Aquinnah Case in Towns' Eye

Up-Island Selectmen Will Meet; Neighbors Support an Appeal of Ruling That Favored Tribe on Zoning

Gazette Senior Writer

The town of Aquinnah will join the Gay Head Taxpayers Association in asking a superior court judge for reconsideration of his recent decision in favor of the Wampanoag Tribe of Gay Head (Aquinnah).

Although the Aquinnah selectmen have agreed to join the move to reconsider, they have not yet decided whether to take the next step and appeal.

A joint meeting today between the Aquinnah and Chilmark selectmen is expected to be a stage for continuing discussion about the court ruling, in which the Hon. Richard F. Connon found that the tribe cannot be sued because of sovereign immunity.

West Tisbury selectmen are also expected to attend the meeting, as other Island jurisdictions fear the ruling has implications for every town on the Vineyard, especially in the area of land use.

"We think the Aquinnah selectmen should appeal this case to a higher court - this could affect every town on the Vineyard and the implications, both known and unknown, are staggering," said John Early, chairman of the West Tisbury selectmen.

At their regular meeting last week, all three West Tisbury selectmen expressed concern about the court ruling. Chilmark selectmen have expressed similar concerns.

Early last week the Gay Head Taxpayers Association and the Benton Family Trust, two interveners in the case, decided to ask for reconsideration before filing a formal appeal. On Friday the town joined the motion to reconsider.

"No one, not even the defendants, contends that the defendants did not agree to be bound by the town zoning bylaws," the attorneys for the town and the taxpayers wrote in part in the brief that accompanies the motion. "These zoning bylaws explicitly provide for judicial enforcement," the attorneys wrote.

The ruling by Judge Connon has the power to turn a landmark 1983 Gay Head Indian land claims settlement on its head. The judge found that the doctrine of sovereign immunity trumps the 1983 Wampanoag settlement agreement, as well as subsequent state and federal legislation that led to federal recognition of the tribe in 1987.

The Wampanoag Tribe is the only federally recognized tribe in Massachusetts.

The 1983 settlement agreement and the state and federal acts all contain explicit language noting that the land conveyed to the tribe is subject to state and local laws.

The case centers on a simple zoning dispute that began when the tribe built a small shed and pier at the tribal shellfish hatchery in March of 2001 without obtaining a building permit. The hatchery is located on the Cook Lands fronting Menemsha Pond in Aquinnah, one of four land areas conveyed from the town to the tribe under the terms of the 1983 settlement agreement.

In May of 2001 the town went to court to compel the tribe to comply with zoning rules.

Today's joint meeting between Aquinnah and Chilmark is an annual affair held to discuss issues of mutual concern between the two neighboring up-Island towns.

Michael Hebert, chairman of the Aquinnah selectmen, said he did not know how much discussion will center on the Wampanoag case.

"This is not the only focus of the meeting - quite frankly, I don't know how big a deal anyone is making of it," Mr. Hebert said. Mr. Hebert is believed to be the swing vote on his board when it comes to an appeal of the court ruling; selectman Carl Widdiss is a member of the tribe and known to favor dropping the case, while newly-elected selectman James Newman has said he will support an appeal.

Yesterday Mr. Hebert made it clear that he has not made up his mind.

"I just want to take my time and really consider all the issues around this," he said.

In the motion to reconsider filed on Friday, attorneys for the town and the taxpayers association point repeatedly to the contradictory language of Judge Connon's decision and also to the clear language in the settlement agreement.

The agreement refers not only to tribal lands as being "subject to the same laws as any other Massachusetts corporation," but also says that the same laws apply to "any other land it [the tribe] may acquire."

Attorneys also point out that the settlement agreement was adopted before the tribe achieved federal recognition, and that the agreement was ratified by later state and federal legislation.

"Here, a nonsovereign agreed that, were it ever recognized as a sovereign, it would continue to be treated as a nonsovereign corporation - and Congress ratified that agreement," the attorneys wrote.

Under the rules of the court a motion to reconsider will take precedence and the deadline for the appeal period will be stayed pending the outcome of the motion to reconsider.

In a separate motion, attorneys for the taxpayers association have also asked Judge Connon to consider vacating his decision and sending it directly to the state appeals court under a civil procedure known as rule 64.

Citing the "exceptional novelty" of the case, attorneys for the taxpayers argue that it is likely to attract the attention of the state Supreme Judicial Court.

Attorneys also note bluntly the ramifications of allowing the lower court ruling to stand, even for a short period of time. "The defendants seemingly would be able to build, without judicial review, whatever they believed appropriate during . . . any appeal."