The Aquinnah building inspector filed a lawsuit this week against the Wampanoag Tribe of Gay Head (Aquinnah) to test the question of whether the tribe must follow local zoning rules.
"A genuine controversy exists on this issue requiring judicial guidance," wrote Aquinnah town counsel Ronald H. Rappaport in the complaint.
The complaint marks the first court test of the 1983 Indian Land Claims Settlement Agreement that cleared the way for the Wampanoag Tribe to win federal recognition.
Plaintiff in the case is town building inspector Jerry Wiener. The complaint was filed in Dukes County Superior Court on Tuesday. The spring sitting of superior court is in its third and final week; the Hon. Thayer Fremont-Smith is presiding over the session.
Mr. Rappaport said this week that the complaint is not intended to be hostile but is instead a necessary step toward finding the answer to an important question.
"It's a question of where the tribe's authority begins and ends, and where the town's authority begins and ends. We need to get some clarity," Mr. Rappaport said.
The dispute was triggered last month when a pier and a small shed went up on tribal land on Menemsha Pond - with no building permit. The property where the pier and shed are located is known as the Cook Lands. The tribal shellfish hatchery is located on the property.
Mr. Wiener issued a cease and desist order, and then brought the problem to the attention of the town selectmen. Two weeks ago the selectmen instructed Mr. Rappaport to take steps to enforce the cease and desist order.
Tribal leaders claim that they are not required to follow local zoning rules, because they are a federally recognized tribe and a sovereign nation.
But in the complaint filed this week, Mr. Rappaport cites language in both the 1983 settlement agreement and state and federal statutes to the contrary.
The settlement agreement was signed by the Massachusetts attorney general, the tribe, the town of Gay Head and the Gay Head Taxpayers Association. (The name of the town was changed from Gay Head to Aquinnah two years ago.)
The complaint says in part: "The settlement agreement, with respect to the Cook Lands, specifically provides as follows:
"Any structure placed on this property shall be subject to all federal, state and local laws, including local town zoning laws, state and federal conservation laws, and the regulations of the Martha's Vineyard Commission."
The complaint asked for both a preliminary and a permanent injunction to halt any use of the shed and the pier until there is a court ruling in the case.
A hearing was set for this morning in Dukes County Superior Court on the preliminary injunction, but the hearing was postponed yesterday when the tribe agreed to abide by the cease and desist order until the matter is adjudicated.
"In no way should this . . . be construed as an admission to the allegations contained in the complaint," wrote tribal attorney Robert F. Mills in a letter to Mr. Rappaport yesterday. "The tribe maintains its philosophy of concurrent jurisdiction and inherent sovereign authority to regulate its affairs," Mr. Mills added.
"We don't regard this as adversarial - we are both trying to have a clear understanding of the limits of the town jurisdiction and the tribe jurisdiction. We hope to continue to cooperate to resolve this by judicial decree," Mr. Rappaport said.
He said that while a small shed may seem to be a small matter, it is the best way to test the rules.
"Having this be a small shed is actually a good thing because there is not much money involved," Mr. Rappaport said, adding: "The principle is whether the tribe has to come before the town to comply with town zoning and get a building permit. It's better we have a dispute over a small structure than a larger structure where millions may have been invested. This is an issue that is going to reoccur, so we need answers."