April 13, 1992

FACTS:


The Wampanoag Tribe of Gay Head (also known as "Aquinnah")
(Tribe) is a federally recognized Indian tribe which is the
successor to the Wampanoag Tribal Council, Inc., a non-profit
charter corporation of Massachusetts. According to the findings of
the Bureau of Indian Affairs which formed the basis for federal
recognition, the Gay Head Wampanoags have been identified as being
American Indians from historical times until the present and have
inhabited the Gay Head area since the first sustained contact with
European settlers in 1642. The Wampanoags have historically
continued to maintain social and tribal relations among themselves
and tribal political influence over tribe members. After obtaining
federal recognition, the tribe enacted a Constitution which

Page 400

superseded the by-laws of the Council and the Council ceased to
exist. According to the Wampanoag Constitution,

We, the native Wampanoag people of Aquinnah, in order to
sustain and perfect our historic form of tribal
government, do proclaim and establish this constitution
for the Wampanoag Tribe of Gay Head (Aquinnah).

Our tribal government shall be dedicated to the
conservation and careful development of our tribal land
and other resources, to promote the economic well-being
of all tribal members, to provide educational
opportunities for ourselves and our posterity, and to
promote the social and cultural well-being of our people.

Members of the tribe are those individuals who can document their
descent from a specifically identified Gay Head Wampanoag Indian on
the 1870 census roll of the tribe compiled by Richard L. Pearse and
included in a report submitted to the State of Massachusetts on May
22, 1871. See Wampanoag Constitution.

The Tribe is governed by a Tribal Council whose members are
elected by all tribal members who are at least 18 years of age.
There are also two ceremonial positions which consist of a chief
and a medicine man. The Tribal Council has sovereign powers to
govern the tribe, except as are limited by the Settlement Act
granting the Indian land and the laws of the United States. For
example, the Council may establish an ordinance creating a judicial
branch of government with jurisdiction over "all cases and matters
in law and equity arising under the settlement act, this
constitution, and the ordinances of the tribe" subject to
limitations imposed by the laws of the United States. See Wampanoag
Constitution.

Some tribal officials are also members of municipal boards in
Gay Head or members of other public entities, such as the Martha's
Vineyard Land Bank.


QUESTION:

Is the Wampanoag Tribe of Gay Head a "business organization"
for purposes of G.L. c. 268A, 19 so that officials of the Tribe who
are also municipal officials must abstain in matters affecting the
Tribe's financial interest?


ANSWER:


The Wampanoag Tribe of Gay Head is not a "business
organization" for purposes of G.L. c. 268A, 19. Members of the
Tribe who are also municipal officials are not required to abstain
in matters affecting the financial interest of the Tribe, but
they are required to make a public disclosure prior to participating in
such matters in accordance with G.L. c. 268A, 23(b)(3).


DISCUSSION:

G.L. c. 268A, 19 states, in pertinent part, that a municipal
employee may not participate as such an employee in any matter in
which he, his immediate family or a partner, a business
organization in which he is serving as officer, director, trustee,
partner or employee, or any person or organization with whom he is
negotiating or has any arrangement concerning prospective
employment has a financial interest. The underlying principle upon
which this section is based is that a government official should
not be in a position to act on a matter in which his private
financial interests are involved or the financial interests of
individuals close to him are involved. See, Perkins, the New
Federal Conflict of Interest Law,
76 Harv. L. Rev. 1113, 1129
(1963). Section 19 does not apply to every relationship which a
public employee has. For example, not every family relationship is
covered. See, G.L. c. 268A, 1(e) (immediate family defined as the
employee and his spouse, their parents, children, brothers and
sisters). In addition, we have previously noted that the
Legislature made a distinction within s. 19 between the narrower
category of a business organization in which a public employee is
an officer, director, trustee, partner, or employee and the broader
category of any person or organization with whom the employee is
negotiating or has an arrangement for prospective employment. EC-
COI-92-3
.

When construing statutory language, we are guided by the canon
that "[t]he intent of the Legislature is to be determined primarily
from the words of the statute, given their natural import in common
and approved usage, and with reference to the conditions existing
at the time of enactment. This intent is discerned from the
ordinary meaning of the words in a statute considered in the
context of the objectives which the law seeks to fulfill. Wherever
possible, we give meaning to each word in the legislation; no word
in a statute should be considered superfluous. n (citations
omitted) Int'l Organization of

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Masters, etc. v. Woods Hole, Martha's Vineyard & Nantucket
Steamship Authority
, 392 Mass. 811, 813 (1984); Massachusetts
Commission Against Discrimination v. Liberty Mutual Insurance, Co.,
371 Mass. 186, 190 (1976). Accordingly, we look to the language of
the statute and conclude that the plain meaning of the term
"business organization" is an organization whose purpose is to
engage in "commercial activity for gain, benefit, advantage, or
livelihood." Black's Law Dictionary, Fifth Edition, 1979. See,
EC-COI-88-4
("if the purpose of an organization is to conduct
business, it is within the terms of the statute"); 84 43 (same);
84-44 (bank is business corporation); 83-105 (private law firm).

In the past we have not limited the term's application to
profit-making entities. The Commission has extended this analysis
to include municipalities, as municipalities are organized as
"bodies corporate,"[1] for the purpose of engaging in municipal
business. G.L. c. 40 1. See, EC-COI-89-2; 847; 81-62; 82-25
(regional school district organized as "body politic and corporate"
a business organization); 81-119 (state agency organized as "body
corporate" a business organization); Attorney General Conflict of
Interest Opinion No. 613
, February 5, 1974 (town and various town
departments are business organizations). In comparison, other
government entities, such as the federal government, which are not
organized as "bodies corporate" may not be considered business
organizations. EC-COI-92-3. Although early Commission opinions
indicated that the Commonwealth was a business organization for
purposes of 19, later Commission decisions have not so concluded.
Compare, EC-COI-82-13 (Commonwealth a business organization) with
EC-COI-85-67 (two state board members affiliated with municipal
entities required to abstain but board member whose state agency
had financial interest not required to abstain); Attorney General
Conflict of Interest Opinion No. 30
, April 25,1963 (state
counterpart to 19 excludes business of a public state entity).

Applying these principles to the Wampanoag Tribe we conclude
that the Tribe is not a business organization for purposes of 19.
The United States has defined the term "tribe" to be n a body of
Indians of the same or a similar race, united in a community under
one leadership or government, and inhabiting a particular though
sometimes ill-defined territory." Montoya v. United States, 180
U.S. 261, 266 (1900); United States v. Canadelaria, 271 U.S. 432,
431 (1925); Mashpee Tribe v. New Seabury, 592 F.2d 575, 582 (1st
Cir. 1979).[2] As one court has noted, "[t]he term 'tribe' is most
commonly used in two senses, an ethnological sense and a political
sense although it may also be used in a social sense." United
States v. State of Washington
, 476 F.Supp. 1101, 1103 (W.D. Wash.
1979). According to 25 USC s. 1771f, the Tribe enjoys a "government
to government relationship with the United States. "[3] Indian
tribes have the power to regulate intratribal affairs, to establish
tribal courts, to manage the use of their territory, to regulate
economic activity within the reservation and to levy taxes within
the reservation on tribal members and nonmembers. See generally, 42
C.J.S. Indians 23 et. seq.; New Mexico v. Mescalero Apache Tribe,
462 U.S. 324, 332-336 (1983). Thus, the Tribe is not organized for
the primary purpose of engaging in commerce or as a "body
corporate", but rather, is organized to advance the goals of a
particular society whose members share blood ties and which
possesses attributes of political entities, such as the federal
government or state government.

We therefore conclude that the Tribe is not a business
organization for purposes of 19, and that tribal officials who are
also municipal officials are not required to abstain in particular
matters affecting the Tribe's financial interest.[4] However, these
officials will be required to make a full public disclosure under
23(b)(3) prior to participating in a matter in which the Tribe has
an interest. Section 23(b)(3) prohibits a municipal employee from
engaging in conduct which gives a reasonable basis for the
impression that any person or entity can improperly influence him
or unduly enjoy his favor in the performance of his official duties
or that he is likely to act or fail to act as a result of kinship,
rank, or position of any person. Issues are raised under this
section because of the municipal official's affiliation with the
Tribe. This relationship creates an appearance of a conflict of
interest or bias in one's official actions as a result of one's
private interests. EC-COI-89-16 (past friendship relationship);
88-15 (private dealings with development company); 85-77 (private
business). In order to dispel the appearance of a conflict, 23
(b)(3) requires that an appointed Wampanoag municipal employee file
a full written disclosure with his appointing authority prior to
participating in a matter affecting the Tribe. Elected Wampanoag
municipal officials are required to file a full written disclosure
with the town clerk prior to any participation. See EC-COI-91-3;
90-2: 89-19
.

Page 401

*Pursuant to G.L. c. 268B, 3(g), the requesting person has
consented to the publication of this opinion with identifying
information.

-----------------------------------

[1] The definition of "body corporate" is "a public or private
corporation." Black's Law Dictionary, Fifth Edition 1979.

[2] Relevant factors in a determination of whether a
particular group of Indians will be considered a tribe are: "the
extent to which the group's members are persons of Indian ancestry
who live and were brought up in an Indian society or community; the
extent of Indian governmental control over their lives and
activities; the extent and nature of the members' participation in
tribal affairs; the extent to which the group exercises political
control over a specific territory; the historical continuity of the
foregoing factors; and the extent of express acknowledgement of
such political status by those federal authorities clothed with the
power and duty to prescribe or administer the special political
relationships between the United States and the Indians. n United
States v. State of Washington
, 476 F.Supp. 1101, 1110 (W.D. Wash.
1979).

[3] The relationship of the United States to the Indians is
basically a trust relationship. See, Winton v. Ames, 255 U.S. 373,
391-392 (1921). Indian tribes are subject to the exclusive
authority of Congress and, in the absence of federal law to the
contrary, Indian tribes are not subject to the laws of the state or
territory where the tribe is located. See generally, 42 C.J.S.
Indians 25, 38, 54
.

[4] Our conclusion is based on the facts which you have
presented. Were the Tribe, as an entity, to become involved in
significant business activity, you should renew your opinion
request. Furthermore, we note that under certain circumstances,
tribal members who are also municipal employees may be required to
abstain under 19. For example, if the Tribe established anon-profit
or other corporate entity for the purpose of developing real
estate, and a Wampanoag municipal employee was an officer of the
corporation, he would be required to abstain if the corporation
sought a permit from his municipal board.

End Of Decision