Please refer to the Definitions set forth immediately prior to this Description for definitions of the terms used in this document.

Preamble

In November, 1983, the Settlement Agreement settling the Law Suit brought by the Tribal Council in 1974 against the Town was entered into among the Tribal Council, the Town, the GHTA and the Commonwealth. This brought to a close what had turned out to be protracted and complex settlement activities regarding the suit. A determination that the Tribal Council existed as an Indian tribe within the meaning of Federal law was made in February, 1987. This brought to a close what also had been protracted efforts to achieve such recognition with these efforts having been on-going during the pendency of the Law Suit.

The terms and conditions of the Settlement Agreement and their subsequent implementation have had and will have major lasting impact on land usage rights within the Town generally and on the interrelationships with respect thereto among the Town, the Tribe and private property owners.

Much of the documentation that relates to the foregoing is complex and is interrelated with others of comparable complexity. Thus, it is hoped that this Description (including what can be characterized as “helpful redundancies” in terms of repeating various descriptions, etc.) will be of assistance in helping readers gain an understanding of these matters.

Law Suit

Briefly summarized, the Law Suit was commenced by the Tribal Council in 1974 in the U.S. District Court in the District of the Commonwealth against the Town. The suit sought to reclaim the Common Lands on the grounds that the transfer of the Common Lands to the Town in 1870 by the Commonwealth had been in violation of Federal law, in particular the Trade and Intercourse Act of 1790. It became apparent shortly after the Law Suit was commenced that an on-going concern would be whether such claims could ever be extended to cover private property in the Town in addition to the Common Lands and in fact private property owners then found it very difficult to get mortgages or title insurance because of perceived clouds on their titles. Accordingly, property sales in the Town dropped precipitously. In any event, when it became clear that the Town itself was not going to defend against the Law Suit, the GHTA and subsequently the Commonwealth each intervened as a party in the Law Suit, both in opposition to the claims made by the Tribal Council and the relief it sought in the Law Suit.

Protracted and complex settlement activities took place, primarily between the Tribal Council and the GHTA and their respective attorneys, until 1983 when the Settlement Agreement was entered into among the Tribal Council, the Town, the GHTA and the Commonwealth. The Law Suit was dismissed, with prejudice, by agreement among the parties when the prerequisites for doing so were satisfied (namely, the passage of the Federal Act and the Commonwealth Act and the effecting of the land transfers envisioned by the Settlement Agreement [the last of which was effected in 1992].)

Settlement Agreement

As indicated above, the Settlement Agreement was executed and delivered in November, 1983 among the Tribal Council, the Town, the GHTA and the Commonwealth. It is perhaps the key document in terms of setting forth the mutual agreements regarding transfers of real property, rights and restrictions with respect thereto, general land title issues and various other matters. These agreements were then reflected in the subsequent legislation and deeds required to implement the Settlement Agreement. Certain of the documents it incorporates by reference or otherwise refers to (such as the Land Use Plan) also are key documents with continuing applicability.

Because the Settlement Agreement by its nature required various other acts to be completed and instruments to be executed and delivered to implement many of its provisions, a detailed description of those terms will be provided as part of the discussion of the given implementing acts and instruments. Broadly summarized, however:

• the Settlement Agreement required that the Town convey the Common Lands (except for shorelines and other parcels as defined therein) and the Cook Lands and that the owners of the Strock Estate convey those lands. (The Settlement Agreement also provided for the possible transfer of lands identified therein as the Menemsha Neck Lands but that transfer never was effected.)

• the Settlement Agreement also addressed in great detail numerous matters relating to the rights, privileges and restrictions (including with respect to matters such as alienation rights and the applicability of Federal, Commonwealth and Town laws except as expressly provided for in the Settlement Agreement) that were to be applicable in some cases generally to all of the realty involved and in other cases to particular lands.

• the Settlement Agreement also envisioned the enactment of Federal legislation that would eliminate all past, present or future Indian claims, whether monetary, possessory, aboriginal or otherwise, involving “lands and waters” in the Town and in the Commonwealth (except for individual claims pursued under laws generally applicable to non-Indians as well as Indians.)

Both the Settlement Agreement and the legislation that followed received wide publicity on Martha’s Vineyard. For example, both the Settlement Agreement and the Federal Act were the subject of extremely detailed reporting by the Vineyard Gazette.

Governmental Acts

Action by the Town. The Town instructed its Selectmen to take the necessary steps to convey the Common Lands, authorized its Selectmen to enter into the Settlement Agreement on its behalf and instructed its Selectmen to petition to the Commonwealth for the passage of legislation authorizing such conveyances and implementing the Settlement Agreement pursuant to affirmative votes taken at Special Town Meetings held on December 9, 1976 and November 19, 1983 and at the Annual Town Meeting held on May 14, 1985.

Action by the Commonwealth. The requisite authorizing and implementing act envisioned by the above-mentioned Town acts and by the Settlement Agreement was enacted by the General Court of the Commonwealth in 1985 and signed by the Governor on September 18, 1985. In addition to authorizing the conveyances of the Common Lands and the Cook Properties by the Town, the Commonwealth Act also implemented a number of the provisions of the Settlement Agreement. Thus, briefly summarized, the Commonwealth Act provided that all Federal, Commonwealth and Town laws would apply to the Settlement Lands (collectively, the Common Lands and the Strock Estate) and to the Cook Properties and to “any other lands owned now or at any time in the future by the Tribal Council or any successor organization” subject only to a number of special provisions, namely that:

• (a) the Settlement Lands would not be treated as real property for purposes of taxation but that the Tribal Council or any successor would make payments in lieu of property taxes whenever improvements were made on said lands in amounts determined as set forth in the Commonwealth Act,

• (b) the Tribal Council or any successor would have the right, after consultation with appropriate governmental officials, to establish its own regulations concerning hunting (but not trapping or fishing, which were to remain subject to Commonwealth law) by Indians on the Settlement Lands and the Cook Properties by means other than firearms or crossbow (with hunting by firearm or crossbow to remain subject to Commonwealth law), with a standard of reasonableness (subject to judicial review) to be applied instead of any requirement that such hunting regulations conform to law,

• (c) the zoning and subdivision ordinances and regulations of the Town would not apply to the Settlement Lands except as set forth in the Settlement Agreement but that the Settlement Lands would be subject to the Land Use Plan which in turn provided that the Settlement Lands in fact would be subject to the “zoning regulations and substantive standards of the subdivision regulations of the Town of Gay Head as they exist at the time of this agreement” (October 3, 1983), and

• (d) the Town zoning laws in force at the time of the enactment of the Commonwealth Act would continue to apply to the Cook Properties.

The Commonwealth Act provided that it would take effect upon the enactment of Federal legislation providing for the extinguishment of aboriginal and other Indian tribal land claims in the Town and that the conveyances of the Settlement Lands and the Cook Properties would take effect “upon the actual extinguishment of such aboriginal and other Indian tribal land claims.”

Action by the U.S. Congress. The requisite act envisioned by the Settlement Agreement and the Commonwealth Act was enacted by the U.S. Congress on August 18, 1987. Because the Federal Act covered a number of diverse subjects, it will be briefly summarized by topic, as follows:

Settlement Fund. A fund of up to $2.25 million was established to pay for the acquisition (subject to the Commonwealth establishing an equivalent fund for the same purpose) of the Strock Estate and various related expenses.

Aboriginal and Other Claims. (a) All transfers before the date of enactment of the Federal Act of land or natural resources anywhere in the United States by or on behalf of the Tribe or within the Town by any Indian, Indian nation or tribe or band of Indians were deemed to have been made in accordance with the U.S. Constitution and laws and any such transfer and any transfer in implementation of the Federal Act was deemed to have been made “with the consent and approval of Congress as of the date of such transfer”, (b) any aboriginal title held by the Tribe or any other entity ever known as the Gay Head Indians to any such land or natural resources referred to in (a) above was considered extinguished as of the date of such transfer, and (c) any claim (including any claim for damages for use and occupancy) by the Tribe, the Gay Head Indians or any other individual Indian or entity based on any transfer of land or natural resource covered by (a) above or any aboriginal title consented to and approved as discussed in (b) above was “extinguished as of the date of any such transfer.” However, as contemplated by the Settlement Agreement, the Federal Act expressly stated that the above effects would not offset or eliminate any personal claims of any individual Indian pursued under any law of general applicability that protects non-Indians as well as Indians.

Conditions Precedent to the Purchase. The purchase of the Strock Estate and payment of other defined related expenses was not to be effected until a notice in the Federal Register was published of a determination that (a) the Commonwealth had enacted legislation covering the matters in fact covered by the Commonwealth Act, (b) the Tribe had submitted an executed wavier or waivers of the claims covered by the Settlement Agreement, the claims extinguished by the Federal Act and all claims arising because of the approval of transfers and extinguishment of titles and claims under the Federal Act, and 9c) the Town had authorized the conveyance of the Common Lands and the Cook Properties. (This notice was published in the Federal Register on January 27, 1988.)

The Purchase and other Transfers. As indicated above, subject to the satisfaction of the various conditions described above, the Federal Act authorized the purchase by the Secretary (at the request of the Tribe) of the Strock Estate (and for certain contiguous properties and for the payment of certain specified expenses). The Federal Act also authorized the Secretary to accept the Common Lands and the Cook Properties from the Town immediately upon the enactment of the Federal Act. All of the properties acquired or accepted by the Secretary pursuant to the Federal Act were to be held in trust for the benefit of the Tribe and were to be subject to the Federal act, the Settlement Agreement and “other applicable laws”.

Applicability of Laws on both existing and any after-acquired Land. Limitations on Jurisdiction and Alienation.

• The Federal Act also stated (Sec. 9) that except as otherwise expressly provided for therein or in the Commonwealth Act “the settlement lands and any other land that may now or hereafter be owned by or held in trust for any Indian tribe or entity” in the Town were to be subject to the civil and criminal laws, ordinances and jurisdiction of the Commonwealth “(including those laws and regulations which prohibit or regulate the conduct of bingo or any other game of chance)”.

• Section 6 (c) of the Federal Act also provided that: “Any after acquired land held in trust for the Wampanoag Tribal Council of Gay Head, Inc., any successor, or individual member, shall be subject to the same benefits and restrictions as apply to the most analogous land use described in the Settlement Agreement.”

• The Federal Act also provided (Sec. 7 (a)) that the Tribe “shall not have any jurisdiction over nontribal members” and was not to exercise any jurisdiction over any part of the lands covered by the Federal Act in contravention of the Federal Act, the civil regulatory and criminal laws of the Commonwealth and the Town and applicable Federal laws. (This absence of sovereignty distinguishes the Federal Act from comparable legislation enacted with respect to most other Indian tribes. Among other items of legislative history, see the comments of Representative Rhodes in the legislative history materials included in the compilation referred to at the bottom of this link.)

• The Federal Act also provided, however, that these restrictions would not affect or otherwise impair various rights and exemptions described therein, including with respect to leases, the right to effect transfers to successors to the Tribe or the right to use Settlement Lands by its members, easements, transfer of the West Basin Strip (as described therein) in accord with the Settlement Agreement, and with respect to the exemption from real property taxes of any land held in trust pursuant to the Federal Act to the extent provided by the Settlement Agreement; however, in variance from the provisions of the Commonwealth Act and the Settlement Agreement the Federal Act also provided that such taxation or liens or “in lieu of payments” or other assessments with respect to real property would be applicable only with respect to lands which are zoned and utilized as commercial.

Recognition as a Tribe

An acknowledgement was made in February, 1987 by the Department of the Interior that the Tribal Council “exists as an Indian tribe within the meaning of Federal law.” (A copy of the Notice of this Acknowledgement was published in the Federal Register on February 10, 1987. As indicated in the Notice, this acknowledgement reflected a determination that all seven of the mandatory criteria for such an acknowledgement had been satisfied. The Notice in particular addressed the satisfaction (based on new evidence) of the two criteria concerning which a prior proposed finding had been made to the effect that there would not be a tribal acknowledgment because they had not been satisfied. (A copy of the Notice of that proposed finding as published in the Federal Register on June 30, 1986 also is included in the above-mentioned compilation.)

The Federal Act provides that for purposes of eligibility of Federal services made available to members of federally recognized Indian tribes, members of the Tribe residing on Martha’s Vineyard “shall be deemed to be living on or near an Indian reservation.”

The Deeds

Strock Deed. The Strock Deed was executed on February 1, 1988 and conveyed the Strock Estate to the United States of America in trust for the benefit of the Tribe.

Town Deed. The Town Deed was executed on June 29, 1992 and conveyed the Common Lands and the Cook Properties to the United States of America in trust for the benefit of the Tribe. These conveyances were made generally subject to the Settlement Agreement, the Federal Act and the Commonwealth Act. In addition, various terms were made applicable with respect to given particular conveyances (briefly summarized) as follows:

• The shoreline of both the Cranberry Lands and the Herring Creek specifically was excluded from the conveyance and was retained by the Town. The shoreline being retained along Vineyard Sound (relevant only to the Cranberry Lands) consisted of a strip extending from the mean low water mark to 50 feet inland from the mean high water mark and the shoreline being retained along Menemsha Channel (relevant only to the Cranberry Lands) and Menemsha Pond (relevant to both the Cranberry Lands and the Herring Creek) consisted of a strip extending from the mean low water mark to 30 feet inland from the mean high water mark.

• The shoreline of the Face of the Cliffs also was retained by the Town and consisted of the area from the mean low water mark to the base of the Gay Head Cliffs.

• The Town Deed further provided that the shorelines being retained would be available to “all Gay Head residents and property owners, their guests and assigns, for recreational and other uses now commonly made of such shoreline”, that the access rights as set forth in the Settlement Agreement and the Land Use Plan were expressly reserved by the Town, and that the roads and paths established in accordance with the Land Use Plan for such access were to be maintained by the Town.

• The shoreline of the Cook Properties was not retained by the Town; however, the Town Deed stated that the pond beach being conveyed was subject to an easement for access and beach use as described in the Settlement Agreement. The Land Use Plan (which is relevant due to its being incorporated by reference in the Settlement Agreement) provided that this access includes both by foot and by car and includes a specified parking area at the beach.

• Finally, a strip of land at West Basin (as described in the Settlement Agreement) and the bulkhead and pier there also were excluded from the conveyances made by the Town.

Land Use Plan/Zoning and Other Building Regulations

Land Use Plan. As indicated above, through various of the provisions and cross-references of the Settlement Agreement and of the Town Deed, all of the property being conveyed (namely, the three parcels constituting the Common Lands, the Cook Properties and the Strock Estate) was made subject to the Land Use Plan. And, the Land Use Plan contained a number of specific, detailed requirements regarding the rights of way, easements, the retention of the natural condition of the Common Lands, permitted uses, and the types of repairs and improvements which were to be permitted with respect to the Common Lands and the Cook Properties. Although set forth in various places, the Land Use Plan also provided that each of the Common Lands, the Cook Properties and the Strock Estate were to be subject to “normal health and building regulations” of the Town and the Commonwealth “as they are in force at the time in question”.

Zoning and Other Building Regulations. Although the applicability differs considerably with respect to given properties, here also (through various of the provisions and cross-references of the Settlement Agreement, the Town Deed and the Commonwealth Act) all of the property being conveyed was made subject (again, with varying applicability) to the zoning and other building regulations applicable in the Town. Briefly summarized:

• Strock Estate. The health and building regulations of the Town as in force at the time in question and the zoning regulations and the Town’s subdivision regulations “as they exist at the time of the Land Use Plan” were made applicable to the Strock Estate but all usages of the Strock Estate conforming to such zoning and subdivision regulations were to be exempt from any requirement for special permits or approvals of the Planning Board, the Conservation Commission or the Martha’s Vineyard Commission. Thus, any such permits or approvals were to be requested and issued “in the same manner as for other land in Gay Head with respect to any exception to, or other variation from such requirements, which is authorized by the said regulations.”

• Cook Properties. The Cook Properties, however, were made subject to health, zoning and other building regulations “as they are in force at the time in question” as well as to Federal and Commonwealth conservation laws and the regulations of the Martha’s Vineyard Commission.

• Common Lands. As indicated above, the Common Lands also were made subject to normal health and building regulations of the Town and the Commonwealth as they are in force at the time in question and, except as expressly permitted in the Land Use Plan, “all of the Common Lands will be left in their existing natural condition and used only for recreation, food gathering, ceremony, environmental research and education or nature reserve.” A bulkhead and related structures were envisioned at the West Basin area, however, and the Land Use Plan required that any such structure “shall be subject to Town zoning”, with a number of other specific requirements regarding any such developments also being set forth.

The Settlement Agreement provided (paragraph 16) that all future amendments to the Land Use Plan “as applicable to the Settlement Lands and embodied in the Town Zoning Law” would require the approval of the Tribe and the Town (with Town approval to be obtained at two town meetings not less than a month apart with one of which to be held in either July or August) and if applicable by such Commonwealth officials “whose approval is required for amendments to zoning laws.” The Settlement Agreement also provided (paragraph 5) that any subsequent changes in the Town zoning laws were to be made applicable to the Cook Properties only if approved in the same manner as applicable for amendments to the Land Use Plan.

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