Micmac-Maliseet sovereignty case filed in Supreme Court

Gale Courey Toensing
10/12/07

WASHINGTON - The Aroostook Band of Micmacs and the Houlton Band of Maliseet Indians have filed petitions with the U.S. Supreme Court in a case that has the potential to put settlement act tribes on equal par with treaty tribes.

The petitions, which were filed Sept. 14, ask the U.S. Supreme Court to review, and ultimately overturn, a panel ruling by 1st Circuit Court of Appeals issued last spring, which effectively terminated the two bands' sovereign rights to self-government and control over how they conduct day-to-day business on their lands.

The two cases were ruled on simultaneously April 17 in a 2 - 1 decision. The case emerged from non-tribal members filing employment discrimination complaints with a state agency against the Micmacs. The band asked the state to dismiss the complaints, arguing that it had no jurisdiction over the band on these internal tribal matters and that it was protected from the complaints by its inherent tribal sovereignty and its sovereign immunity.

The 1st Circuit majority decision ruled that the federal Maine Indian Claims Settlement Act of 1980 and the Aroostook Band of Micmac Settlement Act of 1991 subjected the band to total state civil and criminal jurisdiction, including how tribes handle employment in their businesses on their lands. The two judges then applied their decision to the Maliseets.

''I believe the case has implications for every Settlement Act tribe in the country, which are pretty much mostly on the Eastern Seaboard and there are around 20 or more of them,'' said Doug Luckerman, who filed the petitions along with attorney Dennis P. Derrick on behalf of the two bands.

''[If the U.S. Supreme Court reverses the lower court decision], it would put Settlement Act tribes on the same footing as treaty tribes, which is as it should be. The Supreme Court said many years ago that whether by treaty or by statute, tribes are to be treated the same, which is the way it should be. The interpretation of treaties or federal law is to be for the benefit of the tribes,'' Luckerman said.

In the 1st Circuit decision, the two-judge majority used its own controversial ruling in a Narragansett Indian Tribe case as a precedent for the Micmac/Maliseet case. In the Narragansett case, a 1st Circuit panel majority ruled that the state of Rhode Island has total civil and criminal jurisdiction over the Narragansett Indian Tribe. The panel in that case claimed the Narraganssetts waived their sovereign immunity in a 1978 land claim settlement even though nothing in the act actually says that. The U.S. Supreme Court declined to hear a petition for appeal of that decision last December.

Before arriving at the appeals court, a magistrate judge ruled in the Micmac/Maliseet case that the federal Aroostook Band of Micmac Settlement Act of 1991, which gave the tribe federal recognition, also inherently granted the tribe sovereignty and sovereign immunity. The Aroostook act superseded the MICSA, which included the Passamaquoddy, Penobscot and Houlton Band, but did not include or even mention the Micmacs.

But 1st Circuit Court Judge Sandra Lynch, who wrote the decision, essentially ruled that the 1980 act overruled everything that happened after it. She cited a single provision of the MICSA - Section 1725(a) - to justify her argument that the tribes have no sovereignty or immunity. The section states that Maine tribes will be subject to the civil and criminal jurisdiction of the state, but does not include language that explicitly says the tribes waived their sovereignty.

Furthermore, Lynch argued that federal recognition is ''merely an acknowledgment that [the tribes] are eligible for particular federal tax treatment and benefits.''

The U.S. Supreme Court petition presents three questions:

" Does denying the bands the inherent sovereign right to govern their internal affairs because of language in the 1980 MICSA ignore federal common law establishing this sovereign right, disregard U.S. Supreme Court precedent and usurp the tribal rights that Congress acknowledged when it passed the act?

" When Congress has not expressly stated otherwise, and following case law, are the bands' tribal governments - rather than a state agency - the proper forum to determine a workplace discrimination claim filed by a non-tribal member who consented to work on tribal lands?

" Is the 1st Circuit Court ruling at odds with appeals courts, which recognize that unless Congress explicitly states the contrary, a federally recognized tribe retains the inherent rights of self-government and the right to decide workplace discrimination claims by non-tribal members who consented to work on tribal lands?

''We tried to state the cases in a way that would appeal to as broad a spectrum of the court as we could. The message we're trying to get across is that the 1st Circuit is essentially ignoring not just the U.S. Supreme Court, but also ignoring Congress and ignoring it not just in little ways, but in extremely flagrant ways; and, in the words of the conservative element of our society, they're being activist judges. They're writing legislation and filling in the blanks when they should just be reading the law,'' Luckerman said.

The state has 30 days to respond with an argument against the petition, but David Loughran, spokesman for state Attorney General Steve Rowe, told Indian Country Today the state would not be filing a response unless requested to do so by the U.S. Supreme Court.

Luckerman said the court would likely take until December to decide whether to review the case.

''I think that after the decisions the 1st Circuit Court has issued, it would be like rain in the desert to have the U.S. Supreme Court take this case,'' Luckerman said.

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