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Wampanoag approve land use agreement with town

AQUINNAH, Mass. - The Wampanoag Tribe of Gay Head (Aquinnah) has approved an agreement with the town of Aquinnah that is aimed at easing jurisdictional battles over land use and establishing a dispute resolution scheme to help keep both governments out of court.

While the tribal council approved a Memorandum of Understanding, called the ''Intergovernmental Agreement on Cooperative Land Use and Planning Between the Wampanoag Tribe of Gay Head (Aquinnah) and the Town of Aquinnah,'' in a 10 - 0 vote with one abstention on Jan. 6, it still must be approved by the town. The town's Board of Selectmen has scheduled a special town meeting to vote on the document on March 8.

The MOU is the end result of a long-running dispute about the federally recognized tribe's sovereignty over developments on its 480-acre settlement lands.

The Wampanoags settled their land claims with the state in 1983, four years before they were federally recognized in 1987, the same year Congress passed an act to have Interior take the tribe's land into trust.

In the late 1990s, a dispute broke out over the tribe's construction - without town building permits - of a pier and shed near its shellfish hatchery. A lower court decision upholding the tribe's sovereignty was overturned by the Massachusetts Supreme Judicial Court in December 2004. The higher court ruled that the tribe's 1983 land claims settlement took primacy over the federal Indian law of sovereign immunity, and required the tribe to get town lands permits for the structures that had been built years earlier.

Both governments entered negotiations hoping to prevent future litigation. Representatives from both parties expressed satisfaction with the results.

''The document establishes parameters for a joint process with the tribe and town that respects our authority and the town's authority, and should there be a conflict then we have a piece that makes this a unique and living document - a dispute resolution process which is designed to forestall going to court. It's not fail safe by any means, but it would have to be a pretty extreme circumstance that this document does not address,'' said Wampanoag Tribal Council Chairman Donald Widdiss.

''It's been a long time coming and I hope we have a similar response from the general public on giving the selectmen the OK to sign it. I'm quite sure that'll be the case. I don't really ever want to see any land use case in the courts again between our two governments. There's just no need for it,'' said Mike Herbert, selectmen's board chairman.

The Wampanoags' decision to negotiate with the town was inevitably tempered by the rash of judicial decisions over the past few years that have eroded tribal sovereignty and immunity

''We've had to spend a lot of time defending ourselves against the negative decisions reached in various courts across the country, so the landscape changes constantly. With our situation, we're an Eastern tribe with a land settlement and part of our responsibility as a tribal government is to enter into inter-governmental agreements to try to stave off the potential for litigation,'' Widdiss said.

And the options are narrow.

''One, you can negotiate an arrangement that will sustain what you want to get done without giving up any sovereignty; or two, you can go to a court which is disinclined to rule in the favor of tribes,'' Widdiss said.

The negative decisions eroding tribal sovereignty run counter both to common sense and Indian law, Widdiss said

''One of the basic tenets of Indian law is that when you're in a situation where a court has to decide who prevails in a case if the language is unclear or ambiguous, then the court is compelled to find in favor of the tribe. They know it. They just ignore it, which is what happened in everything from [City of Sherrill v. Oneida Indian Nation of New York] to the [Narragansett Indian Tribe v. Rhode Island] to our case. In our case, the elegant solution was to ignore the federal issues altogether,'' Widdiss said.

In Sherrill, the U.S. Supreme Court ruled that the Oneidas had waited too long to bring land claims forward; in Narragansett, the same court recently refused to review a lower court decision granting the state of Rhode Island civil and criminal jurisdiction over the tribe's settlement lands.)

The Wampanoags commonly owned the entire 3,300 acres of Gay Head until 1870, when the Commonwealth of Massachusetts expropriated the land and divided it up.

''What was once held collectively was now in fee simple. The state in its infinite wisdom kept property it viewed as municipal property, but it was trust land for the tribe; and they did that while recognizing that there were Indian people here who were self-governing. They did that illegally according to the 1790 Indian Nonintercourse Act,'' Widdiss said.

The tribe could go back to court and argue the whole issue again, but the court already ruled in its decision - and in other decisions, such as in Narragansett - that the tribe's settlement act implied a waiver of its tribal sovereignty.

''You can't imply a waiver of sovereignty. Either it's specific or it doesn't exist. So, the implied waiver of sovereignty, which is a condition that does not exist in federal Indian law, becomes the law,'' Widdiss said.

A lot of tribes continue to fight the battle in the courts, Widdiss said.

''It's a tribe's right to defend itself by any means possible. But when time after time after time the courts erode sovereignty through precedents that affect all the rest of the tribes, you have to make an attempt to at least stop that and hope the court at some point gains a conscience. What the courts do to tribes is at best unconscionable. At worst, it's a deliberate attempt to eliminate tribes,'' Widdiss said.