5, n4 and such rights, it appears, have been continuously exercised. While these canons were set out in Federal cases involving treaties with the United States, we think they also apply to treaties involving the Commonwealth of Massachusetts. Although the reservation of these rights to native Americans in these enactments could have had a basis or bases other than the two treaties mentioned, these provisions could also be construed as recognition of the rights from the treaties. See also discussion infra. Here, the treaties in question were with the government of Massachusetts and the rights involved are not title rights, but fishing rights.
Fishing rights can exist independently of land rights.
The district attorney maintained, however, that the restriction on gathering shellfish by hand on certain days was reasonable and necessary for purposes of conservation and was therefore applicable to native Americans as a conservation measure. The District Court judge agreed, ruling that the regulation was reasonable and necessary for the conservation of shellfish and that the defendants were therefore subject to it. The by-law at issue here also requires a permit. 420 U.S. at 207-208, especially in light of the permitted commercial fishing, using jet pumps, at the same time. We therefore conclude that the defendants' right to fish was protected by treaty and that, given the absence of a showing of an essential conservation purpose, whose application to the defendants is essential and nondiscriminatory, the defendants' criminal convictions may not stand.