Aquinnah Deadlocks on Appeal of Tribal Sovereignty Decision

By JULIA WELLS

The Aquinnah selectmen announced this week that they are deadlocked over whether to appeal a superior court ruling that found the Wampanoag Tribe of Gay Head (Aquinnah) cannot be sued because of sovereign immunity.

"We are unable to reach a decision on this matter," said board chairman Michael Hebert following an executive session Tuesday afternoon with town counsel Ronald H. Rappaport.

Mr. Hebert voted against the appeal, selectman James Newman voted for it and selectman Carl Widdiss abstained.

The deadlock effectively means that the town will not appeal the case, unless Mr. Hebert changes his position before Dec. 12, the deadline for filing notice of appeal.

The ruling was made six months ago by the Hon. Richard Connon, and this month he denied separate motions to reconsider the ruling, clearing the way for a formal appeal. Judge Connon also denied a motion by the Martha's Vineyard Commission to intervene in the case.

Two other parties in the case - the Benton Family Trust, which represents a group of abutters, and the Gay Head Taxpayers Association - have said they will appeal.

But the absence of the town leaves a peculiar hole in a much-watched land-use case that has potentially far-reaching implications for every town on the Vineyard.

"As a legal matter I don't think it really changes the analysis - and I do not pretend to speak for the selectmen - but by deciding not to appeal they have decided to accept a ruling which could have consequences in future years that at least I am not smart enough to anticipate," said James Quarles 3rd, a partner at Hale and Dorr who represents the taxpayer group.

Mr. Quarles was the attorney for the taxpayers when a 1983 Indian land claims settlement agreement was approved by the town and the tribe. The agreement was ratified by the state and federal government and later led to federal recognition for the tribe. The Wampanoags are the only federally recognized tribe in Massachusetts.

Under the terms of the settlement agreement the tribe agreed to abide by state and local zoning rules.

And this is the issue that lies at the heart of the case today: Is the tribe obligated to comply with zoning under the terms of the settlement?

In short form, Judge Connon found that sovereign immunity trumps the terms of the settlement agreement.

The case is expected to be taken by the state Supreme Judicial Court for appellate review.

The dispute began in March of 2001 when the tribe built a small shed and a 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 settlement agreement.

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

Judge Connon found that sovereign immunity trumps all, despite a long list of contradictions.

On Tuesday this week two of the three Aquinnah selectmen briefly explained their positions.

"I thought it was time to bring this litigation to an end, and I thought Judge Connon looked at it closely and he really didn't find anything new," Mr. Hebert said. The town had joined the recent motion to reconsider.

"I feel that now it's time for the town and the tribe to put aside their differences and try and work together," Mr. Hebert said.

Mr. Newman had another view.

"I agree that we want to put this thing to bed, but I felt that first we had to go to the last place and find out the final outcome," he said.

Mr. Widdiss is a member of the tribe and he had no comment about his position, except to say that he abstained.

Mr. Rappaport had no comment, but the selectmen praised the work done by town counsel on the case.

"I think Ron did an excellent job. I think he argued the case eloquently and I know he feels very strongly about the importance of this case to the town and the Vineyard," Mr. Hebert said.

Mr. Quarles said the outcome of the case will have an impact on many future generations.

"I can imagine someone making a decision that a shellfish shack is not worth fighting over - but if you don't appeal this ruling you have made a decision that there is no ruling that is worth fighting over. What you are doing is saying that there is no fight down the road that is worth having.

"And how this is going to operate in the year 2012, we just can't say," he concluded.