Aquinnah Building Triggers Controversy

Tribal Officials and Town Leadership Collide Over Construction on Indian Property Without Normal Permits

By COLE LOUISON

A shack beside the shellfish hatchery on the Wampanoag Tribe's property has raised the question of building rights in Aquinnah and sharp objections from some town officials.

The gardener's shack is the first building constructed on tribal property without permission from the town. The structure stands by the shellfish hatchery on Menemsha Pond and is visible from State Road.

Representatives from town and tribal governments debated the issue for more than two hours Tuesday evening at a meeting of the selectmen. The board was split on the actions of the tribe in building a structure without a permit. Town counsel and two of the three selectmen expressed their concern over the tribe's actions, expressing the view that the tribe needs to abide by building regulations in town.

Tribal chairman Beverly Wright was adamant in saying that the tribe needed no such permit from the town.

"We have our own set of building codes, and we're allowed to do this," she told the board. "We feel we do not need a permit."

She argued that the lot on Menemsha Pond is held in the name of the tribe and owned by the federal government and, therefore, the federal government has jurisdiction over the land, not the town of Aquinnah. Under its own bylaws, she explained, the tribe gave itself a permit. The newly implemented bylaws copied those of the town, she said, and in some cases are even more stringent. She noted that the tribe had secured a town building permit for construction of its shellfish hatchery in the fall of 1999 because it had not yet adopted its own regulations.

Most town officials were unconvinced.

"What's wrong with getting a building permit?" asked selectman Karl Burgess. "If you build a building in the town of Aquinnah, you need a building permit."

"Would you allow me as a taxpayer in Aquinnah to get away with that? Clearly, no. I think this is the point where we make a stand."

Town attorney Ron Rappaport supported the actions of building inspector Jerry Wiener, who wrote a cease and desist order after he discovered the shed had been constructed without permission from the town. Mr. Rappaport called Mr. Wiener's conclusion correct, then proceeded to voice his frustration with the tribe's actions, and with the actions that now must be taken by the town.

"I wish that Jerry had been called first, rather than the building just being constructed. Now we're in a position to work backwards. I don't think the awkwardness is on our end," he said.

"This is the second issue we've had in eight weeks," he continued, alluding to the clash between town and tribe government over tribal rangers and firearms. "I don't know where our legal budget stands."

"There's a building there that no one knows the condition of," Mr. Wiener said at the meeting. In the first week of March, while passing Menemsha Pond on State Road, Mr. Wiener noticed the new structure and contacted the tribe. A building permit was needed, he said. Three weeks later, with the aid of Mr. Rappaport, Mr. Wiener drafted a letter to the tribe, stating that the structure had not received proper clearance from the town, and that a cease and desist order would be filed in seven days if no action was made to secure town approval. A cease and desist order followed.

When completed, the building will contain equipment that monitors air quality, and will have electricity but no plumbing. In a telephone conversation with the Gazette, tribal economic development director Jim Fuller said the building is not complete, and that the cease and desist order came when work on the structure was already at a natural hiatus. Ms. Wright was unavailable for further comment.

Selectman Mike Hebert agreed with Mr. Burgess, reiterating his point.

"I can't imagine if I owned property down there, I could build that building; it would have been turned down," he said. "I need to have this settled for my own peace of mind, so in the future we can proceed more smoothly."

Both Mr. Burgess and Mr. Hebert supported the idea of turning to an outside counsel with more expertise in tribal law, but selectman and tribal member Carl Widdiss did not.

"It's an unnecessary expense," he said of Mr. Rappaport's suggestion. "There is enough information out there for Ron and Jerry to make a more educated decision on this issue that needs to be explored."

Mr. Widdiss suggested that once completed, the shed would benefit the public since it would house equipment designed to monitor air quality. He voted nay on the final motion made by Mr. Hebert to allow Mr. Rappaport to proceed with legal action. Mr. Hebert and Mr. Burgess both voted in favor of the motion.

Though Mr. Rappaport will continue to investigate the issue under the approved motion, tensions remain around both the building and the conflicting principles behind its construction.

"In the name of public health and safety, at least get a third party inspector," Mr. Wiener said in a telephone conversation with the Gazette. "All I'm here to do is interpret what the law is, what the legislation is and what the codes are."

"It's as if a homeowner came to me and said: ‘I gave myself a building permit, and don't worry about anything because it's built correctly and safely.' " He said common but dangerous building problems like a loose ground wire could easily be prevented with inspections, but such problems could fester if left unchecked.

"What's important is that there be a clarity about where the town's authority begins and ends and where the tribe's authority begins and ends so we don't have these conflicts," Mr. Rappaport said in a telephone conversation with the Gazette. "The issue is not over the shed, it's whether the tribe needs a building permit."

Since the meeting, Mr. Rappaport said he has been in contact with Ms. Wright, who he said has sought the advice of the solicitor's office of the federal Department of the Interior.