Akins v. Penobscot Nation

• Decision Date: 08 October 1997
• Docket Number: No. 97-1644,97-1644
• Citation: 130 F.3d 482
• Parties: Andrew AKINS, et al., Plaintiffs, Appellants, v. PENOBSCOT NATION, et al., Defendants, Appellees. . Heard
• Court: U.S. Court of Appeals — First Circuit

Page 482

130 F.3d 482

Andrew AKINS, et al., Plaintiffs, Appellants, v. PENOBSCOT NATION, et al., Defendants, Appellees.

No. 97-1644.

United States Court of Appeals First Circuit.

Heard Oct. 8, 1997.

Decided Nov. 17, 1997.

Timothy C. Woodcock, with whom Weatherbee, Woodcock, Burlock & Woodcock, Bangor, ME, was on brief, for Plaintiffs, Appellants.

Kaighn Smith, Portland, ME, for Defendants, Appellees.

Before TORRUELLA, Chief Judge, LYNCH, Circuit Judge,and STEARNS, ^* District Judge.

LYNCH, Circuit Judge.

This case presents the first instance this court has been asked to address an important question in the allocation of sovereign powers between the Penobscot Nation and the State of Maine: the definition of "internal tribal matters." If the dispute here involves an "internal tribal matter" then the tribal courts have exclusive jurisdiction; if not, then claims have been stated within federal court jurisdiction and it was error to dismiss the action. While defining what constitutes an internal matter controlled by Indian tribes is hardly novel in Native American law, it is novel in this context. The relations between Maine and the Penobscot Nation are not governed by all of the usual laws governing such relationships, but by two unique laws, one Maine and one federal, approving a settlement. That settlement resulted from disputed claims for vast portions of lands in Maine brought by the Penobscots and others who had not historically been formally recognized as sovereign Indians.

I.

This case involves the harvesting of timber on those lands acquired by the Penobscot Nation as a result of the settlement agreement. Plaintiff Andrew X. Akins is the former Chairman of the Joint Tribal Negotiating Committee; he now resides in Alabama. Akins and his company, PENAK, Inc., also a plaintiff (whom we refer to jointly as "Akins") for several years logged portions of the land under stumpage permits issued by the Nation. In December of 1993, the Nation's Tribal Council voted a new policy: stumpage permits would be issued only to people who were both enrolled members of the Nation and residents of Maine. Akins is an enrolled member of the Nation, but not a Maine resident. Akins says he is the only tribal member who will be affected by the new policy. The policy became effective on May 18, 1994 and the next day the Nation told Akins he was not eligible for a permit.

Akins sued the Nation and its Tribal Council in the U.S. District Court in Maine, under 42 U.S.C. §§ 1983 and 1985, alleging that singling him out through an ostensibly neutral policy violated his rights to due process, equal protection, and to be free from bills of attainder. He also brought state law claims and alleged diversity jurisdiction. A report of a Magistrate Judge recommended dismissal of the case for failure to state a claim for which relief may be granted and for lack of subject matter jurisdiction. The U.S. District Court accepted the recommendation and dismissed. Akins appeals, arguing: that the district court erred in holding that the stumpage policy is an "internal tribal matter;" that he has cognizable claims under 42 U.S.C. §§ 1983 and 1985, as well as the Declaratory Judgment Act, 28 U.S.C. § 2201-02; and that the stumpage policy violates the Maine Administrative Procedures Act and the Maine Constitution.

II.

The issues in this case cannot be grasped without understanding the genesis of the Maine Indian Claims Settlement Act of 1980, 25 U.S.C. §§ 1721-35 (the "Settlement Act"). The history of the Settlement Act was brought to life in the decision of the Maine Law Court in Penobscot Nation v. Stilphen, 461 A.2d 478, 487 (Me.1983), and of this Circuit in Passamaquoddy Tribe v. Maine, 75 F.3d 784, 787 (1st Cir.1996). A summary of that history will do here.

The disputes which led to the settlement involved assertions that certain persons and groups were members of Indian tribes and as such entitled to ancestral lands and to monetary damages. The claimed lands amounted to nearly two-thirds of Maine's landmass. See Joint Tribal Council of the Passamaquoddy Tribe v. Morton, 388 F.Supp. 649, 651-53, 667-69 (D.Me.), aff'd, 528 F.2d 370 (1st Cir.1975). Under federal auspices, the Penobscot Nation, other claimants, and Maine negotiated a settlement. That settlement was subject to approval by both the Maine Legislature and Congress. Maine enacted the Implementing Act, Me.Rev.Stat. Ann. tit. 30 §§ 6201-14, which provides:

[T]he Passamaquoddy Tribe and the Penobscot Nation, within their respective Indian territories, shall have, exercise and enjoy all the rights, privileges, powers and immunities, including, but without limitation, the power to enact ordinances and collect taxes, and shall be subject to all the duties, obligations, liabilities and limitations of a municipality of and subject to the laws of the State, provided however, that internal tribal matters, including membership in the respective tribe or nation, the right to reside within the respective Indian territories, tribal organization, tribal government, tribal elections and the use or disposition of settlement fund income shall not be subject to regulation by the State.

Title 30, § 6206(1) (emphasis added). The Implementing Act was incorporated into the federal Settlement Act of 1980, 25 U.S.C. §§ 1721-35.

Each party benefitted from the settlement. The Nation in many respects gained the powers of a municipality under Maine law. "[T]he Settlement Act confirmed [the Nation's] title to designated reservation lands, memorialized federal recognition of its tribal status, and opened the floodgate for the influx of millions of dollars in federal subsidies." Passamaquoddy Tribe, 75 F.3d at 787. Maine, in turn, put to rest the land claims and achieved a certain sharing of authority with the Nation, as described below.

III.

The structure of analysis differs here from that which would be used in claims against the vast majority of other Indian tribes in the country. ² This is true as to the application of both state and federal law. As to state law, the Penobscot Nation and Maine expressly agreed that, with very limited exceptions, the Nation is subject to the laws of Maine. See 25 U.S.C. § 1725. Congress was explicit that the purpose of the Settlement Act was "to ratify the Maine Implementing Act, which defines the relationship between the State of Maine ... and the Penobscot Nation" and "to confirm that all other Indians ... are and shall be subject to the laws of the State of Maine, as provided herein." 25 U.S.C. § 1721(b)(3) & (4). The federal Settlement Act provides that:

The ... Penobscot Nation, and [its] members, and the land and natural resources owned by, or held in trust for the benefit of the tribe, nation, or [its] members, shall be subject to the jurisdiction of the State of Maine to the extent and in the manner provided in the Maine Implementing Act and that Act is hereby approved, ratified, and confirmed.

25 U.S.C. § 1725(b)(1). In turn, the Settlement Act made federal law which was then generally applicable to Indians also applicable to the Penobscot Nation but declared special laws and regulations inapplicable. See 25 U.S.C. § 1725(h). The State of Maine may amend the Implementing Act to modify the jurisdictional powers of the Nation only if the Nation agrees to the amendment. See 25 U.S.C. § 1725(e)(1).

Although Indian tribes are not usually subject to the diversity jurisdiction of the federal courts, see Romanella v. Hayward, 114 F.3d 15 (2d Cir.1997), the Settlement Act subjects the Maine tribes to diversity jurisdiction:

the Penobscot Nation ... may sue and be sued in the courts of the ... United States to the same extent as any other entity or person residing in the State of Maine may sue and be sued in [that] court. ³

25 U.S.C. § 1725(d)(1). Further, those federal laws enacted after October 10, 1980 (the effective date of the Settlement Act) for the benefit of Indians do not apply within Maine unless the federal statute is made expressly applicable within Maine. 25 U.S.C. § 1735(b).

The Settlement Act provides at 25 U.S.C. § 1725(f):

The ... Penobscot Nation [is] hereby authorized to exercise jurisdiction, separate and distinct from the civil and criminal jurisdiction of the State of Maine, to the extent authorized by the Maine Implementing Act, and any subsequent amendments thereto.

The Implementing Act in turn makes the Nation subject "to all the duties, obligations, liabilities and limitations of a municipality ... provided, however, that internal tribal matters ... shall not be subject to regulation by the State." Me.Rev.Stat. Ann. tit. 30, § 6206(1) (emphasis added). The viability of both the federal law claims under § 1983 and the state law claims under diversity jurisdiction depend on whether the Implementing Act and the Settlement Act subject the Penobscot Nation's stumpage policy to regulation by the State. Put differently, the Nation in certain capacities functions as a municipality of Maine and is reachable under state and federal law in that capacity, but when it functions as a tribe as to internal tribal matters, it is not.

This case turns on whether the issuance of stumpage permits is an "internal tribal matter." Under the Settlement Act, we consider that to be a question of federal law, and the parties so agree. ⁴ If this is an internal tribal matter, then Akins's § 1983 claim fails because the Nation would not have been acting "under color of state law." See R.J. Williams Co. v. Fort Belknap Hous. Auth., 719 F.2d 979, 982 (9th Cir.1983); Dry Creek Lodge, Inc. v. United States, 515 F.2d 926, 931 (10th Cir.1975). If this is an internal tribal matter, then under both Settlement Act and the Implementing Act, Maine law does not apply and no claims arise under the Maine Constitution or under the Maine Administrative Procedure Act. Thus no claim arises under state law warranting the exercise of diversity jurisdiction.

IV.

In considering Akins's...