January 28, 2025 — A 17th century treaty does not grant a New York state-recognized Indigenous tribe unequivocal fishing and whaling rights, a Second Circuit panel ruled Tuesday.
The Unkechaug Indian Nation, which began harvesting baby eels in 2010, filed a complaint in 2018 against New York environmental regulators after facing criminal prosecution for harvesting critically overfished glass eels outside of their reservation.
The tribe’s argument relied on a treaty — which stems from an order issued in 1676 by New York’s colonial governor Sir Edmond Andros — that prevented interference in the tribe’s fishing practices out of fear the tribe would revolt against Long Island settlers.
But the Second Circuit panel said the treaty is not binding because it predates the formation of the United States and has not been ratified by Congress in the centuries since.
“It is undisputed that the Andros order was not made during the Confederal period,” U.S. Circuit Judge Sarah A.L. Merriam, a Joe Biden appointee, wrote for the panel. “Indeed, it predates the Confederation by nearly 100 years.”
The tribe said the treaty applies, despite being made under British rule, because of a constitutional clause that asserts all “debts and engagements” created before the adoption of the Constitution should be valid under U.S. law.