Gay Head, Aquinnah Tribe

The article and editorial below highlight the contentious, complex issues and expensive court battles surrounding Native American issues and laws that is not for those unfamiliar.



Editorial : 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.


Tribe Opens Lobsterville Path But Stresses Access Is Temporary
A sandy path to Lobsterville Beach in Aquinnah has been reopened to the public, halting, at least for now, a contentious land-use battle between the town and the Wampanoag Tribe of Gay Head (Aquinnah).

In a letter to the Aquinnah selectmen dated Aug. 12, tribal council chairman Cheryl Andrews-Maltais confirmed that the path would be reopened.

“The tribal council will permit the town temporary foot access across the Wampanoag Tribe of Gay Head (Aquinnah) Trust Lands on a designated path leading from Clay Pit Road to Vineyard Sound. In order to facilitate this action, the tribe’s natural resources department staff will temporarily remove the brush barrier in order to clear the footpath for ease of access,” she wrote.

“It is officially reopened,” said selectman and board chairman Camille Rose yesterday. “[The tribe] removed the impediments. The people in town will now be able to use it.”

Ms. Rose also said the issues of ownership and land use relating to the path have not yet been settled, and that the tribe made it clear in their letter that they were allowing town residents to use the path on a temporary basis. “I have no idea [what that means].,” Ms. Rose said, adding: “It’s open. It’s not the best of all possible solutions, but it’s open.”

The issue was first brought to the attention of the selectmen late last month, after the tribe had roped off the path and blocked the entrance with a pile of brush. A series of meetings followed, where the selectmen said the town’s right to use the path was protected under a 1983 land claims settlement agreement signed by both the tribe and town.

The tribe was invited to discuss the issue with the selectmen, via a letter that was delivered the day before the meeting was scheduled. Tribal council members failed to show for the meeting.

Then last week, selectman Jim Newman attended two meetings of the tribal council to ask that the path be reopened. Town counsel Ronald H. Rappaport attended the second meeting, and reportedly brought along documents showing the town’s right to use the path. Both meetings were closed to the public.

At a selectmen’s meeting last week, Mr. Newman reported that his meeting with the tribe had been productive.

The letter from the tribe arrived last Friday, addressed to Mr. Newman. In an e-mail to the Gazette yesterday, Mr. Newman wrote: “This was an historic event for Aquinnah, and reinforced the need to deal with the tribe on a government-to-government level, in a respectful manner. A public circus-like meeting with the tribe is disrespectful, damaging and unproductive.”

Ms. Rose said yesterday that she is glad the issue has been resolved for the time being, and she hopes for improved dialogue with the tribe. “It’s been difficult and it’s a difficult time of year,” she said of the circumstances surrounding the closure. “I would hope that this kind of thing doesn’t happen again without our being able to sit down and discuss things in a reasonable way, and not take precipitous action . . . that causes bad feelings. It’s not necessary.”

Ms. Rose said she hopes the path issue will serve to make people think twice before taking action without first going through the necessary channels. “It’s this sort of thing that will make people more conscious of doing things like that without getting permission . . . whether it’s the town or the tribe or the state or anything,” she said.

But she also said there remains more to discuss with the tribe in the future. “The issue has not been settled, obviously, because [the letter] says that it’s opened temporarily,” she said.

Ms. Andrews-Maltais could not be reached for comment, and tribal natural resources director Bret Stearns had no comment yesterday.

Ms. Rose simply called it progress. “It has certainly progressed over the situation that existed before,” she said. “I think that it will make people in town more conscious of the fact that we actually share these things. We’re more conscious of the situation that we have here, with access to the beach, and how we should respect it,” she said.

by Megan Dooley