# Aroostook Band of Micmacs v. Ryan

> Court of Appeals for the First Circuit · April 17, 2007 · 484 F.3d 41

URL: https://www.frixlaw.com/law-library/cases/202707

## Case

- **Full name:** 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:** Court of Appeals for the First Circuit
- **Decided:** April 17, 2007
- **Citations:** 484 F.3d 41; 100 Fair Empl. Prac. Cas. (BNA) 388; 2007 U.S. App. LEXIS 8710; 2007 WL 1121906
- **Precedential status:** Published
- **Opinion:** Opinion
- **Judges:** Lynch, Campbell, Lipez
- **Cited by:** 10 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/202707

## Opinion text

United States Court of Appeals
For the First Circuit

Nos. 06-1127, 06-1358

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.

APPEALS FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MAINE

[Hon. Margaret J. Kravchuk, U.S. Magistrate Judge]

Before

Lynch, Circuit Judge,
Campbell, Senior Circuit Judge,
and Lipez, Circuit Judge.

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.

April 17, 2007
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.

-3-
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

-4-
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.

-5-
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.

-6-
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

1
There are only small exceptions pertaining to child welfare
matters, see 25 U.S.C. § 1727(e), and land acquisition, see id.
§ 1724(d)(4), and the exceptions are not pertinent here, as we
discuss later.

-7-
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 this Act, the

Aroostook Band of Micmacs . . . shall be subject to the laws of the

State and to the civil and criminal jurisdiction of the courts of

-8-
the State to the same extent as any other person. . . therein."

Me. Rev. Stat. Ann. tit. 30, § 7203. Another provision stated

that, unlike the Passamaquoddy and the Penobscots, "[t]he Aroostook

Band of Micmacs shall not exercise nor enjoy the powers, privileges

and immunities of a municipality." Id. § 7205.

The parties now dispute whether the state Micmac Act

actually took effect as a matter of state law. The Aroostook Band

argues that the state Micmac Act is ineffective under state law, so

the clauses of that Act, cited above, do not apply and the

Aroostook Band is not subject to state law.2 For reasons we

describe later, we think this dispute over state law is not

material.

As of the early 1990s, all of the concerned entities

apparently treated the state Micmac Act as validly enacted.

Accordingly, their next step was to persuade Congress to enact

ABMSA, the federal Micmac Act. Congress did so in 1991. See Pub.

2
During committee discussions in the Maine legislature,
members of the Aroostook Band spoke in favor of passage of the
state Micmac Act. After committee deliberations, and after
discussions between the Aroostook Band and the state had ended, the
Maine legislature amended the pending Micmac bill to add an
effectiveness provision. That provision stated that the Micmac Act
would only be effective if certain contingencies were met; one of
these contingencies was a requirement that the Aroostook Band
formally certify its agreement with the act within 60 days of the
legislature's adjournment. See 1989 Me. Laws 230, 232. The
Aroostook Band was apparently unaware that this requirement had
been added, and it never submitted the certification. The other
contingencies for effectiveness, which required that ABMSA be
enacted with certain provisions, also may not have been fulfilled.

-9-
L. No. 102-171, 105 Stat. 1143. The terms of the federal ABMSA,

and the effect that they have on the earlier-enacted federal MICSA,

are at the heart of the resolution of this case.

ABMSA declares, in its findings section, that the

Aroostook Band was not referred to in MICSA because in 1980 there

had been insufficient historical evidence of the tribe's presence

in Maine. ABMSA § 2(a)(2). That documentation had become

available, id. § 2(a)(3), and so Congress decided that it was "now

fair and just" to give the Aroostook Band "the same settlement

provided to the Houlton Band" in MICSA, id. § 2(a)(5). ABMSA also

states that one of its purposes is to "ratify the [state Micmac

Act], which defines the relationship between the State of Maine and

the Aroostook Band of Micmacs." Id. § 2(b)(4).

Among other provisions, ABMSA provided the Aroostook Band

with a $900,000 land acquisition fund, see id. §§ 4(a), 10, gave

the Aroostook Band federal recognition, see id. § 6(a), and

authorized the Aroostook Band to "organize for its common welfare

and adopt [a governing] instrument," see id. § 7(a). ABMSA applies

federal law to the Aroostook Band in the same manner as MICSA

applied federal law to the other three Maine tribes. Id. § 6(b).

However, as to the application of Maine law, ABMSA does not repeat

the language of the state Micmac Act, nor does it repeat the

language of MICSA. It has no language directly on this topic at

all. See Aroostook II, 404 F.3d at 55. ABMSA does empower the

-10-
State and the Aroostook Band to reach their own agreement regarding

Maine's jurisdiction over tribal lands, see ABMSA § 6(d), but it

appears that no agreement has yet been reached that would be

relevant to this case.

ABMSA also contains a "conflicts" provision: it states

that if there is "a conflict of interpretation between the

provisions of the [state Settlement Act, state Micmac Act, or

MICSA] and this Act, the provisions of this Act shall govern." Id.

§ 11.

B. The History of this Litigation: The Maine Law
Discrimination Claims Against the Aroostook Band

During 2001 and 2002, the Aroostook Band fired three of

its employees: Lisa Gardiner, Tammy Condon, and Beverly Ayoob.

Gardiner was the Band's Chief Financial Officer, Condon was its

Compliance Officer, and Ayoob was its Housing Director. Aroostook

II, 404 F.3d at 50. Gardiner and Condon alleged that they had been

the victims of employment discrimination on the basis of their

race, color, and national origin, in violation of the Maine Human

Rights Act (MHRA), Me. Rev. Stat. Ann. tit. 5, §§ 4551-4634, and

that they had been unlawfully retaliated against in violation of

the MHRA and the Maine Whistleblowers' Protection Act (MWPA), Me.

Rev. Stat. Ann. tit. 26, §§ 831-840.3 Aroostook II, 404 F.3d at

3
Gardiner's and Condon's claims are now the subject of
related litigation in the Maine state courts. That litigation has
apparently been stayed pending the outcome of this suit. See
Aroostook II, 404 F.3d at 52.

-11-
51. Ayoob also alleged she had been the victim of unlawful

discrimination and retaliation under these statutes. Id. All

three filed complaints with the Commission, a state agency which

investigates discrimination charges, see Me. Rev. Stat. Ann. tit.

5, § 4566. Aroostook II, 404 F.3d at 51. In all three cases, the

Commission in turn filed charges with the United States Equal

Employment Opportunity Commission. Id. The Aroostook Band asked

the Maine Commission to dismiss the complaints, arguing that the

Commission had no jurisdiction over the Band. Id. The Commission

refused, and it investigated the complaints. Id.

The Aroostook Band then filed suit in U.S. District Court

against the Commission's members, and against Condon, Gardiner, and

Ayoob. Id. at 51-52. It sought declaratory and injunctive relief,

asserting five claims: 1) that ABMSA and/or the Aroostook Band's

inherent sovereignty prohibited the Commission from enforcing the

state MHRA and MWPA against it, 2) that the Aroostook Band's

sovereign immunity4 achieved the same result, 3) that the Aroostook

Band was statutorily exempt from Title VII of the Civil Rights Act

of 1964, 42 U.S.C. §§ 2000e to 2000e-17, 4) that Title VII preempts

application of the state MHRA and MWPA against an Indian tribe, and

5) that the Aroostook Band was not an "employer" within the meaning

of either the state MHRA or MWPA statutes.

4
The complaint treated tribal sovereign immunity as a concept
distinct from inherent sovereignty. As we discuss later in the
opinion, our case law has now rejected this distinction.

-12-
The magistrate judge initially dismissed all claims for

lack of federal jurisdiction under Rule 12(h)(3). See Aroostook

Band of Micmacs v. Executive Dir. Me. Human Rights Comm'n, 307 F.

Supp. 2d 95, 96 (D. Me. 2004) ("Aroostook I"). A panel of this

court reversed on the grounds that the first four claims were

properly brought in federal court. See Aroostook II, 404 F.3d at

67, 69, 71, 73. The panel remanded all five claims, as there was

possible pendent jurisdiction over the final state law claim. See

id. at 73; see also 28 U.S.C. § 1367.

Part of the panel's opinion found that there was a

distinction between tribal sovereign immunity and inherent tribal

authority. See Aroostook II, 404 F.3d at 67-68. That part of the

opinion was later overruled by this court's en banc opinion in

Narragansett. 449 F.3d at 24-25.

On remand, the magistrate judge considered the merits of

both parties' motions for summary judgment. Judgment was entered

for the Aroostook Band on its first claim: that ABMSA and/or

inherent sovereignty protects the tribe's employment decisions from

Maine law. See Aroostook Band of Micmacs v. Ryan, 403 F. Supp. 2d

114, 130 (D. Me. 2005) ("Aroostook III"). The magistrate judge's

decision predated the issuance of our en banc opinion in

Narragansett.

The magistrate judge's reasoning had two primary parts.

First, the magistrate judge concluded that the state Micmac Act,

-13-
with its language subjecting the Aroostook Band to state law, had

never taken effect. Id. at 119-22. This failure to become

effective, the judge held, was not cured by ABMSA, even though the

federal act stated it was ratifying its state counterpart. Id. at

122-23.

Second, the magistrate judge concluded that while MICSA

had subjected the Aroostook Band to Maine law, this aspect of MICSA

was effectively and impliedly abrogated by two provisions in ABMSA:

the grant of federal recognition to the Aroostook Band in § 6(a),

and the authorization in § 7(a) for the Aroostook Band to organize

its government. Id. at 124-30. Both provisions of ABMSA, the

magistrate judge held, were in conflict with MICSA, and the

conflicts were resolved in the Aroostook Band's favor pursuant to

ABMSA's § 11. Id. at 124-26.

The magistrate judge permanently enjoined the Commission

defendants from applying the MHRA and MWPA to the Aroostook Band,

id. at 133, and also issued a declaratory judgment to similar

effect against Gardiner, Condon, and Ayoob.5 The Commission

5
In light of her resolution, the magistrate judge did not
reach the merits of most of the Aroostook Band's remaining claims.
She dismissed the Band's claims based on tribal sovereign immunity,
Title VII preemption, and interpretation of the MHRA and MWPA, as
any relief on those claims would have been identical to the relief
already granted. Aroostook III, 403 F. Supp. 2d at 133. The
magistrate judge did enter judgment for the Aroostook Band on its
third claim, which contended that the Band was exempt from Title
VII. Id. at 130-31, 133. The merits of that claim were not
contested, and are not a subject of this appeal.

-14-
defendants and defendants Gardiner and Condon all appealed. We

consolidated the appeals, and we now reverse.

II. AN OVERVIEW

We review de novo the magistrate judge's disposition of

the cross-motions for summary judgment. Jalbert Leasing, Inc. v.

Mass. Port Auth., 449 F.3d 1, 2 (1st Cir. 2006).

There are several major strands to the Aroostook Band's

argument. First, the Aroostook Band argues that MICSA did not

subject the tribe's government to state employment law. Second,

even if MICSA did have this effect, the tribe contends that this

aspect of MICSA was abrogated by and is in conflict with ABMSA.

Throughout, the Aroostook Band interprets the relevant statutes in

light of its notions of inherent tribal sovereignty, as protected

under federal Indian common law.

The precise question we face is whether Maine is

precluded from applying its employment statutes when these statutes

permit individuals employed by the Aroostook Band's government to

file and pursue discrimination complaints with the Commission and

through any judicial review thereafter. While the parties have

argued in broad terms before us, that is the narrow issue that we

decide.6

6
Maine does acknowledge the possibility that MICSA and ABMSA
did not fully abrogate the Aroostook Band's sovereignty as to all
matters -- it contends, however, that the issues in this case
cannot fall within the limited exception. The State’s
acknowledgment is only that ABMSA § 7(a) may give the Aroostook

-15-
Our conclusion is that this dispute is resolved in

Maine's favor based on two federal statutes, MICSA and ABMSA, both

of which were statutes designed to settle Indian claims. These

settlement acts displaced any federal common law that might

otherwise bear on this dispute. MICSA clearly and unequivocally

establishes that Maine law applies to the Aroostook Band. And

ABMSA does not either explicitly or implicitly conflict with or

override MICSA on this point. It instead reinforces this aspect of

MICSA.

Whether or not the state Micmac Act ever became effective

under state law is not an issue we need to decide. As a federal

court, we would be reluctant in any event to decide such a

difficult and complex issue of state law without guidance from

Maine's Supreme Judicial Court. Our analysis and the resolution of

these issues turn entirely on federal law.

III. MICSA'S EFFECT ON THE AROOSTOOK BAND

A. MICSA’s Text

Maine relies on MICSA's language to support its argument

that MICSA subjected the Aroostook Band to state employment law.

Specifically, MICSA declares that

Band independence over aspects of its own governmental and
electoral structures. Cf. Narragansett, 449 F.3d at 26 (finding
congressional abrogation of a tribe's sovereignty, but recognizing
the possibility that the tribe still retained control over a "core
group of sovereign functions").

-16-
all Indians, Indian nations, or tribes or
bands of Indians in the State of Maine, other
than the Passamaquoddy Tribe, the Penobscot
Nation, and their members, and any lands or
natural resources owned by any such Indian,
Indian nation, tribe or band of Indians and
any lands or natural resources held in trust
by the United States, or by any other person
or entity, for any such Indian, Indian nation,
tribe, or band of Indians shall be subject to
the civil and criminal jurisdiction of the
State, the laws of the State, and the civil
and criminal jurisdiction of the courts of the
State, to the same extent as any other person
or land therein.

25 U.S.C. § 1725(a). By its clear terms, § 1725(a) makes all Maine

tribes, other than the Passamaquoddy Tribe and the Penobscot

Nation, "subject to the civil and criminal jurisdiction of the

State, the laws of the State, and the civil and criminal

jurisdiction of the courts of the State."7

The Aroostook Band argues that even while MICSA made it

"subject to . . . the laws of the State," the statute did not go so

far as to subject the internal tribal matters of the Aroostook Band

to state law.8 It contends that it retains authority over these

7
The State also relies on a separate MICSA provision, see 25
U.S.C. § 1725(h), to argue that the federal common law doctrine of
tribal sovereignty no longer has force anywhere within the State of
Maine. We do not reach this argument.
8
The Aroostook Band argues that its employment of defendants
Gardiner, Condon, and Ayoob was an "internal tribal matter." For
purposes of this decision, we assume that to be true for the sake
of argument.
In Penobscot Nation v. Fellencer, this court determined that
a tribe's employment of a community health nurse, who tended to the
personal medical needs of tribal members, was an "internal tribal
matter" within the meaning of the Settlement Acts. See 164 F.3d at

-17-
matters as part of its inherent tribal sovereignty. We discuss in

a later section why Congress’s intent in MICSA to ratify the state

Settlement Act, grouped with that state statute’s treatment of

“internal tribal matters,” defeats this claim. But in this section

we also provide several other reasons to reject the argument.

1. Statutory Clarity and the Abrogation of
Sovereignty

The Aroostook Band relies on rules of statutory

construction that "obligate us to construe 'acts diminishing the

sovereign rights of Indian tribes . . . strictly,' 'with ambiguous

provisions interpreted to the [Indians'] benefit.'" Fellencer, 164

F.3d at 709 (ellipsis and alteration in original) (internal

citations omitted) (quoting Rhode Island v. Narragansett Indian

Tribe, 19 F.3d 685, 702 (1st Cir. 1994); County of Oneida v. Oneida

Indian Nation, 470 U.S. 226, 247 (1985)). The Aroostook Band

asserts that prior to MICSA's enactment, it had the power to

control all of its own employment matters as part of its inherent

sovereignty. It contends that, judged against a backdrop of

federal common law protecting Indian sovereignty, see Rhode Island,

19 F.3d at 701, MICSA was not clear enough to subjugate this aspect

of the tribe's sovereignty to Maine law.

707. Because it has not been contested, we accept arguendo the
extension of Fellencer to this case. We do note that unlike in
Fellencer, see id. at 710, Maine has here claimed an interest in
the enforcement of its employment laws.

-18-
We disagree. Whatever powers are included within

"inherent tribal authority," Congress may abrogate those powers by

statute. See United States v. Lara, 541 U.S. 193, 200 (2004);

Washington v. Confederated Bands & Tribes of the Yakima Indian

Nation, 439 U.S. 463, 470-71 (1979). Although Congress must do so

clearly, "there is no requirement that talismanic phrases be

employed. Thus, an effective limitation . . . need not use magic

words." Narragansett, 449 F.3d at 25.9

MICSA is clear. In § 1725(a) it not only made Maine

Indians "subject to . . . the laws of the State," and "subject to

the civil and criminal jurisdiction of the State," but it expressly

added the emphasizing phrase "to the same extent as any other

person." And § 1725(a) not only applies to "Indians," but also to

the "Indian nations, . . . tribes[, and] bands of Indians"

themselves. Short of using "magic words," it is hard to imagine

how § 1725(a) could have been clearer. There is no “internal

tribal matters” exception in the statute.

The Aroostook Band tries to interpret this clear

statement by Congress as nevertheless exempting specific units of

tribal government. Aided by the Houlton Band as amicus, the

9
Although this portion of Narragansett was referring to
"sovereign immunity" rather than "inherent sovereignty," elsewhere
in that en banc opinion we rejected the idea that there was a
meaningful distinction between the two, and we explicitly overruled
Aroostook II to the extent it held otherwise. See Narragansett,
449 F.3d at 24-25.

-19-
Aroostook Band sees significance in the fact that § 1725(a) does

not apply state law to governing bodies like the Aroostook Micmac

Council or the Houlton Band Council. Cf. 25 U.S.C. § 1722(a)

(stating that the Houlton Band is “represented” by the Houlton Band

Council); ABMSA § 3(1) (stating that the Aroostook Band is

“represented” by the Aroostook Micmac Council). The inference we

are asked to draw is that § 1725(a) applies state law to Maine

tribes as “polities” but not to their governments.

This argument lacks merit. It is not a natural reading

of the language and it creates an artificial distinction merely to

suit tribal purposes. Further, MICSA recognizes that a governing

Council exists as a representative of a tribe. See 25 U.S.C.

§ 1722(a). It is the tribe itself, as a legal entity, whose

interest in sovereignty is really at issue.10 See Ninigret Dev.

Corp. v. Narragansett Indian Wetuomuck Hous. Auth., 207 F.3d 21, 29

(1st Cir. 2000) (explaining that a tribal housing authority had

sovereign immunity because it was "an arm of the [t]ribe");

10
Indeed, it appears that it was the Aroostook Band as a legal
entity that employed defendants Gardiner, Condon, and Ayoob. Both
sides admitted in the district court that "the Band" employed the
three individual defendants.
Additionally, as defendants Gardiner and Condon point out, the
plaintiff in this lawsuit is the "Aroostook Band of Micmacs," which
the complaint tells us is governed by the "Aroostook Band of
Micmacs Tribal Council." All relief is requested on behalf of "the
Band." If only the Band as "polity" is the plaintiff, and it is
requesting relief only on behalf of itself, one wonders whether the
plaintiff even has standing to advance claims on behalf of the Band
as "government."

-20-
Fletcher v. United States, 116 F.3d 1315, 1324 (10th Cir. 1997)

(holding that the members of a tribal government, sued in their

official capacities, were protected by sovereign immunity because

any relief would "run against the [t]ribe itself"). Under MICSA,

§ 1725(a) applies state law to "Indian nations, . . . tribes[,] or

bands." That is what matters. See Narragansett, 449 F.3d at 30

(holding that tribal officers have no sovereign immunity when they

engage in activities that the tribe itself cannot lawfully

authorize).

Amicus presents another argument why § 1725(a) was not

clear in its abrogation of either Houlton or Aroostook tribal

sovereignty.11 Under 25 U.S.C. § 1727(a), the Passamaquoddy and the

Penobscots have the opportunity to petition for "exclusive

jurisdiction" over certain child custody matters. Amicus contends

that the use of "exclusive jurisdiction" here, in contrast with the

use of the sole word "jurisdiction" in § 1725(a), means that

§ 1725(a) merely grants the state "nonexclusive authority and

concurrent jurisdiction to apply [s]tate law" to tribes like the

Houlton Band and Aroostook Band.

But amicus ignores the fact that elsewhere in MICSA, the

Passamaquoddy and the Penobscots were "authorized to exercise

11
While we are not obligated to consider points raised only
by an amicus, see N. & S. Rivers Watershed Ass'n v. Town of
Scituate, 949 F.2d 552, 556 n.8 (1st Cir. 1991), we nonetheless
consider this and other points, in part because we have the benefit
of the state's responses.

-21-
jurisdiction, separate and distinct from the civil and criminal

jurisdiction of the State of Maine, to the extent authorized by the

[state Settlement Act]." Id. § 1725(f). No such jurisdictional

authorization was provided to the other Maine tribes, and thus we

think it would clearly defeat congressional intent to nevertheless

imply one. The language about "exclusive jurisdiction" in

§ 1727(a) is plainly nothing more than a helpful clarification in

light of the peculiar jurisdictional status of the Penobscots and

Passamaquoddy. It does not turn § 1725(a) into a mere grant of

concurrent jurisdiction. The meaning of MICSA's § 1725(a) is

clear: Maine law applies to this situation.

2. Statutory Clarity in Context: Indian Statutes in
Supreme Court Case Law

The Aroostook Band attempts to undercut the clarity of

MICSA by comparing it to statutes -- most notably Public Law 280

and the Menominee Indian Termination Act of 1954 -- examined in

several Supreme Court cases.

MICSA stands in stark contrast to Public Law 280, Act of

Aug. 15, 1953, ch. 505, 67 Stat. 588 (codified as amended at 18

U.S.C. § 1162 and 28 U.S.C. § 1360). Public Law 280 is the statute

discussed in Bryan v. Itasca County, 426 U.S. 373 (1976), a case on

which the Aroostook Band relies. Bryan addressed the part of the

statute that gave certain states

jurisdiction over civil causes of action
between Indians or to which Indians are
parties which arise in . . . Indian country

-22-
. . . to the same extent that such State has
jurisdiction over other civil causes of
action, and those civil laws of such State
that are of general application to private
persons or private property shall have the
same force and effect within such Indian
country as they have elsewhere within the
State.

28 U.S.C. § 1360(a). The Court found this statute did not clearly

give states civil regulatory jurisdiction over Indians, and it

interpreted the ambiguity for the Indians' benefit by precluding

the application of a state property tax. See Bryan, 426 U.S. at

392-93.

In finding Public Law 280 ambiguous, the Court relied on

reasons that are inapplicable to MICSA's § 1725(a). First, the

Court examined Public Law 280's legislative history and concluded

that its civil law provisions were primarily designed to address

"the lack of adequate Indian forums for resolving private legal

disputes." Id. at 383; see also id. at 379-87. Viewed in this

light, when Public Law 280 gave force to "the civil laws of [the]

State" pertaining to "private persons or private property," 25

U.S.C. § 1360(a), it was merely providing state rules of decision

and a state forum for private disputes, and it was not attempting

to infringe more deeply on tribal sovereignty. Bryan, 426 U.S. at

383-84. MICSA has no such legislative history, nor does it contain

similar language specifically addressed to "private" legal

disputes. Cf. Narragansett, 449 F.3d at 28 (noting the narrowness

of Public Law 280).

-23-
More importantly, the Court in Bryan stressed that Public

Law 280 lacked "any conferral of state jurisdiction over the tribes

themselves." 426 U.S. at 389. In contrast, § 1725(a) expressly

does apply to Indian tribes in addition to their members.

The Aroostook Band also cites to Menominee Tribe of

Indians v. United States, 391 U.S. 404 (1968), but Menominee does

not assist the tribe. Menominee involved a federal statute, the

Menominee Indian Termination Act of 1954, 68 Stat. 250 (repealed

1973), which stated that "the laws of the several States shall

apply to the [Menominee] tribe and its members in the same manner

as they apply to other citizens or persons within their

jurisdiction." 391 U.S. at 410 (internal quotation marks omitted)

(quoting 25 U.S.C. § 899 (repealed 1973)). The Supreme Court

refused to read this language as abrogating certain hunting and

fishing rights that the Menominee Tribe had obtained in an 1854

treaty. Id. at 412-13. The Aroostook Band asks us to reach a

comparable result here as it contends that the language in the

Termination Act is similar to the language in MICSA.

We disagree and find Menominee not only easily

distinguishable, but in fact supportive of our reading of MICSA.

Menominee's holding is not that the Termination Act alone was too

unclear to abrogate aspects of tribal sovereignty. Instead,

Menominee held that the Termination Act needed to be considered in

pari materia with Public Law 280, which was contemporaneously

-24-
passed and which explicitly said it was not interfering with Indian

hunting and fishing rights granted by treaty. Id. at 410-11. The

combination of these two statutes created enough ambiguity to favor

preservation of Indian rights. With MICSA there is no similar

federal statute, passed roughly contemporaneously, that could

create a comparable ambiguity. To the contrary, the federal

statutory scheme is a consistent whole on the issue in question.

Nor is this the sole fact that distinguishes Menominee.

For instance, the Termination Act was abrogating a treaty right,

which meant that rules of statutory construction favoring Indians

were bolstered by the rule that "the intention to abrogate or

modify a treaty is not to be lightly imputed to . . . Congress."

Id. at 413 (quoting Pigeon River Improvement, Slide & Boom Co. v.

Charles W. Cox, Ltd., 291 U.S. 138, 160 (1934)) (internal quotation

marks omitted). By contrast, this case does not involve any

treaty. Additionally, the Menominee Court drew support from

statements by the Termination Act's chief sponsor; he had declared

that the act "'in no way violates any treaty obligation with this

tribe.'" Id. (quoting 100 Cong. Rec. 8537, 8538 (1954) (statement

of Sen. Watkins)). The Aroostook Band has pointed to no

legislative history for MICSA that is similarly so on point.

The Supreme Court's decision in South Carolina v. Catawba

Indian Tribe, Inc., 476 U.S. 498 (1986), puts Menominee in context

and further confirms our reading of MICSA. Catawba interpreted a

-25-
statute virtually identical to the Termination Act in Menominee.

See Catawba Indian Tribe Division of Assets Act, Pub. L. No. 86-

622, 73 Stat. 592 (1959) (repealed 1993). That Catawba statute

declared: "[T]he [Catawba] tribe and its members shall not be

entitled to [certain federal services] . . ., and the laws of the

several States shall apply to them in the same manner they apply to

other persons or citizens within their jurisdiction." 25 U.S.C.

§ 935 (repealed 1993); see also Catawba, 476 U.S. at 505. Without

a contemporaneously passed statute like Public Law 280 to add

ambiguity, the Supreme Court found it "unmistakably clear" that

"state laws apply to the Catawba Tribe and its members in precisely

the same fashion that they apply to others." Catawba, 476 U.S. at

505-06; see also id. at 509 n.20 (distinguishing Menominee on this

basis). MICSA is similarly clear.

3. Statutory Clarity and The Tribal Employment Rule

Despite the statutory clarity, and the Supreme Court case

law reinforcing this clarity, the Aroostook Band urges us to apply

what it calls the "Tribal Employment Rule." What it means by this

is that there are a number of cases, all from other jurisdictions

and involving differently situated tribes,12 holding that general

12
Fellencer is the only cited case from this jurisdiction and
it hardly helps the Aroostook Band. That decision, which involved
a former employee of the Penobscot Nation, merely interprets the
"internal tribal matters" exception explicitly contained in the
state and federal settlement acts. Fellencer, 164 F.3d at 707.
Fellencer concluded that the exception applied on its facts,
insulating the contested employment decision from Maine law. Id.

-26-
federal employment statutes do not apply to tribal employers

despite these statutes' silence on that issue. See, e.g., Snyder

v. Navajo Nation, 382 F.3d 892, 894-95 (9th Cir. 2004) (tribal

employer exempt from Fair Labor Standards Act); Taylor v. Ala.

Intertribal Council Title IV J.T.P.A., 261 F.3d 1032, 1035-36 (11th

Cir. 2001) (tribal employer insulated from employment

discrimination claim under 42 U.S.C. § 1981); NLRB v. Pueblo of San

Juan, 280 F.3d 1278, 1286 (10th Cir. 2000) (tribal employer not

covered by National Labor Relations Act); cf. 42 U.S.C. § 2000e(b)

(explicitly providing that for purposes of Title VII, the term

"employer" does not include an Indian tribe).

These cases are inapposite. The fact that a tribe may be

exempt from federal employment laws says little regarding that

tribe's status under state employment laws, particularly where

Congress has enacted settlement acts. None of these cases say that

tribal employment decisions are somehow insulated from state law in

the face of a federal statute that specifically applies state laws

at 713. No one doubts that the "internal tribal matters" exception
applies to the Penobscots; the question is whether it also applies
to the Aroostook Band.

-27-
to tribes.13 We think the "Tribal Employment Rule" is inapplicable

in the face of MICSA's clarity.

B. The State Settlement Act and Its Relationship to MICSA

We have held that as a matter of reading MICSA, § 1725(a)

clearly subjects the Aroostook Band to Maine law in this situation.

That is enough. But because the Aroostook Band relies heavily on

notions of equity, we also consider the terms of the state

Settlement Act. The terms of that act reinforce our reading of

MICSA's language and intent. Indeed, MICSA purported to ratify

that state act. See 25 U.S.C. § 1725(b)(1); see also Akins v.

Penobscot Nation, 130 F.3d 482, 485 (1st Cir. 1997) (treating the

"internal tribal matters" exception contained in the state

Settlement Act as incorporated into federal law).

The state Settlement Act explicitly created an "internal

tribal matters" exception for the Passamaquoddy and the Penobscots

and not for the Houlton Band, the Aroostook Band, or any other

Maine tribe. Compare Me. Rev. Stat. Ann. tit. 30, § 6204

(providing that "[e]xcept as otherwise provided in this Act, all

Indians, Indian Nations, and tribes and bands of Indians in [Maine]

13
The Aroostook Band does cite one case that is more on point.
See Middletown Rancheria of Pomo Indians v. Workers' Comp. Appeals
Bd., 71 Cal. Rptr. 2d 105 (Cal. Ct. App. 1998). But Middletown
merely interprets the same statute, Public Law 280, which the
Supreme Court dealt with in Bryan. See id. at 112 (holding that
Bryan's interpretation controlled the outcome). We distinguished
Bryan and Public Law 280 above, noting in particular the fact that
Public Law 280 does not specifically apply state law to the tribes
themselves.

-28-
. . . shall be subject to the laws of the State . . . to the same

extent as any other person"), with id. § 6206(1) (providing that

"internal tribal matters" of the Passamaquoddy and the Penobscots

"shall not be subject to regulation by the state"). MICSA's choice

of language echoed the state Settlement Act by providing one legal

regime for the Penobscots and Passamaquoddy, and a different regime

for other tribes. Compare 25 U.S.C. § 1725(a) (subjecting all

Indians in Maine, "other than the Passamaquoddy Tribe, the

Penobscot Nation, and their members" to state law to the same

extent as any other person), with id. § 1725(b)(1) (discussing

Maine's jurisdiction over the Penobscots and Passamaquoddy).

The Aroostook Band takes issue with this understanding of

the state law. It argues that while the "internal tribal matters"

exception in the state Settlement Act refers only to the Penobscots

and the Passamaquoddy, the internal matters of all Maine tribes are

free from state regulation. The Aroostook Band contends that the

exception in the statute is "actually a savings clause that

preserves certain aspects of inherent tribal sovereignty and self-

governance rights that generally apply to all Indian tribes." It

posits that such a savings clause was needed for the Penobscots and

the Passamaquoddy to clarify their retained sovereignty despite

their unique status as municipalities under Maine law. Since the

other Maine tribes were not given municipal status, the Aroostook

Band argues that no "internal tribal matters" exception was needed

-29-
for them in the state Settlement Act, so little should be inferred

from congressional failure to place such an exception in MICSA.

We disagree with this innovative reading of the state

Settlement Act. It is not a rational reading of the language. And

the reading is also in tension with our precedent. We have held

that the "internal tribal matters" exception has its own unique

meaning, and that it does not invoke all of Indian common law.14

See Fellencer, 164 F.3d at 709-13 (treating Indian common law as

but one factor in determining whether something is an "internal

tribal matter"); Akins, 130 F.3d at 488-90 (same); see also id. at

489 (refusing to read the exception "as invoking all of prior

Indian law" because "[t]hat would be inconsistent with the unique

nature of the Maine settlement"). This is hardly the effect we

would expect from a “savings clause.”15

The Aroostook Band's reading of the exception is also

undercut by strong evidence of legislative intent. The state

Settlement Act clearly intended to give the Penobscots and the

Passamaquoddy more independence from state law than it gave the

14
Maine's highest court has expressed a similar understanding.
See Penobscot Nation v. Stilphen, 461 A.2d 478, 488-89 (Me. 1983).
15
The Houlton Band, as amicus curiae, attempts to salvage the
interpretation offered by the Aroostook Band. It contends that the
Passamaquoddy Tribe and the Penobscot Nation received the less
generous "internal tribal matters" exception, while all other Maine
tribes retained the full extent of their inherent sovereignty.
This radical interpretation finds little textual support, and is
drastically at odds with the legislative history.

-30-
Houlton Band (the only other Maine tribe that asserted a claim at

the time that act was passed). In its findings section, the state

Settlement Act declares: "[T]he Passamaquoddy Tribe and the

Penobscot Nation have agreed to adopt the laws of the State as

their own to the extent provided in this Act. The Houlton Band of

Maliseet Indians and its lands will be wholly subject to the laws

of the State." Me. Rev. Stat. Ann. tit. 30, § 6202. It would be

illogical to conclude that the Houlton Band had received the same

exemptions from state law that had been granted to the two larger

tribes. And if the Houlton Band was not given these exemptions,

certainly the Aroostook Band did not receive them either.16

IV. THE STATUS OF THE AROOSTOOK BAND UNDER ABMSA

In the previous section, we concluded that MICSA clearly

subjected the Aroostook Band to state employment laws -- a

conclusion we reached both from MICSA's language and from its

context in relation to the state Settlement Act. "[W]hen two

statutes are capable of co-existence, it is the duty of the courts,

absent a clearly expressed congressional intention to the contrary,

to regard each as effective." Morton v. Mancari, 417 U.S. 535, 551

(1974). We think that MICSA and the later-enacted ABMSA are

capable of co-existence, and there is no clearly expressed

16
The Aroostook Band does not argue that, in 1980, the
drafters of either settlement act intended to give the Aroostook
Band more favorable terms than what the Houlton Band was given.

-31-
congressional intention that ABMSA makes Maine law inapplicable

here despite MICSA's language.

The Aroostook Band's argument to the contrary proffers

two ABMSA provisions as conflicting with MICSA: § 6(a), which gives

the Aroostook Band federal recognition, and § 7(a), which

authorizes the Aroostook Band to adopt a governing instrument and

organize for its common welfare. When read alongside ABMSA § 11,

the conflicts provision, the Aroostook Band believes that ABMSA

codifies the tribe's inherent sovereignty and insulates its

employment decisions from state law. In an attempt to reinforce

its reading of §§ 6(a) and (7)(a), the Aroostook Band also appears

to argue that ABMSA impliedly repeals parts of MICSA. We disagree

with these arguments. Additionally, we disagree with the repeal

argument that is offered by our dissenting colleague (and that was

not advanced by the Aroostook Band).

A. Section 6(a): Federal Recognition

The Aroostook Band contends that when ABMSA gave it

federal recognition, it used a “term of art” that entitles the

tribe to a variety of privileges and immunities.17 Cf. 25 C.F.R.

17
ABMSA § 6(a) states:
Federal recognition is hereby extended to the
Aroostook Band of Micmacs. The Band shall be
eligible to receive all of the financial
benefits which the United States provides to
Indians and Indian tribes to the same extent,
and subject to the same eligibility criteria,
generally applicable to other federally
recognized Indians and Indian tribes.

-32-
§ 83.2 (explaining that recognition means that a "tribe is entitled

to the immunities and privileges available to other federally

acknowledged Indian tribes by virtue of their

government-to-government relationship with the United States").

Among those privileges, we are told, is freedom from the

application of state law.

We flatly reject the argument. MICSA contains express

terms to the contrary. It gave the Penobscots and the

Passamaquoddy "federal recognition," see 25 U.S.C. § 1725(i), and

yet those tribes are subject to limits that do not apply to other

federally recognized tribes. See Akins, 130 F.3d at 485, 489.

Compare 25 U.S.C. § 1724(e) (placing restrictions on the authority

of the United States to take land into trust on behalf of Maine

tribes), with id. § 465 (giving the Secretary of the Interior

discretion to take lands into trust on behalf of Indian tribes).18

Moreover, even though MICSA recognized the Houlton Band, it plainly

subjected that tribe to state law to a greater extent than it

subjected the Penobscots and Passamaquoddy. To interpret

"recognition" as a grant of sovereignty would require us to undo

this differing treatment.

18
Nor is Maine the only state where Congress has made federal
recognition consistent with limits on sovereignty. The
Narragansett Indian Tribe is a federally recognized tribe, and it
too has had aspects of its sovereignty abrogated by a similar
settlement. See Narragansett, 449 F.3d at 19, 25-27.

-33-
Indeed, it is hard to see how the Congress that enacted

MICSA intended recognition to be a "grant" of sovereignty at all.

That Congress understood Maine tribes to be able to invoke

sovereign powers even without recognition: our court had decided as

much in Bottomly v. Passamaquoddy Tribe, 599 F.2d 1061, 1064-66

(1st Cir. 1979), and Congress was plainly aware of our holding, see

H.R. Rep. No. 96-1353, at 14 (1980), reprinted in 1980 U.S.C.C.A.N.

3786, 3790 (noting Bottomly's holding regarding inherent

sovereignty); S. Rep. No. 96-957, at 14 (1980) (same).

Thus we understand “recognition,” at least as used in

MICSA, to be merely an acknowledgment that the Passamaquoddy, the

Penobscots, and the Houlton Band are eligible for particular

federal tax treatment and benefits. It is telling that MICSA only

grants federal recognition as part of two sentences dealing with

financial benefits and taxes:

As federally recognized Indian tribes, the
Passamaquoddy Tribe, the Penobscot Nation, and
the Houlton Band of Maliseet Indians shall be
eligible to receive all of the financial
benefits which the United States provides to
Indians, Indian nations, or tribes or bands of
Indians to the same extent and subject to the
same eligibility criteria generally applicable
to other Indians, Indian nations or tribes or
bands of Indians. The Passamaquoddy Tribe,
the Penobscot Nation, and the Houlton Band of
Maliseet Indians shall be treated in the same
manner as other federally recognized tribes
for the purposes of Federal taxation and any
lands which are held by the respective tribe,
nation, or band . . . shall be considered
Federal Indian reservations for purposes of
Federal taxation.

-34-
25 U.S.C. § 1725(i).

We have no reason to think that ABMSA’s grant of

"recognition" used a “term of art” that meant something different

from MICSA’s use of the term. Like the similar provision in MICSA,

ABMSA § 6(a) grants recognition as part of a provision discussing

federal financial benefits.19 Although there are small differences

in wording, those differences cannot plausibly be read as relevant

to the Aroostook Band’s claimed exemption from employment laws, and

the Aroostook Band does not so argue.

B. Section 7(a): Government Organization and Documents

The Aroostook Band also points to ABMSA § 7(a) as

"affirming" the Aroostook Band's right to "self-governance." The

19
Citing MICSA's Senate Report, amicus argues that
"recognition" in MICSA actually does have the same meaning as what
the Aroostook Band attributes to ABMSA § 6(a). That Senate report
comments on the state Settlement Act's stated purpose to "wholly
subject" the Houlton Band of Maliseet Indians and its lands to "the
laws of the State," Me. Rev. Stat. Ann. tit. 30, § 6202. See S.
Rep. No. 96-957, at 35 (1980). The report states that § 6202
differs from MICSA in that the latter "will extend Federal
recognition to the Maliseets . . .[, and] will provide that
Maliseet land must also be taken in trust . . . which will entail
exemptions from some state laws." Id.
This legislative history does little to advance amicus's
position. First, the report is silent as to any conflict between
MICSA's § 1725(a) and federal recognition, and it is § 1725(a) that
subjects tribes like the Houlton Band and Aroostook Band to Maine
law. Second, even if federal recognition is inconsistent with
"wholly" subjecting the Houlton Band to state law, it is another
question entirely how far any exemption goes. Under Maine's
interpretation of MICSA, the Houlton Band may still retain
sovereignty over certain key decisions regarding the structure of
its government and its electoral process.

-35-
Aroostook Band infers that, as a result, it is not subject to state

laws in this case. Section 7(a) states:

The [Aroostook] Band may organize for its
common welfare and adopt an appropriate
instrument in writing to govern the affairs of
the Band when acting in its governmental
capacity. Such instrument and any amendments
thereto must be consistent with the terms of
this Act. The Band shall file with the
Secretary a copy of its organic governing
document and any amendments thereto.

The Aroostook Band reads this language as allowing it "to determine

the structure and internal operations of [its] governing body," a

power which it contends gives it an exemption from state employment

law.

We disagree with this extremely broad reading. First, by

its plain terms, § 7(a) says nothing about conferring an exemption

from state laws. It merely allows the Aroostook Band to "organize

for its common welfare" and "adopt an appropriate instrument in

writing to govern [tribal] affairs." The language cannot be read

to exclude the Aroostook Band from discrimination suits brought by

former employees.

Second, our view is strengthened by comparing § 7(a) to

a similar provision in MICSA. Section 7(a) is clearly based on

virtually identical language contained in MICSA's § 1726(a). That

subsection stated:

The Passamaquoddy Tribe, the Penobscot Nation,
and the Houlton Band of Maliseet Indians may
each organize for its common welfare and adopt
an appropriate instrument in writing to govern

-36-
the affairs of the tribe, nation, or band when
each is acting in its governmental capacity.
Such instrument and any amendments thereto
must be consistent with the terms of [this
act] and the [state Settlement Act]. The
Passamaquoddy Tribe, the Penobscot Nation, and
the Houlton Band of Maliseet Indians shall
each file with the Secretary a copy of its
organic governing document and any amendments
thereto.

25 U.S.C. § 1726(a). If we were to accept the Aroostook Band's

argument about the meaning of this language, we would be forced to

conclude that § 1726(a) acted to exempt the Houlton Band from the

provisions of § 1725(a) (which applies Maine law to the Houlton

Band).20 That conclusion fails on the face of the statute itself:

§ 1725(a) contains several exceptions for other MICSA provisions,

and § 1726(a) is not one of them.

20
In passing ABMSA, Congress plainly did not intend to give
the Aroostook Band greater benefits than it had given the Houlton
Band in MICSA. As one of its stated purposes, ABMSA declares that
"[i]t is now fair and just to afford the Aroostook Band of Micmacs
the same settlement provided to the Houlton Band of Maliseet
Indians for the settlement of that Band's claims, to the extent
they would have benefitted from inclusion in [MICSA]." ABMSA
§ 2(a)(5); see also id. § 2(a)(4) ("The Aroostook Band . . . is
similar to the Houlton Band . . . and would have received similar
treatment under [MICSA] if the [historical] information available
today had been available . . . [in 1980]"). ABMSA's Senate
committee report reinforces that view. See S. Rep. No. 102-136, at
1 (1991) ("The bill will extend to the Aroostook Band . . . the
same compensation, rights and benefits as were provided to the
Houlton Band . . . in [MICSA]"). Indeed, ABMSA authorizes a
$900,000 appropriation for Aroostook land acquisition, see ABMSA
§§ 4(a), 10, the same amount that MICSA authorized for Houlton land
acquisition. And despite the Aroostook Band's suggestions
otherwise, nothing in Aroostook II contradicts our conclusion that
similar treatment was envisioned.

-37-
Indeed, the Aroostook Band's argument amounts to a claim

that ABMSA § 7(a) (and MICSA's § 1726(a)) provide the functional

equivalent of the "internal tribal matters" exception granted to

the Passamaquoddy and the Penobscots. They plainly do not.

Congress invoked different language, and it intended different

treatment of the Passamaquoddy and Penobscots on the one hand, and

the remaining Maine tribes on the other.21

While it is not necessary to consult legislative history

at all, that history reveals that MICSA's § 1726(a) -- and thus

ABMSA § 7(a) -- cannot be read as the equivalent of the "internal

tribal matters" exception. Rather, the language in § 1726(a) was

meant to serve an entirely different purpose. The language was

added at the suggestion of the Secretary of the Interior, Cecil

Andrus, who saw a "conceptual problem" with the fact that the

Penobscots and the Passamaquoddy were given municipal status under

the state Settlement Act. See Proposed Settlement of Maine Indian

Land Claims: Hearings on S. 2829 Before the S. Select Comm. on

Indian Affairs, 96th Cong. 38 (1980) [hereinafter MICSA Senate

Hearings] (statement of Secretary Andrus). Maine municipalities

derive their authority from charters, and Secretary Andrus noted

that the tribes would have no charters, constitutions, or other

21
The Aroostook Band points us to the IRS's determination that
the tribe exercises "governmental functions" for the purposes of
certain provisions in the Internal Revenue Code. See Rev. Proc.
2002-64, 2002-2 C.B. 717. This is wholly beside the point, and
offers no assistance in our interpretation of ABMSA.

-38-
governing documents. Id. at 37-38. Additionally, because the

tribes were going to be have large land holdings, the Secretary

thought it advisable that they adopt organic governing documents,

and that these be on file with the Department of the Interior. See

Letter from Cecil D. Andrus, Secretary, United States Department of

the Interior, to John Melcher, Chairman, Senate Select Committee on

Indian Affairs (Aug. 8, 1980), reprinted in MICSA Senate Hearings

at 95, 103. These rationales have nothing to do with inherent

sovereignty.22

The Aroostook Band disputes this reading of MICSA's

legislative history by pointing out that § 1726(a) was based on

similar language in the Indian Reorganization Act ("IRA"), Pub. L.

No. 73-383, § 16, 48 Stat. 984, 987 (1934) (codified as amended at

25 U.S.C. § 476). See MICSA Senate Hearings at 38 (statement of

Secretary Andrus) (referring to the IRA). In light of the IRA's

clear purpose of furthering tribal self-government, see Kerr-McGee

Corp. v. Navajo Tribe of Indians, 471 U.S. 195, 199 (1985), the

22
Amicus points to other bits of legislative history, but they
do not provide the needed support for the Aroostook Band's
arguments. Amicus cites Secretary Andrus's testimony that his
proposal would "clarify the jurisdictional relationships and . . .
provide for viable tribal governments in the future." MICSA Senate
Hearings at 38 (statement of Secretary Andrus) (emphasis added).
Yet context shows that this statement was made in regard to the
confusion surrounding the municipal status of the Passamaquoddy and
the Penobscots. It does not appear that the statement was intended
to apply to other tribes. In any event, the reference to
"viability" seems to refer merely to ensuring the tribe has a
clear, written, source of governing authority. There is no
indication it has a broader meaning.

-39-
Aroostook Band contends that § 1726(a) also vests tribes with

"full[] . . . self-governing authority." But this case does not

involve construction of the general terms of the IRA. It instead

involves the interpretation of more specific laws, whose

interpretation we have explained. Indeed, the Aroostook Band has

pointed us to no authority interpreting the relevant section of the

IRA, § 16, to have the meaning that the tribe urges on us.23

C. Remaining ABMSA Arguments

1. ABMSA as a Repeal of MICSA: The Aroostook Band's
Position

The Aroostook Band makes another argument, designed to

advance its claim that ABMSA §§ 6(a) and/or 7(a) give it an

exemption from state employment laws. It points to the fact that

two ABMSA sections, 6(b) and 8(a), specifically invoke parts of

MICSA as applicable to the Aroostook Band. Section 1725(a) is not

one of the specifically invoked provisions. The Aroostook Band

posits that if Congress had intended § 1725(a) to apply to it as

well, then ABMSA would have said so. Otherwise, the Aroostook Band

23
This omission is glaring because the Aroostook Band asserts
that § 1726(a) took language with "well-established meaning" in the
IRA. In fact, a leading casebook seems to suggest that the meaning
of § 16 is very much in doubt. See Getches et al., Cases and
Materials on Federal Indian Law 196 (5th ed. 2005) (noting the
paucity of litigation about the IRA's terms); see also id.
(wondering whether § 16 actually grants tribes any substantive
powers).

-40-
reasons, the specific inclusions in §§ 6(b) and 8(a) would be

"meaningless surplusage."24

At its core, this is an argument about congressional

intent, and it is one that we reject. Courts rarely presume that

a statute's failure to invoke a prior statute will reflect an

intent to repeal, see Morton, 417 U.S. at 549-50, although in an

appropriate case this rule can be overcome by the Indian canons of

construction, see, e.g., Montana v. Blackfeet Tribe of Indians, 471

U.S. 759, 766 (1985). In any event, ABMSA's failure to reference

MICSA's § 1725(a), or to repeat that section's language, is easily

explained: Congress likely saw no need to do so in light of both

MICSA and the state Micmac Act. ABMSA clearly contemplates that

the state Micmac Act will have effect. See ABMSA § 6(d)

(consenting to amendments to that law). And the state Micmac Act

24
It is a significant overstatement to claim that § 8(a)'s
reference to MICSA would be "meaningless surplusage" under Maine's
reading of the relevant statutes. The first part of § 8(a)
includes the Aroostook Band in the Indian Child Welfare Act, a
federal statute. Without clarification, this part of § 8(a) would
raise a real question whether the Indian Child Welfare Act
continues to have force in Maine. See 25 U.S.C. § 1725(h) (making
federal laws inapplicable in Maine if they give Indians special
benefits and they "affect[] or preempt[]" Maine's jurisdiction).
Thus the second half of § 8(a) plainly adds a needed proviso:
"[n]othing in this section shall alter or affect the jurisdiction
of the State of Maine over child welfare matters as provided by
[MICSA]."

-41-
contains language nearly identical to MICSA's § 1725(a).25 The

Aroostook Band's reading is implausible.

There is another possible explanation for the failure to

reference § 1725(a), but it is also detrimental to the Aroostook

Band's argument. The two ABMSA provisions that the Aroostook Band

cites for their explicit references to MICSA, §§ 6(b) and 8(a), do

not deal with the application of Maine law. Instead, both deal

with the application of federal law. That ABMSA did not

specifically repeat § 1725(a) may simply reflect this differing

subject matter.

2. ABMSA as a Repeal of MICSA: The Dissent's Position

Our dissenting colleague offers a different

interpretation of ABMSA. The dissent does not argue that there are

provisions in ABMSA that affirmatively grant the Aroostook Band

sovereign powers. Nor does the dissent dispute our pre-ABMSA

reading of MICSA. The dissent even accepts that the Congress that

enacted MICSA, the Congress that enacted ABMSA, and the Maine

Legislature, never intended to give the Aroostook Band even the

25
Compare Me. Rev. Stat. Ann. tit 30, § 7203 ("[T]he Aroostook
Band of Micmacs and all members . . . 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
. . . ."), with 25 U.S.C. § 1725(a) ("[All Maine tribes and
Indians], other than the Passamaquoddy Tribe, the Penobscot Nation,
and their members . . . shall be subject to the civil and criminal
jurisdiction of the State, the laws of the State, and the civil and
criminal jurisdiction of the courts of the State, to the same
extent as any other person . . . .").

-42-
relatively narrow protections from state law that the tribe now

claims. Nonetheless, the dissent interprets ABMSA to yield the

paradoxical conclusion that ABMSA accidentally restored full

sovereign rights to the Aroostook Band -- making it the sole Maine

tribe with such extensive independence from state law. We decline

to reach a result that we can be fully confident Congress did not

intend. Cf. Griffin v. Oceanic Contractors, 458 U.S. 564, 575

(1982) ("[I]nterpretations of a statute which would produce absurd

results are to be avoided if alternative interpretations consistent

with legislative purpose are available.").

To reach its paradoxical result, the dissent offers the

following syllogism. First, the dissent contends that ABMSA

essentially repealed MICSA insofar as MICSA dealt with the

relationship between Maine law and the Aroostook Band. This is

because, in the dissent's view, Congress intended for the state

Micmac Act to deal with the issue. Second, the dissent contends

that the state Micmac Act never became effective as a matter of

state law, due to irregularities in its passage. Third, the

dissent argues that despite Congress's allegedly very strong intent

for the state Micmac Act to govern this issue, Congress's intent

was apparently not quite strong enough for it to have succeeded in

ratifying the relevant portions of the state Micmac Act into

federal law. Finally, faced with an apparent legal void on the

-43-
issue, the dissent concludes that the "default option" must

necessarily be the full scope of federal Indian common law.

This view of ABMSA diverges significantly from the

interpretation offered by the Aroostook Band. Indeed, the dissent

goes far beyond the position that the Aroostook Band advocates.26

In any event, we disagree with the dissent's view that

ABMSA supplanted MICSA's § 1725(a) insofar as that MICSA provision

applied Maine law to the Aroostook Band. Although the dissent

acknowledges that we must attempt to construe MICSA and ABMSA

consistently unless Congress has clearly expressed otherwise, see

Morton, 417 U.S. at 551, the dissent nevertheless concludes that

ABMSA effects a repeal of the relevant part of MICSA by "explicitly

deferring to [the state Micmac Act] on the issue of state

jurisdiction." Post, at 59.

The dissent first points out that Congress did not simply

amend MICSA to add the Aroostook Band, but rather enacted a

separate statute. Yet that can hardly carry significant weight --

the fact that Congress enacted a separate statute is the whole

26
The Aroostook Band's implied repeal argument was made only
to advance its claim that certain provisions of ABMSA provide
affirmative grants of sovereignty. See Principal Br. for the
Appellee at 54-56. Indeed, the portion of the brief cited by the
dissent was taken from a section titled "ABMSA §§ 6(a) and 7(a)
Conflict Sharply with MICSA." See id. at 54. Although we disagree
with the Aroostook Band's interpretation of ABMSA §§ 6(a) and 7(a),
we acknowledge its attempt to advance a view of the statutory
scheme that it simultaneously claims was intended by Congress.
Amicus also does not present the dissent's interpretation.

-44-
reason why we must apply cases like Morton and the statutory canons

that deal with the effect of a later statute on an earlier one.

See, e.g., Morton, 417 U.S. at 537 (seeking to determine the effect

of a later-enacted statute on a separate earlier-enacted one).

The dissent also finds persuasive the fact that ABMSA

§§ 6(b) and 8 specifically reference MICSA, and the dissent

concludes that the rest of MICSA must have been intentionally

omitted. Yet as we explained above, the fact that ABMSA did not

explicitly invoke MICSA's § 1725(a) may well have been because the

state Micmac Act contained nearly identical language.

The dissent seizes on this, contending that it

demonstrates Congress's belief that § 1725(a) was no longer

pertinent. But the dissent's conclusion is too hasty. There is no

reason to believe that Congress intended to repeal § 1725(a)

insofar as it provided a default rule in the event that the state

Micmac Act were ineffective for some reason.27

27
Indeed, the dissent's position essentially conceives of
ABMSA as containing an (unwritten) clause that repeals part of
§ 1725(a) in favor of the state Micmac Act. See post, at 59 ("By
explicitly deferring to the [state Micmac Act] . . . ABMSA states,
in effect, that MICSA is no longer the governing law on the
Micmacs' relationship with the State."). But can such a "clause"
continue to be valid if it were later determined that the state
Micmac Act never became law?
That scenario resembles situations in which a new statute
arguably repeals an earlier statute, but the new statute is
ultimately found unconstitutional. As the Sixth Circuit has
recognized, it is well established that an invalid statute "does
not repeal a prior statute on the subject when a contrary
construction would create a void in the law which the legislative
body did not intend. The prior statute is 'revived' to avoid a

-45-
Perhaps in recognition of this distinction, the dissent

acknowledges that our position would have significant force if

MICSA and the state Micmac Act contained identical jurisdictional

provisions. Yet the dissent argues that they are not the same

because while MICSA's § 1725(d)(1) contains a "sue and be sued"

provision, the state Micmac Act does not. Notably, the dissent

does not contend that MICSA's § 1725(a) is meaningfully different

from its sister provision in the state Micmac Act. Of course, it

is § 1725(a), and not § 1725(d)(1), that applies state law to the

Aroostook Band in the ways relevant to this appeal.

Furthermore, the dissent's position is internally

inconsistent. The dissent concludes that ABMSA "does not directly

refer to the State's jurisdiction." Post at 67. Yet it also finds

that Congress displaced MICSA's allocation of jurisdiction with the

state Micmac Act. Because (in the dissent's view) the state Micmac

Act was not effective, the dissent assumes that Congress must have

preferred a void in the law over a reinstatement of MICSA's

acknowledgment of state jurisdiction in disputes such as this.

Even if ABMSA had supplanted MICSA in favor of the state

Micmac Act, the correct conclusion would be that ABMSA had

simultaneously ratified the relevant provision of that act into

chaotic hiatus in the law." White Motor Corp. v. Citibank, N.A.,
704 F.2d 254, 261 (6th Cir. 1983). Although our situation is not
perfectly analogous, similar principles counsel avoiding an
interpretation that would lead to an unintended "void in the law."

-46-
federal law. Cf. Mattingly v. District of Columbia, 97 U.S. 687,

690 (1878) (explaining that Congress can ratify earlier

proceedings, notwithstanding the fact that the earlier proceedings

were procedurally irregular, "if the irregularity consists in the

. . . mode or manner of doing some act . . . which [Congress] might

have made immaterial by prior law").

Thus, notwithstanding the dissent's arguments, we believe

that MICSA's § 1725(a) continues to govern the relationship between

Maine law and the Aroostook Band. And even if it did not, we would

conclude that a virtually identical provision in the state Micmac

Act, Me. Rev. Stat. Ann. tit. 30, § 7203, had been ratified into

federal law with similar effect. Under either scenario, the

Aroostook Band is subject to the state laws at issue in this

appeal.

3. ABMSA and the Status of the Houlton Band

A final set of arguments about ABMSA, and its interplay

with MICSA, comes from the Houlton Band as amicus curiae. These

arguments are also without merit.

First, amicus notes that while MICSA's § 1725(a) subjects

Maine tribes to state law, that provision also contains exceptions

for §§ 1724(d)(4) and 1727(e). Amicus reads those two provisions

as "authoriz[ing] the State and the [Houlton] Band to separately

negotiate jurisdictional and other terms." Amicus adds that

because these exceptions are introduced by the language "[e]xcept

-47-
as provided in," rather than the word "notwithstanding," Congress

failed to express an intent to generally subject the Houlton Band

to state law. The further inference we are apparently supposed to

make is that ABMSA has a similar intent (or lack thereof) regarding

the Aroostook Band.

This argument is misguided. Whatever the difference

between the phrases "except as provided in" and "notwithstanding,"

it does not bear the weight amicus assigns. By using "except as

provided in," Congress clearly expressed its view in MICSA that

state law will apply to Maine tribes unless one of the two

exceptions applies. These two statutory exceptions have nothing to

do with the application of state law in this case. One, § 1727(e),

pertains solely to child welfare matters. The other, § 1724(d)(4),

is clearly limited to arrangements for Houlton Band land

acquisition, and the tax consequences that will flow from that.

Second, amicus argues from MICSA's § 1725(e)(2), which

provides:

Notwithstanding the provisions of [§ 1725(a)],
the State of Maine and the Houlton Band of
Maliseet Indians are authorized to execute
agreements regarding the jurisdiction of the
State of Maine over lands owned by or held in
trust for the benefit of the band or its
members.

Amicus reasons from this that Congress wanted Maine and the Houlton

Band to form their own agreement regarding Maine's jurisdiction,

and thus Congress did not intend MICSA to contravene the Houlton

-48-
Band's sovereignty (with the inference, again, that Congress

intended a similar effect for the Aroostook Band in ABMSA).

Amicus misses the mark. While Congress contemplated the

state and Houlton Band negotiating over certain matters, it also

clearly set the baseline from which that negotiation would proceed.

Indeed, § 1725(e)(2) clearly states that any negotiated agreement

would be an exception to § 1725(a). Since there is no pertinent

agreement here, § 1725(a) controls, and the Houlton Band's

sovereignty has been abrogated (with the further implication that

any inferential argument applicable to the Aroostook Band would be

foreclosed).

V. OTHER ARGUMENTS

In the previous sections, we concluded that MICSA

subjects the Aroostook Band to claims of employment discrimination

under state law, and that this is not altered by ABMSA. The

Aroostook Band argues that even if this is so, there are two other

reasons why we should uphold the magistrate judge's decision. We

reject both reasons.

First, the Aroostook Band argues that its sovereign

immunity protects it from the jurisdiction of the Maine courts,

even if the Aroostook Band is in fact subject to substantive Maine

law. But the language of § 1725(a) clearly subjects the Aroostook

Band to not only the civil and criminal jurisdiction of "the

State," but also the jurisdiction of its courts. Also, the

-49-
Aroostook Band's argument relies on a distinction between inherent

sovereignty and sovereign immunity that this court has rejected.

See Narragansett, 449 F.3d at 24-25.

The Aroostook Band next contends that this court must

engage in Bracker preemption analysis. See White Mountain Apache

Tribe v. Bracker, 448 U.S. 136 (1980). When it applies, Bracker

analysis has two parts: state law may be preempted either because

of the application of federal law, or because of inherent tribal

sovereignty. See id. at 142-43; see also New Mexico v. Mescalero

Apache Tribe, 462 U.S. 324, 333-34 & n.16 (1983). But Bracker

analysis does not apply in cases where a federal settlement act

applies state law to a tribe. See Narragansett, 449 F.3d at 22-

23.28

VI. CONCLUSION

The parties have not challenged the magistrate judge's

finding that the Aroostook Band is exempt from Title VII, and we do

not disturb that conclusion. In all other respects, we reverse the

magistrate judge's decision.

28
Narragansett's holding regarding Bracker is properly applied
to this fact pattern. Settlement act cases like this one involve
a federal statute that clearly subjects a tribe to state law by
abrogating that tribe's inherent sovereignty. It would be
inconsistent to nevertheless conclude, under Bracker, either that
federal law wishes a different result than a statute's plain
meaning, or that a tribe's sovereignty continues in force despite
abrogation. Saying that Bracker is inapplicable in a case like
this is merely a shorthand way of saying that a federal statute has
already balanced the competing factors.

-50-
The magistrate judge did not rule on several of the

Aroostook Band's alternative claims for relief: count 2, regarding

sovereign immunity, count 4, regarding Title VII preemption, and

count 5, regarding interpretations of state employment law. But

the sovereign immunity claim was briefed to us as an alternative

ground for affirmance, we have rejected it, and it is now

foreclosed. The other two claims -- Title VII preemption of state

law and the state law interpretive question based on pendent

jurisdiction29 -- are remanded.

The judgment is reversed and remanded. Costs are awarded

to the defendants-appellants.

-Dissenting opinion follows-

29
The magistrate judge did not decide whether to exercise
pendent jurisdiction over count 5, see Aroostook III, 403 F. Supp.
2d at 132, and we express no opinion on that issue.

-51-
LIPEZ, Circuit Judge, dissenting. The majority considers

at length whether the Maine Indian Claims Settlement Act ("MICSA")

authorizes the State to enforce its employment discrimination laws

against the Aroostook Band of Micmacs and concludes that it does.

In my view, however, MICSA no longer governs the relationship

between the Band and the State. Instead, the federal Aroostook

Band of Micmacs Settlement Act ("ABMSA") replaced MICSA in 1991 as

the federal law governing the Band's status, including its

relationship with the State of Maine.

I recognize that all relevant parties – Congress, the

State and the Band – assumed that ABMSA's passage would leave the

Band subject to Maine law. ABMSA, however, relied solely on the

State's Micmac Settlement Act ("MSA") to establish Maine's

jurisdiction over the Band.30 That reliance makes the effectiveness

of the state statute critical to the outcome of this case. I agree

with the magistrate judge that, with at least one prerequisite

unmet, MSA was never validly enacted, and the jurisdiction asserted

by Maine and anticipated by Congress never took effect.

Consequently, I conclude that the Band is not subject to the Maine

employment discrimination laws at issue in this case.

Respectfully, therefore, I dissent.

30
ABMSA § 2(b) provides, in relevant part: "It is the purpose
of this Act to – (4) ratify the Micmac Settlement Act, which
defines the relationship between the State of Maine and the
Aroostook Band of Micmacs."

-52-
I.

The majority's discussion of "The Status of the Aroostook

Band under ABMSA" is devoted primarily to addressing, and

rejecting, potential conflicts between MICSA and ABMSA. My

colleagues specifically consider whether ABMSA's provisions on

federal recognition and self-government, §§ 6(a) and 7(a), conflict

with, and thus exempt the Band from, the MICSA provision subjecting

all Maine tribes to state law, 25 U.S.C. § 1725(a). Their

discussion of potential conflicts is, however, beside the point

because § 1725(a) no longer applies to the Micmacs. I agree with

the Band that, except where otherwise stated in ABMSA, that act

supplants MICSA with respect to the Micmacs' status. ABMSA was

enacted to replace MICSA on all matters for which the Band should

have received individualized recognition in the earlier statute –

as did the Passamaquoddys, the Penobscots and the Maliseets. In

effect, Congress retrieved the Micmacs from the MICSA catch-all

provisions that applied to "all other tribes or bands of Indians"

and, in a detailed and comprehensive enactment, defined the

Micmacs' new status as the fourth Maine tribe to be recognized and

compensated for the loss of their aboriginal holdings.

I recognize the canon of statutory construction, cited by

the majority, that two statutes capable of co-existence must both

be regarded as effective, "absent a clearly expressed congressional

intention to the contrary." Morton v. Mancari, 417 U.S. 535, 551

-53-
(1974); see also United States v. Lahey Clinic Hosp., Inc., 399

F.3d 1, 10 (1st Cir. 2005) ("Inconsistency between . . . two

statutes . . . is not enough: 'where two seemingly inconsistent

acts can reasonably stand together, a court must interpret them in

a manner which gives harmonious operation and effect to both, in

the absence of clear and unambiguous expression of Congressional

intent to the contrary.'") (citations omitted). The issue,

however, is not whether the two statutes may co-exist – I agree

that they may – but what effect ABMSA had on MICSA's applicability

to the Micmacs.

In my view, it is apparent that ABMSA replaces the

general "all other tribes" approach of MICSA, as it may have

applied to the Band, with a specific statute premised on federal

recognition of the Band. In its coverage of subjects addressed in

MICSA, this separate statutory settlement with the Micmacs

parallels MICSA's settlement with the other named tribes. In fact,

Congress included language in ABMSA reflecting such an intent. In

ABMSA's "Findings and policy" section, Congress observed that

"[t]he Band was not referred to in [MICSA]" because its historical

presence in Maine had not yet been documented, § 2(a)(2) (emphasis

added), and further stated that "[i]t is now fair and just to

afford the [Micmacs] the same settlement provided to the

[Maliseets] . . . to the extent they would have benefitted from

inclusion in the Maine Indian Claims Settlement Act of 1980,"

-54-
§ 2(a)(5) (emphasis added). Congress thus enacted ABMSA because,

after closer scrutiny of the Band's history, lawmakers saw the need

to redress the Band's omission from MICSA as a federally recognized

tribe.

Despite an expressed intent to afford the Band the same

settlement as the Maliseets, it is telling that Congress did not

simply amend MICSA to extend like terms to the Micmacs. Rather,

Congress specified in ABMSA's provisions various entitlements for

the Band, including a $900,000 land acquisition fund, see § 4(a),

federal recognition, see § 6(a), and the right to "organize for its

common welfare," see § 7(a). ABMSA also contains provisions that

parallel MICSA's on the Band's eligibility for financial benefits

and for special services from the federal government. Compare

ABMSA §§ 6(a), (c) with 25 U.S.C. § 1725(i).

In addition, as the majority acknowledges, ABMSA

explicitly incorporated MICSA provisions governing the

applicability of federal law, see § 6(b), and implementation of the

Indian Child Welfare Act, see § 8.31 If MICSA continued to apply

31
Section 6(b), which is labeled "Application of Federal law,"
states: "For the purposes of application of Federal law, the Band
and its lands shall have the same status as other tribes and their
lands accorded Federal recognition under the terms of [MICSA]."
Section 8, which is labeled "Implementation of the Indian Child
Welfare Act," provides:

For the purposes of this section, the Band is an 'Indian
tribe' within the meaning of section 4(8) of the Indian
Child Welfare Act of 1978 (25 U.S.C. 1903(8)), except
that nothing in this section shall alter or affect the

-55-
to the Micmacs independently of such references in ABMSA, there

would be no need for ABMSA to explicitly incorporate particular

MICSA provisions. The majority offers an explanation for the

overlap with respect to § 8 – observing that it clarifies the

applicability of the Indian Child Welfare Act in Maine – but does

not explain the need to adopt MICSA's terms for the applicability

of federal law in § 6(b). In my view, the reason for both is the

same: where Congress wanted MICSA's provisions to continue to apply

to the Micmacs, it knew that it had to say so explicitly because

ABMSA replaced MICSA with respect to the Band. Congress also took

this approach with MICSA's universal extinguishment of claims of

aboriginal title to Maine lands, explicitly recognizing that the

Band remained bound by that portion of the earlier statute. See

ABMSA § 2(a)(3) (noting that the Micmacs "could have asserted

aboriginal title" to lands in Maine "but for the extinguishment of

all such claims by the Maine Indian Claims Settlement Act of

1980").

The specificity and completeness of ABMSA are persuasive

evidence that the Act was clearly intended by Congress as a

comparable, but independent, statement of the benefits and

limitations applicable to the Band. The majority wrongly dismisses

the Band's argument that ABMSA's reference to particular MICSA

jurisdiction of the State of Maine over child welfare
matters as provided by [MICSA].

-56-
provisions, and not others, is significant, see supra pp. 41-42

(observing that the lack of reference to MICSA's § 1725(a) – the

section imposing state jurisdiction on the tribes – is "easily

explained" because ABMSA "clearly contemplates that the state

Micmac Act will have effect," and the state act "contains language

nearly identical to MICSA's § 1725(a)"). That, of course, is

precisely my point: in fully addressing the status of the Micmacs

in ABMSA, Congress intended and expected that state jurisdiction

over the Band would be accomplished by means of the state Micmac

Act. Section 1725(a) was not mentioned because it was no longer

pertinent; as with all other facets of the Micmacs' status,

Congress enacted a new, specific provision to govern the Band's

relationship with the State.

The majority misses the larger context when it briefly

rejects the notion that ABMSA impliedly repealed § 1725(a). As my

discussion shows, the issue here is not whether MICSA or any of its

particular provisions were repealed through ABMSA. They were not.

Rather, as the Band has argued, ABMSA simply rendered MICSA

inapplicable to the Micmacs – except where specifically

incorporated.32 Moreover, even if we viewed this case from the

32
The majority asserts that my view that AMBSA wholly
supplants MICSA was not argued by the Band. That is not so. In
its brief, the Band argued that "[u]nder well-settled rules of
construction, MICSA provisions may apply to the Band only as
provided in ABMSA." Br. at 55. The Band then goes on to discuss
the two incorporated MICSA provisions noted by the majority:

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perspective of implied repeal, the all-embracing nature of ABMSA

would meet the standard to show Congressional intent to "repeal"

MICSA insofar as it applied to the Micmacs. Cf. Posadas v. Nat'l

City Bank, 296 U.S. 497, 503 (1936) ("[I]f the later act covers the

whole subject of the earlier one and is clearly intended as a

substitute, it will operate similarly as a repeal of the earlier

act."); Lahey Clinic Hosp., 399 F.3d at 10 (noting that implied

repeal of a federal statute may be shown if, "by clear and manifest

intent," a later act "covers the whole subject matter area and was

meant as a substitute") (citing Kremer v. Chem. Constr. Corp., 456

For example, Congress enumerated in ABMSA § 8(a) that the
MICSA Child Welfare provisions apply to the Micmac.
ABMSA § 6(b) provides that federal law will apply to the
Band as it does to other Maine tribes in MICSA. If
Congress intended that all or any other parts of MICSA
would apply to the Band, then it would not have specified
those it did and not the others. It is a "fundamental
principle of statutory construction that the specific
trumps the general." . . . Clearly, all of MICSA cannot
apply to the Band without rendering the specific
inclusions meaningless surplusage.

Id. at 55-56. This position was also articulated by the Band at
oral argument. In explaining the Micmacs' position in response to
questions from the panel, counsel for the Band stated:

The 1980 law except where expressly . . . noted by
Congress cannot apply to deny the Band its right to self-
government. Congress created a wholly separate statute
for the Micmac. . . . The 1991 Act, and only the 1991
Act, except where Congress noted . . . the 1980 Act would
apply . . .

At that point, a panel member asked: "So, the '91 Act basically
eliminates the 1980 Act except where it expressly repeats?"
Counsel replied: "Correct, your honor, that is our argument."

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U.S. 461, 468 (1982)); Granite State Chapter, Assoc. of Civilian

Tehnicians v. Fed. Labor Relations Auth., 173 F.3d 25, 27 (1st Cir.

1999) ("If one Congress clearly and manifestly makes known its

intent to supplant an existing law, a court can find repeal by

implication."). That the progression from MICSA to ABMSA is from

a general statute to a specific one lends additional support to the

view that AMBSA effectively "repealed" MICSA with respect to the

Band. Cf. Montana v. Blackfeet Tribe of Indians, 471 U.S. 759, 766

(1985) (noting the "strong presumption against repeals by

implication, . . . especially an implied repeal of a specific

statute by a general one") (citations omitted).

Congress's intention to replace MICSA with ABMSA for the

Micmacs is evident in ABMSA's approach to the issue of state

jurisdiction over the Band. ABMSA neither invokes MICSA nor in its

own terms subjects the Band to state law. Instead, it states as an

express purpose the ratification of "the Micmac Settlement Act,

which defines the relationship between the State of Maine and the

Aroostook Band of Micmacs." § 2(b)(4). By explicitly deferring to

MSA on the issue of state jurisdiction without any reference to

MICSA, ABMSA states, in effect, that MICSA is no longer the

governing law on the Micmacs' relationship with the State.33

33
The MSA jurisdiction provision states, in relevant part:
"[T]he Aroostook Band of Micmacs and all members . . . 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, § 7203.

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The view of the majority that MICSA could be reactivated

as a default, imposing state law on the Micmacs in the face of any

statutory gap that may have occurred because of the failed

enactment of MSA, might be more persuasive if MICSA and MSA

contained identical jurisdictional provisions. In such

circumstances, one could more plausibly argue that ABMSA was

intended to reaffirm an ongoing relationship, first defined by

MICSA. MICSA, however, included two separate provisions

establishing the State's authority over its resident tribes. See

25 U.S.C. § 1725(a), (d)(1). MSA did not include the second of

these – the "sue and be sued" provision that typically is used to

signify a waiver of immunity from suit. See, e.g., Gómez-Pérez v.

Potter, 476 F.3d 54, 57 (1st Cir. 2007). Whether or not that

omission is significant on the question of sovereign immunity, it

is a further indication that ABMSA was a distinct and independent

enactment that replaced MICSA with respect to the Micmacs. To

resurrect statutory provisions from MICSA when Congress in ABMSA

effected (through attempted ratification of MSA) a different

governing framework for the Band's relationship with the State is

unsupportable – and inconsistent with "a clearly expressed

congressional intention to the contrary," Morton, 417 U.S. at 551.

My view that ABMSA replaced MICSA as the federal law

governing the Band's status and defining the Micmac-Maine

relationship – and that MICSA therefore may not be invoked as a

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default – is reinforced by comments from every member of Maine's

Congressional delegation at the time of ABMSA's passage. In urging

a favorable vote on the statute, then-Senators Cohen and Mitchell

and then-Representatives Andrews and Snowe all emphasized the need

for the new legislation because of the Micmacs' "omission from the

1980 Maine Indian Claims Settlement Act." 137 Cong. Rec. H9,652,

9,655 (1991); see also 137 Cong. Rec. S13,360, 13,362 (1991).

Among other comments, Senator Mitchell observed:

The Micmacs' exclusion from the 1980
Maine Indian Claims Settlement Act left them
in a unique situation, where they have no
State Indian assistance and are ineligible for
Federal assistance. The bill the Senate is
considering today will establish the
historical presence of the Micmacs in Maine
and provide Federal recognition to the band.

137 Cong. Rec. at S13,362 (emphasis added).

Senator Cohen assured his colleagues that "[t]he bill

does not amend the 1980 act, and we do not intend that any of the

issues covered in that landmark legislation will be reopened or

reconsidered." 137 Cong. Rec. at S13,362. In other words,

Congress began with a clean slate in giving the Band – singularly

excluded from MICSA – due recognition for its historical presence

in Maine. To the extent that Congress wanted to draw on MICSA in

drafting ABMSA, it cited the specific provisions of MICSA that it

wished to incorporate into ABMSA.

ABMSA's conflicts provision, § 11, reflects this

approach. The provision states: "In the event of a conflict of

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interpretation between the provisions of the Maine Implementing

Act, the Micmac Settlement Act, or the Maine Indian Claims

Settlement Act of 1980 . . . and this Act, the provisions of this

Act shall govern." MICSA remained in effect, and Congress

undoubtedly recognized that the general language in MICSA and the

more specific language in ABMSA covered some of the same subject

matter. It thus sought to ensure that any seeming conflicts

between the two would be resolved by deferring to ABMSA's

provisions – reinforcing ABMSA's preemptive effect on the matters

it covered.34

34
The majority states that "[t]here is no reason to believe
that Congress intended to repeal § 1725(a) insofar as it provided
a default rule in the event that the state Micmac Act were
ineffective for some reason." See supra p. 45 (emphasis in
original). The majority thus speculates that Congress would have
invoked MICSA's jurisdictional provision as a default if it had
anticipated the ineffectiveness of the state law. That speculation
is improper for at least two reasons. First, as noted infra, it is
not inevitable that Congress would have legislated a specific
relationship for Maine and the Micmacs if the State itself failed
to do so. Congress did not explicitly incorporate in ABMSA the
substance of MSA, and it may have made a deliberate choice to allow
the State to define its own jurisdictional relationship with the
Band. Moreover, even if there were a basis for a presumed
congressional intent to impose state jurisdiction on the Band
comparable to that found in MICSA, that is no justification for
rewriting ABMSA. Judgments about congressional intent must have
some basis in the language of the relevant statute, even if that
language is ambiguous. The majority would incorporate by judicial
fiat a default provision that would read something like this: "If
the Maine Settlement Act fails to take effect, the Micmacs shall be
subject to the jurisdictional terms of MICSA § 1725(a)." There is
not a hint of such language in ABMSA.

Elsewhere, my colleagues note that, even if Congress through
ABMSA had substituted MSA for MICSA with respect to state
jurisdiction over the Band, "the correct conclusion would be that

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In sum, every indicator points to a congressional intent

to supplant MICSA for the Micmacs in all respects in which that

earlier statute was not explicitly extended by ABMSA's terms.

Thus, I can only conclude that, after passage of ABMSA, MICSA no

longer controlled Maine's jurisdiction over the Aroostook Band of

Micmacs.

II.

My conclusion that ABMSA, rather than MICSA, governs

Maine's authority to impose its employment discrimination laws on

the Band requires me to evaluate the Maine Micmac Act. ABMSA

relied wholly on the state act to "define[] the relationship

between the State of Maine and the Aroostook Band of Micmacs," §

2(b)(4), and I therefore must confront the Band's challenge to the

validity of MSA. In a thoughtful and thorough discussion, the

magistrate judge considered whether that statute may be deemed

valid even though several statutory prerequisites to its

effectiveness – including a requirement that it be certified by the

ABMSA had simultaneously ratified the relevant provision of the act
into federal law." This assertion reflects the same flawed
judgment about Congress's intent. The statute that Congress passed
does not by its own terms impose state jurisdiction on the Band.
Consequently, ABMSA's purpose to ratify MSA may reflect only an
intent to endorse whatever jurisdictional relationship Maine
enacted into law, and not an intent to adopt a particular Maine-
Micmac relationship as a matter of federal law. Congress could
have adopted the substance of MSA's jurisdictional provision by
incorporating it into ABMSA (as MICSA incorporated the
jurisdictional provisions of the Maine Implementing Act), but
Congress did not do so.

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Band within sixty days of the 1989 Legislature's adjournment – were

not met.35 See Aroostook Band of Micmacs, 403 F. Supp. 2d at 118-

22. I agree with her assessment that it may not.36

The required certification cannot be cast aside as a mere

technicality. Given the complex relationship between Maine and its

tribes, it would be both injudicious and disrespectful to ignore an

express requirement of consent contained in a settlement act.37

Indeed, ABMSA and MSA carry the consent requirement through to

future amendments regarding jurisdiction, see 30 Me. Rev. Stat.

Ann. tit. 30, § 7201 (Historical and Statutory Note); ABMSA § 6(d).

Therefore, on this jurisdictional issue in particular, securing the

Band's formal agreement was deemed necessary.

35
In the official codification, a note is appended to each
section of MSA stating that the provision was added to the code
"pending receipt of certification of agreement by Council of
Aroostook Band of Micmacs." The notes following each subsection
state that the act will become effective only if: (1) the United
States enacts ratifying legislation that approves the act without
modification; (2) the United States consents to amendments that
would be made with the consent of the Aroostook Band of Micmacs;
and (3) within sixty days of the Legislature's adjournment, the
Secretary of State receives written certification from the tribal
council that the Band has agreed to the act. It is undisputed that
no certification was received by the Secretary of State.
36
The majority opinion notes that whether the state Micmac Act
became effective is a "difficult and complex issue of state law,"
and my colleagues are reluctant to decide it without guidance from
the Maine Supreme Judicial Court. As I shall explain, the issue is
neither complicated nor just a matter of state law.
37
As noted by the majority, the certification provision and
the other contingencies for effectiveness were added to the pending
Micmac bill late in the legislative process. The Band did not
learn of the certification requirement until 1997.

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As the magistrate judge pointed out, strict adherence to

the consent procedure is consistent with a 1985 legal opinion from

Maine's Attorney General concerning a similar certification

requirement in the "Act Relating to the Time of Penobscot Nation

Trust Land Acquisition." That act required the Penobscot Nation to

submit written certification of its agreement with the act's

provisions within sixty days of the legislature's adjournment. The

tribe's certification was received two days late, and the Attorney

General concluded that the only remedy was to reenact the

legislation. He observed:

While this is unfortunate, I feel it is
especially necessary to be strict in
interpreting these provisions in that it deals
with the question of land acquisition.
Indeed, any other conclusion . . . could
render a land transaction subject to legal
challenge by third parties.

Although MSA does not focus on the question of land acquisition, it

is of comparable significance because the statute would diminish

the Band's sovereign rights. Cf., e.g., Penobscot Nation v.

Fellencer, 164 F.3d 706, 709 (1st Cir. 1999) (noting that courts

are obliged "to construe 'acts diminishing the sovereign rights of

Indian tribes . . . strictly'") (quoting Rhode Island v.

Narragansett Indian Tribe, 19 F.3d 685, 702 (1st Cir. 1994)).

Moreover, the Legislature added the certification requirement to

MSA in the face of the Attorney General's previously issued

opinion, with the presumptive understanding that a failure to meet

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it could prevent the statute from taking effect. The formalities

of legislative enactments often have substantive importance. In

the context of Indian sovereignty, it would be particularly

inappropriate to ignore an express statutory term protective of

that sovereignty.

Indeed, while MSA's efficacy is technically an issue

governed by Maine law, the limitation it purportedly imposes on the

Band's sovereignty implicates federal concerns as well. States may

not assert jurisdiction over tribes without congressional approval,

see Three Affiliated Tribes of Fort Berthold Reserv. v. Wold Eng'g,

476 U.S. 877, 891 (1986) ("[I]n the absence of federal

authorization, tribal immunity, like all aspects of tribal

sovereignty, is privileged from diminution by the States.");

Fellencer, 164 F.3d at 709 ("[O]nly Congress can abrogate or limit

an Indian tribe's sovereignty."), and courts must remain sensitive

to the federal interest even when sovereignty issues arise from

state law. Noting that this is a "unique case and there is no

controlling authority either way," appellants urge the court to

find implied certification based on the Band's expressed support of

MSA at the time of its enactment. On matters of Indian

sovereignty, however, the magistrate judge is certainly correct

that a court may not "finesse what is clearly the absence of a

state legislative imposed precondition to the statute's valid

enactment." 403 F. Supp. 2d at 121.

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Moreover, as with the issue of land acquisition,

compliance with the certification requirement could have reduced

the risk of time-consuming and expensive future conflicts. If the

Band's governing body had discussed and voted on the certification,

tribal officials would have had the opportunity to crystallize

their expectations and clarify matters of concern, and the Band's

formal commitment to the agreement would have protected the State

from later claims that the Band objected to certain of its terms.

Failure to obtain the Band's consent was not, as appellants argue,

simply an "irregularity in the final execution of the agreement."

To find implied consent would be to override the very purpose of a

certification provision.

I also join the magistrate judge in rejecting the notion

that Congress's expression of purpose to ratify MSA effectively

validated the statute – or served to incorporate its substantive

provisions into federal law. Unlike MICSA, which affirmatively

states that the tribes shall be "subject to the civil and criminal

jurisdiction of the State," 25 U.S.C. § 1725(a), or, in the case of

the Passamaquoddy Tribe and Penobscot Nation, "subject to the

jurisdiction of the State of Maine to the extent and in the manner

provided in the Maine Implementing Act," id. § (b)(1), ABMSA does

not directly refer to the State's jurisdiction. Instead, it defers

to state law to "define[] the relationship between the State of

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Maine and the Aroostook Band of Micmacs."38 The silence in the

federal statute, in light of Congress's otherwise comprehensive

treatment of the Band's status, reflects a lack of affirmative

intent on the issue. From all that appears, Congress was content

in 1991 to leave the relationship between the Band and the State to

Maine law. While Congress unquestionably anticipated a limitation

on the Band's sovereignty through MSA, it would be reading beyond

the text to construe the purpose provision to mandate such a

limitation. I see no basis for invigorating a state statutory

enactment that fails as a matter of state law, and which Congress

has not replicated as a discrete statutory provision within ABMSA.

It has now been nearly ten years since the certification

problem surfaced, casting doubt on the validity of MSA and its

assertion of state jurisdiction over the Band. In the well stated

words of the magistrate judge: "There is no doubt that Congress did

(and still does) have the power to enact federal legislation which,

despite the lack of an effective state law, included the terms of

that legislation in the federal act[,] making those terms federal

law." 403 F. Supp. 2d at 122. Congress has so far not chosen to

act, and the courts are not at liberty to fill the gap.39

38
As noted earlier, § 2(b) provided, in relevant part, that
"It is the purpose of this Act to – (4) ratify the Micmac
Settlement Act, which defines the relationship between the State of
Maine and the Aroostook Band of Micmacs."
39
I fully agree with the magistrate judge that the lack of a
severability provision in ABMSA does not mean that the entire

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III.

I recognize that my conclusions about ABMSA and MSA lead

to an anomalous result – the Micmacs are the sole Maine tribe not

subject to some level of state jurisdiction. But courts may not

ignore established principles of statutory construction or the

canons of Indian law to avoid uncomfortable outcomes. The failure

of MSA to take effect means that the Micmacs were left with the

sovereign rights they otherwise would hold as a recognized Indian

tribe under ABMSA. See Aroostook Band of Micmacs v. Ryan, 404 F.3d

48, 62 (1st Cir. 2005) ("A tribe retains those aspects of

sovereignty that have not been 'withdrawn by treaty or statute, or

by implication as a necessary result of [the tribe's] dependent

status.'") (quoting United States v. Wheeler, 435 U.S. 313, 323

(1978)) (alteration in original), overruled on other grounds by

Narragansett Indian Tribe v. Rhode Island, 449 F.3d 16 (1st Cir.

2006) (en banc)40; Fellencer, 164 F.3d at 709. Although that

statute must be held invalid based on MSA's ineffectiveness, which
frustrated only one of ABMSA's purposes. Like her,

I am uncomfortable with the notion of reading an entire
Congressional enactment out of existence, not because it
is unconstitutional, but because one of its stated
purposes has apparently failed. Congress can easily
remedy that failure by adopting the terms of the [MSA]
itself, if it chooses to do so.

403 F. Supp. 2d at 123.
40
Narragansett rejected the distinction drawn in Aroostook
Band of Micmacs between tribal sovereignty and tribal sovereign
immunity. See 449 F.3d at 24-25.

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outcome is not what Congress anticipated,41 it is nonetheless the

inevitable result of the choice Congress made to explicitly rely on

the state Micmac Act to frame the Maine-Micmac relationship.42

41
With quotations from two cases, the majority suggests that
my statutory interpretation is indefensible because it would
produce "absurd results" or "'a chaotic hiatus in the law.'" I
reject those characterizations. The restoration of Micmac
sovereignty beyond what Congress had anticipated could hardly be
called "absurd" and surely would not create "chaos."
42
I am not alone in reaching this conclusion. The same view
was expressed in a memorandum prepared by Philip N. Hogen, an
Associate Solicitor for the Department of the Interior, in
connection with Maine's application to administer the Maine
Pollutant Discharge Elimination System within Indian country.
Hogen's five-page memorandum was submitted to the Office of General
Counsel of the U.S. Environmental Protection Agency along with a
31-page memorandum prepared by counsel for the Micmacs (who is also
counsel for the Micmacs in this case) in consultation with
attorneys from the Department of the Interior and the Department of
Justice. Hogen noted that "[t]he Micmacs' detailed legal
memorandum incorporates comments from the two Departments and we
concur with its conclusions." His memo stated:

The Department, as the primary federal agency responsible
for interpreting the Maine Indian settlement acts, has
analyzed the legal status of the Aroostook Band of Micmac
Indians (Micmacs) and we conclude that under the
Aroostook Band of Micmac Settlement Act (ABMSA), the
Micmacs have retained their inherent tribal sovereignty.

The substance of the memo's analysis is reflected in three section
headings: (1) "The 1989 State and 1991 Federal Micmac Settlement
Acts Replaced the Earlier Settlement Acts to the Extent the Earlier
Acts Applied to the Micmacs," (2) "The [MSA] does not Subject the
Micmacs to State Law because the [MSA] Never Became Effective," and
(3) "Congress Intended the [MSA] and ABMSA to Embody the
Settlements with the Micmacs, thereby Repealing the Provisions of
the [Maine Implementing Act] and MICSA Previously Applicable to the
Micmacs." In the last of those sections, the memo states: "To the
extent Congress intended the earlier settlement acts to continue to
apply to the Micmacs, Congress specified those sections in the
ABMSA."

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Our prior case law establishes that the sovereign rights

retained by the Band foreclose application of the state's

employment discrimination laws to the Micmacs. Cf. Fellencer, 164

F.3d at 711-13 (rejecting employment discrimination claim against

the Penobscot Nation, relying, inter alia, on "'the longstanding

federal policy of providing a unique legal status to the Indians in

matters of tribal employment'") (quoting Morton v. Mancari, 417

U.S. 535, 548 (1974)). I would therefore affirm the judgment of

the magistrate judge.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/202707. Public record. Not legal advice.