Aroostook Band of Micmacs v. Ryan

• Decision Date: 17 April 2007
• Docket Number: No. 06-1358.,No. 06-1127.,06-1127.,06-1358.
• Citation: 484 F.3d 41
• Parties: AROOSTOOK BAND OF MICMACS, Plaintiff, Appellee, v. Patricia E. RYAN, in her official capacity as Executive Director of the Human Rights Commission of the State of Maine; Warren C. Kessler, in his official capacity as member of the Human Rights Commission of the State of Maine; Paul K. Vestal, Jr., in his official capacity as member of the Human Rights Commission of the State of Maine; James Varner, in his official capacity as member of the Human Rights Commission of the State of Maine; Jadine R. O'Brien, in her official capacity as member of the Human Rights Commission of the State of Maine; Kristen L. Aiello, in her official capacity as member of the Human Rights Commission of the State of Maine, Lisa Gardiner, Tammy Condon, Defendants, Appellants, Beverly Ayoob, Defendant.
• Court: U.S. Court of Appeals — First Circuit

484 F.3d 41

AROOSTOOK BAND OF MICMACS, Plaintiff, Appellee, v. Patricia E. RYAN, in her official capacity as Executive Director of the Human Rights Commission of the State of Maine; Warren C. Kessler, in his official capacity as member of the Human Rights Commission of the State of Maine; Paul K. Vestal, Jr., in his official capacity as member of the Human Rights Commission of the State of Maine; James Varner, in his official capacity as member of the Human Rights Commission of the State of Maine; Jadine R. O'Brien, in her official capacity as member of the Human Rights Commission of the State of Maine; Kristen L. Aiello, in her official capacity as member of the Human Rights Commission of the State of Maine, Lisa Gardiner, Tammy Condon, Defendants, Appellants, Beverly Ayoob, Defendant.

No. 06-1127.

No. 06-1358.

United States Court of Appeals, First Circuit.

Heard November 9, 2006.

Decided April 17, 2007.

Christopher C. Taub, Assistant Attorney General, with whom G. Steven Rowe, Attorney General, and Paul Stern, Deputy Attorney General, were on brief, for appellants Ryan, Kessler, Vestal, Varner, O'Brien, and Aiello.

Matthew S. Keegan, with whom Johnson & Webbert, LLP was on brief, for appellants Gardiner and Condon.

Douglas J. Luckerman, with whom Law Office of Douglas J. Luckerman, Gregory P. Dorr, Farrell, Rosenblatt & Russell, and David Kaplan were on brief, for appellee.

Michael A. Duddy and Kelly, Remmel & Zimmerman on brief for Houlton Band of Maliseet Indians, amicus curiae.

Before LYNCH, Circuit Judge, CAMPBELL, Senior Circuit Judge, and LIPEZ, Circuit Judge.

LYNCH, Circuit Judge.

This case arises from a lawsuit brought by the Aroostook Band of Micmacs ("Aroostook Band"), an Indian tribe based in northern Maine. The tribe seeks to enjoin proceedings before the Maine Human Rights Commission ("the Commission"), a state agency which acted on discrimination complaints it had received from three of the tribe's former employees.

The Aroostook Band claims that federal law prevents an agency of the state of Maine from enforcing state employment discrimination laws against the Aroostook Band's government. The state disagrees and argues that federal law specifically grants it this power. Both sides discuss a series of federal and state statutes: the state's 1979 Act to Implement the Maine Indian Claims Settlement ("state Settlement Act"), Me.Rev.Stat. Ann. tit. 30, §§ 6201-6214; the federal Maine Indian Claims Settlement Act of 1980 ("MICSA" or "federal Settlement Act"), 25 U.S.C. §§ 1721-1735; the 1989 state Micmac Settlement Act ("state Micmac Act"), Me.Rev. Stat. Ann. tit. 30, §§ 7201-7207; and the 1991 federal Aroostook Band of Micmacs Settlement Act ("ABMSA" or "federal Micmac Act"), Pub.L. No. 102-171, 105 Stat. 1143 (codified at 25 U.S.C. § 1721 note). This case turns on the interpretation of these statutes.

The magistrate judge, presiding with the consent of the parties, see Fed.R.Civ.P. 73(b), concluded that the 1991 ABMSA gives the Aroostook Band the protection it claims.

We reverse. We hold that a provision of the 1980 MICSA, 25 U.S.C. § 1725(a), clearly makes the Aroostook Band "subject to . . . the laws of the State . . . to the same extent as any other person." This abrogates any aspects of tribal immunity which might have prevented application of Maine's employment laws to the dispute here. We also hold that the later-enacted ABMSA is not in conflict with, nor has it implicitly repealed, § 1725(a). We finally hold that the question in this case is resolved by these two federal statutes—both of which are settlement acts—and not by Indian common law.

I. BACKGROUND

We start with the history behind the enactment of the state and federal Settlement Acts, and the later state and federal Micmac Acts. We then move to the background and procedural history of the events that led to this appeal. Much of the background, statutory and otherwise, is also recounted in an earlier opinion in this case. See Aroostook Band of Micmacs v. Ryan, 404 F.3d 48, 50-55 (1st Cir.2005) "(Aroostook II)", overruled in part by Narragansett Indian Tribe v. Rhode Island, 449 F.3d 16, 24-25 (1st. Cir. 2006) (en banc).

A. The Statutory Background

In the 1970s, two Maine Indian tribes— the Penobscot Nation and the Passamaquoddy Tribe—filed suit and claimed ownership over much of the land in the state of Maine. See id. at 53; Penobscot Nation v. Fellencer, 164 F.3d 706, 707 (1st Cir.1999). See generally Joint Tribal Council of the Passamaquoddy Tribe v. Morton, 528 F.2d 370 (1st Cir.1975) (providing additional background on the litigation).

With the assistance of the federal government, the Penobscots and the Passamaquoddy ultimately reached a settlement with the state. Aroostook II, 404 F.3d at 53. The first step in this settlement was Maine's passage of its state Settlement Act in 1979. See 1979 Me. Laws 2393; see also Aroostook II, 404 F.3d at 53. Among other things, that act set out to define the legal relationship between Maine and its Indian tribes. One general provision states that except as otherwise provided by the act, all Indian tribes "shall be subject to the laws of the State and to the civil and criminal jurisdiction of the courts of the State to the same extent as any other person." Me.Rev.Stat. Ann. tit. 30, § 6204. For shorthand, we use the phrase "Maine law" to refer to the provisions invoked by the "subject to" clause.

Another part of the statute deals specifically with the two tribes that had then filed suit; it provides that the Penobscot Nation and the Passamaquoddy Tribe have the powers and limitations of Maine municipalities, and are "subject to the laws of the State," except that the State does not have the power to regulate "internal tribal matters." Id. § 6206(1). By its terms, that exception in the state act does not apply to any other tribe.

The Aroostook Band, which had not filed suit or asserted any claim, is not mentioned anywhere in the state Settlement Act. However, another Maine tribe, the Houlton Band of Maliseet Indians ("Houlton Band"), is mentioned in several places. Although by 1979 the small Houlton Band had not filed suit against the state, it too was asserting that it had valid claims to parts of land in Maine. See id. § 6202. Nevertheless, at that time Maine was "reluctant to accord [the Houlton Band] special status," Aroostook II, 404 F.3d at 54, and the Houlton Band was not originally included in the compromise. Indeed, the state Settlement Act does not by its terms grant the Houlton Band any of the benefits that it grants the Penobscots and Passamaquoddy. In its section on legislative purposes, the state Settlement Act declares that in contrast to the arrangement with the Passamaquoddy and the Penobscots, "[t]he Houlton Band . . . will be wholly subject to the laws of the State." Me.Rev.Stat. Ann. tit. 30, § 6202.

The next step was the 1980 passage of MICSA, the federal Settlement Act. See Pub.L. No. 96-420, 94 Stat. 1785. A stated purpose of the Congress enacting MICSA was to "ratify" the state Settlement Act. 25 U.S.C. § 1721(b)(3). Even so, MICSA differs from its state counterpart in several respects, including the fact that MICSA grants some benefits to the Houlton Band. Like the state act, MICSA does not mention the Aroostook Band by name, but it does address issues relevant to all Maine tribes.

MICSA extinguished the land claims of all Indian tribes in Maine, by express provision. Id. § 1723. In exchange, MICSA gave several benefits to the Passamaquoddy, Penobscots, and Houlton Band, including federal recognition for all three tribes and eligibility for certain federal Indian programs. See id. § 1725(i). MICSA also created a sizable trust fund for the three tribes to use for acquiring land. Id. § 1724(d). Of the money in the fund, $26.8 million was for the Passamoquoddy's benefit, $26.8 million was for the benefit of the Penobscots, and $900,000 was for the benefit of the Houlton Band. Id.

Several MICSA provisions deal with the relationship between all Maine tribes and state law. Here the statute draws distinctions. As does the state Settlement Act, MICSA treats Maine's relationship with the Passamoquoddy and Penobscots differently from Maine's relationship with all other tribes. MICSA states that

all Indian[] . . . tribes or bands of Indians in the State of Maine, other than the Passamaquoddy Tribe [and] the Penobscot Nation, . . . shall be subject to the civil and criminal jurisdiction of the State [and] the laws of the State . . . to the same extent as any other person . . . therein.

Id. § 1725(a) (emphasis added).¹

A separate subsection of the federal MICSA deals with the applicability of Maine law to the Passamaquoddy and Penobscots; that section expressly references the state Settlement Act and declares that "that Act is hereby approved, ratified, and confirmed." Id. § 1725(b)(1).

In the late 1980s, there was further legislative action. The Aroostook Band, after meeting with counsel, determined that it too might have had a potential land claim before the passage of the 1979 and 1980 state and federal settlement acts. See Aroostook II, 404 F.3d at 54. MICSA's language had, however, extinguished any potential land claim. The Aroostook Band nevertheless opened a dialogue with the state. After negotiations, the Maine legislature passed the state Micmac Act. See 1989 Me. Laws 230.

The terms of the state Micmac Act gave the Aroostook Band a status similar to that accorded the Houlton Band, and different from the status given the Penobscots and Passamaquoddy. Aroostook II, 404 F.3d at 54. The Houlton Band, mentioned explicitly in the two prior settlement acts, had been expressly made "subject to the civil and criminal jurisdiction of the State [and] the laws of the State . . . to the same extent as any other person . . . therein." 25 U.S.C. § 1725(a). As for the Aroostook Band, the state Micmac Act provided that "[e]xcept as otherwise provided in ...