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Wampanoags plan appeal of state limit on sovereignty

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AQUINNAH, Mass. - Defense of sovereign immunity hasn't ended for the
Wampanoag Tribe of Gay Head (Aquinnah), the only federally recognized tribe
in Massachusetts. The tribal council voted on the evening of Dec. 15 to
appeal a recent ruling by the state's highest court that the tribe was
subject to suit in state courts.

Overturning a lower state court's affirmation of tribal rights, the state
Supreme Judicial Court (SJC) held Dec. 9 that the tribe's mid-1980s land
claims settlement included a freely-agreed-on waiver of its sovereign
immunity from lawsuits, even though the implementing statutes did not
include "talismanic words" expressly stating the waiver. The 4 to 1
decision added another chapter to the depressing saga of Indian land claims
settlements in New England, which have proved to impose severe limits on
tribal sovereignty.

Beverly Wright, who is in her last month as Wampanoag tribal chair, told
Indian Country Today that the tribe's first step would be to ask the SJC
for a reconsideration. "They can look at a reconsideration if they
overlooked something or if they misunderstood," she said. "We think they

Douglas Luckerman, a specialist in New England tribal sovereignty cases who
is representing the tribe, is working on a detailed dissection of the
decision. He said he was "mystified" by the SJC opinion, which he said
ignored basic principles of federal Indian law. The case is part of a
recent pattern in the federal 1st Circuit to let state courts rule on the
limits of tribal sovereignty, with harsh results for New England tribes.

Luckerman has argued several of these cases before the federal 1st Circuit
Court of Appeals in Boston and is waiting for imminent decisions. He said
some of the issues might be headed to the U. S. Supreme Court.

The Wampanoag case, styled Building Inspector and Zoning Officer of
Aquinnah and others vs. Wampanoag Shellfish Hatchery Corporation and
another, originated with a six-by-eight foot shed and pier on Menemsha Pond
on the tribe's coastal reservation on Martha's Vineyard. The installation,
which is currently operating, monitors water flow to the tribe's thriving
shellfish business. (The Wampanoags now supply oysters to a number of
customers, including the restaurant at the National Museum of the American
Indian on the National Mall.) Asserting jurisdiction over the building, the
zoning officer of the neighboring town of Aquinnah, in March 2001 issued a
cease and desist order to the tribe to stop construction.

The tribe invoked its inherent sovereign immunity against suit, a legal
doctrine separate from but derived from the European theory of sovereignty.
The doctrine holds that a government, as the source of sovereign power,
cannot be sued in court without first giving its consent. Even though the
Wampanoags had agreed in lengthy negotiations over their land claims to
abide by local and state laws and zoning, they argued that the federal
implementing statutes did not include an express waiver of their immunity
to suit.

Wampanoag counsel won their case in the state Superior Court on Martha's
Vineyard. Judge Richard Connon agreed that the wording of federal statutes
gave the town "a right but no remedy" even though he called his decision
"patently unfair."

(The tribe originally brought the case in federal District Court, but it
was kicked back to the state level. In a unique situation, the federal 1st
Circuit Court of Appeals, which covers most of New England, has adopted a
procedural rule that has the effect of leaving important interpretations of
federal Indian law to state courts.)

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The Supreme Judicial Court took the case on direct appeal and managed to
find an implied waiver of sovereign immunity. Judge John M. Greaney wrote,
"Here, the facts clearly establish a waiver of sovereign immunity, stated
in no uncertain terms, in a duly executed agreement, and the facts show
that the Tribe bargained for, and knowingly agreed to, that waiver." He
found the waiver in the phrase in the land settlement that the tribe would
hold its lands "in the same manner, and subject to the same laws, as any
other Massachusetts corporation."

Greaney wrote that the words "in the same manner" "convey a special known
and obvious meaning," citing several examples where the U.S. government
used the phrase to waive its own immunity. He said tribal negotiators must
have understood the significance, since they also agreed to treat the tribe
as a regular Massachusetts corporation, a change in its status at that

"There is absolutely nothing to suggest the Tribe was 'hoodwinked' or that
its negotiators were 'unsophisticated,' or did not know what they were
doing," he wrote.

Luckerman said the ruling erred in applying contract law to the issue of
government sovereignty. "You set up a corporation to protect parties from
liability," he said. The judge referred to a corporation set up in the
settlement agreement to hold land for the tribe "in anticipation of
recognition," said Luckerman. It was a buffer to protect the tribe, not
another form of tribal government, he said, and "the kicker is" that it
never even went into effect, since recognition interceded and tribal land
went directly into a U. S. trust.

One Massachusetts judge also issued a strong dissent. Judge Roderick L.
Ireland gave two reasons, "First, at the time the settlement agreement was
signed, the Tribe had not yet received federal recognition. Therefore it
had no sovereign immunity to waive. Second, given the sophistication of the
parties who clearly anticipated that such recognition might occur in the
future, it would have been very easy for the parties to have addressed the
impact of such recognition in a more straightforward manner.

"I am not convinced that the Tribe clearly, explicitly, and unequivocally
waived its sovereign immunity," he wrote. "In addition, although it is not
part of the issue before the court, I am well aware of the historic
relationship between Native Americans and the government, as well as their
chronic disparity in bargaining power. Therefore, I prefer to err on the
side of caution."

Luckerman said that if the Massachusetts high court refused a
reconsideration, the next step would be an appeal directly to the U.S.
Supreme Court.

The Wampanoags first negotiated the settlement agreement in 1983. The tribe
received federal recognition in 1987.

For much of the tribe's recent past it has been led by chairperson Beverly
Wright, the longest serving female tribal chair in the east. In the
November election, however, she was denied a sixth term, losing to vice
chairman Donald Widdiss by a vote of 105 to 130. A new council member,
Woody van der Hoop, was also elected. The new council takes office Jan. 8.

"Some people say they don't know whether to give me congratulations or
condolences," she told ICT. "I don't know how I feel. But yes there is some