Town-tribe relations may need to add a kind of Bill of Rights


In December 2004, the state Supreme Judicial Court (SJC) ruled that the Wampanoag Tribe of Gay Head (Aquinnah) is subject to local enforcement of zoning regulations with respect to the construction of a small shed on the so-called Cook Lands.

The dispute centered on the language of the 1983 settlement agreement between the town, the state, the tribe, and the non-resident taxpayers of what was then Gay Head. That agreement, which was at the heart of the lawsuit that consumed several years earlier in this decade, is the crux of the dispute that has arisen between Aquinnah and the tribe over the pathways to Lobsterville beach. It is that 1983 agreement that eventually led to federal recognition of the Wampanoag tribe, a sovereign entity.

The Indian Claims Settlement Act of 1987, which all parties signed, 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)…” But there are other lands that are subject to the terms of that Settlement Act, including the pathways that the tribe recently blocked.

The Massachusetts court held, in part as follows, “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.”

In August of 2006, members of the Aquinnah Gay Head Community Association (AGHCA) reflected on the success of their lawsuit and looked forward to devoting the group’s energy and money into community endeavors and not lawsuits.

That legal battle with the tribe had cost the group approximately $280,000. It didn’t cost the town of Aquinnah much, but that was because, shamefully, the selectmen voted to withdraw from the long fight rather than defend the interests of their non-Indian constituents.

At the time, Lawrence Hohlt described the future work of the Community Association and his confidence that the “Intergovernmental agreement on cooperative land use and planning between the Wampanoag Indian tribe and the town of Aquinnah,” would provide a framework for future cooperation. For Mr. Hohlt and the members of the Community Association most involved with the lawsuit and the defense of an agreement signed in 1983, the view for the future, at least in 2004, was refreshing.

Today, which may be the future under discussion that August evening in 2004, the view is not so refreshing. The issue then between town and tribe was land use regulation. The issue now is defined access for non-members of the tribe over unquestioned Indian land to a state-owned shore. The town and members of the town’s non-Indian population believe the access was legally described in that 1983 agreement. The leadership of the tribe has not said what it believes, except it believes in a process for resolving disputes between two sovereign governments — tribe and town.

(Incidentally, that state-owned beach beyond the contested pathways is subject to public rights that have nothing to do with the townsfolk of Aquinnah. One hopes that the state and the town will have in mind the collateral interests of the rest of us as they chart a solution to this dispute.)

Our news report today has a hopeful gloss. The thrust is, we’ll all get together and work this out once the hot, hot summer has ended. Working these things out has in the past led to the courts working these things out, and while one hopes that will not be the case this time, one fears it will.

Generally, an agreement such as was concluded in 1983 would not be difficult for each side to abide by, but in this case the clear impression is that the Wampanoag side chafes at the elements of the agreement that intrude upon its changing and expanding sense of its tribe’s sovereignty. The result is a querulous posture toward the town of Aquinnah.

Continuing discussions are certainly required, but that 1983 pact may be in need of a Bill of Rights analog, to be negotiated forthwith. If the sharply differing Founders could hammer out a plain catalogue of enumerated and indelible rights, perhaps Aquinnah and the tribe can do the same. It may be the moment for serious representatives of both sides to meet with the goal of identifying and resolving issues embedded in the language of that 1983 agreement, issues whose actual working out, in ongoing practical terms, require thought-through protocols that will stand the test of time. At least, for some time.