NEWS UPDATE
State SJC reverses lower court decision;
finds Wampanoag tribe has no immunity
December 9, 2004
By
Nelson Sigelman
In a major setback
for the Wampanoag Tribe of Gay Head (Aquinnah) the state Supreme
Judicial Court (SJC) today ruled that the tribe is subject to local
enforcement of zoning regulations with respect to the construction
of a small shed on the so called Cook Lands.
The 11-page ruling reverses an earlier judgment by a Superior Court
judge in a zoning dispute that began modestly more than three years
ago with the construction of a small wooden shed by the Wampanoag
Tribe of Gay Head on tribal lands in Aquinnah without a town building
permit.
The dispute was grounded in matters of law and the specific language
of the 1983 settlement agreement between the town, the state, the
Wampanoag tribe, and the non-resident taxpayers of what was then
Gay Head. That agreement, which is at the heart of the lawsuit,
eventually led to federal recognition of the Wampanoag Tribe of
Gay Head, Massachusetts’s only federally recognized tribe.
The seven-member SJC decision has far-reaching implications for
both sides. The only remaining step on appeal is the U.S. Supreme
Court.
Signed by the tribe, the Gay Head Taxpayers Association (since renamed
the Aquinnah/Gay Head Community Association Inc.), the town, and
the state and embodied in legislation approved by Congress known
as the Indian Claims Settlement Act of 1987, the agreement specifically
provides that the settlement lands… “shall be subject
to all federal, state, and local laws, including town zoning laws,
state and federal conservation laws and the regulations of the Martha’s
Vineyard Commission (MVC).…”
The case was argued in front of the SJC on September 8, 2004 in
the 13th-floor, wood-paneled courtroom of the New Suffolk County
Courthouse in Boston. On a rainy Wednesday morning, Douglas Luckerman
of Lexington, lawyer for the Wampanoag Tribe of Gay Head (Aquinnah),
squared off with Thomas Barnico, state assistant attorney general,
James Quarles, representing the Aquinnah/Gay Head Community Association,
party to the original settlement agreement, and Michael Nuesse,
representing the Thomas P. Benton Trust, abutters to the shed property
in question.
Not represented was the town of Aquinnah, which originally brought
the suit but decided last December not to appeal. The selectmen,
two of whom are directly related to the tribe, instead decided to
negotiate a memorandum of understanding to govern future disputes.
No sovereign immunity
The 11-page decision, issued with one dissenting opinion on Dec.
9, stated: “We granted an application for direct appellate
review to determine whether the defendants, Wampanoag Aquinnah Shellfish
Hatchery Corporation (Hatchery) and Wampanoag Tribal Council of
Gay Head, Inc. (Tribe), may properly invoke a claim of sovereign
immunity to evade a zoning enforcement action and, ultimately, compliance
with local permitting requirements. The case concerns the construction
of a shed and a pier platform on real property known as the Cook
Lands, a coastal area bordered by Menemsha Pond, located in the
town of Aquinnah (formerly Gay Head), Martha’s Vineyard. After
hearing cross motions for summary judgment, a Superior Court judge
dismissed the complaint and entered judgment in favor of the defendants,
declaring that the Tribe retains sovereign immunity from civil suit
to enforce the local permitting requirements. We conclude that,
with respect to its land use on the Cook Lands, the only land in
dispute in this case, the Tribe waived its sovereign immunity, thus
subjecting the Tribe and the Hatchery to the zoning enforcement
action. The order and judgment shall be vacated. The case is remanded
for entry of a judgment declaring that the Tribe, with respect to
its land use activities on the Cook Lands, waived sovereign immunity
and that the defendants are not immune from the zoning enforcement
action; and further proceedings consistent with this opinion.”
Click here for copy of
full decision
In their finding of facts, the justices disputed the tribe’s
claim that it followed its own land use ordinances in construction
of the shack. The justices wrote: “The Tribe asserted in the
trial court that it “did in fact apply for a permit from the
Tribe’s [l]and [u]se [c]ommission to construct the pier platform,”
but the record belies this statement. The record shows an application
to the Tribe’s land use commission to construct only a shed,
and a land use permit issued by the Tribe’s land use commission
limited to the construction of a shed. Nonetheless, and without
express authority, the Tribe commenced construction of a pier platform
in Menemsha Pond.”
In his dissenting opinion, Justice Roderick L. Ireland wrote: “I
stand with the Wampanoag Tribal Council. I would affirm the trial
judge’s order and judgment because I conclude, as did the judge,
that the settlement agreement does not constitute a legally sufficient
waiver of the Tribe’s sovereign immunity. I fully appreciate
the language in the settlement agreement, including the language
that refers to future recognition of the Tribe, as well as the court’s
analysis of the phrase “in the same manner, and subject to
the same laws, as any other Massachusetts corporation.” Nonetheless,
I dissent.”
History of Dispute
The construction by the tribe of a shed and pier on tribal lands
on the shore of Menemsha Pond without town permits in the winter
of 2001 triggered the lawsuit by Jerry Wiener, Aquinnah building
inspector and zoning officer, against the Wampanoag Aquinnah Shellfish
Hatchery Corporation and the Wampanoag Tribal Council of Gay Head
(Aquinnah). The case was heard in Dukes County Superior Court on
Feb. 12, 2003
In a ruling on June 1, 2003, Justice Richard F. Connon found that
there is no language in the settlement agreement explicitly setting
aside the tribe’s sovereign immunity from suit, which it acquired
as part of federal recognition as an Indian tribe.
Judge Connon wrote: “This Court acknowledges that in negotiating
the Settlement Agreement the Town intended to bargain not merely
for a hollow right to apply substantive zoning law to the environmentally
sensitive Cook Lands but also for the practical power to enforce
that law against the Tribe in a judicial forum. However, absent
clear consent by the Tribe to such judicial intervention, this Court
is constrained to conclude that the 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.”
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