Public Hearing Set for Monday on Appeal of Sovereignty Case

By JULIA WELLS
Gazette Senior Writer

Under pressure from a growing group of townspeople to appeal the
controversial superior court decision on sovereign immunity, this week
the Aquinnah selectmen agreed to call a public hearing and take a new
vote on whether to appeal the ruling.

The hearing will be held on Monday at 5 p.m. in the Aquinnah town
hall.

"I'll give you my full attention and I will listen to
what people have to say. But the ultimate decision rests with the board
of selectmen," Aquinnah selectman and board chairman Michael
Hebert told an overflow crowd at the regular selectmen's meeting
on Tuesday afternoon.

Mr. Hebert, who opposes a town appeal of the pivotal court case,
went on the defensive amid blunt questions about his relationship to the
Wampanoag Tribe of Gay Head (Aquinnah). Mr. Hebert's wife is
secretary to the tribal council.

"You all know me and you know I have never voted one way on
tribal issues over the years. It [my wife's relationship to the
tribe] has not affected me and it's not the reason I voted the way
I voted," Mr. Hebert said.

Six months ago the Hon. Richard Connon found that the tribe cannot
be sued because of sovereign immunity. If the ruling is allowed to
stand, it has far-reaching implications for every town on the Vineyard,
and will effectively torpedo a historic 1983 Indian land claims
settlement that later led to federal recognition for the tribe. Under
the terms of the agreement, the tribe agreed to abide by state and local
zoning laws.

The 20-year-old agreement is now being tested in a case that began
when the tribe built a small shed at its shellfish hatchery on Menemsha
Pond without obtaining a building permit.

Two weeks ago the three selectmen deadlocked 1-1-1 over whether to
appeal the court ruling. Mr. Hebert voted no, selectman James Newman
voted yes, and selectman Carl Widdiss abstained.

The deadline for filing an appeal is Dec. 12.

The Aquinnah/Gay Head Community Association Inc. (formerly the Gay
Head Taxpayers Association) and the Benton Family Trust will appeal the
case, which is ultimately expected to be decided by the state Supreme
Judicial Court.

The court ruling on tribal sovereignty has become the subtext for
nearly every discussion in recent weeks in this tiny town that lies in
the westernmost reaches of the Vineyard. Aquinnah is home to the only
federally recognized Native American tribe in Massachusetts.

"This has gone well beyond the shed," Aquinnah resident
Russell Smith told the selectmen on Tuesday.

At the outset Mr. Hebert explained that the board was required to
take a new vote on the appeal, because when the first vote was taken,
the two selectmen who have relationships with the tribe did not make the
necessary disclosures, as required by the state ethics law. Mr. Hebert
also explained the rule of necessity, which says that if a quorum of an
elected board has a conflict, the entire board may participate.

Michael Stutz, a town resident who is the elected representative to
the Martha's Vineyard Land Bank, peppered Mr. Hebert with
questions, among other things asking him if his wife receives income
from the tribe.

"If she receives income you need to disclose that," Mr.
Stutz said.

"It's already done," replied Mr. Hebert, who said
he had filed his disclosure with the town clerk.

"How much money does your family take in from the
tribe?" Mr. Stutz said.

"I don't know," Mr. Hebert said.

"Are you saying there is none?" Mr. Stutz pressed.

"No, I'm not saying there is none," Mr. Hebert
said. He said his wife receives payment for preparing minutes and he
said she also receives travel expenses.

Mr. Stutz then turned to Mr. Widdiss. "You do contract work
for the tribe. Are you going to tell us about that?" he said.

"No," said Mr. Widdiss.

Mr. Widdiss said he intended to abstain from the vote on the court
appeal, and he said he had not yet filed his disclosure with the town
clerk. The disclosure was filed yesterday.

Mr. Stutz asked the selectmen to allow discussion about the court
appeal at a special town meeting slated for the same night.

"There is a town meeting tonight - let's take a
vote," Mr. Stutz said.

"I don't think that is right because it hasn't
been properly noticed. But I would be willing to hold a public hearing
on this next week," Mr. Hebert said.

Town moderator Walter Delaney agreed with Mr. Hebert that a separate
public hearing would be the best way to handle the matter.

"At this point I am simply trying to correct a technicality
[with the vote], but we can bring it back to a public hearing - no
problem," Mr. Hebert said.

Mr. Hebert continued in his own defense.

"Everybody in this town knows what my connection to the tribe
is. I have always made my decisions based on the residents of the town
of Aquinnah," he said.

"Why can't the voters make the decision in the first
place?" said Elise LeBovit.

"It's the selectmen's decision to make, it just
is," Mr. Hebert replied. "It doesn't mean that we
wouldn't do what the majority of the town wants us to do,"
he added.

On the subject of compensation, Mr. Hebert said: "I get paid
by the town, too - am I on the town's side because the town
paid me money?"

Mr. Stutz had a ready reply.

"I hope so - we hope you are going to represent the
town," he said.

The selectmen were presented with a petition urging them to appeal
the court ruling. The petition had 49 signatures - a sizable
number for Aquinnah, where there are only about 370 registered voters.

Mr. Hebert received the petition with a grain of salt.

"I don't disregard this petition and the people whose
names are on it, and I'm not saying I don't care about their
feelings. I just say that this is not everyone, that's all,"
he said.

"Our civil rights have been limited because of this court
decision. They stop because we have no recourse in court," said
Camille Rose, who is a longtime member of the town planning board.
"It seems to me that the selectmen have an obligation to protect
the civil rights of the people in town," she added.

"I don't know what makes you think I haven't
answered that because I have," Mr. Hebert said.

The meeting was also attended by tribal members, who had another
view.

"I don't know how it got beyond the shed, but I think it
was paranoia, prejudice and small-mindedness that has made this rear its
head again. I am a town resident and taxpayer and I do not want to spend
any more money on this," said Adriana Ignacio, who is a member of
the tribe.

In the end the two selectmen voted to rescind their vote from two
weeks ago, with Mr. Widdiss still abstaining. Then Mr. Hebert moved to
not appeal the case, but the motion failed when Mr. Newman did not
second it.

"I think that the people who are here tonight would like to
see us wait to vote until we have the public hearing," Mr. Newman
said.

"I think that's fair," Mr. Hebert replied.

Responding to a question from one town resident, Mr. Hebert said he
will accept comments that are faxed or emailed to the town hall before
the public hearing on Monday afternoon.

The town hall fax number is 508-645-2310. The email address is
selctmen@gis.net (the missing e is correct).

Ms. LeBovit had one more question.

"Can we request that town counsel [Ronald H. Rappaport] be
present?" she asked

"I'm sure Ron will want to be there," Mr. Hebert
replied.