Stewarding the Land: Why the Aquinnah Wampanoag Tribe Should Retain Their Sovereign Immunity
By Maddy Foley

In a 2004 Supreme Judicial Court of Massachusetts decision, Building Inspector and Zoning Officer of Aquinnah v. Wampanoag Aquinnah Shellfish Hatchery Corp., the Court concluded that a Wampanoag shellfish hatchery was subject to the zoning laws of the Town of Aquinnah (formerly known as Gay Head, hereinafter “the Town”).[1] The Aquinnah Wampanoag Tribe (“the Tribe”) wanted to build a shed and a pier platform for the hatchery on tribal lands.[2] The Court, however, found that the Wampanoag Tribe waived its sovereign immunity when it entered into a settlement agreement[3] with the town (referred to in the agreement as “Gay Head”).[4] The settlement agreement permitted the Building Inspector to oversee the Tribe’s land use.[5] This post will examine the settlement agreement from a purposivist prospective and answer the question of why the Tribe waived their sovereign immunity.

The Tribe does not have sovereign immunity. Sovereign immunity prevents litigants from suing a government  for their harmful conduct.[6] Like the federal and state governments, tribes also have sovereign immunity.[7] But tribes can waive their sovereign immunity.[8] Tribes may waive sovereign immunity  to enter into agreements like large construction contracts.[9] This can subject tribes to lawsuits. Unfortunately, one lawsuit could potentially significantly impair the tribal government due to waived sovereign immunity.[10] In contrast, waiving sovereign immunity can open up a tribe to business opportunities to support their economy.[11] Here, the Tribe waived their sovereign immunity so that it may acquire their tribal land.[12]

Tribal autonomy over lands is important, not only to preserve Indigenous cultures and traditions, but to protect the land and biodiversity.[13] Indigenous communities often  act as stewards to the land which can mitigate the impacts of climate change.[14] In fact, Indigenous peoples protect 85 percent of the Earth’s biodiversity.[15] In Building Inspector, the Tribe built improvements for their shellfish hatchery, practicing land stewardship in the process.[16] The Tribe should have more power over what they can do with their land especially when it involves something as important as protecting the land’s biodiversity.

The Settlement Agreement in question involves agreements with the State and local government.[17] The U.S. Constitution, however, delegates the federal government the power to manage affairs with tribes in the Commerce Clause.[18] Further, tribal land can either be trust land where the land is held in trust by the federal government, or fee land, where the Tribe, or a Tribal member purchases the land.[19] The Aquinnah Wampanoag Tribal land is held in trust, as are most Native American lands. Yet, the Tribe’s situation is unique because it is also tied to the restrictive Settlement Agreement with the Town and the State.

Initially, individual tribal members owned the land subject to the agreement, but then the State took the land.[20] The area known as the “common lands” were held in common by all tribal members by tradition and their culture.[21] Then in 1870, the General Court of Massachusetts took the Tribe’s land and claimed it as the Town of Aquinnah.[22] The stolen land was then divided into lot and deeded to tribal members.[23] The common lands were kept as part of the Town. Next, the Tribe incorporated as a Massachusetts nonprofit in 1972.[24]

The Tribe needed to file suit to get their land back. In 1974, the Tribe sued the Town for the Common lands.[25] The Tribe alleged that some transfers of land within the Town violated the Indian Non intercourse Act because the Tribe had claimed title to them.[26] The Tribe, however, did not have federal tribal status at the time.[27] In 1976, the Town’s citizens urged their selectmen to negotiate a settlement with the Tribe to transfer the Common Lands back to the Tribe.[28] Then, the selectmen approved to transfer the Common Lands to the tribe.[29] A week later, the Gay Head Taxpayers Association argued that the selectmen did not represent their interest and filed papers with a federal judge.[30] The association thus became a negotiating party in the settlement agreement.[31]

The Tribe and the Town took several years to reach an agreement. In 1981, the Tribe petitioned the Bureau of Indian Affairs for tribal recognition.[32] Finally in 1983, the Bureau placed the Tribe’s land request in active consideration. But then the Tribe, the Town, the Commonwealth of Massachusetts, and the Aquinnah/Gay Head Community Association, Inc. all entered into a “Joint Memorandum of Understanding Concerning Settlement of the Gay Head, Massachusetts Indian Land Claims,” which is the Settlement Agreement.[33] The Tribe agreed to the settlement for the purpose of acquiring 238 acres of land in Aquinnah.[34] The joint memorandum stated that federal funds will maintain the common lands, the Cook property, the former Strock Estate, and the Menemsha Neck Lands.[35]

The Settlement Agreement established many predatory terms between the Tribe, the Town, and the Commonwealth of Massachusetts. The agreement extinguished all the Tribe’s “aboriginal” land claims in exchange for funding to acquire the lands in dispute for the Tribe.[36] The Tribe also agreed to create a state-charted corporation, the Tribal Land Corporation, which would be subject to the Settlement Agreement.[37] The Agreement states “[a]ny structure placed on this property shall be subject to all Federal, State and local laws, including Town zoning laws, State and Federal conservation laws, and the regulations of the Martha’s Vineyard Commission. . . .”[38] Additionally, the Land Use Plan in the Agreement was a part of the Town’s zoning laws. The Plan enabled the Tribe to approve of future amendments to the zoning laws.[39] Further, the Building Inspector regulates the Land Use Plan as applied to the Cook Lands.[40] The Building Inspector specifically prohibited the Tribe from building structures within 200 feet of wetlands, bodies of water, beaches, dunes, and certain bluffs. In essence, the Plan prohibited the Tribe from building any structures within  the Cook Lands.[41]

Further, Massachusetts required  payments in lieu of taxes when the Tribe built structures  or  made improvements to the land.[42] If the payments are not made, the Town or anyone with the proper authority may not foreclose on the lands but instead enforce a lien against the Tribes assets.[43] If the Tribe does not pay the liens in 5 years, the Town may seize the land, but it would not affect the Tribe’s title to the land.[44]

Moreover, the Agreement limited the Tribe’s delegation of power to decide its own hunting regulations. The Tribe could not regulate  firearms or crossbow.[45] The Tribe may not establish its own trapping or fishing regulations.[46] Also, any regulations made by the Tribe are subject to Judicial review “for reasonableness.”[47] Additionally, the Agreement did not establish federal recognition for the tribe.[48] These terms purposefully limit the Tribe’s autonomy on the land they acquired through the Agreement.

The Settlement Agreement significantly impacts the Tribe’s autonomy. The Tribe finally gained Federal recognition in 1987.[49] The State placed the lands in trust with the U.S. under the Federal Implementing Act.[50] The federal government, however, allowed the Settlement Agreement to still stand between the Tribe and the Town.[51] Thus, claims against the Tribe, like the one in Building Inspector, were permissible. The Tribe does not have complete power over their lands due to the zoning laws. In contrast, the Tribe in Wisconsin Department of Natural Resources v. Tiber and Wood Products Located in Sawyer County retained their sovereign immunity and prevented an entity from taking natural resources from the Tribe’s land.[52] The federal government should allow the Aquinnah Wampanoag Tribe to retain their sovereign immunity.

The purpose of the Tribe entering into the Agreement was to acquire their tribal lands. The Agreement was an essential step in securing the lands for the Tribe. The Town’s objective, however, was to control the use of the land, among other things. The Town should not have major power over what the Tribe does with their land considering most of the tribal land is undeveloped conservation lands.[53] Tribes can benefit from waiving sovereign immunity in some instances, for example, to facilitate  economic growth. The Aquinnah Wampanoag Tribe should be allowed to decide what is the best use for their land.

[1] Bldg Inspector and Zoning Officer Aquinnah v. Wampanoag Aquinnah Shellfish Hatchery Corp., 818 N.E.2d 1040, 1042 (2004).

[2] Id.

[3] Wampanoag Tribal Council of Gay Head, Inc., Joint Memorandum of Understanding Concerning Settlement of the Gay Head, Massachusetts Indian Land Claims (Sept. 28, 1983), https://www.decoulos.com/legislative/1983_Settlement_Agreement.pdf.

[4] Id.

[5] Id. at 1044.

[6] Padraic I. McCoy, Sovereign Immunity and Tribal Commercial Activity: A Legal Summary and Policy Check, The Federal Lawyer, Mar.–Apr. 2010, at 41, 42.

[7] Id.

[8] Id.

[9] Id.

[10] Id. at 44.

[11] Id.

[12] Joint Memorandum of Understanding Concerning Settlement of the Gay Head, Massachusetts Indian Land Claims at 3, Wampanoag Tribal Council of Gay Head, Inc. v. Town of Gay Head (Aquinnah) 853 F.3d 618 (2017) (No. 74-5826-G).

[13] Stewarding Native Lands, First Nations Development Institute, https://www.firstnations.org/our-programs/stewarding-native-lands/ (last visited Sept. 16, 2025).

[14] Land Back: How Two Tribes are Re-Acquiring and Leveraging Community Forests, First Nations Development Institute, https://www.firstnations.org/stories/land-back-how-two-tribes-are-re-acquiring-and-leveraging-community-forests/ (last visited Sept 16, 2025).

[15] Id.

[16] Bldg Inspector and Zoning Officer Aquinnah v. Wampanoag Aquinnah Shellfish Hatchery Corp., 818 N.E.2d 1040, 1042 (2004).

[17] Wampanoag Tribal Council of Gay Head, Inc., Joint Memorandum of Understanding Concerning Settlement of the Gay Head, Massachusetts Indian Land Claims (Sept. 28, 1983), https://www.decoulos.com/legislative/1983_Settlement_Agreement.pdf.

[18] U.S. Const. art. I, § 8, cl. 3.

[19] Office of Natural Resources Revenue, Native American Ownership and Governance of Natural Resources, U.S. Dep’t Interior, https://revenuedata.doi.gov/how-revenue-works/native-american-ownership-governance/ (last visited Sept. 15, 2025).

[20] W. C. Platt, Historic Transfer of Indian Lands Signed, Vinyard Gazette (July 21, 1989) https://vineyardgazette.com/news/1989/07/21/historic-transfer-indian-lands-signed.

[21] Id.

[22] Id.

[23] Id.

[24] Building Inspector, 818 N.E.2d at 1042.

[25] See Joint Memorandum of Understanding Concerning Settlement of the Gay Head, Massachusetts Indian Land Claims, Wampanoag Tribal Council of Gay Head, Inc. v. Town of Gay Head (Aquinnah) 853 F.3d 618 (2017) (No. 74-5826-G).

[26] Building Inspector, 818 N.E.2d at 1042.

[27] W. C. Platt, Historic Transfer of Indian Lands Signed, Vinyard Gazette (July 21, 1989) https://vineyardgazette.com/news/1989/07/21/historic-transfer-indian-lands-signed.

[28] Id.

[29] Id.

[30] Id.

[31] Id.

[32] Id.

[33] Id.; Building Inspector, 818 N.E.2d at 1043.

[34]Joint Memorandum of Understanding Concerning Settlement of the Gay Head, Massachusetts Indian Land Claims at 2–3, Wampanoag Tribal Council of Gay Head, Inc. v. Town of Gay Head (Aquinnah) 853 F.3d 618 (2017) (No. 74-5826-G).

[35] Joint Memorandum of Understanding Concerning Settlement of the Gay Head, Massachusetts Indian Land Claims at 5, Wampanoag Tribal Council of Gay Head, Inc. v. Town of Gay Head (Aquinnah) 853 F.3d 618 (2017) (No. 74-5826-G).

[36] Building Inspector, 818 N.E.2d at 1043.

[37] Id.

[38] Id.

[39] Id. at 1044.

[40] Id. at 1045.

[41] Id. at 1044.

[42] Joint Memorandum of Understanding Concerning Settlement of the Gay Head, Massachusetts Indian Land Claims at 9, Wampanoag Tribal Council of Gay Head, Inc. v. Town of Gay Head (Aquinnah) 853 F.3d 618 (2017) (No. 74-5826-G).

[43] Id.

[44] Id.

[45] Id.

[46] Id. at 10.

[47] Id.

[48] Id.

[49] Bldg. Inspector, 818 N.E.2d at 1045.

[50] Id.

[51] Id.

[52] See Wisconsin Department of National Resources v. Timber & Wood Prod., 379 Wis.2d 690, 721 (2017).

[53] Tribal Lands, Wampanoag Tribe of Gay Head (Aquinnah), https://wampanoagtribe-nsn.gov/lands (last visited on Sept. 16, 2025).