Landlocked and loaded: longtime litigation leads to new bill and battle over Aquinnah

EDITOR'S NOTE: A clarification was made in this story on July 29, 2022 about what types of land the potential easements would cross. A correction was made about the specifics of ownership of the three parcels in the Harding family.  

MARTHA'S VINEYARD —Surrounded by scrubby beach grass, and steep, earthy, sand dunes Moshup Trail winds visitors and Martha's Vineyard islanders through the town of Aquinnah and down to Gay Head Beach.

The area, for thousands of years, has been inhabited by members of the Gay Head (Aquinnah) Wampanoag Tribe. While Moshup Trail is a source of stunning beauty for many, its history is clouded with colonial devastation — much of which surrounds the fight over tribal lands.

While the Gay Head (Aquinnah) Wampanoag Tribe was federally recognized in 1987, and was successful in land-back initiatives, in Aquinnah, litigation continues as Wampanoag and non-Native private land owners fight — with the Vineyard Conservation Society, the town of Aquinnah, and the Gay Head (Aquinnah) Wampanoag Tribe — for access to parcels of land along Moshup Trail.

Wilson "Bud" Harding, and his family, have paid roughly $150,000 in taxes for three parcels of ancestral land on Aquinnah, he said,  but he is still denied access to his land.

"This has been a 30-year battle. It's very discouraging," said Harding, a member of the Mashpee Wampanoag Tribe. "We are entitled to this land and paying taxes on it. But don’t have the privilege to be on our land or do anything with it."

Lots 126, 128, and 86, which are landlocked parcels of land along Moshup Trail, were passed down through Harding's family and gifted to Wilson Harding's mother Eleanor Harding by her first cousin Sarah Attaquin. Two of the three lots are owned by the Eleanor P. Harding Trust, with Wilson Harding as trustee. Harding's son Mark owns the third lot.

Because much of the privately-owned land along Moshup Trail is landlocked, surrounded by Vineyard Conservation-owned land, the Hardings, along with other Native American and non-Native private land owners, are seeking passage of Bill S. 2011, An Act Relative to Certain Easements.

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The legislation was introduced in March 2021 by Sen. William Brownsberger and moved favorably out of the Joint Committee on State Administration and Regulatory Oversight of the Massachusetts Legislature and was referred to the Senate Committee on Ways and Means in July. The Bill, would, in part, grant "an easement by necessity," said Mark Harding. And could pave the way towards land access.

Specifically, the Bill states if easements do not exist for the lots in Aquinnah, the superior court will have jurisdiction to establish 40-foot wide easements to a public way over public lands, including land held by any land bank, for vehicular access and underground utilities to lots.

Brownberger could not be reached for comment.

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James Decoulos, a petitioner to the bill, is a private land owner of three Moshup Trail land parcels including lots 127, 115, and 116. Decoulos, who is non-Native, said Native American land owners in Chappaquiddick, Dudley, Gay Head, Herring Pond and Mashpee, who have either lost their properties to foreclosure or are ready to sell their properties for pennies on the dollar, will also benefit from the bill.

"Before the common lands in those Indian districts were divided, the Legislature granted full citizenship to every Indian in the Commonwealth," Decoulos said. "Property should be granted to Native Americans with all the rights, privileges and immunities, and subject to all the duties and liabilities to which citizens of this Commonwealth are entitled or subject.”

Decoulos, who is from Belmont, , has paid about $300,000 in taxes in the last three decades for his lots on Aquinnah. He said there are many others who have paid hundreds of thousands of dollars in property taxes over the last 100 years without gaining access to their land.

Decoulos, and his wife Maria Kitras, at one time, were also full-time residents on Aquinnah.

Opposition from Conservation and the Aquinnah Wampanoag Tribe

Much of the opposition for legal access to the land along Moshup Trail, stems from consistent protection efforts from Vineyard Conservation Society.

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Brendan O'Neill, the group's executive director, said in an email that field scientists have been studying habitat throughout Moshup Trail, and called the area “the most significant unprotected, undeveloped habitat in the New England region.”

"It includes a wide diversity of invertebrate species (some found only on MV) as well as rare plants like Nantucket Shadbush, Arethusa Orchid, and animals like the Northern Harrier and Spotted turtle," he said.

Because conditions throughout Moshup Trail are unforgiving, O'Neill said, stressors such as development are not tolerated well. The most pressing threat is habitat fragmentation in the form of road building, house construction, and impacts associated with human habitation such as lights, noise and pets.

Cheryl Andrews-Maltais, chairwoman for the Wampanoag Tribe of Gay Head (Aquinnah), is also opposed to the proposed bill and said her tribal council instructed her to write a letter to legislators in protest. In the letter, she states that her tribe vigorously fought to reacquire and regain control over their traditional aboriginal homelands — to reestablish and protect its tribal community, including the right to decide who can cross over their homelands. This legislation, she said, attempts to remove that right and authority from the tribe without their consent.

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"I think that the committee's failure to consult with us and to consult with the Department of the Interior in this legislation, not only undermines our sovereignty, but clearly is short sighted," Andrews-Maltais said over the phone.

Private land owners can't access restricted land, she said.

"They can not have an easement over federal lands. They are just mistaken if they think they can," Andrews-Maltais said.

The easements sought would only cross town or Vineyard Conservation Society land, said Decoulos, the petitioner to the bill.

Another worry Andrew-Maltais noted, is that private land owners and developers will not keep the land pristine. Instead, she said, they are looking to sell the land to anyone willing to pay the highest price.

"They want to further degrade our access to our lands that were unlawfully stolen in the first place," she said. "That’s why we have a problem with it. We are absolutely, as a tribal government, adamantly opposed to anything that would give anybody rights over tribal lands. Because we have already payed it forward for us."

Twenty-five years and 25 court cases

Conservation efforts against any and all development, took Harding, and other families through a dizzying maze of ongoing litigation, including 25 cases that have been heard in a myriad of courts in the commonwealth including the Massachusetts Supreme Judicial Court, Massachusetts Appeals Court, Massachusetts Land Court, and in various federal courts including the U.S. District Court. The United States Supreme Court declined to hear the argument.

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Since the 1990s, land owners also sued the town of Aquinnah, the secretary of Environmental Affairs, the Martha's Vineyard Landbank Commission and the Vineyard Conservation Society, attempting to obtain "easement by necessity," or a legal right or means of access to their property.

When Decoulos' family bought their land on Aquinnah in the 1990s, he said the purchase was based on 120 years of policy and decisions from the Massachusetts Land Court. Land Court made it eminently clear, he said, that all divided common lands in Aquinnah were entitled to access and residential use based on a legal doctrine known as easements by necessity.

In 2015, the Appeals Court determined that divided common lands, conveyed to the town of Gay Head in 1870, were entitled to access. But the Massachusetts Supreme Judicial Court reversed that and decided the lands were not entitled to access for residential use, according to court case Maria A. Kitras vs. town of Aquinnah.

"The Kitras case created a new precedent that affects vacant land owners in Chappaquidick, Dudley, Mashpee and Plymouth," Decoulos said.

Ronald Rappaport, an attorney who litigated for the town of Aquinnah throughout many of the court cases surrounding development along Moshup Trail, said the continued denial of easements, shows that the courts have spoken.

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"They have consistently determined that there was no intent to create easements and the petitioners knew that when they purchased the land," he said. "And they are not entitled to be granted any easements by necessity or otherwise."

Rappaport expects Bill S.2011 will fail.

O'Neill agreed and said conservation entities have a continuing obligation to safeguard unique protected places, acquired with public and private dollars. Together, with the town of Aquinnah, O'Neill said Vineyard Conservation has worked to protect the globally imperiled habitat at Moshup Trail for decades.

In the 1970s, O'Neill said, the town and the commonwealth adopted coastal wetland regulations there, and in 1980, the town designated 186 acres along Moshup Trail as a special zoning overlay district, and a District of Critical Planning Concern, later expanded to include the entire town.

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In the 1990s, the town partnered with Vineyard Conservation and the Commonwealth Division of Conservation Services to win a $500,000 grant to acquire rare heathland habitat at Moshup.

"In a presentation to the town, Dr. Peter Dunwiddie, then an ecologist for the Massachusetts Audubon Society, described it as 'our Redwoods' – with only about 2,000 acres remaining worldwide," O'Neill said.

Decoulas, an environmental engineer, said Conservation claims the area is endangered coastal heathland. But said that assessment is made up — "a fabrication." But based on that argument, conservation groups, he said, started buying up property on Moshup Trail, and tried to persuade a number of property owners to give up their properties.

"And some of them did," he said.

In December 1995, Decoulos said property owners Andrew and Brenda Warshaw received permits to build a house in Gay Head, which is now known as Aquinnah.

The couple had already poured the foundation and begun the framing process for their house, which was north of Moshup Trail. But right in the middle of building, Andrew Warshaw, who was a surgeon at Massachusetts General Hospital, was contacted by Vineyard Conservation, informing him that he was building throughout endangered coastal heathland.

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"The town proceeded to take their property by eminent domain," said Decoulos. "And after a town vote to take their land, they actually tore the house down."

While the Warshaw's tried to reverse the decision, they were denied. Since then, the town of Aquinnah and Vineyard Conservation has been largely successful in stopping development throughout the area.

A history of land-taking

According to Andrews-Maltais, historically, land allotments in the town of "old Gay Head and old Aquinnah," were pre-cursors to the Dawes Act, which was passed in 1887, allowing the federal government to break up tribal lands. Only tribes that accepted the division of lands were allowed to become U.S. citizens. This ended in the government stripping about 90 million acres of tribal land from Native people, according to the National Park Service.

During that time, Wampanoag women were the stewards of the land, Andrews-Maltais said, and communally, tribal members used the land they needed. Because that didn’t seem to work for the European model, the commonwealth of Massachusetts gave every adult male a small acreage of land, she said, and then additional acreage for their wife and children if they were part of the tribe. The commonwealth, she said, by law, was not allowed to do that.

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"They were in contravention of the 1790 Nonintercourse Act," she said. "And that’s what we sued for with our land claim settlement act — to get the lands back and clear that title."

Throughout history, Andrews-Maltais said there have been "all kinds of shady transactions," and people coming into the community to steal land. In Native communities, she said, tribal members didn’t know to go to the registry with a deed and a title because everybody knew whose lands they were. Therefore, nobody would pursue to take someone else's land because you would be stealing from your own family.

"Now we have all these people that have come into town to checkerboard our tribal lands," she said. "Some of them have been in equitable dealings, but for the most part, the town allowed people to pay back taxes and put levy’s on their land."

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Although Mark Harding and Andrews-Maltais may not see eye-to-eye regarding Bill S. 2011, Mark Harding is very familiar with shady dealings between the commonwealth and tribal families who weren't used to the ways of colonial settlers. Throughout Mashpee Wampanoag territory, he said there were land spectators in the 1960s and 1970s that went to Land Court to petition Native-owned parcels of land, to gain portions of it.

"It happened all the time and it still does," he said. "Land developers here in Mashpee — they made all their money from Indian land."

Judith Shapiro, an attorney and Native American law expert, represented the Mashpee Wampanoag Tribe during their federal recognition and their re-establishing homeland efforts. She said land throughout every facet of Native communities on Cape Cold were manipulated and stolen throughout the course of colonization, and continue to be.

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Mashpee lands, in particular, were preserved by sachems (tribal leaders) in the 17th century, through a deed with colonial settlers in the 17th century. When lands weren't respected, Shapiro said, the tribe actually sent a delegation to the King George III of England, asking him to enforce the protection of their land — which he did.

In 1870, the commonwealth decided they wanted to "get out of the Indian business," Shapiro said. And they drew up tribal roles, identifying Wampanoag families, and designated land allotments. That established the town of Mashpee at that time and removed all the protections against alienation of the land.

"This is where it becomes critical – because the land becomes subject to real estate tax. And that was a first," she said.

An enormous amount of land was lost in the few years after 1870, Shapiro said, and went into the hands of non-Native commissioners who presided over the land, and their friends and families.

"The thoughts throughout the tribe, were that regardless of who owned the titles, they remained on their land. They thought, 'This is who we are and this is where we are,'" she said.

While Mashpee was still largely tribally run through the mid-1950s and 1960s, non-Native control began to grow in decades to follow. People started mysteriously losing their land to non-payment of property tax and land continued to be acquired by the town. Mashpee land records, even today, Shapiro said, document pieces of land that were lost to tax taking and are listed on land records as “owner unknown.”

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The owner unknown lots were certainly tribal members that failed to pay taxes and were lost titles to the town, she said. Some of the land, to this day, is still held by the town as having been lost for small amounts of dollars.

While the land was supposed to have been respected forever and not transferred out of tribal hands, she said Mashpee became the fastest-developing area of real estate in the entire country.

"And it sure wasn’t tribal members getting homes," she said.

While Shapiro hasn't studied land transactions on Martha's Vineyard, she is aware of families who have argued that their lands has been improperly held by conservation entities.

"To say it’s conservation against original owners — that’s arrogance and privilege," she said. "Who is better to preserve the land than the people to whom it was supposed to belong forever and the people who preserved it forever."

This article originally appeared on Cape Cod Times: Wampanoag and non-Native Aquinnah land owners battle for access