The narrow, sandy path that is the subject of a scheduled meeting Saturday between a representative of the Aquinnah selectmen and the Wampanoag Tribe of Gay Head (Aquinnah) tribal council leads to Lobsterville Beach and Vineyard Sound.
The final destination of the parties to a dispute that has erupted over the tribe’s decision to block the well used path is less clear. The dispute raises the thorny issues of tribe sovereignty and the terms of the settlement agreement that has underpinned tribe-town relations since 1983, and which the Massachusetts Supreme Judicial Court reaffirmed in 2004, in favor of the town.
The issue that has disturbed the small town’s summer calm began earlier in this spring when Bret Stearns, director of the Wampanoag natural resources department, closed the path. He said heavy summer foot traffic has hampered efforts to reestablish beach grass and vegetation.
On Thursday, July 29, selectmen held a public meeting, ostensibly between the tribe and the town, to discuss the path closure. However, although several members of the tribe attended the meeting, the tribe sent no official representative.
The meeting did provide an opportunity for many non-Indian residents to express their frustration and anger over the closure. Tribe members defended the tribe’s property rights.
Even as the rhetoric on both sides heats up, there are signs that the tribe’s leadership may want to avoid drawing a line in the sand. The tribe has invited selectman Jim Newman to meet with the council on Saturday.
In a telephone conversation Wednesday, Camille Rose, chairman of the three-member board of selectmen, said the selectmen plan to reach out to the tribe to ask that the council reopen the path.
Ms. Rose said she remains mystified why access to a path that has historically been used and was formerly a road to the sea was allowed to become a divisive issue. “It was the last path that I would have thought the tribe would choose to close,” Ms. Rose said.
In an email to The Times, received late yesterday in response to a newspaper request for comment and available at mvtimes.com, Cheryl Andrews-Maltais, tribe chairman, said, “For the record, we need to be clear that this is a tribe-town issue; not really a public discussion. But, in the interest of providing corrections to some misinformation, I will try to clarify.”
Ms. Maltais said every year the tribe has placed brush across paths on the tribe’s land that should not be used, including the Clay Pit path in order “to restore and preserve the delicate natural environment, on and near the beaches and cranberry bogs.”
She described it as part of a longterm effort. “This is the first year in several that we have had enough tribal rangers to go back and re-address all of the sensitive areas, including the paths; to ensure that the restoration and preservation work we are doing is working and still there. So, that’s why it seems like it’s something new, but it really isn’t,” she wrote.
She added, “It is our belief that certain easements were granted, but not all paths and walkways previously used were part of the settlement agreement for public or private easements and use.”
Ms. Maltais took issue with the notion that the tribe ignored last Thursday’s meeting. She said the invitation was made with short notice.
Ms. Maltais said, “We are always willing to sit at the table with the board of selectmen to try to work through the issues. We have come a long way with the relationship between the town and the tribe. I am confident that we can come to a resolution on this issue as well; as long as there is a sincere desire to come to an understanding, I believe there is always a solution.”
The path at issue runs through briars, rosa rugosa and poison ivy across the dune that separates the beach from Lobsterville Road and the entrance to Clay Pit Road. Nearby residents have used the path to access the popular beach.
Mr. Stearns said earlier in the season he found a resident spraying herbicide along the path. A sign announcing that the path was closed was destroyed, he said. A rope strung across two posts was also cut, he said.
Last month, the tribe’s natural resources department placed brush at the entrance to the path to discourage use. Mr. Stearns insisted the path is on private property, and that the tribal lands are not open to public access, with the exception of where it has already been established.
The right to use the Clay Pit path and the broader rights of access protected in the settlement act and agreed to by the tribe are underscored in a one-page letter dated August 3, and addressed to the Aquinnah selectmen and the tribal council by Lawrence J. Hohlt, president of the Aquinnah/Gay Head Community Association (AGHCA). The letter is attached to a two-page memorandum that highlights language excerpted from the settlement agreement and a 1992 deed that protects access rights across tribal common lands to Lobsterville Beach (available at mvtimes.com).
“In the hope this will be helpful to the town and tribal governments as they consider the access to Lobsterville Beach across from Clay Pit Road,” Mr. Hohlt wrote, “we have reviewed the key documents and our files and want to share what we have discovered.”
In an introduction to his memorandum, Mr. Hohlt wrote: “One of the fundamental agreements underlying the settlement of the land claim was that the town retained title to the beaches. Negotiators agreed that the traditional established pathways across the Common Lands to access the Lobsterville Beach would be preserved and would be maintained by the town. The pathways at the end of Clay Pit Road were long established and among the primary access pathways to Lobsterville Beach.”
Among the documents referenced is language in a 1989 deed that specifically references access rights to the shoreline.
Mr. Hohlt, a retired lawyer and seasonal resident, is intimately familiar with the 1983 settlement agreement that eventually led to federal recognition of the Wampanoag Tribe of Gay Head. That agreement said that the tribe shall be subject to all federal, state, and local laws, including town zoning laws, state and federal conservation laws and the regulations of the Martha’s Vineyard Commission and provided for rights of access outlined by Mr. Hohlt.
The tribe, the town, the state, and the Gay Head Taxpayers Association, since renamed the Aquinnah/Gay Head Community Association Inc. signed the agreement.
The ground for a legal test of the settlement act was set when the tribe constructed a small wooden shed and pier on tribal lands on the shore of Menemsha Pond without town permits in the winter of 2001.
The town initially went to court to defend the settlement act. When a Dukes County Superior Court judge found for the tribe the board of selectmen, which included Mr. Newman, decided not to go forward and defend the settlement act on appeal.
That job was left to the AGHCA joined by the state attorney general and the Benton Family trust, abutters to the property in question.
In December 2004, the Massachusetts Supreme Judicial Court reaffirmed the settlement agreement and found for the town.
by Nelson Sigelman