for sustenance).
The governing statute, G. L. c. 130,
¶ 52, provides in relevant part:
"The selectmen of a town bordering upon coastal waters, if so authorized by
their town, and the board of
aldermen or the city council of any city so situated may control, regulate or
prohibit the taking of eels and any or all kinds of shellfish and sea worms
within such cities and towns and may, from time to time, without other or
special authority therefor, make any regulations not contrary to law in regard
to said fisheries as they deem
expedient, including the times, places, methods, purposes, uses, sizes,
quantities and any other particulars of such taking, and may grant permits, and
establish the fees therefor . . ." (emphasis added).
Therefore, the statute does not permit towns to prohibit shellfishing
authorized by the Commonwealth.
Whether aboriginal rights exist is a factual matter.
United States v. Santa Fe Pac. R.R., 314 U.S. 339, 345, 86 L. Ed. 260, 62 S. Ct. 248 (1941). We note parenthetically that the Attorney General's amicus brief contends that
the
"District Court did not make a factual finding that the Defendants were
descendants of the original Mashpee Wampanoag Native Americans or that the
Wampanoag
Native Americans had exercised exclusively and continuously their aboriginal
fishing rights at the places in question since time immemorial." But the judge did expressly find that the defendants had tribal status and
that
"the Mashpee Indians have never given up their usufruct rights to
fish and have continued to exercise those rights as did their forefathers,
since time immemorial." Furthermore, he ruled that Indians are not subject to shellfishing license
requirements, and that the Commonwealth has traditionally acknowledged and
continues to acknowledge the usufruct n5 rights of the American Indian.
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n5 Although the District Court judge refers interchangeably to
"aboriginal
rights" and
"usufruct rights" it appears the two are distinct as the latter refers to rights arising under
treaty. See
Lac Courte Oreilles Band of Lake Superior Chippewa Indians v. Voigt, 700 F.2d 341, 351-352 (7th Cir. 1983).
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The Commonwealth
conceded at trial that aboriginal rights have long been recognized in the
Commonwealth, and
at least until 1941, such rights were explicitly acknowledged by statute. See,
e.g., St. 1933, c. 329,
¶ 50; Rev. St. (1836), c. 55,
¶ 15. In 1941 the provision exempting native
Indians from the shellfish regulations was omitted from the statute. St. 1941
c. 598,
¶ 1.
It is doubtful, however, by the omission, that the Legislature intended to
modify or to revoke aboriginal rights recognized in the Commonwealth for
hundreds of years. Cf.
United States v. Santa Fe Pac. R.R., supra at 354 ("an extinguishment [of aboriginal title] cannot be lightly implied in view of
the avowed solicitude of the Federal government for the welfare of its Indian
wards"). This is particularly so where there is subsequent executive and legislative
action that indicates that such omission was never intended. See
Confederated Tribes of Chehalis Indian Reservation v. State, 96 F.3d 334, 340 (9th Cir. 1996) ("Courts have uniformly held that treaties, statutes and executive orders must be
liberally construed in favor of establishing Indian rights . . . . Any
ambiguities in construction must be resolved in favor of the Indians." [Citations omitted]). Furthermore, as the Appeals Court
correctly
noted, the record in this case demonstrates
"a long history of recognition of the fishing rights of native Americans by the
Commonwealth and a lack of showing that the Commonwealth intended to authorize
the town to restrict such rights."
Commonwealth v. Maxim, 45 Mass. App. Ct. 49, 52, 695 N.E.2d 212 (1998).
From this discussion certain facts emerge.
(1) The town regulation in question specifically applies to recreational and
commercial shellfishing. There is no definition of recreational shellfishing
contained in the regulation and a strong argument can be made that the
defendants were engaged in sustenance rather than
recreational shellfishing.
(2) The regulation purports to govern the taking of shellfish by those holding
permits granted under its provisions. The judge ruled that the defendants are
not subject to fishing license requirements.
(3) A long history exists in the Commonwealth protecting Indian fishing rights;
that raises a
serious question whether G. L. c. 130,
¶ 52, which authorizes the enactment of local shellfish regulations, applies to
or abrogates in any way the defendants' aboriginal rights.
We therefore conclude that, whatever may be the defendants'
rights under Federal or Commonwealth treaties, and regardless whether their
rights are aboriginal or usufructuary, the regulation cannot be said
unambiguously to apply to the defendants. Because it is a basic principle of
our criminal law that ambiguities and doubts are to be resolved in favor of a
defendant,
Commonwealth v. Hrycenko, 417 Mass. 309, 317, 630 N.E.2d 258 (1994), the regulation cannot be applied against the defendants in these
circumstances.
"It is a
central tenet of our constitutional law that, as a matter of due process, a
criminal statute that fails to give a person of ordinary intelligence fair
notice that his contemplated conduct is forbidden should be deemed void for
vagueness."
Commonwealth v. Kwiatkowski, 418 Mass. 543, 547, 637 N.E.2d 854 (1994), quoting
Opinion of the Justices, 378 Mass. 822, 826, 393 N.E.2d 313 (1979). See
Commonwealth v. Williams, 395 Mass. 302, 304, 479 N.E.2d 687 (1985). As these cases involve a criminal charge,
"ambiguity concerning the
ambit of criminal statutes should be resolved in favor of lenity."
Commonwealth v. Maxim, supra at 50, quoting
Rewis v. United States, 401 U.S. 808, 812, 28 L. Ed. 2d 493, 91
S. Ct. 1056 (1971).
Because we conclude that the defendants prevail on other
grounds, we decline to address the defendants' alternative argument that they
enjoy protection from the regulation under two prerevolutionary treaties. It is
also unnecessary to discuss the Commonwealth's claim that the regulation may be
enforced as a conservation measure. n6
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n6 We note that the record is devoid of evidence that the regulation was
adopted as a conservation measure (apart from the self-serving complaint of a commercial shell fisherman to
police). Moreover, the disparate treatment of commercial and recreational
permittees raises serious doubts as to the efficacy of this claim.
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The judgments are reversed, the findings are set aside, and judgments shall
enter for the defendants.
So ordered.