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At least one court upholds sovereignty

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AQUINNAH, Mass. - Tribes tempted to sacrifice some sovereignty rights in return for land claims and recognition settlements, as some did in New England in the early 1980s, will want to take a close look at a recent Massachusetts Superior Court decision upholding the sovereign immunity of the Wampanoag Tribe of Gay Head (Aquinnah).

Judge Richard F. Connon held that the tribe could not be sued by the zoning officer of its neighboring town on the island of Martha's Vineyard, even though the federal and state laws implementing its land claim settlement declared that town zoning laws applied to the tribe.

"Absent clear consent by the Tribe to such judicial intervention," he wrote, "this court is constrained to conclude that the Town received a right but no remedy, to the detriment of the citizens of not only the Town but the Commonwealth."

Connon called his decision "patently unfair," but said it was required by the doctrine of sovereign immunity. As a federally recognized tribe, the only one in Massachusetts, the Aquinnah Wampanoag tribe, he wrote, "is immune from suit in a state court unless Congress has abrogated tribal immunity in that setting or the tribe has waived its sovereign immunity or consented to suit."

The decision was heavily influenced by an earlier federal District Court case analyzing the federal Massachusetts Indian Land Claims Settlement Act of 1987. That 1999 case dismissed an employment discrimination suit by a non-Indian, saying that the federal act did not include an express waiver of tribal sovereignty.

The case will not bring much comfort to three Maine tribal governments, which fought unsuccessfully in federal courts two years ago against a suit under Maine law. Judge Connon noted that the Maine Settlement Act, passed seven years before the Wampanoag settlement, included the express statement that the Penobscot Indians and the two reservation governments of the Passamaquoddys "may sue and be sued" in Maine and federal courts.

But Connon's decision highlights the power of retained inherent sovereignty, a doctrine from medieval Europe which in its migration to the New World has become one of the most powerful legal tools for maintaining tribal existence. His ruling is very likely to reach higher courts.

James L. Quarles III, attorney for the Gay Head Taxpayers Association, one of the tribe's neighbors, said his clients would appeal. Quarles is a senior partner of the venerable Boston law firm Hale and Dorr, which has developed a sideline of fighting the several branches of the Wampanoag people. Hale and Dorr frustrated a previous attempt by the Mashpee Wampanoags to obtain federal recognition, and leaders of the Mashpee tribe on the Cape Cod mainland have declared the firm persona non grata in on-going land-claim negotiations.

For a dispute with such far-reaching implications, the Aquinnah case started over a fairly humble issue, a zoning permit to build a small shed and pier near the tribe's shellfish hatchery. The town and the Massachusetts Department of Environmental Protection had previously granted permits for a pump house in the environmentally sensitive Cook Lands to pump seawater to the hatchery. The tribe sought the new six by eight foot shed on a pre-existing concrete pad to route electricity to the pump house.

The tribe obtained a license from the Massachusetts DEP and started construction in March 2001 without obtaining a building permit from the town. It ignored a cease and desist letter from the town building inspector and zoning officer Jerry Wiener. The town filed suit two months later.