Motion to Dismiss or Affirm — Penobscot Nation v. Stilphen

Office -Supreme Court, U.S.

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No. 83-366 OCT § 1983

In the Supreme Court of the United States

OCTOBER TERNi, 1983

PENOBSCOT NATION,

APPELLANT.

v.

ARTHUR STILPHEN, COMMISSIONER,

DEPARTMENT OF PUBLIC SAFETY OF THE

STATE OF MAINE.

AND

JAMES E. TIERNEY,. ATTORNEY GENERAL,

APPELLEES,

ON APPEAL FROM THE SUPREME JUDICIAL

COURT OF MAINE

MOTION TO DISMISS

JAMES E. TIERNEY

Attorney General

WILLIAM H. LAUBENSTEIN, III

Assistant Attorney General

Department of the Attorney General

State House Station #6

Augusta, Maine 04333

(207) 289-3661

Counsel for Appellees

TABLE OF CONTENTS

Page

PE Oe PED 8 CE KG s a Paid Ce hen vesbnd Keebaerhan ili

A ED GRD ce Site Kd ede eed ececeseeheres 2

PNT CLUS curs UE esas Wed pedeecesebcaeakeu en 2

CCP Scot nuns cree bend rhenb ware ned hag 4

FR isc esc acenckdndbeeieereveapeceneveceees 4

I. No Substantial Federal Question

rE a b and be Daw dtokccd ac cccec sens 4

A. The Decision of the Maine Supreme

Judicial Court Is Not In Conflict

With Other Court Decisions on the

Regulation of Indian Gambling ........ 4

B. The Decision of the Maine Supreme

Judicial Court Is Not In Conflict

With Other Court Decisions on the

Applicability of State Laws to

DR a va Piha a paso hots p ene goon xe 5

C. The Question Presented Is Not of

COUCERE THNDOTIRIED occ ccccccnsccssces 6

Il. The Decision Below Rests on an Adequate

POE De cid tednceruatuvsrssuase 7

CII 5 6k n os 04656 b0 cba ebe Ob eecae Deer eeds 8

TABLE OF AUTHORITIES

CASES Page(s)

Barona Group of Capitan Grande Band of Mission

Indians v. Duffy, 694 F.2d 1185 (9th Cir.

1982). cert. denied, U.S. 103 S.Ct.

Es pes aii cig Laken baa ness Grek 4

Byran v. Itasca County, 426 U.S. 373.

DEG Ck a CO bebe Sibe Suenos nd teaseséees 4.5

Dahnke- Walker Milling Co. v. Bondurant, 257 U.S.

CE a Se 2a nis ah MY bee oe kae 2

McClanahan vy. Arizona State Tax Comm., 411 U.S.

DE ciitteaedaxs ce eekaaciaese chee antes 5

Mescalero Apache Tribe v. Jones, 411 U.S. 145

PEER clue tuctees Condes nudneweme reece eiey 5

New Mexico v. Mescalero Apache Tribe, U.S.

Pr a TOU hiuos cca didn aaees och oe es Ke 6

Oneida Tribe of Indians v. State of Wisconsin,

518 F.Supp. 712 (W.D. Wis. 1981).............. 4

Penobscot Nation v. Stilphen, 461 A.2d 478

SEE ek oe shout sun eC MRaNS eae sr cudy 3,5,6,7

Quong Ham Wah Cc. v. Industrial Comm., 255 U.S.

SEND d Gn CARE heats ee ab endetes keveeha 3

Raley v. Ohio, 360 U.S. 423 (1959). ........cce ee eeee 3

Rice v. Rehner, U.S. 103 S.Ct. 3291

Dain cbatedesceouesetosess cansbene 5.6

Seminole Tribe of Florida v. Butterworth, 658 F.2d

310 (Sth Cir. 1981), cert. denied, 455

Se ED cctewes ¢e0eseetsekeieresecees 4

Washington v. Confederated Tribes, 447 U.S.

bon cninedh- oboe eoseeseeareeeeeees 6

White Mountain Apache Tribe v. Bracker, 448 U.S.

ES Misdi-cnvadivees sions eusd edn Wene eae 6

STATUTES Page(s)

Pe, OF MOE, ED wip ccccccvecccccecovceseapnes 4

Ces Sobek cescedscwesed ovxes 2.3.4.6

8 een 2,3,4,6

i . ocbo dace s Se scedecsescoveese 3

30 M.R.S.A. § 6204 ....... Panes ued sulcus 0 awe 5

LE) oo cn ceccceessccccccoses ye Se iy

ie Cee on sie Ss sébleneéaecsccesctels ss 4

a er reeer Tree ee re 2.4.6

PM CPMERESD sc ccc cccksveccecaysccnovesse 7

EE ad nkbiaccscveecebsecadkessseeees 3

CCl cca reacecnssvecessvcetace 3,5

SE EE OEMS sco nscccccesecescvcceesess 3,5,7

ECPM tacdesvenscseaucesoeueuses 3,5,7

Ne ccc dat nee ceev ess eine ren Re 2

as csc cb te doeyese sense eceeeaete 4

iv

In the Supreme Court of the Hnited States

OCTOBER TERM, 1983

No. 83-366

PENOBSCOT NATION,

APPELLANT,

v.

ARTHUR STILPHEN, COMMISSIONER.

DEPARTMENT OF PUBLIC SAFETY OF THE

STATE OF MAINE.

AND

JAMES E. TIERNEY. ATTORNEY GENERAL,

APPELLEES.

ON APPEAL FROM THE SUPREME JUDICIAL

COURT OF MAINE

MOTION TO DISMISS

The Appellees, Arthur Stilphen, Commissioner, De-

partment of Public Safety, State of Maine, and James E.

Tierney, Attorney General, State of Maine, respectfully

move the Court to dismiss the appeal herein on the grounds

that the appeal is not within this Court’s jurisdiction; that

the appeal does not present a substantial federal question;

and, that the federal question sought to be reviewed was not

timely or properly raised.

STATEMENT OF THE CASE

The Penobscot Nation filed a complaint in Kennebec

County Superior Court, State of Maine, on December 6,

1982. seeking a declaration that it was exempt from state

regulation because (1) Indian tribes were not covered by

Maine anti-gambling laws, and (2) the operation of a beano

game was an “internal tribal matter” under the Maine In-

dian Claims Settlement Act, P.L. 1979, c. 732, 30

M.R.S.A. § 6206(1). When the Kennebec County Superior

Court ruled against the Penobscot Nation on both issues,

an appeal was taken to the Maine Supreme Judicial Court.

The Maine Supreme Judicial Court upheld the decision of

the Kennebec County Superior Court. The Maine Supreme

Judicial Court held that Maine’s anti-gambling statutes

were applicable to the Penobscot Nation and that the oper-

ation by the Penobscot Nation of a beano game was not ex-

empt as an “internal tribal matter” from regulation by the

State under the terms of the Maine Indian Claims Settle-

ment Acts, 94 Stat. 1785, 25 U.S.C. § 1721 et seq., and P.L.

1979. c. 732, 30 M.R.S.A. § 6201 et seq.

JURISDICTION

The Penobscot Nation (Nation) seeks to appeal the

judgment entered on June 7, 1983, by the Supreme Judicial

Court of Maine. Nation invokes the jurisdiction of this

Court under the provisions of 28 U.S.C. § 1257(2) by claim-

ing that, as applied, Section 6206(1) of the Maine Imple-

menting Act violates the laws of the United States. See

Dahnke- Walker Milling Co. v. Bondurant, 257 U.S. 282

(1921). Specifically, Nation claims that the Maine Court's

interpretation of the phrase “internal tribal matters” in-

fringes on tribal sovereignty.

At no time in the course of this case prior to this appeal

has Nation drawn into question the validity of 30 M.R.S.A.

§ 6206(1) nor suggested that 30 M.R.S.A. § 6206(1) was

2

preempted by federal Indian case law. This untimely asser-

tion of a federal question alone deprives this Court of juris-

diction. Raley v. Ohio, 360 U.S. 423, 434-435 (1959).

In the complaint and its subsequent arguments, Nation

only urged the Maine Courts to interpret 30 M.R.S.A. §

6206(1) in accordance with federal Indian case law. The

Court below refused to do so on the firm grounds that (1)

Congress had “approved, ratified, and confirmed” the

Maine Implementing Act, P.L. 1979, c. 732,30 M.R.S.A.§

6201 et seq., as the mandate for determining the jurisdic-

tional relationship between the State and Maine Indians, 94

Stat. 1785, 25 U.S.C. § 1725(b) (1); and, (2) Congress had

expressly stated that general “laws' and regulations of the

United States” applicable to Indians would not apply in the

State of Maine if such laws would affect or preempt the

State’s “civil, criminal or regulatory jurisdiction”. 94 Stat.

1785, 25 U.S.C. §§ 1725(h) and 1735(b). Accordingly, the

Maine Supreme Judicial Court found

[i]t would make no sense, in an integrated legislative

package, to define the state’s jurisdiction with refer-

ence to federal case law, while at the same time declar-

ing that the self-same case law has no impact upon the

jurisdiction of the State of Maine.

Penobscot Nation v. Stilphen, 461 A.2d 478, 488 (Me.

1983).

The Court below determined the meaning of the phrase

“internal tribal matters” by looking to the Maine statute

and to the statute’s legislative history. /d. at 489. The Maine

Court's construction of this Maine statute is not subject to

review and revision by this Court. Quong Ham Wah Co. vy.

Industrial Comm., 255 U.S. 445, 448 (1921).

' The term “laws” includes case law. 25 U.S.C. § 1722(d); 30 M.R.S.A.§

6203/4).

QUESTION PRESENTED

May the State of Maine prohibit gambling by the Pe-

nobscot Nation consistent with the Maine Indian Claims

Settlement Acts, 94 Stat. 1785, 25 U.S.C. § 1721 et seq., and

P.L. 1979, c. 732, 30 M.R.S.A. § 6201, et seq.?

ARGUMENT

I. NO SUBSTANTIAL FEDERAL QUESTION IS

PRESENTED.

A. THE DECISION OF THE MAINE SU-

PREME JUDICIAL COURT IS NOT IN

CONFLICT WITH OTHER COURT DECI-

SIONS ON THE REGULATION OF INDIAN

GAMBLING.

The Maine Supreme Judicial Court decided, as a matter

of statutory construction, that Nation's beano game is not

an “internal tribal matter” and thus not shielded from the

operation of Maine's anti-gambling statutes. This decision

is not in conflict with the cases,’ cited by Nation, which

arose in Pub. L. 280 states, 67 Stat. 588, 18 U.S.C. § 1161,

28 U.S.C. § 1360. These cases were governed by Bryan v.

Itasca County, 426 U.S. 373, 384 (1976), which held that

Pub. L. 280 did not confer “general state civil regulatory

control over Indian reservations.” The situation in Maine is

different. Maine is nota Pub. L. 280 state and Congress has

expressly conferred upon the State general civil, criminal

and regulatory jurisdiction over Maine Indians. 25 U.S.C. §

> Barona Group of Capitan Grande Band of Mission Indians v. Duffy,

694 F.2d 1185 (9th Cir. 1982), cert. denied, U.S. 103

S.Ct, 2091 (1983); Seminole Tribe of Florida v. Butterworth, 658 F.2d

310 (Sth Cir. 1981), cert. denied, 455 U.S. 1020 (1982); Oneida Tribe of

Indians v. State of Wisconsin, 518 F.Supp. 712 (W.D. Wis. 1981).

4

1725(b) (1);) 30 M.R.S.A. §§ 6204 and 6206(1); Cf. Id. at

389.

B. THE DECISION OF THE MAINE SU-

PREME JUDICIAL COURT IS NOT IN

CONFLICT WITH OTHER COURT DECI-

SIONS ON THE APPLICABILITY OF

STATE LAWS TO INDIANS.

As pointed out above, Congress has expressly and unam-

biguously declared that federal Indian case law does not

apply in Maine. 25 U.S.C. §§ 1725(h) and 1735(b). This

case, then, is not guided by the presumption in favor of In-

dians, Bryan v. Itasca County, supra at 392, and does not

present an occasion for analysis whether state regulation of

Indian activities interferes with “reservation self-govern-

ment” or impairs “a right granted or reserved by federal

law.” Mescalero Apache Tribe v. Jones, 411 U.S. 145, 148

(1973); McClanahan y. Arizona State Tax Comm., 411

U.S. 164, 170-172 (1973); Rice v. Rehner, U.S.

103 S.Ct. 3291, 3294-3295 (1983). Nevertheless, the decision

of the Court below is consistent with federal case law on the

applicability of State laws to Indians in the face of a claim of

preemption. See Rice v. Rehner, 103 S.Ct. at 3296-3298.

The Court below found, and Nation does not dispute, that

gambling “has played no part in the Penobscot Nation’s his-

torical culture or development.” Penobscot Nation vy. Stil-

phen, 461 A.2d at 490. There is thus “no tradition of sover-

’ “The phrase ‘civil, criminal, or regulatory jurisdiction’ as used in this

section [25 U.S.C. § 1725(h)] is intended to be broadly construed to en-

compass the statutes and regulations of the State of Maine as well of the

jurisdiction of the courts of the State. The word ‘jurisdiction’ is not to be

narrowly interpreted as it has in cases construing the breadth of Public

Law 83-280[ Public Law 280] such as Bryan v. /tasca County, 426 U.S.

373 (1976)." S. REP. NO. 957, 96th Cong.. 2nd Sess. 30-31 (1980)

5

eign immunity in this respect” and little, ifany, weight need

be accorded “any asserted interest in tribal sovereignty in

this case.” See Rice v. Rehner, 103 S.Ct. at 3298. It is against

this “backdrop” and the absence of express congressional

pre-emption that Nation's claim of pre-emption must be

examined and rejected. /d. 103 S.Ct. at 3295, 3298-3299.

The State has a substantial interest in regulating gambling,

the evil effects of which “spillover” and reach “the whole

community”. Penobscot Nation vy. Stilphen, 461 A.2d at

487. Cf. New Mexico v. Mescalero Apache Tribe,

U.S. 103 S.Ct. 2378, 2387 (1983). Maine

simply does not infringe on tribal self-government merely

because the regulation of gambling by the Nation will de-

prive the Nation of revenues it is currently receiving.‘ Cf.

Washington v. Confederated Tribes, 447 U.S. 134, 156

(1980). In the area of gambling, Nation cannot pointtoany

“congressional enactments demonstrating a firm federal

policy of promoting tribal self-sufficiency and economic

development.” See White Mountain Apache Tribe v.

Bracker, 448 U.S. 136, 143 (1980); Cf. Rice v. Rehner, 103

S.Ct. at 3298.

C. THE QUESTION PRESENTED IS NOT OF

GENERAL IMPORTANCE.

Regardless of the outcome of this case, only the State of

Maine and Maine Indians will be affected. The Maine In-

dian Claims Settlement Acts, 94 Stat. 1785, 25 U.S.C. §

1721, et seq., and P.L. 1979, c. 732, 30 M.R.S.A. § 6201, et

seq., apply only to the State of Maine and Maine Indians.

Contrary to the assertions of the Penobscot Nation, this

* “The tribe's interest in beano. . . is purely financial. And in point of

fact, the Penobscots would have nothing to ‘sell’ if highstakes beano

were not prohibited throughout the rest of Maine.” Penobscot Nation

v. Stilphen, 461 A.2d at 486.

case does not involve the “defiance of federal Indian Law”,

but merely the interpretation of a Maine statute. Indeed,

federal Indian law is expressly made inapplicable to the

State of Maine. 25 U.S.C. §§ 1725(h) and 1735(b). Equally

false is the Nation's claim that the Settlement Acts touched

only land, water and fishing rights. The principle purpose of

the Settlement Acts was to lay to rest the jurisdictional dis-

pute between the State and Maine Indians. 25 U.S.C. §

1721(b) (3). “Relations between the Penobscot Nation, the

State of Maine, and the federal government are now con-

trolled...” by the Settlement Act. Penobscot Nation v. Stil-

phen, 461 A.2d at 482.

Il. THE DECISION BELOW RESTS ON AN ADE-

QUATE NON-FEDERAL BASIS.

The Court below held that (1) under federal Indian law,

and (2) under the Maine Implementing Act, 30 M.R.S.A. §

6206(1), the Nation was not immune from the application of

Maine's anti-gambling statutes. Penobscot Nation v. Stil-

phen, 461 A.2d at 482. The Nation has focused its attack in

this appeal on the federal Indian law holding. The decision

of the Maine court, however, was correct without regard to

this issue. Thus, this Court need not reach the alleged

federal-state conflict the Nation seeks to have resolved.

The question presented to the Court below was whether

the Nation's gambling operations were immune from State

regulation as an “internal tribal matter”. Penobscot Nation

v. Stilphen, 461 A.2d at 488. In answering this question in

the negative, it was only necessary for the Maine Court to

interpret the Maine Implementing Act, 30 M.R.S.A. §

6206(1). The Maine Court, as a matter of state law, and asa

matter of statutory interpretation, construed the phrase “in-

ternal tribal matters” to include only matters unique to the

cultural and historical existence of the Nation. /d, at 490.

This construction of the State statute is an adequate non-

federal basis for the decision of the Maine Court and does

-

not present an appropriate occasion for review by the U.S.

Supreme Court.

CONCLUSION

Wherefore, Arthur Stilphen and James E. Tierney. re-

spectfully submit that this Court lacks jurisdiction to hear

this appeal and that the question presented is so unsubstan-

tial as not to need further argument and respectfully request

the Court dismiss this appeal.

Respectfully submitted,

JAMES E. TIERNEY

Attorney General

WILLIAM H. LAUBENSTEIN, III

Assistant Attorney General

Counsel for Appellees

Dated: October 5, 1983