Aroostook Band of Micmacs v. Ryan

• Citation: 404 F.3d 48
• Decision Date: 13 April 2005
• Docket Number: No. 04-1517.,04-1517.
• Parties: AROOSTOOK BAND OF MICMACS, Plaintiff, Appellant, v. Patricia E. RYAN, Executive Director, Maine Human Rights Commission; Linda E. Abromson, Warren C. Kessler, Kim C. Millick, and Paul K. Vestal, Jr., Members, Maine Human Rights Commission; Lisa Gardiner; Tammy Condon; Beverly Ayoob, Defendants, Appellees.
• Court: U.S. Court of Appeals — First Circuit

404 F.3d 48

AROOSTOOK BAND OF MICMACS, Plaintiff, Appellant, v. Patricia E. RYAN, Executive Director, Maine Human Rights Commission; Linda E. Abromson, Warren C. Kessler, Kim C. Millick, and Paul K. Vestal, Jr., Members, Maine Human Rights Commission; Lisa Gardiner; Tammy Condon; Beverly Ayoob, Defendants, Appellees.

No. 04-1517.

United States Court of Appeals, First Circuit.

Heard October 4, 2004.

Decided April 13, 2005.

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Douglas J. Luckerman, with whom Law Office of Douglas J. Luckerman was on brief, and Gregory P. Dorr, with whom Farrell, Rosenblatt & Russell was on brief, for appellant.

G. Steven Rowe, Attorney General, with whom Christopher C. Taub, Assistant Attorney General, and Paul Stern, Deputy Attorney General, were on brief, for appellees.

Before LIPEZ, Circuit Judge, and COFFIN and CYR, Senior Circuit Judges.

LIPEZ, Circuit Judge.

This case requires us to decide whether a federal court has jurisdiction to hear an Indian tribe's suit to stop a state agency from investigating tribal employees' complaints of workplace discrimination. The Maine Human Rights Commission has investigated complaints by three former employees of the Aroostook Band of Micmacs, and asserts that it has the authority to investigate any future complaints, pursuant to Maine antidiscrimination law. The Band filed this action for injunctive and declaratory relief against the Commission's investigations, arguing that such investigations impermissibly encroach upon the Band's inherent tribal sovereignty, congressionally-affirmed right to self-governance without state interference, and sovereign immunity from judicial or quasi-judicial proceedings. The district court concluded that the Band's complaint did not invoke a right to relief under federal law, but rather invoked affirmative federal defenses to state law actions, and therefore did not satisfy the well-pleaded complaint rule. Consequently, the court dismissed the action for lack of subject matter jurisdiction. We reverse.

I.

The Aroostook Band of Micmacs is a federally recognized Indian tribe. Over a four month span in 2001, the Band fired three tribal employees: Chief Financial Officer Lisa Gardiner, Compliance Officer Tammy Condon, and Housing Director Beverly Ayoob. Pursuant to internal tribal procedure, Gardiner and Condon appealed the Band's termination decisions to the Band's Tribal Council, claiming that they were terminated in retaliation for protected activities; the Tribal Council affirmed their terminations. Ayoob, who had filed a sexual harassment charge with the Tribal Council before being terminated, did not challenge her termination.¹

The three ex-employees turned to the Maine Human Rights Commission, a state agency charged with "investigating all forms of invidious discrimination." Me Rev.Stat. Ann. tit. 5, § 4566. Upon receipt of a private complaint of discrimination, the Commission conducts a preliminary investigation to "determine whether there are reasonable grounds to believe that unlawful discrimination has occurred." Id. § 4612(1)(B). The target of the investigation must cooperate:

[T]he commission ... shall have access at all reasonable times to premises, records, documents, individuals and other evidence or possible sources of evidence and may examine, record and copy those materials and take and record the testimony or statements of such persons as are reasonably necessary for the furtherance of the investigation. The commission may issue subpoenas to compel access to or production of those materials or the appearance of those persons, ... and may serve interrogatories on a respondent to the same extent as interrogatories served in aid of a civil action in the Superior Court.

Id. If the Commission determines that there are "reasonable grounds to believe that unlawful discrimination has occurred," it first attempts to broker a conciliation. Id. § 4612(3). If conciliation fails, the Commission may "file in the Superior Court a civil action seeking such relief as is appropriate, including temporary restraining orders." Id. § 4612(4). Whether or not it does so, "[t]he complaint and evidence collected during the investigation of the complaint... shall become a matter of public record at the conclusion of the investigation .... [and] may be used as evidence in any subsequent proceeding, civil or criminal." Id. § 4612(1)(B). If the Commission does not itself file a civil action — and it usually does not — the complainant may file an action herself. Id. § 4621.²

In the fall of 2001, Gardiner and Condon filed complaints with the Commission alleging employment discrimination on the basis of race, color, and national origin, as well as retaliation, under the Maine Human Rights Act (MHRA), Me.Rev.Stat. Ann. tit. 5, §§ 4551-4634, and the Maine Whistleblowers' Protection Act (MWPA), Me.Rev.Stat. Ann. tit. 26, §§ 831-840. In the summer and fall of 2002, Ayoob filed two complaints alleging employment discrimination and retaliation under the MHRA and MWPA. In each case, shortly after receiving the individual's complaint, the Commission filed charges on the complainant's behalf with the United States Equal Employment Opportunity Commission (EEOC) under Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e-5.

The Band asked the Commission to dismiss all four complaints on the grounds that it lacked jurisdiction over the Band. The Commission refused, concluding that it had jurisdiction because the Band is subject to the MHRA, the MWPA, and, for Gardiner and Condon's complaints, Title VII. It investigated the complaints, and on at least two occasions issued document requests to the Band seeking a variety of tribal personnel documents. The Band complied with those requests.

In January 2003, the Commission's investigator issued a report suggesting that there were no reasonable grounds to believe that the Band had discriminated or retaliated against Gardiner or Condon. Before the full Commission could rule on the report, the Band filed a complaint in the United States District Court for the District of Maine against the executive director and members of the Commission (collectively, "Maine"), and the three individual complainants, seeking declaratory and injunctive relief directing the Commission to (1) dismiss the complaints on the ground that the Band is not subject to the MHRA or MWPA, and (2) stop filing complaints against the Band with the EEOC. The complaint, as amended, pled five claims: that the enforcement of the MHRA and MWPA against the Band violates its inherent tribal sovereignty and statutorily codified right to self-governance (Count I); that the enforcement of these state laws against the Band violates its tribal sovereign immunity (Count II);³ that the Band is exempt from Title VII (Count III); that the Band's exemption from Title VII preempts state antidiscrimination law, and so, regardless of what the MHRA and MWPA say, the Band is not subject to them (Count IV); and that, even under the MHRA and MWPA's own terms, the Band is not an "employer" (Count V).

Shortly after the complaint was filed, the Commission determined that, contrary to its investigator's initial report, there were reasonable grounds to believe that Gardiner and Condon had been retaliated against based on protected conduct. Meanwhile, Gardiner and Condon filed suit against the Band in Aroostook County Superior Court.⁴ That court stayed the action pending the outcome of the federal litigation.⁵

In federal court, the parties consented to adjudication by a United States Magistrate Judge, and cross-moved for summary judgment. Although both parties addressed the merits of the Band's claims, Maine also argued that the lawsuit should be dismissed for lack of subject matter jurisdiction.⁶ In February 2004, the district court ruled that it lacked subject matter jurisdiction over the complaint. See Aroostook Band of Micmacs v. Exec. Dir. Me. Human Rights Comm'n, 307 F.Supp.2d 95, 96 (D.Me.2004) ("Micmacs"). Specifically, the district court concluded that Counts I and II did not raise questions "arising under" federal law as required by the applicable jurisdictional statutes, and that Counts III and IV did not allege a justiciable case or controversy.⁷ Consequently, the court dismissed the entire action. See Fed.R.Civ.P. 12(h)(3) (court must dismiss action upon determining, at any point, that it lacks subject matter jurisdiction). The Band timely appealed.

II.

The tribal-state relationship between Maine and the Indian tribes located within its borders is complex. The Band's relationship with the state is particularly complex. We provide a brief summary of the recent history of that relationship, and include some background concerning three other Maine tribes, to set the stage for the legal analysis that follows.

A. The 1980 Legislation

In the 1970s, two tribes — the Penobscot Nation and the Passamaquoddy Tribe — filed suit claiming much of Maine as their ancestral homelands. See generally Penobscot Nation v. Fellencer, 164 F.3d 706, 707-08 (1st Cir.1999) (recounting history). Neither tribe was federally recognized at that point. The Aroostook Band of Micmacs was not represented by counsel at the time and was not a party to the litigation.⁸

In 1980, with the aid of the United States, the Penobscots and the Passamaquoddy reached a compromise with Maine. A third tribe, the Houlton Band of Maliseet Indians, which had not filed suit but was represented by counsel and had a potential claim, was later included in the compromise. See S.Rep. No. 101-291 (1990). The resulting settlement was embodied in the Maine Implementing Act, Me.Rev.Stat. Ann. tit. 30, §§ 6201-14; see also 25 U.S.C. § 1721(a)(8) ("The State of Maine, with the agreement of the Passamaquoddy Tribe and the Penobscot Nation, has enacted legislation defining the relationship between the Passamaquoddy Tribe, the Penobscot Nation, and their members, and the State of Maine."); Houlton...