Wampanoag Tribal Sovereignty Case Raises Jurisdictional Questions in
Federal Court

By JOSHUA SABATINI

U.S. District Court Judge Douglas P. Woodlock heard the case of
Aquinnah building inspector versus the Wampanoag Tribal Council of Gay
Head Wednesday and questioned whether the federal court has jurisdiction
over the civil action. The outcome of the case will determine whether
the town has zoning jurisdiction on tribal lands.

The significance of the case was highlighted further this month when
it was revealed that tribal member William (Buddy) Vanderhoop has
proposed to the tribal council his plan for a gas station on tribal
lands. The tribal council has yet to take any action on his proposal. No
plan has been brought before the town.

Should Aquinnah lose its case, it appears the town and any other
Island board will have no jurisdiction over Mr. Vanderhoop’s
proposal or any future building plans on tribal lands.

The dispute, which involves a six-by-eight-foot utility shed, was
filed with the state last year as a zoning enforcement case and was
later moved by the tribe into the federal court.

The judge’s legal question postpones a ruling that will have
grave implications for the relationship between the town and the
Wampanoag tribe. Both parties will write briefs for the judge to use in
deciding whether the state or federal court should hear the case.

The litigation began when the tribe constructed a shed and a pier
platform on the Cook Lands, a coastal area bordered by Menemsha Pond,
without obtaining permits from the town.

The shed is to house electrical equipment to power a shellfish
hatchery constructed by the tribe in March 2000.

The tribe did comply with the town permitting process when building
the hatchery.

For the shed and pier, the tribe issued its own permit under its own
procedures. In a filing with the court dated November 2001, town counsel
Ron Rappaport stated, “[The Tribe] deprived town officials and
adjoining property owners of their statutory right of review.”

The board of selectmen voted at a meeting in April to bring the
issue to trial. Michael Hebert and Karl Burgess voted in favor of legal
action, while Carl Widdiss voted against it. Mr. Widdiss explained to
the Gazette this week his reason for opposing the legal action. “I
thought it was something that could be worked out out of court between
the two parties,” said Mr. Widdiss. ”There is also a
considerable amount of expense to the town [for the legal
action].”

“The structures that the tribe seeks to develop on this
wetlands property are small, however, the dispute goes to the heart of
the relationship between the town and the tribe established in the
Settlement Agreement and the state and federal implementing
legislation,” Mr. Rappaport said in his filing with the court.
“If the tribe can simply ignore the town’s carefully enacted
zoning bylaws and build as it wishes, the town would be deprived of a
significant benefit that it realized under the Settlement
Agreement.”

The settlement, signed on Sept. 8, 1983, was an agreement between
the tribe, town property owners, the town and the state which put to
rest more than nine years of the town’s litigating tribal claim to
certain town lands.

Mr. Rappaport wrote in the court filing that the agreement conveyed
the designated lands to the tribe, but that “those lands would be
subject to zoning and to the civil and criminal jurisdiction of the
commonwealth and the town.”

Four years later, the federal government recognized the tribe and
subsequently passed legislation reiterating that ”tribal lands
were subject to the Settlement Agreement and to the civil and criminal
laws of the state and the town.”

Mr. Rappaport wrote that for 17 years after the agreement was
signed, the town and the tribe “governed themselves as though all
tribal land is subject to the town’s zoning and land use
regulations.”

The tribe claims that the town and the state have no such
jurisdiction over the tribal lands based on the tribe’s sovereign
immunity, granted when the tribe was federally recognized.

Mr. Rappaport disputes the tribe’s counter claim of sovereign
immunity, stating, “The tribe has waived its immunity on land use
issues by executing the Settlement Agreement and Congress abrogated the
tribe’s immunity on land use matters in the Federal Act.”

Should the tribe win the case, the tribal council would act as the
governing body for tribal land issues. This month, Mr. Vanderhoop took
his own initiative to try and validate the tribe’s sovereign
immunity for land issues by sending to the board of selectmen a petition
with 61 signatures stating: “The town of Aquinnah do hereby
instruct the selectmen and all town boards not to interfere with any
projects taking place on trust lands belonging to the Wampanoag Tribe of
Gay Head (Aquinnah).”

The selectmen held a special meeting last week to discuss the letter
and ended by putting the document on file and taking no action.
“The petition,” said Mr. Widdiss, “doesn’t ask
us to do anything. Usually a petition will ask to have something placed
on the town warrant, but this didn’t do that.”

Mr. Widdiss would not comment on the case and said he is letting
“[the case] take its course.”