Town, Tribe Pact on Land Use Nears Decision; Attorneys Press for
Accord

By IAN FEIN

After a three-month stalemate, a proposed land use agreement between
town and tribal officials in Aquinnah is approaching a tipping point,
but leaders on both sides remain unsure which way it will fall.

Town selectmen last week voted to press the Wampanoag Tribe of Gay
Head (Aquinnah) to secure town permits for its 6,500-square-foot
community center on tribal lands, and tribal members are set to gather
on Sunday for their first general membership meeting since the special
town meeting in August when the land use proposal was put on hold. If
the tribe does not endorse a version of the land use agreement within
the next few weeks, the town is expected begin legal action on the
community center building.

Attorneys for the two governments yesterday expressed hope that the
groups can resolve their differences but acknowledged the possibility
that the two parties could end up back in court.

"I still remain hopeful that something can be resolved, but I
simply don't know," said town counsel Ronald H. Rappaport.

Tribal attorney Douglas J. Luckerman agreed. "The alternative
is that people who live very close to each other and live in the same
community are going to end up spending enormous resources to resolve 99
per cent of what they can resolve simply by sitting at a table
together," he said. "I have to believe that in the end
rationality will win out over mistrust."

At issue is to what extent the federally recognized tribe must
comply with local zoning laws for development projects on its roughly
500 acres of tribal lands. Over the last five years, the two governments
have spent hundreds of thousands of dollars arguing over that aspect of
their relationship in court, and the Massachusetts Supreme Judicial
Court in December 2004 ruled that the tribe must secure town permits for
a small shed and pier it built near its shellfish hatchery on Menemsha
Pond.

Hoping to prevent future litigation over such projects, town and
tribal officials last winter proposed a parallel permitting process that
respected the rights of both governments and laid out a lengthy path of
mediation to resolve potential disputes. Negotiated over the course of
four public summit meetings last spring, the proposed agreement had the
strong support of town leaders, tribal council chairman Donald Widdiss,
and attorneys for both sides.

But when the 11-page document came up for a vote at the August town
meeting, some tribal members said they needed more time to consider its
consequences, and Aquinnah voters - split largely, though not
entirely, along tribal and non-tribal lines - decided to table the
issue.

Town selectmen at their regular meeting last week expressed
frustration with the lack of progress and communication from the tribe
over the last three months regarding the proposed agreement. Selectman
James Newman suggested that the board had an obligation to enforce town
zoning laws for the tribal community center, which the tribe started
building on Black Brook Road in 2004 without town permits. Mr. Widdiss
in August said the tribe would apply for those permits once the land use
agreement was in place, but Mr. Newman last week said the town could not
wait forever.

"At what point are we going to address this issue?" Mr.
Newman asked. "Nothing has been done about it. As the court has
decided [for the shed and pier case], I think we need to pursue
it."

The tribal land use commission - which serves as the primary
regulatory body for the tribe – approved the community center in
spring 2004, while the shed and pier case worked its way through the
courts. Extensive interior work on the building remains incomplete.

Despite the objections of selectman Michael Hebert, who wanted to
hold off on any combative action until the tribe has had more time to
consider the agreement, the board voted two-to-one to send the tribe a
letter demanding that it apply for a community center building permit.
The letter, which has yet to be written by Mr. Rappaport, would be the
first formal step in what could lead to an enforcement action and
possible court case.

Mr. Luckerman yesterday said the tribe was making progress on the
land use document, and expressed optimism that they could reach an
agreement with the town before enforcement on the community center was
necessary. He said he attended a tribal council meeting last month where
members went through the land use agreement line-by-line and proposed a
few changes, but he said all of the changes were relatively minor and
would not affect the overall purpose or framework of the parallel
permitting process.

He acknowledged that the last three months have likely been
frustrating for the town, but said the delay was simply to ensure that
the tribe thoroughly addressed all of its internal concerns.

"I think we're only a matter of weeks away from having a
final vote, from the tribe's perspective," Mr. Luckerman
said. "I feel we're getting very close to the end of their
process."

The land use agreement is on the agenda Sunday for the large
quarterly meeting of tribal membership. The general membership gathers
every three months, includes all 1,100 enrolled tribal members, and can
override any tribal council action by referendum or tribal vote.

Also on Sunday is the annual tribal election, where two tribal
employees are expected to gain seats on the 11-member tribal council.
Richard Randolph and Cheryl Vanderhoop-Sellitti are set to replace
Matthew Vanderhoop and Kritina Hook-Leslie, neither of whom are seeking
reelection. The next tribal council meeting is scheduled for Dec. 2.

Mr. Widdiss would not offer a timeline for approval of the land use
agreement, and he said the tribe still has not determined whether the
document will require approval in the form of a tribal resolution, vote
of the general membership or endorsement by the tribal council. He said
the tribe is committed to working toward a land use agreement that meets
the needs of both governments, but that the tribe works by a process of
consensus - which often can take a long time to achieve.

"Just because of the nature of how we do business, it takes a
little while longer," Mr. Widdiss said yesterday.
"We're diligently doing what we set out to do - and
that's to make sure that we have a thorough hearing of the pros
and cons of the document itself. We have to make sure were not
compromising our principles."