HISTORY AND FACTS OF LAND CLAIMS IN AQUINNAH

A. The Legislative Background of Abolishing the Indian District of Gay Head and incorporating the town of Gay Head (in 1998 the town of Gay Head changed its name to Aquinnah)

Chapter 42 of the Acts of 1863 - Resolve relating to the establishment of boundary lines of Indian lands, March 13, 1866

Report of Charles Marston, Commissioner, to Governor Alexander H. Bullock and the Executive Council of the Commonwealth, March 23, 1866

Senate Document 14 of 1869 - Report of the conditions of the Gay Head Indians, including proposed act to incorporate the town of Gay Head, January, 1870

Chapter 213 of the Acts of 1870 - An Act to incorporate the town of Gay Head, April 30, 1870

Plan of Common Lands conveyed by the Commonwealth to the town of Gay Head in 1870 under Section 2

Decree for Division of Gay Head Common Lands and Establishing Boundaries of Other Lands. Appointment of Joseph T. Pease and Richard L. Pease to make division of lands by Judge Theodore G. Mayhew, with transcription, December 5, 1870

Report of the Commissioner appointed to complete the examination and determination of all questions of title to land, and of all boundary lines between the individual owners, at Gay Head, on the island of Martha’s Vineyard; under a Resolve of the Legislature of 1866, Chapter 67. Boston: Wright & Potter, State Printers, 79 Milk Street (corner of Federal). 1871

Report of Joseph T. Pease and Richard L. Pease to the Probate Court and order and approval by the Probate Court, as recorded in Book 65, Pages 150 to 152, with transcription, December 21, 1878

 

B. The layout, funding and construction of Moshup Trail

Taking and layout of Moshup Trail by the Dukes County Commissioners as recorded at the Dukes County Registry of Deeds, including sheets 1, 7, 8, 9 and 10 of survey layout, February 7, 1955 ("public necessity or common convenience or necessity require that said County Commissioners and Associate Commissioners should layout, alter, locate or relocate a highway known as 'Moshope Trail'")

Letter from Massachusetts DPW District Highway Engineer L.R. Sellew to Dukes County Commissioner Chairman Stephen C. Luce, Jr. dated March 18, 1955 (the estimated cost to construct Moshope Trail, including pavement, was $200,000)

Letter from Massachusetts DPW District Highway Engineer L.R. Sellew to Dukes County Engineer E.J. McCarthy dated August 24, 1959 ("Town of Gay Head has not contributed anything toward the construction of [the Moshope Trail] project")

C. The federal lawsuit and settlement of Wampanoag claims in Aquinnah

Wampanoag Tribe of Gay Head and Wampanoag Tribal Council of Gay Head, Inc. v. Town of Gay Head et al., U.S. District Court civil action no. 74-5826-G, first amended complaint dated June 2, 1975

Commonwealth of Massachusetts Motion to Intervene in Wampanoag Tribe of Gay Head and Wampanoag Tribal Council of Gay Head, Inc. v. Town of Gay Head et al., U.S. District Court civil action no. 74-5826-G, dated July 9, 1981 ("In this case, one defense to this action is that chapter 213 of the Acts of 1870 validly conveyed the lands at issue to the Town of Gay Head. Massachusetts should be permitted to defend the validity of its laws.")

Joint Memorandum of Understanding concerning settlement of the Gay Head, Massachusetts Indian Land Claims dated June 2, 1975

Massachusetts Chapter 277 of the Acts of 1985, An Act to Implement the Settlement of Gay Head Indian Land Claims

U.S. House of Representatives debate on H.R. 2868, Gay Head Wampanoag Indian Claims Settlement Act of 1985, Congressional Record 29323-29329, October 7, 1985

[T]he Commonwealth of Massachusetts would also deposit $1.5 million in matching funds for a combined total of $3 million. The bill would make in order [sic] an out of court settlement reached by all concerned parties that in essence provides for the exchange of over 500 acres of land to the Wampanoag Tribe, provided that all Indian claims within the town of Gay Head are dropped.

Mr. Speaker, basically what this bill would do is protect the innocent land owners of Gay Head from possibly losing their land because of something that happened a long time ago and that they had no control over.

Rep. Joe Moakley, Congressional Record at 29324.

Mr. Chairman, 12 years ago, the Wampanoag Indian Tribal Council filed suit in U.S. district court against the town of Gay Head, a small community on the island of Martha's Vineyard. This litigation was an attempt to reclaim public land transferred to the town in 1870 by the Commonwealth of Massachusetts, allegedly in violation of Federal law.

Rep. Gerry Studds, Congressional Record at 29326

U.S. Senate Hearing on S.1452, April 9, 1986

Public Law 100-95 (formerly 25 U.S. Code §1771) - Massachusetts Indian Land Claims Settlement (1987)

 

D. The controversy and lawsuits to establish access to remaining landlocked parcels in Aquinnah

Initiation of controversy and Massachusetts Land Court record (1996-2012)

The case before the Massachusetts Supreme Judicial Court (2015-2016)

Maria A. Kitras et al. v. Town of Aquinnah et al., 474 Mass. 132 (2016)

Top Ten errors in Kitras

Vineyard Villain

 

The deceit and misrepresentation of facts before the SJC (and not part of the record):

Deceitful claim #1: There are approximately 200 lots that remain landlocked.

Fact: On August 26, 2015, a public records request was made to the Aquinnah Assessors to determine "all vacant lots in the town of Aquinnah that are potentially developable." See Public Records request by James J. Decoulos to Angela A. Cywinski dated August 26, 2015

Fact: The Aquinnah Assessors reported on August 26, 2015 that "197 lots (are) valued as potential(ly) buildable in town." See email of Angela A. Cywinski to James J. Decoulos Due to conservation restrictions and other contingencies, as well as multiple duplicates in the provided spreadsheet, the Assessors reported that 126 of these vacant lots required access.

Fact: Most of the 126 parcels identifed by the Assessors are owned by individuals or entities that hold abutting properties with access, have available access, were not part of the common land, or are owned by the Town, Tribe, conservation group or conservation owner. There are 13 remaining vacant lots that require access and are entitled to easements by necessity: 6 are private owners and 7 are Wampanoag title holders who derive title from the original 1878 grant of lots from the common land. See analysis of Assessor's spreadsheet by James J. Decoulos Some of these 13 remaining lots may not be buildable due to wetlands or soil constraints for septic systems.

Deceitful claim #2: Relief to the plaintiffs will create havoc in Aquinnah.

Fact: The town of Aquinnah has always planned, valued and taxed landlocked parcels as accessible. See Town of Aquinnah Answers to Interrogatories dated March 4, 2003

Fact: The town of Aquinnah, the Martha's Vineyard Commission and the Massachusetts Executive Office of Environmental Affairs have planned and anticipated a full buildout of Aquinnah. See Composite Development, Map 3, Town of Aquinnah, prepared by the Massachusetts Executive Office of Environmental Affairs, March 22, 2002

Fact: Similar to the resolution of access in Taylor v. Vanderhoop, relief to most of the landlocked parcels can occur through pre-existing ways. Only one new way and five new spurs to existing ways would need to be created to provide full relief to the remaining 13 lots.

Deceitful claim #3: The easement by necessity claim has cast a cloud on all title in Aquinnah

Fact: The Land Court has always preserved rights to easements by necessity during land registration cases and all current and prospective land owners in Aquinnah have been aware of prior Land Court decisions. See Black et al. v. Cape Cod Company, et al., MA Land Court, Misc. Case No. 69813, Decision dated July 14, 1975; Taylor et al. v. Vanderhoop et al., MA Land Court, Misc. Case No. 129925, Decision dated July 19, 1989 ; and, Affidavit of Philip J. Norton, Taylor v. Vanderhoop, Land Court misc. case no. 129925, dated October 28, 1988

Fact: Town counsel Ronald H. Rappaport and his office have recognized and promoted easements by necessity in Aquinnah during their real estate practice. See e.g. Motion to Take Deposition of James Reynolds and Withdrawal of Appearance by Reynolds, Rappaport & Kaplan on September 30, 1997

Fact: Ten existing lots will be impacted from the relief necessary to resolve easement by necessity claims to the remaining 13 lots. Three of the impacted lots are owned by the Martha's Vineyard Land Bank and one is owned by the Town. See mapping of 13 lots requiring relief and the 10 impacted lots with proposed access solutions.

 

The enjoyment of the choicest natural scenes in the country and the means of recreation connected with them is thus a monopoly, in a very peculiar manner, of a very few very rich people. The great mass of society, including those to whom it would be of the greatest benefit, is excluded from it.

Frederick Law Olmsted