SJC finds Wampanoags are not immune to lawsuits
December 16, 2004
In a major legal setback for the Wampanoag Tribe of Gay Head (Aquinnah),
the state Supreme Judicial Court (SJC) ruled Dec. 9 that the tribe
waived its sovereign immunity and is subject to suit by the town
of Aquinnah to enforce zoning regulations and permitting requirements
over the construction of a small shed on tribal land on Menemsha
The 5-1 ruling issued last Thursday morning on appeal vacates a
ruling by a Superior Court Justice Richard F. Connon on June 11,
2003 that the town has no legal means to enforce town zoning regulations
on the Cook Lands because the tribe had not explicitly waived its
sovereign immunity when it signed the 1983 settlement agreement
that is at the heart of the case.
The SJC decision stated:
with respect to sovereign immunity,
the Tribe knowingly bargained for, and fully understood, its obligations
under the settlement agreement to submit to local zoning enforcement,
and judicial action, where necessary.
The only remaining step for the Tribe on appeal is the U.S. Supreme
Douglas Luckerman of Lexington, Wampanoag attorney, said the tribe
would appeal the decision that he described as absolutely
Beverly Wright, outgoing tribal chairperson, said the tribal council
planned to discuss the tribes next step at a meeting scheduled
last night. We are obviously disappointed, she said.
She referred any questions about the tribes plans to comply
with local zoning regulations with respect to the disputed shed
or a new community center now under construction to Mr. Luckerman.
The dispute began modestly more than three years ago with the construction,
without a town building permit, of a wooden shed and pier by the
tribe for use by the Wampanoag shellfish hatchery on what is known
as the Cook Lands.
The 1983 settlement agreement was signed by the tribe, the Gay Head
Taxpayers Association (since renamed the Aquinnah/Gay Head Community
Association Inc.), the town, and the state. It was embodied in legislation
approved by Congress known as the Indian Claims Settlement Act of
1987. The agreement, which eventually led to federal recognition
of the Wampanoag Tribe of Gay Head Massachusettss only
federally, recognized tribe specifically provides that the
shall be subject to all federal, state,
and local laws, including town zoning laws, state and federal conservation
laws and the regulations of the Marthas Vineyard Commission
The case now goes back to Judge Connon who must decide what enforcement
action is appropriate for not conforming to the zoning laws. What
if any action Aquinnah officials will now take to enforce town authority
to impose zoning review over ongoing tribal ongoing building projects,
including a 5,000-square-foot community center, remains unclear.
Decisions in the Islands smallest town are often influenced
by the delicate nature of tribal-town relationships.
The case was argued in front of the SJC with one justice absent
on September 8, 2004 in the 13th-floor, wood-paneled courtroom of
the New Suffolk County Courthouse in Boston. Mr. Luckerman, representing
the tribe, squared off against 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. Last December the three selectmen rejected the legal advice
of their long-time town attorney Ron Rappaport and voted not to
appeal Justice Connons decision.
In a telephone conversation Monday, Carl Widdiss, chairman of the
Aquinnah selectman, said the SJC decision came as no surprise. The
first decision was more of a surprise to me than this one,
said Mr. Widdiss. I figured on the state level it was going
to be defeated.
Asked if in light of the SJC finding, the selectmen were wrong not
to pursue an appeal of a decision that had been ruled incorrect,
Mr. Widdiss said, Absolutely not. From my standpoint, anyway,
what you have is a decision that does not surprise me and cost the
town no money.
Mr. Widdiss, brother of Donald Widdiss, the newly elected chairman
of the tribe, said he anticipates the tribe will appeal the SJC
decision, which leaves the issue still unresolved.
Regarding the shed and any requirement for the tribe to comply with
town zoning requirements, Mr. Widdiss said he plans to speak with
town counsel regarding the next steps.
Reached Monday evening, Mike Hebert, Aquinnah selectman, said he
has not read through the SJC decision and did not want to offer
a comment. Mr. Hebert said any action regarding the shed or the
tribes new community center would fall to the appropriate
board, not the selectmen.
Jim Newman, Aquinnah selectman, could not be reached for comment.
Small shed, big issue
The SJC decision was a welcome victory for the members of the Aquinnah/Gay
Head Community Association, Inc, which was left by the selectmen
to defend the settlement agreement. Larry Hohlt, association president,
said his organization was very pleased with the Courts decision.
He said the courts analysis of the Settlement Agreement and
the manner in which it was codified by the subsequent enabling Federal
and Commonwealth laws is totally in sync with what we have always
believed to be the import of that Agreement and those laws.
Mr. Hohlt, a retired attorney and seasonal Island resident, said
the agreement was the result of long, detailed negotiations
and compromises whereby all of the parties received considerable
benefits, took on responsibilities and accepted various restrictions.
Hopefully, now both the towns selectmen and the Tribe will
act in a manner reflecting their respective rights, obligations,
and duties as so carefully spelled out in the 1983 Settlement Agreement
and the related laws.
For knowledgeable observers, the important issue has always been
the legal underpinnings of the Tribes relationship with its
neighbors and the future implications of any decision. With the
case on its way to the SJC, the state attorney general decided to
intervene, filling the official void left by the town.
In a prepared statement issued following the SJC decision, Attorney
General Tom Reilly said, We stepped in this case for a reason.
There is more going on here than just a shed in Aquinnah. We believe
it is important that the tribe live up to its agreement and comply
with state law in current and future tribal projects.
Mr. Rappaport was also buoyed by the result. When the building
inspector brought the suit in Superior Court seeking to enforce
the zoning bylaws of the town, it was his judgment as well as my
own that the settlement agreement required the tribe to comply with
zoning and obtain building permits for the shed, said Mr.
Rappaport. I believed, and expressed publicly to the town
meeting, that the decision of the Superior Court was wrong as a
matter of law and I obviously agree with the decision of the Supreme
Mr. Quarles, the lead attorney in the case and a party to the original
settlement agreement, said that while the case was very significant
for all of the parties, It does not plow any new ground.
He said the case was relatively straightforward and he sees little
likelihood the U.S. Supreme Court would decide to review the SJC
Mr. Luckerman has an opposing view. It was a mockery of a
sham of a mockery of a sham, he said quoting comedian Woody
Allen in the film Bananas. This decision smacks of a result
that was predetermined by the court and they did everything in their
powers to reach that result.
Mr. Luckerman said the justices incorrectly applied a standard that
has no basis in federal law in finding that the tribe waived its
sovereign immunity. I do not know how they arrived at this
decision, he said.
Mr. Luckerman said the tribe has been given concurrent jurisdiction
over its lands with the state. Asked if in light of the SJC ruling
the tribe must now get a building permit from the town, he said,
No, I do not think so.
He said the only point decided by the SJC was if the tribe could
be sued. Whether or not they have to go get a permit was not
part of the decision, said Mr. Luckerman. That phase
of the argument we will now have to go through.
Donald Widdiss, newly elected tribal chairperson, said the tribe
is disappointed with the court findings. Mr. Widdiss, who has promised
to work to heal rifts within the town, said the tribe would consider
all its options.
Tribe not hoodwinked
In a ruling on June 1, 2003, Justice 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.
The 11-page SJC 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 court concluded:
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 SJC sent the case back to Superior Court and instructed the
judge to take action consistent with the SJC opinion.
[A copy of the SJC decision is available at www.mvtimes.com/News/12092004/decision.html]
Throughout the court proceedings, the Tribe had argued that it followed
its own land use ordinances and those mirror or exceed town regulations.
The justices disputed that claim. The justices wrote: The
Tribe asserted in the trial court that it did in fact apply
for a permit from the Tribes [l]and [u]se [c]ommission to
construct the pier platform, but the record belies this statement.
The record shows an application to the Tribes land use commission
to construct only a shed, and a land use permit issued by the Tribes
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.
Mr. Luckerman, an experienced litigator in Native American affairs,
had argued successfully in front of Judge Connon that the language
of the settlement agreement did not sufficiently contain a clear
and express waiver of the tribes inherent sovereignty.
The Justices wrote that the Tribe, then a nonprofit corporation,
knew what it was getting when it signed the settlement agreement
and did so with the expectation that it would lead to federal recognition.
Here, the facts clearly establish a waiver of sovereign immunity
stated, in no uncertain terms, in a duly executed agreement, and
the facts show that the Tribe bargained for, and knowingly agreed
to, that waiver. There is absolutely nothing to suggest that the
Tribe was hoodwinked or that its negotiators were unsophisticated
or did not know what they were doing. From all that appears in the
record, the parties, represented by able counsel, engaged in protracted
and difficult negotiations which produced the settlement agreement
bespeaking, in unambiguous terms, the parties complete understanding.
The Justices said that the Tribe agreed to be treated in the
same manner as any other Massachusetts corporation, and the
parties agreed to the permanence of this status and did so expressly
in contemplation of possible Federal recognition of the Tribe.
In his dissenting opinion, Justice Roderick L. Ireland wrote: I
stand with the Wampanoag Tribal Council. I would affirm the trial
judges order and judgment because I conclude, as did the judge,
that the settlement agreement does not constitute a legally sufficient
waiver of the Tribes 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 courts
analysis of the phrase in the same manner, and subject to
the same laws, as any other Massachusetts corporation. Nonetheless,