SJC rules no right exists to access landlocked parcels in Aquinnah

Moshup Trail, Aquinnah

In a significant and far-reaching victory for the town of Aquinnah and Island conservation organizations, the Massachusetts Supreme Judicial Court ruled Tuesday that a group of property owners who had sought to develop landlocked parcels they own off Moshup Trail have no rights of access.

In his 26-page decision, Justice Francis X. Spina reversed an Appeals Court ruling issued in January 2015 that the owners of three tracts of land off Moshup Trail in Aquinnah had the right to access their properties based on the historical “custom and practice of common access” by members of the Wampanoag Tribe of Gay Head.

Moshup Trail in Aquinnah, on a quiet day. — File photo

The Appeals Court decision, which overturned an earlier Land Court ruling that there was no access, nor was access intended, opened up the prospect of development in an area long considered landlocked, and which is bordered by conservation lands.

The unanimous SJC decision is rooted in the 19th century history of Gay Head, its incorporation as a town, and the “paternalistic system of governance” in effect at the time for tribal members, which gave way to full citizenship.

The case hinged on the legal question of easement by necessity, a doctrine that considers whether an easement was really intended, and whether at the time the state legislature set off lots from the common lands of what was then Gay Head in the 19th century, there was an intent to create easements by necessity to create access to the plaintiffs’ lots.

Justice Spina said no access was granted or implied, irrespective of tribal customs in effect at the time. Citing specific instances where access rights were granted, he said the there was no omission but an

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Gay Head 10K Set for October 2, 2016

The fourth annual Gay Head 10K road race will start from the Aquinnah Circle at 11:00 AM on Sunday, October 2, 2016.

The race, which began in 2013 as a fund-raiser to help save the endangered Gay Head Lighthouse, has become a major community event in Aquinnah. This year’s race will raise money for on-going restoration and maintenance of the historic building.

Click here to register, or scan the QR code below. Early-bird pricing of $25 is in effect until May 1, when it goes up to $30. Race day registration will cost $40.

What are we to make of it? Editorial – MV Times

We report with cautious optimism this week that the Wampanoag Tribe of Gay Head (Aquinnah)says it plans to complete the unfinished community center that teams of Air Force reservists from Oklahoma and Alabama erected over the summer of 2004.

It is unlikely those citizen soldiers ever contemplated that 12 years after they left the Island’s smallest town, the building would remain unfinished, or that but for a legal challenge and a decision in favor of the town, the sound of basketballs on a gym floor might have been replaced with the noise and lights of electronic gaming.

Hopefully, the tribe will move with all haste to complete the community center so that it can be used for summer activities of the type originally contemplated for the 6,500-square-foot building that is to include a gym, kitchen, and meeting space.

For years, the building has represented a wedge between the tribe, and the town and wider Island community. In repeated votes, off-Island members of the tribe prevailed over Island members and directed the tribal leadership to pursue a so-called “boutique casino.”

That changed on Jan. 24, when the tribal council voted to complete the community center. There is now the possibility that the finished building will become a gathering place for tribal and nontribal year-round and seasonal Island residents. The Chilmark Community Center provides a good example of a vibrant space that serves many needs and constituencies.

Still, questions remain. Will the tribe comply with town building-permit and inspection requirements, or will it engage in another protracted legal struggle with the town over that issue? We hope that will not be the case, and that the tribe will put those objections aside for another day and a future ruling.

On Monday, lawyers representing the tribe filed a notice of appeal in

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Tribe moves forward with community center, gaming appeal

The Wampanoag tribe plans to complete its community center and appeal a judge’s decision barring its use for gaming. — File photo by Nelson Sigelman

The Wampanoag tribe of Gay Head (Aquinnah), fresh on the heels of a tribal council vote to complete its long-unfinished community center for its original intended purpose — a community center and not an electronic gaming hall — took the first legal step to appeal a judge’s decision barring it from gaming in Aquinnah.

On Monday, Feb. 1, tribe lawyer Scott Crowell, who heads the Crowell Law Office Tribal Advocacy Group, based in Sedona, Ariz., filed a three-page notice of appeal in U.S. District Court for the First Circuit, a procedural step as it seeks to overturn a ruling by U.S. District Court Judge F. Dennis Saylor IV that the tribe cannot turn the building into a gambling facility. The next legal venue is the U.S. Court of Appeals for the First Circuit and a detailed brief outlining the tribe’s legal arguments.

Asked how the decision of the tribal council to move forward with completion of the community center dovetails with the appeal, Mr. Crowell said he has no reason to believe the tribe’s position has changed. “The appeal is about the tribe’s right to game on its Indian lands, and not about completion of the community center,” he said in an email to The Times. “The decision to complete the community center for nongaming purposes is not relevant to the appeal.”

Even as the legal battle continues, the tribe has taken steps to meet a deadline to complete the building or repay federal grants totaling $1.1 million. On Jan. 24, the tribal council voted 9-2 to finish off the the 6,500-square-foot building that sits just off the entrance road

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With Clock Ticking, Tribe Votes to Finish Community Center – MV Gazette

Tribe faced deadline to complete community center or refund grant money. – Alex Elvin

Elected leaders of the Aquinnah Wampanoag tribe have voted to turn away from plans to convert an unfinished community center into a gambling facility, and instead use the vacant building for its original purpose, tribe members said this week.

At a meeting last week, the tribal council of the Wampanoag Tribe of Gay Head (Aquinnah) voted to transfer control of the building from the Aquinnah Wampanoag Gaming Corp., the tribe’s gaming arm, back to the council itself, according to tribe members familiar with the proceedings.

That step signaled the leadership’s intention to finish work on the 6,500-square-foot building and put it to use as a community center, they said.

“We are moving forward with the completion of the community center as a community center. That’s a great development,” tribal council chairman Tobias Vanderhoop told the Gazette by telephone Thursday. Mr. Vanderhoop declined to discuss the details of the meeting, saying they involve internal tribe matters. But he said the tribe is not backing away from pursuing its rights to casino gambling. “At this time, we are working on two fronts,” Mr. Vanderhoop said. “The tribe also believes there are federal [gaming] rights that are available to us or should be available to us that we are continuing to fight for [through the courts].”

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Judge Denies Tribe’s Motion to Reconsider Casino Ruling – MV Gazette

A federal judge will not reconsider his recent ruling rejecting a bid by the Wampanoag tribe to build a casino in Aquinnah.

In a one-sentence decision on Wednesday this week, U.S. District Judge Dennis Saylor 4th denied a request to reconsider by tribe attorneys.

“After careful consideration and review, the [152] motion of defendants and counterclaim-plaintiffs for reconsideration is denied,” the decision said.

The case is now expected to head to a formal appeal process in the U.S. Court of Appeals for the first circuit.

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