Before Any Appeal, Tribal Case Judge Will Be Asked to Reconsider
Ruling

By JULIA WELLS
Gazette Senior Writer

The attorney who represents the Gay Head Taxpayers Association said
yesterday that he will ask a superior court judge to reconsider a
decision made last week in favor of the Wampanoag Tribe of Gay Head
(Aquinnah).

The Hon. Richard F. Connon ruled that the tribe cannot be sued
because of sovereign immunity. If it is allowed to stand, the ruling has
potentially far-reaching implications for every town on the Vineyard,
especially in the area of land use.

"We intend to file a motion to reconsider," declared
James Quarles 3rd, a partner at Hale & Dorr in Washington, D.C., who
represents the taxpayers association.

Mr. Quarles said last week that the taxpayers association will
appeal the ruling, but 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.

The Aquinnah selectmen have not decided yet whether the town will
appeal. It is also not known whether other Vineyard towns will join an
appeal, but by late last week there was some talk about the possibility,
especially in the three up-Island towns.

The taxpayers association and the Benton Family Trust, a group of
landowners who are abutters to the tribally owned Cook Lands, intervened
in the case on the side of the town. The Benton trust has also said it
will seek an appeal.

The ruling by Judge Connon has 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.

Earlier this month Judge Connon sided with the tribe, returning
again and again to the doctrine of sovereign immunity, although at the
same time he acknowledged the clear intent of the settlement agreement
and also the state and federal legislation.

"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 in part.

Mr. Quarles said a motion to reconsider is justified given the
language in the decision.

"The judge found that there hadn't been an explicit
statutory reference, when in fact the zoning bylaws, which are in fact
part of the settlement agreement, talk about the judicial remedies that
are available," he said, adding:

"We are just going to point out to the court that the
Martha's Vineyard zoning bylaws themselves reference chapter 40A
[the state zoning law] and Chapter 40 section 21D [a state law that
deals with enforcement of town bylaws], both of which contemplate
judicial review."

A motion to reconsider must be filed within ten days of the ruling,
and Mr. Quarles said yesterday he expected to file the motion shortly.
Attorneys for the tribe will then have an opportunity to respond to the
motion, and following that the court will decide whether to hear
arguments.

Aquinnah selectmen met in executive session last week with their
town counsel to discuss the possibility of an appeal, but made no
decision. Following the meeting, board chairman Michael Hebert said the
selectmen will not decide about an appeal until after a joint meeting
with the Chilmark selectmen planned for July 1. The meeting had been set
some time back for the purpose of discussing issues of mutual interest
between the two rural up-Island towns. The superior court decision in
the case between the tribe and the town has suddenly become a
front-and-center issue of mutual interest.

Located at the extreme western end of the Vineyard, Aquinnah is the
second smallest town in the commonwealth. About a third of the 360 town
residents are members of the tribe. The tribe's total land
holdings include more than 400 acres.