State Attorney General Will Intervene to Appeal Tribal Sovereignty Case

By JULIA WELLS
Gazette Senior Writer

Massachusetts Attorney General Thomas F. Reilly quietly announced this week that he will intervene in the Aquinnah court appeal over sovereign immunity, adding clout to a case that will ultimately test the strength of a historic 1983 Indian land claims settlement agreement.

"We intend to enter into the appeal on behalf of the commonwealth," said Corey Welford, a spokesman for the state attorney general, on Tuesday.

No brief has been filed yet, but the entrance of the state's highest attorney into the Aquinnah case underscores the importance of the case on the Vineyard and throughout the commonwealth.

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

Seven months ago the Hon. Richard Connon, an associate justice of the superior court, found that the Wampanoag Tribe of Gay Head (Aquinnah) cannot be sued because of sovereign immunity.

The case centers on a simple zoning dispute, but at its most extreme it could represent a challenge to the power of the Martha's Vineyard Commission to review future development projects.

If it is allowed to stand, the ruling has the potential to turn the 1983 settlement agreement on its head. The settlement agreement and subsequent state and federal acts all contain explicit language noting that land conveyed to the tribe is subject to state and local zoning laws. The agreement paved the way for federal recognition by the tribe in 1987. The Wampanoag Tribe is the only federally recognized tribe in Massachusetts.

The tribe now claims that because of sovereign immunity it is not bound to follow the terms of the settlement agreement.

The case began in March of 2001 when the tribe built a small shed and a pier at its shellfish hatchery without obtaining a building permit. The shed and pier are located on the tribally owned Cook Lands fronting Menemsha Pond, one of four land areas conveyed from the town to the tribe under terms of the 1983 agreement.

The town later went to court to compel the tribe to comply with local zoning rules.

In June of this year Judge Connon ruled that the doctrine of sovereign immunity trumps the settlement agreement, even though he noted the contradictions inherent in his own decision.

"The town received a right but no remedy, to the detriment of the citizens of not only the town but the commonwealth," the judge wrote in part.

The case has now moved to the state appeals court, and is expected eventually to be decided by the state Supreme Judicial Court.

In early December, after several weeks of bruising discussion and under pressure from members of the tribe, the Aquinnah selectmen voted to abandon a court appeal by the town of Judge Connon's decision.

Two other town groups have appealed the case - the Aquinnah/Gay Head Community Association Inc. (formerly the Gay Head Taxpayers Association) and the Benton Family Trust (abutters to the tribally owned Cook Lands).

The announcement by the Massachusetts attorney general that he will join the appeal came on the heels of another closely-watched sovereign immunity case in the state of Rhode Island this week. The Narragansett Tribe lost its case for sovereign immunity when a federal judge ruled that the state has the right to tax the sale of tobacco on tribal land.

In the 56-page decision, federal district court Judge William E. Smith found that the doctrine of sovereign immunity cannot simply be used as a broad brush.

"The tribe's retained rights of sovereignty exist as a counterweight to the jurisdictional power asserted by the state, and issues, as they arise, must be decided by the measurement and balancing of those rights in the specific factual context of each case," Judge Smith wrote. He also wrote:

"Case by case, the ‘sturdiness' of the tribe's retained sovereignty is (and no doubt will continue to be) perpetually re-tested and balanced against the particular jurisdictional power asserted by the state - that is the nature of litigation."

The Rhode Island case centered on whether the state violated the tribe's sovereign immunity when it raided a tax-free smoke shop in Charlestown last summer.

There are a number of parallels between the Rhode Island case and the Aquinnah case, in part because the Narragansetts also signed a land claims settlement agreement with the state some years back.

The Narragansetts and the Wampanoags are represented by the same attorney - Douglas Luckerman, a Lexington attorney who specializes in Indian law.

Mr. Luckerman said this week that he is disappointed in the decision by Judge Smith, and also in the decision by the Massachusetts attorney general to intervene in the Aquinnah case.

"I am disappointed with Judge Smith's decision - we obviously disagree with him. It's a troubling decision because it has ramifications well beyond just the Narrragansetts," Mr. Luckerman said, adding:

"And I am disappointed that the [Massachusetts] attorney general has decided to step in, even though the town has decided unanimously through its selectmen to not pursue an appeal. I don't know why the attorney general made the decision, but I guess we'll just have to wait to see what arguments the attorney general makes."

It is understood that the Massachusetts attorney general has paid close attention to the Aquinnah sovereignty case, in particular because of the state's interest in defending the integrity of the state legislation enacted in 1983 to ratify the settlement agreement.

The attorney general is now expected to mount a vigorous defense of the state act. In the end a higher court will examine some of the fundamental questions that Judge Connon expressly avoided in his decision - including the key question of whether the tribe waived sovereign immunity, at least on the subject of zoning and land use, when it signed the settlement agreement in 1983.

Other parties may decide to file amicus briefs in the case, also known as friend-of-the-court briefs. As an intervener, the state attorney general will carry more weight than a friend of the court.

Aquinnah town counsel Ronald H. Rappaport, who represented the town in the case, has said repeatedly that judicial guidance is needed in interpreting the settlement agreement. Mr. Rappaport has also said that he believes Judge Connon's decision is wrong as a matter of law.

It is not unusual for the state attorney general to intervene in a case when a state statute is challenged.