Chilmark and Commission Will File Briefs in Sovereignty Case

By JULIA WELLS
Gazette Senior Writer

The town of Chilmark and the Martha's Vineyard Commission will
add their voices to the Aquinnah court appeal over sovereign immunity,
which is now expected to come before the Massachusetts Supreme Judicial
Court this year.

Chilmark and the MVC will both ask for court permission to file
amicus briefs in the case, which will test the strength of a 1983 Indian
land claims settlement agreement between the town of Aquinnah and the
Wampanoag Tribe of Gay Head (Aquinnah).

Eight months ago the Hon. Richard Connon, an associate justice of
the superior court, found that the tribe cannot be sued because of
sovereign immunity.

Two town groups have formally appealed the case - the
Aquinnah/Gay Head Community Association Inc. (formerly the Gay Head
Taxpayers Association), and the Benton Family Trust, a group of abutters
to the tribally owned Cook Lands. Last month Massachusetts Attorney
General Thomas F. Reilly announced that he would intervene in the case
on behalf of the commonwealth.

The case centers on a local zoning dispute, but the ramifications
could be far-reaching and in the end it could represent a challenge to
the power of the Martha's Vineyard Commission to review future
development projects.

The Wampanoags are the only federally recognized tribe in the
commonwealth.

"The selectmen are not acting in response to any perceived
threat that the tribe would exercise their claimed immunity
inappropriately, but to the fact that the community has a right to
determine its own zoning. In so doing, the community decides what is
detrimental to itself. It is the duty of the board of selectmen to
defend that right," wrote the Chilmark selectmen in a letter to
MVC executive director Mark London this week.

The commission voted last week to ask the court to allow it to file
an amicus brief - also known as a friend of the court brief
- in the sovereignty case. A letter went out to five of the six
Vineyard towns inviting them to do the same.

"The commission does not perceive that the tribe wishes to
exploit its claimed immunity from judicial process to undertake
inappropriate development and notes that it has worked successfully with
the tribe in the past. However, if allowed to stand, the exemption from
land use controls would be in place for generations to come, and the
commission believes that it is important to to maintain a unified system
of land planning and regulation in light of the Vineyard's unique
and limited resources," Mr. London wrote in the letter.

Response to the letter has been mixed. Selectmen in Edgartown and
Tisbury decided to not file amicus briefs. Oak Bluffs leaders were still
undecided. "We just caught wind of it and we have asked our
executive secretary to do some more research," said selectman Todd
Rebello this week. West Tisbury selectmen discussed the issue at their
regular meeting this week and board members agreed that they favored
filing a brief, but selectman John Early was asked to consult with town
counsel Ronald H. Rappaport before they take a formal vote.

Chilmark selectmen voted without dissent to accept the invitation.

"I thought it was interesting that the state came in as an
intervener, and I thought it was proof conclusive of the validity of
what Ron [Rappaport] has been saying all along - that this is a
very important lawsuit. The state stepped up and said the same
thing," said board chairman Alex Preston.

Mr. Rappaport is town counsel to five of the six Vineyard towns,
including Aquinnah.

"I think it's an important issue that should be
resolved. Clearly it has impact for Chilmark and the rest of the
Island," Mr. Preston said.

Notably absent from the case is the town of Aquinnah, whose three
selectmen voted two months ago to abandon the town appeal of what is
expected in the end to be a landmark case.

Two of the three selectmen have relationships with the tribe, and
the selectmen are now involved in closed-door talks with tribal members
over zoning and land-use issues.

The court dispute began in March of 2001 when the tribe built a
small shed and a pier at its shellfish hatchery without obtaining a
building permit. The hatchery is located on the Cook Lands, one of a
group of Indian common lands that were transferred to the tribe in 1983
under the terms of the settlement agreement. Signed by the town fathers
and members of the tribe, the agreement contains explicit language
noting that the tribe must comply with state and local zoning laws.
State and federal legislation was later enacted to ratify the agreement,
and eventually the tribe won federal recognition.

In the lower court ruling, Judge Connon found that the doctrine of
sovereign immunity trumps the settlement agreement, although the judge
also noted the contradictions, writing that the town had received
"a right but no remedy."

Now the case will move to a higher court. Attorneys for the two
Aquinnah taxpayer groups who are appealing have filed formal requests to
have the case heard by the Massachusetts Supreme Judicial Court.
Attorneys for the MVC filed a memorandum in support of review by the
state's highest court.

In a brief filed this week, assistant attorney general Thomas A.
Barnico underscored the state's interest in defending its own
legislation, and also the wider implications of the case.

"The commonwealth has a direct and substantial interest in the
enforcement of the order of the town," Mr. Barnico wrote. He also
wrote:

"The superior court held that the tribe is immune from the
suit by the town of Aquinnah to enforce applicable zoning regulations.
If the superior court is correct in its view that the zoning laws are
applicable but not enforceable, such immunity may extend in the future
to the use of property acquired by the tribe anywhere in the
commonwealth."