Superior Court Judge Will Not Revisit Ruling on Sovereignty of Tribe

Gazette Senior Writer

A Dukes County superior court judge yesterday stood fast by a decision he made five months ago that the Wampanoag Tribe of Gay Head (Aquinnah) cannot be sued because of sovereign immunity.

"This court declines the … invitation to revisit [the] issues, leaving the propriety of its decision for resolution by a higher court," wrote the Hon. Richard F. Connon, an associate justice of the superior court.

Judge Connon rejected separate motions to reconsider his ruling, and he declined an alternative request from the plaintiffs to send the case directly to the state Supreme Judicial Court under a section of the law known as rule 64.

The much-awaited ruling clears the way for a formal appeal to a higher court in a land-use case that has potentially far-reaching implications for every town on the Vineyard. The case centers on a simple zoning dispute in the tiny town of Aquinnah, but at its most extreme it could represent a challenge to the power of the Martha's Vineyard Commission to review future development projects.

The Aquinnah selectmen agreed to press for reconsideration, but have not decided yet the larger question of whether to appeal the case. Two intervening parties in the case - the Gay Head Taxpayers Association and the Benton Family Trust - have said they will appeal.

The case is also now fraught with procedural disarray because Judge Connon has not yet ruled on a number of issues - including a motion by the Martha's Vineyard Commission to intervene in the case on the side of the town. Attorneys for the tribe also filed a motion to dismiss a counterclaim in the case, but for reasons that are unclear, the motion never appeared on the Dukes County superior court docket.

In June of this year, Judge Connon 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 dispute began in March of 2001 when the tribe built a small shed and pier at the tribal shellfish hatchery without obtaining a 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.

Two months later, the town went to court to compel the tribe to comply with local zoning rules.

The 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 zoning laws.

The case has bounced around a bit - the tribe moved to have the dispute heard in federal court, but the case was later sent back to state court because it involves a zoning dispute.

Original arguments in the case were heard eight months ago in a special court sitting held in the Edgartown courthouse.

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.

In the end Judge Connon sided with the tribe, although he expressly noted 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 zoning requirements," Judge Connon wrote in the original decision.

He also wrote the now well-quoted lines where he concluded that under the 1983 settlement agreement: "[T]he 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."

Judge Connon found that despite the clear intent on both sides, at the end of the day the doctrine of sovereign immunity trumps all.

"A tribe may be subject to substantive law while still retaining its immunity from enforcement of those laws in court," he wrote.

The case has attracted the attention of Vineyard residents and also legal scholars around the country.

Sovereign immunity translates to immunity from lawsuits - governments have it and Indian tribes have it. Governments and tribes also have the ability to waive sovereign immunity, and the government has the ability to take it away. This is what lies at the heart of the Wampanoag case - did the tribe give away its immunity, at least on the question of zoning and land use, when it signed the settlement agreement in 1983?

The stage now shifts, although where is not immediately clear. First, the Aquinnah selectmen must decide whether they want to appeal the case, and before any appeal can move forward the procedural snafus around the case must be cleaned up.

Attorneys on both sides of the case say that they expect the ultimate outcome will rest with the state supreme court.

"We felt that there are errors of law in the original decision which we elected in the first instance to bring to the attention of the superior court," said Aquinnah town counsel Ronald H. Rappaport yesterday. "Obviously he [Judge Connon] does not wish to revisit his opinion, and for all the reasons we set forth in our filings, we think the original decision is wrong as a matter of law and it will not be upheld on appeal," Mr. Rappaport added.

"We're disappointed that the judge didn't engage in reconsideration of his original ruling, but I expect that we will appeal - we will variously pursue our appellate remedies," said James Quarles 3rd, a partner at Hale & Dorr in Washington who represents the taxpayers association. Mr. Quarles was involved in the original settlement agreement between the town and the tribe.

"I think the judge said that everybody did a very comprehensive job arguing their points the first time around," said Douglas Luckerman, a Lexington attorney who represents the tribe in the case.

"In the second round I think they tried to support the points they already made - and the judge concluded that there wasn't any basis for reconsideration," he added.

Mr. Luckerman said he, too, expects the case to now move to a higher court, and he returned for emphasis to the original decision.

"The decision is a solid federal law decision - he was very careful. Judge Connon was not outside the box, he really just followed the prescribed rules of Indian law," Mr. Luckerman said.

The Wampanoag attorney also said the central theme is not centered on questions of law but rather on the question of town-tribe relations.

"There is one hard fact here that will not change regardless of the outcome of this litigation - and that is that the town and the tribe are not going anywhere," Mr. Luckerman said. "One would hope that they could learn to live together in a way that brings the community together and is not divisive."