Six years after the conclusion of a Supreme Court case in which the Wampanoag Tribe of Gay Head (Aquinnah) battled with Aquinnah taxpayers and the town over sovereignty rights, a new battleground has potentially sprung up on a sandy path to the sea.
The tribe has blocked off access to the path which leads to Lobsterville Beach, and town leaders are up in arms about it.
“The taxpayers in town are being deprived of their right to access to the beach and that right is established by an act of Congress,” declared selectman Camille Rose this week.
According to Ms. Rose, the tribe blocked off the path, located near the entrance to Clay Pit Road, sometime last week using a rope barrier and a pile of twigs and brush. She claims that the path is an ancient way, protected under a federal settlement agreement signed by the tribe and the town in the 1980s.
The closure marks the latest stumbling block in the historically rocky town-tribe relations.
In 2004 the Massachusetts Supreme Court ruled against the tribe in a dispute over land use that ultimately decided whether the tribe had waived its sovereign immunity when it signed an Indian land claims settlement agreement in 1983. The state’s highest court found that the tribe had agreed to abide by state and local zoning laws on land use projects. The case began when the tribe built a shed and a pier shed and pier on Menemsha Pond in 2001 without a building permit.
Now there is new trouble brewing over the rights to the path at Lobsterville beach.
At a meeting of the Aquinnah selectmen yesterday morning, representatives from the tribe said they will not reopen the path, but agreed to discuss the matter at a public meeting set for next Thursday the town hall. The meeting begins at 5 p.m.
“The tribal council is very willing and able and wants to have open discussion with the town,” said council member and former chairman Beverly Wright at the meeting yesterday. “We live here in Aquinnah and we certainly want to be good neighbors.” Mrs. Wright later added that the tribe had not cut off access completely to Lobsterville Beach, but had only blocked one access point.
But according to Ms. Rose, the tribe’s actions have been anything but neighborly. “One of the problems is there have already been threats,” she said, adding that tribal natural resources director Bret Stearns told her that anyone attempting to trespass on the path would be reported to police.
The issue was freighted with tension even before the meeting, which was first planned as an executive session to discussion possible litigation against the tribe. There were objections from the outset to the idea of a closed-door meeting, including from selectman Jim Newman. “I object to the use of the word litigation in the meeting notice. It is inflammatory. The selectmen have not yet discussed the issue nor have avenues of settlement been explored,” he wrote in an e-mail on Tuesday.
Other e-mails poured in. “I object to the concept of an immediate executive session regarding such a matter which seemingly has enormous implications for the entire town without first having a public and well publicized notice and discussion of the issue now provoked,” wrote Jay F. Thiese, a town resident and attorney.
Then the board sent out a notice on Wednesday afternoon changing the Thursday meeting to open session, which elicited even more responses. “Is there a reason this shouldn’t be reposted, with 48 hours notice given to the townspeople, as required by Massachusetts open meeting laws?” wrote Durwood Vanderhoop, a member of the tribe.
“It would be great if someone could simply post a description of the issue at hand,” wrote Allen Razdow. “We appear to be operating with the bare minimum of disclosure. Why? It would seem your job is to keep us informed in a timely manner. Please do so.”
At the meeting yesterday morning, Ms. Rose defended the town’s use of the word litigation. “The state is very strict about conditions for executive session. In order to have an executive session, you must have a reason. Litigation is one,” she said. “I think the initial idea was that we would meet not in public because we didn’t feel that we wanted to make a big public issue out of this.”
In the end the selectmen decided to open the meeting to the public at the recommendation of their attorney Ronald H. Rappaport. Mr. Rappaport, who attended the meeting, attempted to cool tempers on both sides, urging open, public dialogue and discussion as a first step. “Hopefully, it’s a friendly dialogue . . . which will lead to a resolution,” he said.
Meanwhile, the dispute over the path may require yet another interpretation of the 1980s land claims settlement agreement between the town and the tribe, which stated that existing access paths to the West Basin would remain open to the public. The agreement refers to a map that shows existing paths at the time, but for some reason the map was never attached to the agreement.
This leaves room for present day guesswork, unless the map can be found. Mr. Rappaport said aerial photographs of the area, taken around the time the settlement agreement was signed in 1983, could help to establish whether or not the path existed at the time. But he emphasized that the town and the tribe should try to come to terms, face to face, and government to government.
“Hopefully this can be worked out,” Mr. Rappaport said.
By MEGAN DOOLEY