Land Use Memorandum Spans Two Governments: Town and Wampanoags

By IAN FEIN

Marking a potentially historic moment for town-tribal relations, Aquinnah voters next week will decide whether to adopt an untested land use agreement that bridges two governments: the town and the Wampanoag Tribe of Gay Head (Aquinnah).

The purpose of the document is to resolve a longtime dispute over who has authority to issue permits, and to prevent future lawsuits like the four-year landmark sovereignty case that cost the town, tribe and private citizens a great deal of money and goodwill.

At issue is whether the federally recognized tribe must obtain town permits for land use projects on tribal lands. The 11-page intergovernmental agreement proposes a parallel regulatory process that respects the rights of both governments and lays out a lengthy path of mediation to resolve disputes. It would also create an Aquinnah planning advisory board - made up of both town and tribal members.

Tribal council chairman Donald Widdiss this week said the document has the potential to mend wounds in the tiny town at the western edge of the Island.

"The town and the tribe spent a lot of time with attorneys these last few years, when we probably should have been working on our relationship," Mr. Widdiss said. "This document would put off any future litigation, at least to the extent that it's humanly possible, and maybe trigger other opportunities for the town and the tribe to cooperate."

Aquinnah voters will take up the agreement at a special town meeting in the old town hall at 7 p.m. on Tuesday. The tribal council reviewed the document this week and is expected to vote on a corresponding resolution at its next meeting in early September.

Though the upcoming votes cannot be predicted, the agreement so far has gained unqualified support of town and tribal leaders, as well as a group of taxpayers who carried the sovereignty case to the Massachusetts Supreme Judicial Court when town selectmen decided not to appeal a lower court ruling.

"I can't imagine why people would be upset by this," said Lawrence (Larry) Hohlt, president of the Aquinnah/Gay Head Community Association. "It should serve the town very well."

An earlier version of the agreement met with resistance from town land use board members when made public this winter. Though the document today is only slightly different than the original version - which was drafted during private negotiations between Mr. Widdiss, selectman Michael Hebert, and their respective attorneys - it had a thorough public airing last spring.

Town and tribal officials over the course of two months held a series of four summit meetings on the agreement that were emotional, confrontational and honest.

"This document had real participation and input from town board members, citizens, and tribal members - everyone contributed," said selectman and planning board member Camille Rose, a critic of the original document. "It represents a mutual product that was both transparent and cooperative, which is exactly what we're always looking for."

Mr. Widdiss also credited the summit meetings for bringing the two governments together in simple but eye-opening ways.

"What came out of those meetings I think made us both realize that there was more agreement than disagreement," he said.

The land use dispute began in the spring of 2001, when the tribe built a small shed and pier near its Menemsha Pond shellfish hatchery without obtaining town permits. The Aquinnah building inspector filed a lawsuit in Dukes County Superior Court to challenge whether the tribe must abide by state and local zoning.

The tribe argued in the case that federal recognition granted it sovereign immunity, but the town maintained that the tribe waived its immunity with respect to land use issues when it signed a 1983 Indian land claims settlement agreement, which was later codified by federal and state acts. After a number of twists and turns, the state's highest court in December 2004 overturned a superior court decision and ruled in favor of the town and taxpayers.

Once the summit meetings were under way this spring, the tribe applied for town permits for the shed and pier. The town planning board and conservation commission in late May unanimously approved both projects.

Town counsel Ronald H. Rappaport said this week that he expects to file a document with the court this fall to make the end of the landmark case official. A primary architect of the land use agreement, he also noted that, although the document is intended to prevent future litigation, it does not compromise the legal rights of any town board or individual. The latest version of the agreement also includes a specific reference to the Massachusetts Supreme Judicial Court decision.

"This agreement, I think, will permit the town and the tribe to move forward in a positive way," Mr. Rappaport said.

If approved, the proposed agreement would apply to any project on tribal land or on town land that abuts tribal property. Town and tribal regulatory boards with jurisdiction over the project would attempt to coordinate joint hearings and inspections, and if it appears that two boards are headed toward differing decisions, the agreement would trigger a lengthy dispute resolution process and mandatory mediation before the case goes to court.

According to the agreement, no regulatory board would be required to change its decision, and no individual tribal member of town resident would lose their rights to appeal. The agreement would also preserve the authority of the Martha's Vineyard Commission, and the rights of either government to withdraw from the pact after five years.

Mr. Rappaport said he does not believe the agreement will require the approval of the Massachusetts Attorney General.

"This document should be seen, if it is approved, as an expression of good faith on behalf of both governments, rather than a legal document that amends any provision of state law, town bylaws or any other law," Mr. Rappaport said.

As a sign of such faith, tribal officials this week pledged to apply for town permits for the Wampanoag Community Center if the land use agreement is adopted by both governments. The 6,500-square-foot building, located near tribal headquarters off Black Brook Road, is now roughly 80 per cent complete.

Mr. Widdiss said the community center would be the first project submitted under the process spelled out in the agreement, even though the tribe is confident that its own permitting process was sufficient. The tribal land use commission approved the community center in April 2004, while the sovereignty case was still in the courts.

"The community center will be a starting place for the process going forward, and it's certainly our intention to honor that process once we have the agreement in place," Mr. Widdiss said. "It will be an affirmation of our relationship."