In a land-use decision that has potentially far-reaching implications for every town on the Vineyard, a superior court judge ruled last week that the Wampanoag Tribe of Gay Head (Aquinnah) cannot be sued because of sovereign immunity.

If allowed to stand, the ruling by the Hon. Richard F. Connon has the power to turn a landmark 1983 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.

"Consent by a tribe to . . . . [the] laws of the state is not the equivalent of consent to a waiver of sovereign immunity," Judge Connon wrote in the 19-page decision.

The attorney for the town said at its most extreme the decision could represent a challenge to the power of the Martha's Vineyard Commission to review future development projects.

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.

The tribe moved to have the case heard in federal court, but last fall U.S. District Court Judge Douglas P. Woodlock sent the case back to state court because it involves a zoning dispute.

Both sides in the case had filed motions for summary judgment, which means there are no disputed facts in the case, only issues of law. Arguments were heard in a special sitting of Dukes County Superior Court in February.

Attorneys for the tribe claimed that the tribe could not be sued because of sovereign immunity, while attorneys for the town argued that when it comes to zoning and land use law, the tribe waived sovereign immunity when it signed the settlement agreement with the town.

In the ruling issued last week, Judge Connon sided squarely with the tribe, although he repeatedly acknowledged the contradictions inherent in his own decision.

"It is clear from everything presented to this court that the town and the tribe intended that the environmentally sensitive Cook Lands be subject to state and local land use requirements and that the tribe be required to comply with the town's substantive zoning laws," Judge Connon wrote.

"Common sense dictates that to effect the protection of the Cook Lands, the parties surely intended to include a meaningful remedy such as judicial review and enforcement. However, the relevant case law emphasizes that there is a difference between the right to demand compliance with state laws and the means available to enforce them . . . . a tribe may be subject to substantive law while still retaining its immunity from enforcement of those laws in court," he also wrote.

"The judge reached the decision that the law requires," said Douglas Luckerman, a Lexington attorney who represents the tribe in the case.

"We will appeal," declared James Quarles 3rd, a partner at Hale and Dorr in Washington, D.C. who represents the Gay Head Taxpayers Association. The taxpayer's association and the Benton Family Trust, an abutter to the Cook Lands, intervened in the case on the side of the town.

Mr. Quarles' association with the town goes back to the earliest days of the settlement agreement.

"Obviously we're very disappointed with the decision," said longtime Aquinnah town counsel Ronald H. Rappaport. Mr. Rappaport said he could not comment on a town appeal until he had a chance to meet with the selectmen.

The superior court decision relies heavily on Indian case law, including a 1999 U.S. District Court discrimination case involving the Wampanoag Tribe.

"This court concurs with the [U.S.] district court's sound reasoning in the Wampanoag case," the judge wrote.

Judge Connon also wrote:

"This court acknowledges that in negotiating the settlement agreement the town intended to bargain not merely for a hollow right to apply substantive zoning law to the environmentally sensitive Cook Lands but also for the practical power to enforce that law against the tribe in a judicial forum. However, absent clear consent by the tribe to such judicial intervention, this court is constrained to conclude that the town received a right but no remedy, to the detriment of the citizens of not only the town but the commonwealth. In the view of this court, said result is patently unfair."

Attorneys for the town and the taxpayers association seized on the language in the decision.

"I agree with the part of the decision where the court said the result is ‘patently unfair.' And the court appears to have accepted the argument that the tribe intended to be subject to state and local land use regulation," Mr. Quarles said.

"I do find it hard to reconcile the court's findings that the parties - including the tribe - intended to be bound by the zoning laws and to be bound by a ‘meaningful remedy such as judicial review and enforcement' - and then to have a court conclude that notwithstanding that, there should be a ‘patently unfair' result whereby the parties can't effectuate their own intention," Mr. Rappaport said.

"I find it difficult to reconcile the facts the court found and the legal result that was reached," he concluded.

Mr. Rappaport also commented on the potential reach of the decision.

"The decision has broad impact not just for the town but for the Island, because if an entity cannot be sued it means that they are free to build anywhere," he said.

But Mr. Luckerman said he hopes the decision will lead to a better rapport between the tribe and the town.

"I hope the decision can be used as a positive outcome for both the tribe and the community - the tribe still looks forward to a long and beneficial relationship with the town," he said.

Tribal chairman Beverly Wright agreed.

"We still have an agreement with the town for fire and police protection. I think we're on an even keel - we're eyeball to eyeball and I'm really positive that we can work together," Mrs. Wright said.

Mr. Luckerman said sovereign immunity is not a new issue in the courts.

"This is not unique to the Wampanoag tribe of Aquinnah - you can't take any of this in isolation, it really goes back to the basic concepts of federal Indian law - states and tribes are separate sovereign entities. It is when that is forgotten or people brush past it that problems arise," he said.

"The fact is that the tribe has no intention of poking its finger in the town's eye," Mr. Luckerman said.

The judge expressly noted that under the law waiving sovereign immunity "need not use the words ‘sovereign immunity,' " but he also found that the terms of the settlement agreement do not rise to the level of a waiver.

"The fact that the settlement agreement and federal act restrict the tribe's exercise of jurisdiction over its land by requiring that it be consistent with state and local law does not constitute a waiver of the tribe's sovereign immunity," Judge Connon wrote.

In the end the judge returned again and again to a single theme: Sovereign immunity cannot be implied and must be stated explicitly.

Quoting a 1985 Indian claims case, he concluded:

" ‘If injustice has been worked in this case, it is not the rigid express waiver standard that bears the blame, but the doctrine of sovereign immunity itself. But it is too late in the day, and certainly beyond the competence of this court, to take issue with a doctrine so well established.' "

To read superior court land-use decision, click here.