Penobscot Nation v. Fellencer

• Decision Date: 14 September 1998
• Docket Number: No. 98-1326,98-1326
• Citation: 164 F.3d 706
• Parties: 78 Fair Empl.Prac.Cas. (BNA) 1547, 74 Empl. Prac. Dec. P 45,736, 75 Empl. Prac. Dec. P 45,736 PENOBSCOT NATION, Appellant, v. Cynthia A. FELLENCER, Appellee. . Heard
• Court: U.S. Court of Appeals — First Circuit

Page 706

164 F.3d 706

78 Fair Empl.Prac.Cas. (BNA) 1547,

74 Empl. Prac. Dec. P 45,736,

75 Empl. Prac. Dec. P 45,736

PENOBSCOT NATION, Appellant, v. Cynthia A. FELLENCER, Appellee.

No. 98-1326.

United States Court of Appeals, First Circuit.

Heard Sept. 14, 1998.

Decided Jan. 19, 1999.

Kaighn Smith, Jr., with whom Gregory W. Sample was on brief for appellant.

Michael A. Duddy for appellee.

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

LIPEZ, Circuit Judge.

This case requires us to revisit and further define the allocation of sovereign powers between the Penobscot Nation (the Nation) and the State of Maine. The question before us is whether the decision of the Penobscot Nation Tribal Council to terminate the employment of a community health nurse constitutes an "internal tribal matter" within the meaning of the Maine Indian Claims Settlement Act of 1980, 25 U.S.C. §§ 1721 -1735. The district court held that it does not. We disagree. That employment termination decision is an "internal tribal matter" and, as such, cannot be challenged in the courts of Maine pursuant to the Maine Human Rights Act (MHRA), Me.Rev.Stat. Ann. tit. 5, § 4551 et seq.

I.

The undisputed material facts are recounted thoroughly in the district court's opinion. See Penobscot Nation v. Fellencer, 999 F.Supp. 120 (D.Me.1998). We provide only a brief sketch to set the stage. Cynthia A. Fellencer was employed by the Penobscot Nation as a Community Health Nurse/Diabetes Program Coordinator (community nurse) from December 1992 until September 1994, when the Penobscot Nation Tribal Council voted to terminate her employment. Fellencer, who is a non-Indian, filed a charge of discrimination with the Maine Human Rights Commission (MHRC) alleging that she had been discharged due to her race and national origin. The MHRC dismissed her complaint for lack of jurisdiction, finding that adjudication of the claim "would create a serious potential of State interference with the internal affairs of the tribal government, a result clearly not intended by the Maine Indian Settlement Act." MHRC Administrative Dismissal, Case No. E94-0730 (Jan. 30, 1995).

Fellencer subsequently filed suit in the Maine Superior Court against the Penobscot Nation, claiming that the Nation had terminated her employment (1) without due process and (2) "due to her race and/or national origin in violation of the Maine Human Rights Act." She claims that subsequent to her termination the community nurse position was posted with an express preference for Indian applicants. The Nation filed a motion to dismiss, which was denied.

On October 20, 1997, the Nation filed the instant action in the federal district court seeking a preliminary injunction to stay the state court proceeding. Cross motions for summary judgment were filed. On March 13, 1998, the district court denied the Nation's request for a preliminary injunction and entered judgment in favor of Fellencer, thereby permitting the state court case to proceed. The district court's denial of the preliminary injunction can be reversed where there has been a "misapplication of the law to particular facts" or an "application of the wrong legal standard." See Planned Parenthood League of Mass. v. Bellotti, 641 F.2d 1006, 1009 (1st Cir.1981); see also Narragansett Indian Tribe v. Narragansett Elec. Co., 89 F.3d 908, 912 (1st Cir.1996) (reversing district court's denial of preliminary injunction). We conclude that there was a misapplication of the law.

II.

The backdrop to the state and federal court proceedings is some familiar history. In the early 1970s, the Nation (in concert with the Passamaquoddy Tribe and others) filed suit claiming nearly two-thirds of Maine's land mass as their ancestral homelands. See Passamaquoddy Tribe v. Maine, 75 F.3d 784, 787 (1st Cir.1996) (citing Joint Tribal Council of the Passamaquoddy Tribe v. Morton, 528 F.2d 370 (1st Cir.1975)). After federal authorities interceded, the parties negotiated a compromise which was approved by Maine, the Penobscots, the other Indian parties, and Congress. The compromise is memorialized in two statutes: the Maine Implementing Act, Me.Rev.Stat. Ann. tit. 30, §§ 6201-14 (the Implementing Act), and the Maine Indian Claims Settlement Act, 25 U.S.C. §§ 1721-35 (the Settlement Act). The settlement represented a partial victory for the Nation and Maine: the Nation obtained federal recognition as an Indian tribe and received almost one half of $81.5 million appropriated under the Settlement Act (see 25 U.S.C. § 1733) and, in exchange, the Nation's claims against Maine were extinguished. Further, while the Nation's right to self-government was preserved to a limited extent, Maine was permitted to extend its jurisdiction over the Nation to a greater degree than most states exercise over other Indian tribes. See Akins v. Penobscot Nation, 130 F.3d 482, 484-85 (1st Cir.1997).

As a result of the settlement, the relationship between the Penobscot Nation and Maine is governed primarily by the Implementing Act (state) and the Settlement Act (federal). The Implementing Act provides as follows:

[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.

Me.Rev.Stat. Ann. tit. 30, § 6206(1) (emphasis added). We have previously recognized that "[a]s to state law, the Penobscot Nation and Maine expressly agreed that, with very limited exceptions, the Nation is subject to the laws of Maine." Akins, 130 F.3d at 484-85.

The Implementing Act was incorporated by reference into the Settlement Act, 25 U.S.C. §§ 1721-1735. See 25 U.S.C. § 1721(b)(3). In ratifying the Implementing Act, Congress sought to balance Maine's interest in continuing to exercise jurisdiction over the Nation's land and members (which it had done without interference for almost two centuries), see Bottomly v. Passamaquoddy Tribe, 599 F.2d 1061, 1064-65 (1st Cir.1979), with the Nation's "independent source of tribal authority, that is, the inherent authority of a tribe to be self-governing." S.Rep. No. 96-957, at 29 (1980) (citing Santa Clara Pueblo v. Martinez, 436 U.S. 49, 98 S.Ct. 1670, 56 L.Ed.2d 106 (1978)). Both the House and Senate sought to assuage the Nation's fears that the settlement undermined its sovereignty:

While the settlement represents a compromise in which state authority is extended over Indian territory to the extent provided in the Maine Implementing Act, ... the settlement provides that henceforth the tribes will be free from state interference in the exercise of their internal affairs. Thus, rather than destroying the sovereignty of the tribes, by recognizing their power to control their internal affairs ... the settlement strengthens the sovereignty of the Maine Tribes.

S. Rep. No. 96-957, at 14; H.R.Rep. No. 96-1353, at 14-15, reprinted in 1980 U.S.C.C.A.N. at 3790.

III.

As the language of the Implementing Act and the federal legislative history make clear, the critical phrase to analyze in determining the scope of tribal sovereignty is "internal tribal matters." When the Nation acts on "internal tribal matters," its actions are not subject to regulation by the state. Me.Rev.Stat. Ann. tit. 30, § 6206(1). Because the phrase "internal tribal matters" was adopted by the federal Settlement Act, the meaning of that phrase raises a question of federal law. See Akins, 130 F.3d at 485; see also Bottomly, 599 F.2d at 1066 ("until Congress acts, the tribes retain their [ ] sovereign powers").

Before we examine the language of the Implementing Act, we must acknowledge some general principles that inform our analysis of the statutory language. First, Congress' authority to legislate over Indian affairs is plenary and only Congress can abrogate or limit an Indian tribe's sovereignty. See U.S. CONST., art. I, § 8, cl. 3; Morton v. Mancari, 417 U.S. 535, 551-53, 94 S.Ct. 2474, 41 L.Ed.2d 290 (1974) (discussing the plenary power of Congress to deal with special problems of Indians); see also F. Cohen, Handbook of Federal Indian Law 231 (1982 ed.) ("Neither the passage of time nor apparent assimilation of the Indians can be interpreted as diminishing or abandoning a tribe's status as a self governing entity."). Second, special rules of statutory construction obligate us to construe "acts diminishing the sovereign rights of Indian tribes ... strictly," Rhode Island v. Narragansett Indian Tribe, 19 F.3d 685, 702 (1st Cir.1994), "with ambiguous provisions interpreted to the [Indians'] benefit," County of Oneida v. Oneida Indian Nation of New York, 470 U.S. 226, 247, 105 S.Ct. 1245, 84 L.Ed.2d 169 (1985). These special canons of construction are employed "in order to comport with the[ ] traditional notions of sovereignty and with the federal policy of encouraging tribal independence," White Mountain Apache Tribe v. Bracker, 448 U.S. 136, 143-44, 100 S.Ct. 2578, 65 L.Ed.2d 665 (1980), and are "rooted in the unique trust relationship between the United States and the Indians," County of Oneida, 470 U.S. at 247, 105 S.Ct. 1245.

A. The Language of the Statute

The Implementing Act preserves the Nation's sovereignty with respect to

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...