Tribe Approves Land Use Pact

Memorandum of Understanding Between the Two Governments Now Needs
Voter Approval at Special Town Meeting

By IAN FEIN

After five months of internal deliberations, the Wampanoag Tribe of
Gay Head (Aquinnah) this week approved a revised land use agreement with
the town of Aquinnah.

The document still must be endorsed by the town, but the tribal vote
represents a significant step toward the resolution of a longstanding
jurisdictional dispute between the two governments. The tribal council
approved the agreement by a 10-0 vote, with one abstention, at its
meeting on Saturday. Town selectmen have scheduled a special town
meeting to consider the land use agreement on Feb. 15.

Tribal council chairman Donald Widdiss said he was pleased that the
document passed this week without opposition. The full tribal membership
in November authorized the council, its elected governing body, to
negotiate and sign the agreement with the town, and the version approved
this week includes only minor amendments to the earlier 12-page
document, which was tabled at an August town meeting at the request of
tribal members.

"With our process, we went through a pretty thorough
examination with the attorney and with the tribal members as to what the
document means," Mr. Widdiss said. "Now it's up to the
town to finish their process and come to an agreement. Once that
happens, then we have a working document that can be put to the test.
It's not intended to solve all the problems, but it gives us a
foundation for future governmental agreements and for future
cooperation."

Board chairman Michael Hebert took a similarly optimistic tone.

"This is a step we've been waiting for a long
time," he said. "I realize the tribal process is a little
more intense than ours, and that's why it took so long. But in the
end, the tribe realized that working with the town is to
everyone's benefit, rather than battling it out in court."

At issue is compliance by the federally recognized tribe 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 the dispute in court.

The Massachusetts Supreme Judicial Court in December 2004 ruled that
a 1983 land claims settlement, where the tribe consented to abide by
state and local zoning laws, trumped the federal doctrine of sovereign
immunity, at least on the subject of land use. The outcome of the case
required the tribe to secure town permits for a small shed and pier it
built five years ago near its shellfish hatchery on Menemsha Pond.

Hoping to prevent future litigation over such projects, town and
tribal officials last winter and spring negotiated a parallel permitting
process that respected the rights of both governments and laid out a
lengthy path of mediation to resolve potential disputes. But when the
proposed land use agreement came up for a vote at a town meeting in
August, some tribal members said they needed more time to consider its
consequences, and Aquinnah voters - split largely, though not
entirely, along tribal and nontribal lines - decided to table the
issue.

The revised agreement will now return to town meeting, where its
approval is expected but not guaranteed. Town officials have
characterized the changes to the document as relatively minor.

Most of the amendments can be described as language changes, such as
the official name of the tribe - which was referred to as the
Wampanoag Indian Tribe in earlier versions. Specific mention of the
Martha's Vineyard Commission was removed from a section regarding
development of regional impact (DRI) referrals, but the text was
rewritten to protect the jurisdiction of the regional planning agency
and other relevant state agencies.

Some time deadlines were also changed in the document. Under the
revised agreement, town officials would be required to give the tribe 24
hours notice before conducting any site inspections on tribal lands, and
either government would be allowed to terminate the agreement after two
years, instead of the original five.

A sentence has also been added that reserves the tribe's right
to disagree with the town's interpretation of the 2004 Supreme
Judicial Court decision.

At the same time, the tribe recently affirmed its commitment to
apply for town permits for its 6,500-square-foot community center
building, if and when the land use agreement has been signed by both
parties. Selectmen have agreed to delay any enforcement action on the
building, which is under construction on tribal lands without town
permits, until the document has either been signed or discarded.

"We have their word and a handshake that they will apply for
the necessary town permits once the agreement has been signed,"
Mr. Hebert said of the community center building. "It will sort of
be the test case to make sure the process in the agreement works."

Mr. Widdiss said the agreement would force the town and tribe to
work together on such land use issues, instead of heading directly to
court.

"The disputes in the past were mostly not about whether the
action was appropriate, but whether there was trust between the town and
the tribe," he said. "This document memorializes an instant
where we say we do trust each other to do what's appropriate. Now
it's up to he parties, in their actions, to see whether or not
this is a positive step. I think it gives us a much clearer picture of
the issues that we need to deal with."