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The Rise of Tribes and the Fall of Federal Indian Law
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Massachusetts tribe drops appeal in sovereignty case
Friday, July 8, 2005

A Massachusetts tribe who lost a major sovereignty case in state court announced this week it will not appeal to the U.S. Supreme Court.

The Aquinnah Wampanoag Tribe was planning to challenge a negative decision from the Massachusetts Supreme Judicial Court. Last December, the court ruled 5-1 that the tribe waived its sovereign immunity and agreed to abide by state and local laws under a settlement act passed by Congress in 1987.

But the tribal council unanimously passed a resolution not to move forward with the appeal. The tribe, based on the island of Martha's Vineyard, instead said it would work with the town of Aquinnah on a possible resolution of the dispute that led to the case.

"Our goal is to provide mutually acceptable solutions to land use issues while respecting the need to set the tone for future cooperation between the tribe and town in matters of mutual benefit," the tribe said in a statement.

The move averts a potential showdown before the nation's highest court, which has ruled against tribal interests in a series of sovereignty cases in recent years. The recent resignation of Justice Sandra Day O'Connor could push the court even further in that direction.

But two related cases appear to be headed towards Supreme Court review. In nearby Rhode Island, the state is trying to force the Narragansett Tribe to submit to state tax laws. The state also wants to stop the tribe from acquiring new trust lands.

The cases represent an ongoing trend in New England, whose tribes received federal recognition only within the last 25 years. In Maine, Massachusetts, Rhode Island and Connecticut, state officials have argued that the tribes have limited rights compared to tribes in the West.

To some extent, the state and federal courts have agreed. In Maine, tribal leaders were forced by a state court to turn over internal documents to the state due a provision in their settlement act that treats them in a similar manner to municipal governments.

The provision affecting the Wampanoags wasn't as extensive. The state court still ruled that the tribe willingly gave up its some of its rights in exchange for federal recognition.

"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," Justice John M. Greaney wrote for the majority. "There is absolutely nothing to suggest that the tribe was 'hoodwinked' or that its negotiators were 'unsophisticated' or did not know what they were doing."

The 1st Circuit Court of Appeals, which covers the tribes in Maine, Massachusetts and Rhode Island, hasn't reached such a sweeping conclusion. Neither has the 2nd Circuit Court of Appeals, which covers two tribes in Connecticut.

The 1st Circuit, however, refused to review the Maine case and protect the rights of the Passamaquoddy Tribe and the Penobscot Nation. But the Narragansett Tribe won a victory in the trust land case and a split victory in the taxation case.

The record in the 2nd Circuit has been more positive. Over the years, the court has upheld the rights of the Connecticut tribes to engage in gaming and acquire trust lands.

The Rhode Island trust land case, however, raises much of the same issues and also poses a broader challenge to the ability of the Bureau of Indian Affairs to take land into trust for tribes nationwide. A request for a rehearing before a full panel of the 1st Circuit is pending.

The state also requested a rehearing in the taxation case. If that is refused, an appeal to the Supreme Court is likely.

New England tribes aren't the only ones in the nation who agreed to state jurisdiction. In Texas, the Tigua Tribe and the Alabama-Coushatta Tribe gained federal recognition only after promising not to open casinos. The 5th Circuit Court of Appeals later ruled that the tribes can be sued for violating state gambling laws.

In the Wampanoag case, one justice dissented with the majority's reasoning because he said the tribe did not "clearly, explicitly, and unequivocally" waive its immunity. He noted that, at the time of the agreement in 1983, the tribe was not federally recognized.

"Therefore, it had no sovereign immunity to waive," wrote Justice Roderick L. Ireland.

In order to gain recognition, the tribe had to go to the Bureau of Indian Affairs, which initially rejected the case. The tribe was finally recognized in 1987.

Get the Decision:
Aquinnah v. Gay Head Wampanoag Tribe (December 9, 2004)

Lower Court Decision:
Town of Aquinnah v. Gay Head Wampanoag Tribe (June 11, 2003)

Relevant Links:
Wampanoag Tribe of Gay Head - http://www.wampanoagtribe.net
NARF-NCAI Tribal Supreme Court Project - http://doc.narf.org/sc/index.html

Related Stories:
O'Connor resigns from nation's highest court (7/5)
Justice's tenure filled with key Indian law cases (7/5)
Supreme Court wraps up October 2004 term (06/28)
U.S. Supreme Court vacancy impacts tribal rights (06/20)
Mixed ruling on state raid of Narragansett Tribe (5/16)
Massachusetts court deals blow to tribe's sovereignty (12/10)
Wampanoag Tribe to appeal sovereignty case (12/10)
Aquinnah Wampanoag Tribe elects new leader (11/24)
Top court hears Wampanoag sovereignty case (09/09)
Aquinnah Wampanoag Tribe plans new buildings (03/12)
Mass. high court to hear tribal immunity case (2/27)
State to intervene in Wampanoag sovereignty case (01/09)
Mass. town urged to appeal tribal immunity ruling (12/05)
Mass. court upholds Wampanoag Tribe's sovereignty (11/06)
Dershowitz: Judge may be wrong on Wampanoag case (07/22)
Mass. town argues for jurisdiction over tribe (7/21)
Mass. judge asked to reconsider sovereignty ruling (06/24)
Mass. court affirms tribe's sovereignty (6/18)
Mass. tribe argues for sovereign rights on land (02/14)

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