In 2003, Gay Head Taxpayers Association (GHTA) changed its name to Aquinnah/Gay Head Community Association, Inc. (AGHCA) and incorporated as a not-for-profit corporation under Massachusetts law, and obtained a Section 501 (c) (3) tax exempt status.
1974 Lawsuit and Aftermath
The GHTA was established over 30 years ago and shortly afterwards combined with an existing, informal civic improvement group. In 1974, the newly formed Wampanoag Tribal Council brought a law suit against the Town of Gay Head to reclaim the Town’s “Common Lands” (the Gay Head Cliffs and the Cranberry Lands) on the grounds that they had been transferred to the Town in 1870 by the Commonwealth in violation of a Federal law passed in 1790. Analysis indicated that if the basis of the claims was valid it could be extended to include all of the privately owned property in the Town, thereby creating a cloud on all private property titles in the Town. Property owners quickly found it very difficult to buy or sell or to obtain title insurance or mortgages. Accordingly, property sales in the Town dropped precipitously.
When the Town decided at a Town Meeting to take steps simply to transfer the claimed property to the Tribal Council, it was obvious that the Town was not going to defend against the law suit. The GHTA then promptly intervened in the law suit to defend the interests of the Town in opposition to the claims by and relief sought by the Tribal Council. (The Town subsequently indeed dismissed its own attorney who had been recommending that the Town defend the suit.).
To avoid the cost and acrimony of trial, difficult and protracted settlement negotiations took place primarily among the Tribal Council and the GHTA and their respective attorneys, with cooperation from the Office of the Attorney General of the Commonwealth (which also subsequently had intervened as a party to the law suit.) In 1983, a Settlement Agreement was entered into among the Tribal Council, the Town, the GHTA and the Commonwealth after a Town Meeting had overwhelmingly agreed to the terms of the Settlement Agreement and its accompanying Land Use Plan. Following several unsuccessful attempts to have Congress pass a statute implementing the Settlement Agreement, the requisite Commonwealth and Federal Acts were passed in 1985 and 1987, respectively. This was preceded by a second Town Meeting which had confirmed the Town’s agreement and support of the Settlement Agreement. The law suit was then dismissed (with prejudice) by agreement among the parties when the prerequisites for doing so were satisfied; namely, the passage of both Federal and Commonwealth statutes and the land transfers envisioned by the Settlement Agreement. (The last land transfer was effected in 1992, with the approximate $4 million acquisition cost prior to transfer being shared equally by the Federal government and the Commonwealth.)
Brief Summary of the Terms of the Settlement Agreement and Statutes
For the Tribe: The Settlement Agreement gave added impetus and weight to its appeal for Federal recognition as a Tribe and the benefits available to recognized tribes. Its first application had been denied, but recognition was awarded in 1987. The Tribe obtained ownership of a land base for the first time, consisting of approximately 400 acres, including the Common Lands, the Face of the Cliffs, the over 200 acre parcel where the Tribal headquarters and housing development are located, and the Cook Properties (Herring Creek). Except for the Cook Properties, the Tribal lands are inalienable and tax free (except for commercial activities), and the Tribe may purchase land contiguous to its settlement lands and have any such new lands then put into Trust.
For the Town and Commonwealth: All past, present and future Indian claims (except for individual claims pursued under laws generally applicable to non-Indians as well), whether monetary, possessory, aboriginal or otherwise, involving “lands and waters” in the Town and the Commonwealth were extinguished. The Town retained ownership of all of its beaches on the Ocean (including the beach under the Cliffs), the Sound, and the Ponds, and all residents and their guests and assigns were assured access for recreational purposes. The Tribal settlement lands continue to be generally subject to Federal, Commonwealth and Town laws and regulations and jurisdiction, including the laws on gaming. The Tribal settlement lands continue to be subject to the Town’s zoning and other land use regulations and procedures. The Tribe has no jurisdiction over non-tribal individuals.
For the GHTA: In addition to all of benefits accorded the Town and Commonwealth, all of the above had the effect of removing the cloud on titles and it again became possible to obtain title insurance and mortgages.
Support of Town Public Works
After the above law suit and resulting acts reached their end, the GHTA maintained a quiet stance for a number of years, and devoted itself to various forms of support of Town functions, including the Town’s ocean beach (for which, as an example, the GHTA purchased and maintained the seasonal boardwalks for several years before donating them to the Town), the volunteer fire department and the Town library. A number of significant developments then occurred over the past several years, however, which required us to expand our level and type of activities. The two which are most profound and which had potential implications for the Town and Martha’s Vineyard generally relate to (a) the law suit the Town brought in 2001 against the Tribe to enforce the Town’s zoning regulations and procedures with respect to construction undertaken by the Tribe at its hatchery on Herring Creek without having obtained a building permit from the Town and (b) the Tribe’s effort to establish its own armed police force.
2001 Lawsuit/Police Force
Law Suit. Briefly, the Tribe’s position regarding the building-permit issue was that it had a common law sovereign immunity that it did not waive in the Settlement Agreement and which was not extinguished in the resulting legislation, and that the restrictions it agreed to in the Settlement Agreement are only with respect to the land but do not establish enforcement rights against the Tribe. The Town responded forcefully, correctly stating that the jurisdictional issues involved go to the heart of the Settlement Agreement and related legislation and that a determination in favor of the Tribe would vitiate core provisions in the Settlement Agreement and those laws. We also concluded that it was appropriate for us to more actively support the Town in connection with the litigation – since indeed the issues had potentially wide-ranging import – and to be in a position to actively pursue or defend an appeal if need be. Thus, based on our being a party to the underlying Settlement Agreement we intervened in and became a party to the law suit in support of the Town. (A private abutting property owner, the Benton Trust, also intervened.)
The lower court judge ruled in favor of the Tribe, based on his conclusion (which he himself characterized as being “patently unfair”) that the underlying documents did not serve to waive the Tribe’s sovereign immunity to suit. After the judge denied motions to reconsider his rulings, AGHCA moved to appeal his judgment and in view of the import of the issues involved to have the highest court in Massachusetts (the Supreme Judicial Court [“SJC”]) to hear the appeal directly. (AGHCA’s earlier determination to intervene and become a full party to the action was well-reasoned, in view of the unfortunate and disappointing decision by the Selectmen of Aquinnah to have the Town not undertake an appeal itself.) This motion was granted, as was a motion by the Attorney General of the Commonwealth to intervene as a party to the appeal in view of the potential import of the issues throughout the Commonwealth. In addition, the Martha’s Vineyard Commission and the Towns of Chilmark and West Tisbury filed amicus briefs as part of the appeal process.
In a very strong decision issued in December, 2004, the SJC reversed the lower court and held that the Tribe had indeed waived its immunity to suit. The key provisions of the opinion were:
“the facts clearly establish a waiver of sovereign immunity stated, in no uncertain terms, in a duly executed agreement, and the facts show that the Tribe bargained for, and knowingly agreed to, that waiver. There is absolutely nothing to suggest that the Tribe was “hoodwinked” or that its negotiators were “unsophisticated” or did not know what they were doing. From all that appears on the record, the parties, represented by able counsel, engaged in protracted and difficult negotiations which produced the settlement agreement bespeaking, in unambiguous terms, the parties’ complete understanding.
More specifically, the Tribe expressly memorialized a waiver of its sovereign immunity, with respect to municipal zoning enforcement, by agreeing, in paragraph three of the settlement agreement, to hold its land, including the Cook Lands, “in the same manner and subject to the same laws, as any other Massachusetts corporation”. This language is clear and the words “in the same manner” convey a special known, and obvious meaning. These words are used by the United States and by the Commonwealth to waive sovereign immunity.”
The Tribe’s remaining recourse was to seek a review by the United States Supreme Court, which the Tribe ultimately declined to do in July, 2005. Accordingly, the case was then remanded back to the lower court for the purpose of determining the remedy or remedies to be provided to the Town. The Town moved to re-join the law suit and then advised the Court that the remedy it sought was for the Tribe to file for the permits for the projects which were the subject of the Suit. AGHCA supported this remedy and March, 2006 the Tribe advised the Court that it would be filing for the permits. This then led to the law suit being formally concluded. Many of the representatives of the Town and the Tribe and a number of other interested residents then worked diligently to come to agreement on and then to document a process intended to minimize the potential of litigation should land use disputes arise, in particular issues pertaining to the permitting process relating to future land use permit requests by the Tribe. This led to the entering into of a Memorandum of Understanding (the “MOU”) between the Town and the Tribe in June, 2007. The MOU provides for a number of review and advisory procedures should such disputes arise.
Police Force. The Tribe’s effort to establish its own armed police force also was vigorously opposed by the Town, including by the Town’s chief of police. To date, the Town has provided police (and fire) protection to the Tribal properties pursuant to a contract between the Town and Tribe. Aside from questioning the practical need for a second police force in what is one of the smallest towns in the Commonwealth, the overriding issue is one of control over police presence in the Town. Corollary yet important issues include the extent to which its police activities would equate to jurisdiction by the Tribe over non-tribal individuals and the ability to carry arms on Town property (including, as one example, on its beaches while supervising the Cliffs), both generally and while in transit from one of the Tribal lands to another. The Town several years ago requested an opinion of the Attorney General of the Commonwealth regarding the basic rights and restrictions that are applicable which has not been issued, and there have been no developments on this matter for some time. Accordingly, since this matter is dormant it remains premature to assess whether it is appropriate for us to take an active stance on this matter, but it is one that merits continued careful attention.
The above by necessity is little more than a thumbnail description of our history and our present activities, and the issues involved. We hope it has been helpful and would be pleased to respond to any requests for further information.
