Wampanoag Tribal Sovereignty Case Raises Jurisdictional Questions in Federal Court

By JOSHUA SABATINI

U.S. District Court Judge Douglas P. Woodlock heard the case of Aquinnah building inspector versus the Wampanoag Tribal Council of Gay Head Wednesday and questioned whether the federal court has jurisdiction over the civil action. The outcome of the case will determine whether the town has zoning jurisdiction on tribal lands.

The significance of the case was highlighted further this month when it was revealed that tribal member William (Buddy) Vanderhoop has proposed to the tribal council his plan for a gas station on tribal lands. The tribal council has yet to take any action on his proposal. No plan has been brought before the town.

Should Aquinnah lose its case, it appears the town and any other Island board will have no jurisdiction over Mr. Vanderhoop’s proposal or any future building plans on tribal lands.

The dispute, which involves a six-by-eight-foot utility shed, was filed with the state last year as a zoning enforcement case and was later moved by the tribe into the federal court.

The judge’s legal question postpones a ruling that will have grave implications for the relationship between the town and the Wampanoag tribe. Both parties will write briefs for the judge to use in deciding whether the state or federal court should hear the case.

The litigation began when the tribe constructed a shed and a pier platform on the Cook Lands, a coastal area bordered by Menemsha Pond, without obtaining permits from the town.

The shed is to house electrical equipment to power a shellfish hatchery constructed by the tribe in March 2000.

The tribe did comply with the town permitting process when building the hatchery.

For the shed and pier, the tribe issued its own permit under its own procedures. In a filing with the court dated November 2001, town counsel Ron Rappaport stated, “[The Tribe] deprived town officials and adjoining property owners of their statutory right of review.”

The board of selectmen voted at a meeting in April to bring the issue to trial. Michael Hebert and Karl Burgess voted in favor of legal action, while Carl Widdiss voted against it. Mr. Widdiss explained to the Gazette this week his reason for opposing the legal action. “I thought it was something that could be worked out out of court between the two parties,” said Mr. Widdiss. ”There is also a considerable amount of expense to the town [for the legal action].”

“The structures that the tribe seeks to develop on this wetlands property are small, however, the dispute goes to the heart of the relationship between the town and the tribe established in the Settlement Agreement and the state and federal implementing legislation,” Mr. Rappaport said in his filing with the court. “If the tribe can simply ignore the town’s carefully enacted zoning bylaws and build as it wishes, the town would be deprived of a significant benefit that it realized under the Settlement Agreement.”

The settlement, signed on Sept. 8, 1983, was an agreement between the tribe, town property owners, the town and the state which put to rest more than nine years of the town’s litigating tribal claim to certain town lands.

Mr. Rappaport wrote in the court filing that the agreement conveyed the designated lands to the tribe, but that “those lands would be subject to zoning and to the civil and criminal jurisdiction of the commonwealth and the town.”

Four years later, the federal government recognized the tribe and subsequently passed legislation reiterating that ”tribal lands were subject to the Settlement Agreement and to the civil and criminal laws of the state and the town.”

Mr. Rappaport wrote that for 17 years after the agreement was signed, the town and the tribe “governed themselves as though all tribal land is subject to the town’s zoning and land use regulations.”

The tribe claims that the town and the state have no such jurisdiction over the tribal lands based on the tribe’s sovereign immunity, granted when the tribe was federally recognized.

Mr. Rappaport disputes the tribe’s counter claim of sovereign immunity, stating, “The tribe has waived its immunity on land use issues by executing the Settlement Agreement and Congress abrogated the tribe’s immunity on land use matters in the Federal Act.”

Should the tribe win the case, the tribal council would act as the governing body for tribal land issues. This month, Mr. Vanderhoop took his own initiative to try and validate the tribe’s sovereign immunity for land issues by sending to the board of selectmen a petition with 61 signatures stating: “The town of Aquinnah do hereby instruct the selectmen and all town boards not to interfere with any projects taking place on trust lands belonging to the Wampanoag Tribe of Gay Head (Aquinnah).”

The selectmen held a special meeting last week to discuss the letter and ended by putting the document on file and taking no action. “The petition,” said Mr. Widdiss, “doesn’t ask us to do anything. Usually a petition will ask to have something placed on the town warrant, but this didn’t do that.”

Mr. Widdiss would not comment on the case and said he is letting “[the case] take its course.”