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Building Inspector and Zoning Officer of Aquinnah v. Wampanoag Aquinnah Shellfish Hatchery Corp.12/9/2004
Dukes.
September 8, 2004.
Wampanoag Tribal Council. Zoning, Enforcement. Governmental Immunity. Waiver. Corporation, Non-profit corporation.
Civil action commenced in the Superior Court Department on May 1, 2001.
The case was heard by Richard F. Connon, J., on motions for summary judgment.
The Supreme Judicial Court granted an application for direct appellate review.
We granted an application for direct appellate review to determine whether the defendants, Wampanoag Aquinnah Shellfish Hatchery Corporation (Hatchery) and Wampanoag Tribal Council of Gay Head, Inc. (Tribe), may properly invoke a claim of sovereign immunity to evade a zoning enforcement action and, ultimately, compliance with local permitting requirements. The case concerns the construction of a shed and a pier platform on real property known as the Cook Lands, a coastal area bordered by Menemsha Pond, located in the town of Aquinnah (formerly Gay Head), Martha's Vineyard. After hearing cross motions for summary judgment, a Superior Court judge dismissed the complaint and entered judgment in favor of the defendants, declaring that the Tribe retains sovereign immunity from civil suit to enforce the local permitting requirements. We conclude that, with respect to its land use on the Cook Lands, the only land in dispute in this case, the Tribe waived its sovereign immunity, thus subjecting the Tribe and the Hatchery to the zoning enforcement action. The order and judgment shall be vacated. The case is remanded for (1) entry of a judgment declaring that the Tribe, with respect to its land use activities on the Cook Lands, waived sovereign immunity and that the defendants are not immune from the zoning enforcement action; and (2) further proceedings consistent with this opinion.
The following facts are undisputed. The Tribe was incorporated as a Massachusetts nonprofit corporation in 1972. In 1974, the Tribe commenced an action in the United States District Court for the District of Massachusetts against the town of Gay Head, claiming that certain transfers of land in the town to which the Tribe claimed title, had violated the Indian Nonintercourse Act, 25 U.S.C. ยง 177. In 1981, the Tribe petitioned for (but did not obtain until about six years later) Federal recognition of its existence as a Native American Tribe. In 1983, the Tribe, the town, the State, and the intervenor Aquinnah/Gay Head Community Association, Inc. (formerly Taxpayers' Association of Gay Head, Inc.) (association), entered into a "Joint Memorandum of Understanding Concerning Settlement of the Gay Head, Massachusetts Indian Land Claims" (settlement agreement). The settlement agreement and, in particular, the Tribe's agreement to extinguishment of all "aboriginal" claims to the property subject thereto, was conditioned on the enactment of implementing legislation and on the appropriation of funding to finance the purchase of several hundreds acres of land for the Tribe. In the settlement agreement, the Tribe agreed that it would create another State-chartered corporation, called the Tribal Land Corporation, for the purpose of permanently holding the property, including the Cook Lands, subject to the agreement. In addition, the settlement agreement contains the following:
"3. . . . The Tribal Land Corporation shall hold the Settlement Lands, and any other land it may acquire, in the same manner, and subject to the same laws, as any other Massachusetts corporation, except to the extent specifically modified by this agreement and the accompanying proposed legislation. Under no circumstances, including any future recognition of the existence of an Indian tribe in the Town of Gay Head, sh
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