Petition for Writ of Certiorari — Fellencer v. Penobscot Nation

Buprama OovA, WR

PILED

981690 APR 191999

No.

OFFICE OF THE CLERK

In the

Supreme Court of the United States

October Term, 1998

CYNTHIA A. FELLENCER,

) : 5

Petitioner.

PENOBSCOT NATION,

Respond hil

On Petition for Writ of Certioran to the

United States Court of Appeals

for the First Circuit

PETITION FOR WRIT OF CERTIORA RI

U. CHARLES REMMEL, II, ESQUIRE

Counsel of Record

Kelly, Remmel & Zimmerman

53 Exchange Street

Portland, Maine 04101

(207) 775-1020

Attorneys for Petitioner

QUESTION PRESENTED FOR REVIEW

Whether the allegedly discriminatory decision of the

Penobscot Nation to terminate the employment of a commu-

nity health nurse who is not a tribal member can be chal-

lenged in the courts of Maine pursuant to the Maine Human

Rights Act, or whether the decision constitutes an “internal

tribal matter” not subject to state law?

**

TABLE OF CONTENTS

QUESTIONS PRESENTED FOR VO eis ocics eck.

TABLE OP CONTENTS sc i

TABLE OF AUTHORITIES o5i0c50co 1

OPTI EAI i esis es oe ook |

STATEMENT OF JURISDICTION ....................

STATUTORY PROVISIONS pig’, Sf 3 POT een I

STATEMENT OF THE CASE 4

REASONS FOR GRANTING THE cis | ene eRe 7

1. THE REASONING OF THE COURT OF

APPEALS IS SQUARELY AT ODDS WITH

THE MAINE SUPREME JUDICIAL

COURT'S AVAILABLE PRECEDENT, ........._. 7

ll. THE ALLOCATION OF SOVEREIGN

POWERS BETWEEN THE PENOBSCOT

NATION AND THE STATE OF MAINE

HAS NATIONAL IMPLICATIONS AND

DESERVES THIS COURT’S REVIEW, ........_. 1]

INCLUBIIN | iii ek ee ee 13

APPENDIX

United States Court of Appeals for the First

Circuit Decision dated January 19,1999 ........... la

United States District Court for the District of

Maine Decision and Order dated March 13.

NID o ccecacanvuayes ascent tegen ee hae 18a

Penobscot County Superior Court Decision

and Order dated July 25, 1996 ..................... 42a

ee. | ee a

it}

Penobscot County Superior Court Decision

and Order dated November 18, 1996

Maine Human Rights Commission Decision

dated January 30 ,1995

Affidavit of Cy nthia A. Fellencer dated De-

cember 12, 1997

HUa

iV

TABLE OF AUTHORITIES

Cases

Akins v. Penobscot Nation, 130 F.3d

SEE, Ge CA BOE hab rks Hoa eta dov bias Can stiineses 6

Houlton Band of Maliseet Indians vy.

Boyce, 688 A.2d 908, 911 (Me. 1997) .........cccceeeeees 9

Maine Human Rights Comm'n y. Cana-

dian Pacific Lta., 458 A.2d 1225, 1230

CINE, SRN ects bn a be Mawar icky diacdoieresoaes 11

Maine Human Rights Comm'n v. Local

1361, United Paper Workers Int'l Un-

jon, 563 A.26 SED, STS COAG. USTED once ci censccweccsesi 11

Montana y. United States, 450 U.S.

SOR, Sir CEO ED Sas boas cp unwed bupcdeniesskeennexks 12, 13

Penobscot Nation v. Stilphen, 461 A.2d

478 (Me. 1993) appeal dismissed, 464

DAP CN aD 5s atesida tsi ockrineosedcpewkees 6, 8, 9, 10

Strate v. A-1 Contractors, 520 U.S.

438, 1178S. Ct. 1404, 1409; 137 L.

Fe GG Cae ha Fawn cs so nvicnde nn baidsacaceeatade’ 13

Stroud v. Seminole Tribe of Florida,

606 F. Supp. 678, 680 (S. D. Fla. 1985) ................ 12

Wardell v. Ute Indian Tribe, 623 F.2d

676, G75 A Ce TS ge ieee ies eh 12

White Mountain Apache Tribe v.

Bracker, 448 U.S. 136, 144 (1980) ................. 000 12

Statutes

Be Wace PU: ic vids e ices ce badsaoenkcadeeaels ieee 12

SSIS. BUTER I sock deers cused hoes 3

ee ee ee ae oe

ED Vita: BA TRE AOD) Sav sasnvecedetevis aia hey oslo e

Se Cig ET Fntcvedh sec boicddintd etientexsioee 6

AD Es BATE IESD? 5. be détndne hsb hee 3

WUE WIS oie eee Bee

USC B1ISF . 2: PEED CTI ES AEROS TOS) 12

a ee |

OURO GIA i i gee ee 6

SRSA Bea 11

SUE EG ee

5 M_RS.A. §45

5 M.R.S.A. §§ 4571 and 4572 ........... Sk he 5

|

OPINIONS BELOW

The opinion of the United States Court of Appeals for

the First Circuit is reported at 164 F.3d 706 (1" Cir. 1999),

and is reprinted in the Appendix at la. The opinion of the

United States District Court for the District of Maine is re-

ported at 999 F. Supp. 120 (D. Me. 1998), and is reprinted in

the Appendix at 18a. The opinions of the Penobscot County

Superior Court on the Penobscot Nation’s two Motions to

Dismiss are not reported, but are reprinted in the Appendix at

42a. The decision of the Maine Human Rights Commission

is not reported, but is reprinted in the Appendix at 55a.

STATEMENT OF JURISDICTION

The judgment of the United States Court of Appeals

for the First Circuit was filed on January 19, 1999, and this

petition is timely filed within ninety days thereafter. The

Court has jurisdiction to review the judgment of the United

States Court of Appeals for the First Circuit pursuant to 28

U.S.C. §1254 (1).

STATUTORY PROVISIONS INVOLVED

Section 4552 of Title 5, Maine Revised Statutes An-

notated, provides as follows (emphasis added):

To protect the public health, safety and wel-

fare, it is declared to be the policy of this State

to keep continually in review all practices in-

fringing on the basic human right to a life with

dignity, and the causes of such practices, so

Uy ee atti

5

that corrective measures may, where possible,

be promptly recommended and implemented,

and to prevent discrimination in employment,

housing or access to public accommodatioris

on account of race, color, sex physical or men-

tal handicap, religion, ancestry or national ori-

gin and in employment, discrimination in the

extension of credit on account of age, race,

color, sex, marital status, religion, ancestry or

national origin; and to prevent discrimination

in education on account of sex or physical or

mental handicap

Section 4553 (4) of Title 5, Maine Revised Statutes

Annotated, provides in pertinent as follows (emphasis

added):

“Employer” includes any person in this State

employing any number of employees, what-

ever the place of employment of such employ-

ees, and any person outside this State

employing any number of employees whose

usual place of employment is in this State....

Section 4553 (7) of Title 5, Maine Revised Statutes

Annotated, provides as follows (emphasis added):

“Person” includes one or more individuals,

partnerships, associations, organizations, cor-

porations, municipal corporations, legal repre-

sentatives, trustees, trustees in bankruptcy,

receivers and other legal representatives, and

includes the State and all agencies thereof.

3

Section 6206 (1) of Title 30, Maine Revised Statutes

Annotated, provides in pertinent part as follows (emphasis

added):

Except as otherwise provided in this Act, the

Passamaquoddy Tribe and the Penobscot Na-

tion, within their respective Indian territories,

shall have, exercise and enjoy all the rights.

privileges, powers and immunities, including,

but without limitation, the power to enact ordi-

nances and collect taxes, and shall be subject

to all the duties, obligations, liabilities and

limitations of a municipality of and subject to

the laws of the State, provided, however, that

internal tribal matters, including membership

in the respective tribe or nation, the right to re-

side within the respective Indian territories,

tribal organization, tribal government, tribal

elections and the use or disposition of settle-

ment fund income shall not be subject to regu-

lation by the State....

Section 1721 (b) of Title 25, United States Code, pro-

vides as follows:

It is the purpose of this Act — (3) to ratify the

Maine Implementing Act, which defines the

relationship between the State of ' ine and

ihe Passamaquoddy Tribe, and the Penobscot

Nation ....

Section 1725 (d) (1) of Title 25, United States Code.

provides in pertinent part as follows:

4

The Passamaquoddy Tribe, the Penobscot Na-

tion, and the Houlton Band of Maliseet Indi-

ans, and all members thereof, and all other

Indians, Indian nations, or tribes or bands of

Indians in the State of Maine may sue and be

sued in the courts of the State of Maine and

the United States to the same extent as any

other entity or person residing in the State of

Maine may sue and be sued in those courts. . .

STATEMENT OF THE CASE

The question presented by this case requires the Court

to allocate sovereign powers between the Penobscot Nation

and the State of Maine. Does the Penobscot Nation have a

right to make the employment decision at the heart of this

case as an internal tribal matter, at the expense of Cynthia

Fellencer’s right to be free from employment discrimination

pursuant to the Maine Human Rights Act? The question is

important because as federaliy recognized Indian tribes across

the nation have become increasingly entrepreneurial, the em-

ployment protections available to non-tribal members under

state law are called increasingly into dispute.

Cynthia Fellencer (“Fellencer”) was hired by the Pe-

nobscot Nation (“Nation”) to work as a Community Health

Nurse/Diabetes Program Coordinator (“Community Health

Nurse”) in the Nation’s Health Department. Appendix at

64a. Fellencer is not a tribal member of the Penobscot Na-

tion. The Penobscot Nation required Fellencer, as a Commu-

nity Health Nurse, to have and maintain her State of Maine

license to practice as a registered nurse, and her State of

Maine driver’s license. Appendix at 67a. Although Fellencer

5

-

was based at the Health Department, she frequently had to

travel off the reservation to perform her job duties. Appendix

at 61a. Fellencer’s immediate supervisor was the Medical

Director of the Health Department (also a non-tribal member)

who in turn reported to the Director of the Health Department

(also a non-tribal member). Appendix at 6la. Hence, Fel-

lencer was a lower level supervisor who did not report to the

Penobscot Tribal Council as part of her chain-of-command.

Appendix at 61a.

The Penobscot Nation Tribal Council voted on Sep-

tember 6, 1994, to terminate Fellencer’s employment. Ap-

pendix at 68a. The Nation claimed that Fellencer was

dismissed due to complaints about her performance. Appen-

dix at 68a. However, it is undisputed that in a letter to Fel-

lencer dated September 27, 1994, then Governor of the

Penobscot Nation, Jerry Pardilla, admitted that the complaints

were without merit, and that the Tribal Council had no legiti-

mate procedural or substantive basis tor seeking Fellencer’s

dismissal. Appendix at 69a. Fellencer’s discharge became

effective on September 30, 1994.

Following her termination, Fellencer filed a Charge of

Discrimination with the Maine Human Rights Commission

asserting that her discharge was based on race and origin dis-

crimination in violation of the employment provisions of the

Maine Human Rights Act, 5 M.R.S.A. §§ 4571 and 4572.

On January 20, 1995, the Maine Human Rights Commission

dismissed Fellencer’s claims on the basis of lack of jurisdic-

tion. Appendix at 55a. Fellencer subsequently filed a civil

action against the Penobscot Nation in the Penobscot County

Superior Court, alleging discrimination in violation of the

employment provisions of the Maine Human Rights Act. The

Nation moved to dismiss Fellencer’s action for failure to state

6

a claim upon which relief could be granted, on the grounds

that Fellencer’s dismissal was an “internal tribal matter” un-

der the Maine Implementing Act, 30 M.R.S.A. §6206 (1).

[he Penobscot County Superior Court denied the Nation’s

motion, relying on the decis »n of the Maine Supreme Judi-

cial Court (sitting as the “Law Court”) in Penobscot Nation v.

Stilphen, 461 A.2d 478 (Me. 1993). Appendix at 42a. The

Nation then filed a Motion for Reconsideration and to Dis-

miss for Lack of Jurisdiction, which the Penobscot County

Superior Court also denied. Appendix at 5la. Fellencer then

continued discovery procedures in the Superior Court.

On October 20, 1999, the Penobscot Nation filed a

civil action in the United States District Court for the District

of Maine, seeking declaratory judgment and a preliminary in-

junction to stop Fellencer from proceeding with her Superior

Court action.’ The Penobscot County Superior Court stayed

the proceedings pending resolution of the District Court ac-

tion. Thereafter, the Penobscot Nation and Fellencer filed

cross-Motions for Summary Judgment. On March 13, 1998,

the District Court entered Judgment in favor of Fellencer.

Appendix at 18a. The District Court held that since Fellencer

was not a tribal member, and she did exercise policy making

authority in her job, the interests of the State of Maine in ap-

plying its law outweighed the interests of the Nation in hav-

ing the dismissal treated as an “internal tribal matter.” Based

‘In Akins v. Penobscot Nation, 130 F.3d 482, 485 (1st Cir. 1997), the

United States Court of Appeals declared that whether a sphere of activity

constitutes an “internal tribal matter” is a federal question, since the

Maine Implementing Act, 30 M.R.S.A. §§ 6201-6214, is incorporated by

reference in the Maine Indian Claims Settlement Act, 25 U.S.C.

§§1721-35. See 25 U.S.C. §1721 (b\3). Hence, the District Court ex-

erted subject matter jurisdiction pursuant to 28 U.S.C. §1331 (federal

question), despite Fellencer’s request that the District Court abstain in

deference to the State Court system. Appendix at 40a.

7

on the District Court’s opinion, the Penobscot County Supe-

rior Court lifted its stay of the proceedings, and allowed dis-

covery to continue.

The Penobscot Nation then appealed from the District

Court's decision to the United States Court of Appeals for the

First Circuit. On January 19, 1999, the United States Court

of Appeals for the First Circuit reversed the Judgment of the

District Court, and remanded the case for entry of Judgment

in favor of the Penobscot Nation. The Court of Appeals rea-

soned that the State of Maine’s interests in protecting the em-

ployment rights of one non-tribal individual did not outweigh

the Nation’s interests in treating Fellencer’s termination as an

“internal tribal matter.” Fellencer now timely petitious this

Court for review.

REASONS FOR GRANTING THE WRIT

Il. THE REASONING OF THE COURT OF

APPEALS IS SQUARELY AT ODDS

WITH THE MAINE SUPREME JUDI-

CIAL COURT'S AVAILABLE

PRECEDENT.

The central issue in this case is how to properly inter-

pret the “internal tribal matters” provision of the Maine Im-

plementing Act, 30 M.R.S.A. §6206 (1), as incorporated by

reference in the Maine Indian Claims Settlement Act, 25

U.S.C. §1721 (b) (3). The Implementing Act provides that

the Penobscot Nation is subject to the liabilities of a munici-

pality under Maine law, except that “internal tribal matters,

including membership in the respective tribe or nation, the

right to reside with the respective Indian territories, tribal

8

organization, tribal government, tribal elections and the use

or disposition of settlement income shall not be subject to

regulation by the State.” 30 M.R.S.A. §6206 (1). Maine’s

court of last resort, the Maine Supreme Judicial Court, sitting

as the Law Court, has said that the “internal tribal matters”

provision must be interpreted narrowly. The United States

Court of Appeals for the First Circuit held that the provision

can be interpreted expansively. Thus, the decisions of the

First Circuit and of the Law Court have created a conflict that

should be resolved by this Court.

The Law Court's interpretation of the “internal tribal

matters” provision of the Maine Implementing Act is set forth

in the seminal case of Penobscot Nation v. Stilphen, 461 A.2d

478 (Me.) appeal dismissed, 464 U.S. 923 (1983). In Stil-

phen, the Law Court considered whether the operation of

tribal bingo games was an “internal tribal matter” which es-

caped State regulation. The Law Court concluded it was not,

explaining that the phrase “internal tribal matter” is “not a le-

gal term of art.” /d. at 489. Rather, the phrase has a meaning

assigned by the terms used in the statute to qualify the excep-

tion. /d. The terms include “membership in the respective

tribal nation, the right to reside within the respective Indian

territories, tribal organization, tribal government, tribal elec-

tions and the use or disposition of settlement fund income.”

30 M.R.S.A. §6206 (1). According to the Law Court:

By the very nature of the matters listed, action

by the Nation directly affecting them would

not tend to bring the Nation into conflict with

state laws of general application. By the fa-

miliar ejusdem generis rule, a general term

followed by a list of illustrations is ordinarily

9

assumed to embrace only concepts similar to

those illustrations.

Penobscot Nation v. Stilphen, 461 A.2d at 489. Under this

formulation, tribal activities that are merely “related to” the

terms on the list are not entitled to protection from State regu-

lation. /d Hence, the Law Court rejected the argument that

bingo games were “internal tribal matters” because revenue

from the games helped finance tribal government. /d.; see

also Houlton Band of Maliseet Indians v. Boyce, 688 A.2d

908, 911 (Me. 1997) (incidental impact on tribal election dis-

pute does not run afoul of internal tribal matters). Indeed, the

Law Court recognized that the “related to” argument would

virtually nullify State jurisdiction. See Jd Thus, under the

interpretive guidance established by the Law Court in Stil-

phen, the test of whether a tribal activity escapes State regula-

tion as an “internal tribal matter” depends on whether the

tribal activity at stake is “fundamentally” akin to the terms in

the list. /d at 489.

The United States Court of Appeals for the First Cir-

cuit has taken a completely opposite approach to interpreting

the “internal tribal matters” provision of the Maine Imple-

menting Act. Eschewing the Law Court's reliance on the

statutory construction doctrine of ejusdem generis, the First

Circuit has taken the position that the list of exemplars fol-

lowing “internal tribal matters” is not exclusive or exhaus-

tive, and in fact provides little guidance. Appendix at 7a.

Rather than following the Law Court’s approach, the First

Circuit has articulated “five considerations” relevant to deter-

mining whether the dispute at stake is an “internal tribal mat-

ter.” Appendix at 8a. The First Circuit’s non-textual

approach to interpreting the “internal tribal matters” provi-

sion eviscerates the statutory-based approach established by

10

the Maine Law Court in Penobscot Nation vy. Stilphen, and

creates a fundamental conflict on an important federal

question.

This Court should grant the writ not only because of

the conflict between Maine’s court of last resort and the

United States Court of Appeals for the First Circuit, but also

because of the unique procedural posture of the case. By di-

recting judgment in favor of the Penobscot Nation’s com-

plaint for an injunction bringing a halt to Fellencer’s Superior

Court action, the First Circuit deprived Fellencer of the op-

portunity to have the Superior Court and the Law Court de-

velop the approach the Law Court adopted in Penobscot

Nation y. Stilphen.’ Now that the procedural device has been

established for essentially “removing” actions against the Pe-

nobscot Nation pursuant to the Maine Human Rights Act

from Superior Court to federal District Court, the Penobscot

Nation can effectively prevent the Law Court from having an

opportunity to rule on future cases. In view of this procedural

history, it is particularly important for this Court to resolve

the fundamental conflict between the Law Court and the First

Circuit. Accordingly Fellencer respectfully requests this

Court to grant her Writ.

* The District Court exerted jurisdiction despite Fellencer’s argument that

it should abstain in favor of the Superior Court. Appendix at 40a

j

pL Ss one Rn eC ee eS RST Ce CeO oom

des 3 eee

il. THE ALLOCATION OF SOVEREIGN

POWERS BETWEEN THE PENOBSCOT

NATION AND THE STATE OF MAINE

HAS NATIONAL IMPLICATIONS AND

DESERVES THIS COURT'S REVIEW.

The dispute between Fellencer and the Penobscot Na-

tion has importance on two levels, both of which merits this

Court’s review. First, this action stems from a clash between

a state law of central importance to the State of Maine, and

the sovereign powers of a federally recognized Indian tribe

residing within the State of Maine. According to the policy

statement of the Maine Human Rights Act:

[I]t is declared to be the policy of this State to

keep continually in review all practices in-

fringing on the basic human right to a life with

dignity, and the causes of such practices, so

that corrective measures may, where possible,

be promptly recommended and implemented,

and to prevent discrimination in employment .

. .on account of race, color, sex, physical or

mental disability, religion, ancestory, or na-

tional origin.

5 M.R.S.A. §4552. The “fair employment provisions of the

MHRA specifically declare as the policy of the State of

Maine that every individual has the civil right to secure em-

ployment without discrimination. .. .”. Maine Human Rights

Comm'n v. Canadian Pacific Ltd., 458 A.2d 1225, 1230 (Me.

1983). The Act was “meant to have very broad coverage.”

Maine Human Rights Comm'n v. Local 1361, United Paper

Workers Int'l Union, 383 A.2d 369, 373 (Me. 1978). The

First Circuit erred because it failed to adequately consider the

¥

M

|?

interest of the State of Maine in having the Maine Human

Rights Act applied uniformly to all employers in the State

As a result, this Court should grant the writ in order to re-

solve the clash of a fundamental values at stake within the

State's borders.

Second, this case has national significance that ex-

tends well beyond the borders of Maine. Although the ques-

tion of whether triba! employment decisions constitute

“internal tribal matters” arises under the Maine Implementing

Act (as incorporated in the Maine Indian Claims Settlement

Act), the Implementing Act was written against the backdrop

of federal Indian common law.’ Federal cases examining the

inherent sovereignty of Indian tribes to control employment

decisions are mixed. Several cases exist to support the

proposition that Indian tribes are not subject to a variety of

federal employment discrimination statutes. See, e.g. War-

dell v. Ute Indian Tribe, 623 F.2d 670, 673 (10" Cir. 1980),

and Stroud v. Seminole Tribe of Florida, 606 F. Supp. 678,

680 (S. D. Fla. 1985). However, few cases have directly ad-

dressed application of state anti-discrimination statutes.

For instance, in White Mountain Apache Tribe v

Bracker, 448 U.S. 136, 144 (1980), this Court declared that a

State's regulatory interest is minimal (and the federal interest

encouraging tribal self-government strongest) where on-

reservation conduct involving only Indians is at issue. How-

ever, in Montana v. United States, 450 U. S. 544, 565 (1981),

the Court noted that in matters involving the relations

Moreover, Congress has enacted several other settlement acts, many of

them addressing the applicability of state law. See, ¢.g., 25 U.S.C.§1708

(Rhode Island; 25 U.S.C. §1746 (Florida); 25 U.S.C. §1755 (Connecti-

cut); and 25 U.S.C. §1771g (Massachusetts)

13

between an Indian tribe and non-members of the tribe, there

is an implicit divestiture of sovereignty. Furthermore, in

Strate v. A-] Contractors, 520 U. S. 438, 117 S. Ct. 1404,

1409; 137 L. Ed.2d 661 (1997), this Court reaffirmed Mon-

‘ana ’s holding that, in general, the inherent sovereign powers

of a tribe do not extend to the activities of non-members of

the tribe. The present case isolates the specific issue of

whether tribal employment decisions should be considered

within the inherent sovereignty of a federally recognized In-

dian tribe, or whether such employment decisions should be

open to challenge in state court on the basis of a state’s anti-

discrimination laws. Resolution of this important and timely

issue will have national significance, and merits this Court’s

review.

CONCLUSION

For all of the foregoing reasons, Cynthia A. Fellencer

respectfully requests this Court to grant her Petition for a

Writ of Certiorari.

Dated in Portland, Maine this 16 day of April, 1999.

U. Charles Remmel, Esquire

Kelly, Remmel & Zimmerman

P. O. Box 597

Portland, ME 04112

Attorneys for the Petitioner,

Cynthia A. Fellencer

la

(Any footnotes trail end each document)

PENOBSCOT NATION, Appellant, v. CYNTHIA. A.

FELLENCER, Appellee.

No. 98-1326

UNITED STATES COURT OF APPEALS FOR THE FIRST

CIRCUIT

January 19, 1999, Decided

COUNSEL: Kaighn Smith, Jr., with whom Gregory W.

Sample was on brief for appellant.

Michael A. Duddy for appellee.

JUDGES: Before Lipez, Circuit Judge, Coffin and Campbell,

Senior Circuit Judges.

OPINIONBY: LIPEZ

OPINION: LIPEZ, Circuit Judge. This case requires us to

revisit and further define the allocation of sovereign powers

between the Penobscot Nation (the Nation) and the State of

Maine. The question before us is whether the decision of the

Penobscot Nation Tribal Council to terminate the

employment of a community health nurse constitutes an

“internal tribal matter" within the meaning of the Maine

Indian Claims Settlement Act of 1980, 25 U.S.C. §§ 1721

-1735. The district court held that it does not. We disagree.

[hat employment termination decision is an "internal tribal

matter" and, as such, cannot be challenged in the courts of

2a

Maine pursuant to the Maine Human Rights Act (MHRA),

Me. Rev. Stat. Ann. tit. 5, § 4551 et seq.

The undisputed material facts are recounted thoroughly in the

district court's opinion. See Penobscot Nation v. Fellencer,

999 F. Supp. 120 (D. Me. 1998). We provide only a brief

sketch to set the stage. Cynthia A. Fellencer was employed by

the Penobscot Nation as a Community Health Nurse/Diabetes

Program Coordinator (community nurse) from December

1992 until September 1994, when the Penobscot Nation

lribal Council voted to terminate her employment. Fellencer,

who is a non-Indian, filed a charge of discrimination wiih the

Maine Human Rights Commission (MHRC) alleging that she

had been discharged due to her race and national origin. The

MHRC dismissed her complaint for lack of jurisdiction,

finding that adjudication of the claim "would create a serious

potential of State interference with the internal affairs of the

tribal government, a result clearly not intended by the Maine

Indian Settlement Act." MHRC Administrative Dismissal,

Case No. E94-0730 (Jan. 30, 1995).

Fellencer subsequently filed suit in the Maine Superior Court

against the Penobscot Nation, claiming that the Nation had

terminated her employment (1) without due process and (2)

"due to her race and/or national origin in violation of the

Maine Human Rights Act." She claims that subsequent to her

termination the community nurse position was posted with an

express preference for Indian applicants. The Nation filed a

motion to dismiss, which was denied.

On October 20, 1997, the Nation filed the instant action in the

federal district court seeking a preliminary injunction to stay

3a

the state court proceeding. Cross motions for summary

judgment were filed. On March 13, 1998, the district court

denied the Nation's request for a preliminary injunction and

entered judgment in favor of Fellencer, thereby permitting the

State court case to proceed. The district court's denial of the

preliminary injunction can be reversed where there has been a

"misapplication of the law to particular facts" or an

"application of the wrong legal standard." See Planned

Parenthood League of Mass. v. Bellotti, 641 F.2d 1006, 1009

(Ist Cir. 1981); see also Narragansett Indian Tribe v.

Narragansett Elec. Co., 89 F.3d 908, 912 (Ist Cir. 1996)

(reversing district court's denial of preliminary injunction).

We conclude that there was a misapplication of the law.

lhe backdrop to the state and federal court proceedings is

some familiar history. In the early 1970s, the Nation (in

concert with the Passamaquoddy Tribe and others) filed suit

claiming nearly two-thirds of Maine's land mass as their

ancestral homelands. See Passamaquoddy Tribe v. Maine, 75

F.3d 784, 787 (1st Cir. 1996) (citing Joint Tribal Council of

the Passamaquoddy Tribe v. Morton, 528 F.2d 370 (1st Cir.

1975)). After federal authorities interceded, the parties

negotiated a compromise which was approved by Maine, the

Penobscots, the other Indian parties, and Congress. The

compromise is memorialized in two statutes: the Maine

Implementing Act, Me. Rev. Stat. Ann. tit. 30, §§ 6201-14

(the Implementing Act), and the Maine Indian Claims

Settlement Act, 25 U.S.C. §§ 1721-35 (the Settlement Act).

The settlement represented a partial victory for the Nation

and Maine: the Nation obtained federal recognition as an

Indian tribe and received almost one half of $ 81.5 million

appropriated under the Settlement Act (see 25 U.S.C. § 1733)

4a

and, in exchange, the Nation's claims against Maine were

extinguished. Further, while the Nation's right to

self-government was preserved to a limited extent, Maine

was permitted to extend its jurisdiction over the Nation to a

greater degree than most states exercise over other Indian

tribes. See Akins v. Penobscot Nation, 130 F.3d 482, 484-85

(Ist Cir. 1997).

As a result of the settlement, the relationship between the

Penobscot Nation and Maine is geverned primarily by the

Implementing Act (state) and the Settlement Act (federal).

The Implementing Act provides as follows:

The Passamaquoddy Tribe and the Penobscot

Nation, within their respective Indian

territories, shall have, exercise and enjoy all

the rights, privileges, powers and immunities,

including, but without limitation, the power to

enact ordinances and collect taxes, and shall

be subject to all the duties, obligations,

liabilities and limitations of a municipality of

and subject to the laws of the State, provided,

however, that internal tribal matters, including

membership in the respective tribe or nation,

the right to reside within the respective Indian

territories, tribal = organization, __ tribal

government, tribal elections and the use or

disposition of settlement fund income shall not

be subject to regulation by the State.

Me. Rev. Stat. Ann. tit. 30, § 6206(1) (emphasis added). We

have previously recognized that "as to state law, the

Penobscot Nation and Maine expressly agreed that, with very

:

Sa

limited exceptions, the Nation is subject to the laws of

Maine." Akins, 130 F.3d at 484-85.

The Implementing Act was incorporated by reference into the

Settlement Act, 25 U.S.C. §§ 1721-1735. See 25 U.S.C. §

1721(b)(3). In ratifying the Implementing Act, Congress

sought to balance Maine's interest in continuing to exercise

jurisdiction over the Nation's land and members (which it had

done without interference for almost two centuries), see

Bottomly v. Passamaquoddy Tribe, 599 F.2d 1061, 1064-65

(Ist Cir. 1979), with the Nation's "independent source of

tribal authority, that is, the inherent authority of a tribe to be

self-governing.” S. Rep. No. 96-957, at 29 (1980) (citing

Santa Clara Pueblo v. Marunez, 436 U.S. 49, 56 L. Ed. 2d

106, 98 S. Ct. 1670 (1978)). Both the House and Senate

sought to assuage the Nation's fears that the settlement

undermined its sovereignty:

While the settlement represents a compromise

in which state authority is extended over

Indian territory to the extent provided in the

Maine Implementing Act, ... the settlement

provides that henceforth the tribes will be free

from state interference in the exercise of their

internal affairs. Thus, rather than destroying

the sovereignty of the tribes, by recognizing

their power to control their internal affairs ...

the settlement strengthens the sovereignty of

the Maine Tribes.

S. Rep. No. 96-957, at 14; H.R. Rep. No. 96-1353, at 14-15,

reprinted in 1980 U.S.C.C.A.N. at 3790,

6a

As the language of the Implementing Act and the federal

legislative history make clear, the critical phrase to analyze in

determining the scope of tribal sovereignty is "internal tribal

matters." When the Nation acts on “internal tribal matters,"

its actions are not subject to regulation by the state. Me. Rev.

Stat. Ann. tit. 30, § 6206(1). Because the phrase "internal

tribal matters" was adopted by the federal Settlement Act, the

meaning of that phrase raises a question of federal law. See

Akins, 130 F.3d at 485; see also Bottomly, 599 F.2d at 1066

("until Congress acts, the tribes retain their [] sovereign

powers").

Before we examine the language of the Implementing Act, we

must acknowledge some general principles that inform our

analysis of the statutory language. First, Congress’ authority

to legislate over Indian affairs is plenary and only Congress

can abrogate or limit an Indian tribe's sovereignty. See U.S.

CONST., art. I, § 8, cl. 3; Morton v. Mancari, 417 U.S. 535,

§51-53, 41 L. Ed. 2d 290, 94 S. Ct. 2474 (1974) (discussing

the plenary power of Congress to deal with special problems

of Indians); see also F. Cohen, Handbook of Federal Indian

Law 231 (1982 ed.) ("Neither the passage of time nor

apparent assimilation of the Indians can be interpreted as

diminishing or abandoning a tribe's status as a self governing

entity."). Second, special rules of statutory construction

obligate us to construe "acts diminishing the sovereign rights

of Indian tribes ... strictly," Rhode Island v. Narragansett

Indian Tribe, 19 F.3d 685, 702 (Ist Cir. 1994), "with

ambiguous provisions interpreted to the [Indians'] benefit,"

County of Oneida v. Oneida Indian Nation of New York, 470

U.S. 226, 247, 84 L. Ed. 2d 169, 105 S. Ct. 1245 (1985).

These special canons of construction are employed "in order

to comport with the[] traditional notions of sovereignty and

with the federal policy of encouraging tribal independence,"

eh A a AREA Ne Cs ie NS oh

7a

White Mountain Apache Tribe v. Bracker, 448 U.S. 136,

143-44, 65 L. Ed. 2d 665, 100 S. Ct. 2578 (1980), and are

"rooted in the unique trust relationship between the United

States and the Indians," County of Oneida, 470 U.S. at 247.

A. The Language of the Statute

The Implementing Act preserves the Nation's sovereignty

with respect to

internal tribal matters, including membership

in the respective tribe or nation, the right to

reside within the respective Indian territories,

tribal organization, tribal government, tribal

elections and the use or disposition of

settlement fund income ....

Me. Rev. Stat. Ann. tit. 30, § 6206(1). While the list of

exemplars following "internal tribal matters" informs the

meaning of that term, the list is not exclusive or exhaustive.

In fact, we declared in Akins that the exemplars "provide

limited guidance." Akins, 130 F.3d at 486. We also

recognized in Akins that the fact "that a tribe attempts to

govern a matter does not render it an internal tribal matter."

Id.

B. The Akins Precedent

Akins was our first occasion for addressing the allocation of

sovereign powers between the Nation and the State of Maine

pursuant to the Implementing Act and the Settlement Act.

The Nation had adopted a policy allowing only enrolled

members of the tribe who lived on the reservation to be

eligible for timber permits to harvest timber on tribal lands.

8a

See Akins, 130 F.3d at 483. Akins, an enrolled tribal member

who had moved off the reservation, lost his timber permit as

a result of the change in policy. Id. at 483-84. Akins sued in

federal court, claiming that the Nation had violated his rights

to due process and equal protection, and that the Nation had

violated his right to be free from bills of attainder. Id. at 484.

We held that Akins’ claims involved an "internal tribal

matter” and were subject to the exclusive jurisdiction of the

tribal courts. Id. at 490.

We identified five considerations in Akins that were

persuasive in characterizing the grant of timber rights as an

"internal tribal matter." These considerations were: (1) the

disputed policy regulated only tribal members; (2) the policy

related to lands acquired by the Nation with federal funds

received for that purpose, and the lands were considered

"Penobscot Indian Territory"; (3) the policy affected the

Nation's ability to regulate its natural resources; (4) at least on

its face, the policy did not implicate or impair the interest of

the State of Maine; and (5) the recognition that the timber

harvesting policy involved an "internal tribal matter” was

consistent with prior legal understandings. Akins, 130 F.3d at

486-87. We did not offer these considerations as an essential

test for determining which tribal actions constitute "internal

tribal matters," see id. at 487 (noting that "generalizations in

this subject [of tribal authority] have become ... treacherous"

and that "we tread cautiously and write narrowly"), and we do

not offer them now for that purpose. Instead, we use the

Akins considerations as one source of guidance in resolving

this case. And, in the spirit of Akins, we consider another

pertinent factor, the nature of the position involved in this

case.

9a

Evaluating all of these considerations, with particular

emphasis on the interest of the State of Maine, prior legal

understandings, and the nature of Fellencer's position, we

conclude that the decision of the Nation to terminate

Feilencer’s employment was an "internal tribal matter.”

C. The Akins Considerations

1. Within the Tribe

Although Fellencer, unlike Akins, is not a member of the

Nation, and hence the effect of the decision at issue is not

limited to tribal members, the decision to terminate Fellencer

as the community health nurse affects many tribal members

but only one non-tribal member (Fellencer). This limited

impact beyond the Nation distinguishes this case from

Penobscot Nation v. Stilphen, 461 A.2d 478 (Me. 1983),

wherein the Maine Supreme Judicial Court held that a

"beano" game, a tribal enterprise designed to involve many

non-tribal members, did not become an "internal tribal

matter" simply because an Indian tribe administered it, or

because an Indian tribe funded government services with the

beano game's profits. See id. at 486. Holding that the public

gambling events were "related to tribal self-government only

because of the use to which its profits are put,” the Stilpien

Court held that the tribe had "no inherent right to ‘market an

exemption from state taxation" to the public. Id. (quoting

Washington v. Confederated Tribes of the Colville Indian

Reservation, 447 U.S. 134, 156, 65 L. Ed. 2d 10, 100 S. Ct.

2069 (1980)). The "beano" games in Stilphen were designed

to "draw many hundreds of players to the Penobscot

reservation from all over Maine and beyond." Stilphen 461

A.2d at 480. Here the employment decision has its

immediate effect on only one non-tribal member. n1

10a

2 & 3. Land and Natural Resources

The second and third considerations in Akins related to the

commercial use of tribal lands ("the very land that defines the

territory of the Nation," Akins, 130 F.3d at 487), and the

“growth, health, and reaping" of the tribe's natural resources.

Id. Although this case does not involve tribal land and natural

resources, it does involve the Nation's human resources and

its judgment that a different community health nurse will

better serve the health of tribal members. See Montana v.

United States, 450 U.S. 544, 566, 67 L. Ed. 2d 493, 101 S.

Ct. 1245 (1981) (recognizing that Indian tribes may "retain

inherent power to exercise civil authority over the conduct of

non-Indians on fee lands within its reservation when that

conduct threatens or has some direct effect on the . . . health

or welfare of the tribe").

4. Interest of Maine

As a generality, Maine has a strong interest in protecting all

employees against discrimination through its Human Rights

Act. See Me. Rev. Stat. Ann. tit. 5, § 4552; see also Maine

Human Rights Comm'n v. Local 1361, United Paperworkers

Int'l Union, 383 A.2d 369, 373 (Me. 1978)(stating that the

MHRA "was meant to have very broad coverage"). In this

case, however, the State is not attempting to apply its laws to

the Nation's employment decision. To the contrary, the Maine

Attorney General ruled long before this case that "the

employment decisions of the Penobscot Nation, when acting

in its capacity as a tribal governmental employer, are not

subject to regulation by the state[.]" Maine Attorney General

Opinion No. 84-22 (July 25, 1984). n2 Thus, while the

United States intervened in this case to argue that an

employment decision by the Nation is an “internal tribal

lla

matter" and therefore not subject to the MHRA, Maine did

not intervene to argue to the contrary. In Akins we found this

posture significant. Even though Akins alleged violations of

Maine law, we noted that there was "not a dispute between

Maine and the Nation over the attempted enforcement of

Maine's laws." Akins, 130 F.3d at 487 (emphasis added). The

situation here is even more favorable to the Nation. The state

disavows the very "state interest" that Fellencer seeks to

invoke in support of her private cause of action.

5. Prior Legal Understandings

Prior legal understandings strongly support the Nation's claim

of exemption from challenge in state court to its employment

termination decision. In the employment discrimination

context, Congress exempted Indian tribes from Title VII's

definition of "employer" in the original passage of the Civil

Rights Act of 1964. 42 U.S.C. § 2000e(b) ("The term

‘employer’ means a person engaged in an industry affecting

commerce .... Such term does not include . . . an Indian

tribe"). n3 The Supreme Court has characterized this

exemption as "Congress' recognition of the longstanding

federal policy of providing a unique legal status to the Indians

in matters of tribal employment," and it characterized

Congressional intent as a "policy of furthering Indian

self-government." Morton v. Mancari, 417 U.S. 535, 548,

551, 41 L. Ed. 2d 290, 94 S. Ct. 2474 (1974) (emphasis

added). n4

General federal Indian civil rights law, outside the

employment discrimination context, further bolsters the

conclusion that Fellencer's claim involves an "internal tribal

matter." Even though Indian tribes were exempted from Title

VII coverage, Congress subsequently enacted the Indian Civil

12a

Rights Act of 1968 (ICRA), 25 U.S.C. §§ 1301-41, made

applicable to the Penobscot Nation through the Settlement

Act. 25 U.S.C. § 1725(h). See Akins, 130 F.3d at 486. Under

the ICRA, “no Indian tribe in exercising powers of

self-government shall . . . deny to any person within its

jurisdiction the equal protection of its laws or deprive any

person of liberty or property without due process of law." 25

U.S.C. § 1302(8).

As fundamental as federal court jurisdiction has been to the

protection of the civil rights enumerated in section 1302(8),

the Supreme Court held in Santa Clara Pueblo v. Martinez,

436 U.S. 49, 65, 56 L. Ed. 2d 106, 98 S. Ct. 1670 (1978) that

gender discrimination claims against tribes were cognizable

only in Indian tribunals. n5 In the Supreme Court's view,

Congress did not intend to abrogate Indian tribal sovereignty

to the extent that Indian tribes could be forced to defend

against such civil rights claims in an external (non-tribal)

forum: "Tribal courts have repeatedly been recognized as

appropriate forums for the exclusive adjudication of disputes

affecting important personal and property interests of both

Indians and non-Indians." Id. The Supreme Court explained

that exclusive jurisdiction has been reposed in the Indian

tribunals because subjecting such claims to federal court

jurisdiction "plainly would be at odds with the congressional

goal of protecting tribal self-government." Id. at 64. n6

These prior legal understandings (both the Title Vil

exemption and the ICRA's grant of exclusive jurisdiction to

tribal courts) are particularly important because they inform

the intent of Congress in the adoption of the Settlement Act.

We "have long presumed that Congress acts against the

background of prior law." Akins, 130 F.3d at 489 (citing

Kolster v. INS, 101 F.3d 785, 787-88 (1st Cir. 1996)); see

A

q

:

1

’

g

a

:

a

i

,

l3a

also Passamaquoddy Tribe, 75 F.3d at 789 ("To [give effect

to the legislative will] a court must take into account the tacit

assumptions that underlie a legislative enactment, including

not only general policies but also preexisting statutory

provisions."). The statutory provisions in Title VII and the

ICRA reflect Congress’ understanding prior to the adoption of

the Settlement Act that employment discrimination claims

against Indian tribes implicate "unique" considerations, see

Morton v. Mancari, 417 U.S. at 548, and that such claims

should be heard in Indian courts. See Santa Clara Pueblo, 436

U.S. at 64-65.

Indeed, the Senate Report on the Settlement Act explicitly

cited with approval to Santa Clara Pueblo, 436 U.S. 49, 56 L.

Ed. 2d 106, 98 S. Ct. 1670 (1978). See S. Rep. No. 96-957, at

29 (1980). Although we have refused to read into this

reference an incorporation of "all prior Indian law" because

that "would be inconsistent with the unique nature of the

Maine settlement," Akins, 130 F.3d at 489, we also

recognized that Congress "explicitly made existing general

federal Indian law applicable to the Penobscot Nation in the

Settlement Act." Id. That body of law includes Congressional

enactments excluding Indian tribes from Title VII coverage

and limiting civil rights claims against the tribes to tribal

forums. See Santa Clara Pueblo, 436 U.S. at 65-66.

The Senate Report on the Settlement Act also noted that the

Act strengthened the Nation's sovereignty "by recognizing

[the Penobscot's] power to control their internal affairs and by

withdrawing the power which Maine previously claimed to

interfere in such matters[.]" S. Rep. 96-957, at 14. The

Report predicates the Nation's right to be free from state

interference on the Nation's "inherent sovereignty" as

recognized in Bottomly, 599 F.2d 1061, and State v. Dana,

l4a

404 A.2d 551 (Me. 1979). Both Bottomly and Dana drew on

federal Indian common law in recognizing the inherent

sovereignty of the Penobscot and Passamaquoddy tribes. See

Bottomly, 599 F.2d at 1066; Dana, 404 A.2d at 560-61. The

Report states that "in keeping with" the sovereignty

recognized in Bottomly and Dana, it was Congress’ intent to

guarantee that the Nation "(would] be free from state

interference in the exercise of [its] internal affairs." S. Rep.

96-957 at 14. By characterizing its recognition of the Nation's

sovereignty as “in keeping with" Bottomly and Dana,

Congress signaled its intent that federal Indian common law

give meaning to the terms of the settlement. The Senate

Report continues by listing important sovereignty rights

retained by the Nation, including "the establishment of tribal

courts ... with powers similar to those exercised by Indian

courts in other parts of the country.” Id. at 15. These powers

included hearing employment discrimination claims filed

against the tribes.

In summary, these prior legal understandings provide strong

support for classifying a claim of national origin

discrimination based on the termination of Fellencer's

employment as an "internal tribal matter."

D. The Nature of the Position at Issue

Apart from the statutory language, judicial precedent,

legislative history and federal Indian common law, the

Nation's employment of a community health nurse has

particular "internal tribal matter" implications because of the

statutory origins of the position. The community nurse

position from which Fellencer was dismissed is funded by the

Indian Self-Determination and Education Assistance Act of

1975 (ISDA), 25 U.S.C. § 450 et seq. Congress therein

RE aiid haat

l5a

declared its policy to "respond to the strong expression of the

Indian people for self-determination by assuring maximum

Indian participation in the direction of . . . Federal services to

Indian communities." 25 U.S.C. § 450a(a); see also S. Rep.

No. 102-392, at 7 (1992), reprinted in 1992 U.S.C.C.A.N. at

3949 (1992 amendments to Indian Health Care Improvement

Act)("health care provided by people of one's own culture is

the most appropriate, and results in better utilization of

health care services"). Believing that the administration of

such services by Indians was "crucial to the realization of

self-government," 25 U.S.C. § 450(a)(1), Congress included

an employment preference for Indians in the legislation. 25

U.S.C. § 450e(b) (requiring that "preferences and

opportunities for training and employment . . . shall be given

to Indians").

This employment preference for Indians distinguishes the

Nation's community nurse position from any position in a

regular municipal government. Cf. Implementing Act, Me.

Rev. Stat. Ann. tit. 30, § 6204 (subjecting Nation generally to

same state jurisdiction as state exercises over municipalities).

Clearly, Maine municipalities cannot employ similar

preferences. The uniqueness of the federal employment

preference counsels against the application of Maine law in

this employment discrimination context. In light of the

Supreme Court's description of such preferences in Morton v.

Mancari, 417 U.S. at 553 (1974), as _ furthering

"self-government," and in light of the other considerations set

forth herein, we hold that the decision of the Nation to

terminate the employment of a community health nurse was

an "internal tribal matter" within the meaning of the

Settlement Act, and hence the Nation cannot be subjected to

state court jurisdiction for the adjudication of an employment

l6a

discrimination claim pursuant to the Maine Human Rights

Act.

The judgment of the district court is reversed; the case is

remanded for the entry of judgment in favor of the Nation and

the issuance of an injunction if it is deemed necessary.

Footnotes

nl We recognize that a decision exempting the Nation from

coverage under the MHRA in this case may potentially affect

other non-tribal members; i.¢., mon-members may be

discouraged from applying for employment with the Nation.

This broader public impact implicates the State of Maine's

responsibility for protecting its citizens from impermissible

employment discrimination. We address this issue in our

discussion of the interest of the State of Maine.

n2 This position was initially adopted by the MHRC in

November 1982 in Ranco v. The Penobscot Nation (case No.

E81-0020), and has been the undisturbed interpretation of the

Maine Human Rights Commission since that time.

n3 The district court incorrectly expanded on the holding in

Houlton Band of Maliseet Indians v. Maine Human Rights

Commission, 960 F. Supp. 449 (D. Me. 1997) in determining

that the Penobscot Nation is not exempted from Title VII's

coverage. The court in Houlton Band was opining on whether

the Title VII exemption operated to preempt state law with

respect to the Maliseet Indians, an outcome which was clearly

not intended by the Settlement Ac. See id. at 455; see also 25

U.S.C. § 1725(h). However, as the Houlton Band court

recognized, the "internal tribal matter" exemption applies to

17a

the Penobscot Nation and not to the Maliseet Indians.

Houlton Band, 960 F. Supp. at 454. Our decision is based on

the "internal tribal matter" exemption and not on preemption

per se.

n4 Two circuits have extended this exemption to bar claims

against Indian tribes based on the Age Discrimination in

Employment Act (ADEA), 29 U.S.C. §§ 621-34, even though

no similar express exemption is contained in the ADEA.

These courts premised the implied exemption from federal

court jurisdiction over age-based discrimination claims on the

Indian tribes’ right to self-government. See EEOC v. Fond Du

Lac Heavy Equip. and Const. Co., 986 F.2d 246, 249 (8th

Cir. 1993); EEOC v. Cherokee Nation, 871 F.2d 937, 938

(10th Cir. 1989).

n5 In Santa Clara Pueblo a female member of the tribe

brought an action claiming the tribe's policies violated the

ICRA's equal protection clause, 25 U.S.C. § 1302(8).

Specifically, the plaintiff asserted that a tribal ordinance

which denied tribal membership to the children of female

members who marry outside the tribe but not to the children

of similarly situated men impermissibly discriminated on the

basis of gender. See Santa Clara Pueblo, 436 U.S. at 52-53.

n6 There is one exception, not applicable in this case:

Congress has authorized federal court jurisdiction only to

hear habeas corpus petitions. See 25 U.S.C. § 1303; see also

Santa Clara Pueblo, 436 U.S. at 66-67.

————O

18a

PENOBSCOT NATION, Plaintiff v. CYNTHIA A.

FELLENCER, Defendant

Civ. No. 97-231-B

UNITED STATES DISTRICT COURT FOR THE

DISTRICT OF MAINE

March 13, 1998, Decided

March 13, 1998, Filed

COUNSEL: For plaintiff: KAIGHN SMITH JR., Esq.,

DRUMMOND, WOODSUM & MACMAHON,

PORTLAND, ME.

For defendant: MICHAEL A. DUDDY, Esq., KOZAK,

GAYER & BRODEK, P.A.., BANGOR, ME.

For amicus curiae: ANN C. JULIANO, Esq., U.S.

DEPARTMENT OF JUSTICE, WASHINGTON, DC.

JUDGES: MORTON A. BRODY, United States District

Judge.

OPINIONBY: MORTON A. BRODY

OPINION: ORDER AND MEMORANDUM OF

DECISION

BRODY, District Judge

~ ~ i a ae

19a

Plaintiff, Penobscot Nation ("the Nation" or "the Tribe"),

seeks a permanent injunction enjoining Defendant, Cynthia

A. Fellencer, a former employee of Plaintiff, from pursuing

claims arising under the Maine Human Rights Act, 5

M.R.S.A. § 4551 et seq. ("MHRA"), against it in the matter

of Fellencer v. Penobscot Indian Nation, No, CV-95-275

(Maine Superior Court, Penobscot County, filed Aug. 14,

1995), and a declaration that Defendant's claims under the

MHRA violate Plaintiff's right to govern its internal affairs as

established by the Maine Indian Claims Settlement At of

1980, 25 U.S.C. § 1721 et seq. ("Settlement Act").

Plaintiff and Defendant have filed cross-motions for

summary judgment and the Justice Department, on behalf of

the United States, has filed an Amicus Curiae Memorandum

in support of Plaintiff's motion. For the reasons discussed

more fully below, the Court holds that the Nation's

employment of Defendant is not an "internal tribal matter"

and is, therefore, subject to state law and the requirements of

the MHRA. Thus, Defendant's motion is GRANTED and

Plaintiff's motion is DENIED.

I. SUMMARY JUDGMENT

Summary judgment is appropriate in the absence of a genuine

issue as to any material fact and when the moving party is

entitled to judgment as a matter of law. Fed. R. Civ. P. 56(c).

An issue is genuine for these purposes if "the evidence is

such that a reasonable jury could return a verdict for the

nonmoving party." Anderson v. Liberty Lobby, inc., 477 U.S.

242, 248, 91 L. Ed. 2d 202, 106 S. Ct. 2505 (1986). A

material fact is one that has "the potential to affect the

outcome of the suit under applicable law." Nereida-Gonzalez

v. Tirado-Delgado, 990 F.2d 701, 703 (Ist Cir. 1993). For the

20a

purposes of summary judgment the Court views the record in

the light most favorable to the nommoving party. See

McCarthy v. Northwest Airlines, Inc., 56 F.3d 313, 315 (ist

Cir. 1995).

ll. BACKGROUND

The relevant facts of this case are largely undisputed.

Defendant, who is not a member of the Nation, was hired by

Plaintiff to work in the Penobscot Nation Health Department

as a Community Health Nurse/Diabetes Program Coordinator

in or around December, 1992, or January, 1993. Defendant

was paid out of governmental funds of the Nation and her

duties included treating sick and elderly members of the

Nation, filing reports relating to communicable diseases with

Indian Health Services, coordinating a Diabetes

Interdisciplinary Team, and serving as an AIDS Prevention

Coordinator. Def.'s Ex. 2; Pl.’s Statement of Material Facts

("SOF") P 3. She worked in this capacity until September,

1994, when the Penobscot Nation Tribal Council ("Tribal

Council") voted to terminate her employment. Pl.'s SOF P 4.

According to Plaintiff, Fellencer was fired after the Tribal

Council received complaints about mistreatment of tribal

members. Id. However, in a letter addressed to Fellencer

dated September 27, 1994, the Governor of the Nation, Jerry

Pardilla, admitted that the Tribal Council “over-stepped its

authority," provided Fellencer "no opportunity . . . to

respond" to charges against her, and "subverted the Personnel

Policies and sought to force your resignation." Def.'s Ex. 4.

Governor Pardilla wrote that the Council fired Fellencer for

"political reasons" and admitted that “there is no existent

procedural basis for requesting your resignation, and; further,

it is not based on an objective evaluation of your work

performance." Id.

2la

In October, 1994, Defendant filed an administrative

complaint against Plaintiff with the Office of Federal

Contract Compliance Programs ("OFCCP"), asserting that the

Nation discharged her for discriminatory reasons in violation

of a federal contract between the Penobscot Nation and the

federal Indian Health Services agency that provided funding

for her position at the Penobscot Nation Health Department.

Fellencer Aff. P 12. The OFCCP attempted to conduct an

investigation of Defendant's allegations but was rebuffed by

the Nation which contended OFCCP lacked jurisdiction over

the matter. Def.'s Ex. 4.

On November 2, 1994, Defendant filed a charge of

discrimination with the Maine Human Rights Commission

("MHRC") and the U.S. Equal Employment Opportunity

Commission ("EEOC") alleging that she was discharged on

the basis of her race and national origin. Pl.’s Ex. 6. On

January 30, 1995, the MHRC informed Defendant that her

charge had been dismissed because the MHRC lacked

jurisdiction over matters involving employment by the tribal

government. PI.'s Ex. 1. The MHRC relied entirely on a 1984

opinion of the Maine Attorney General which concluded that

under the Settlement Act employment decisions of the Nation

are "internal tribal matters,” and therefore not subject to

regulation by the State of Maine. PI.’s Ex. 1.

Defendant then petitioned the Penobscot County Superior

Court for review of the MHRC's decision. Pl.'s Ex. 8. The

Superior Court dismissed Defendant's action on the ground

that the MHRC's decision was not a final judgment

warranting appellate review, but, rather, an administrative

decision which did not affect her substantive rights. Pl.'s Ex.

9. The court indicated, however, that Defendant was free to

bring a direct action against the Nation. Id. Defendant then

22a

filed a complaint against the Nation in Superior Court on

August 14, 1995, alleging violation of the MHRA and breach

of contract. P1.'s Ex. 10.

The Nation moved to dismiss Defendant's claim on the

ground that the MHRA does not apply to the Penobscots.

Superior Court Judge Donald H. Marden, in a nine-page

opinion, denied the Nation's motion. Fellencer v. Penobscot

Indian Nation, No. CV-95-275 (Maine Superior Court,

Penobscot County, July 30, 1996) (order denying motion to

dismiss). Relying on Penobscot Nation v. Stilphen, 461 A.2d

478. 490 (Me. 1983), in which the Maine Law Court

reasoned that "internal tribal matters" refers to those matters

historically and culturally significant or unique to the Nat.on,

Judge Marden declined to rule as a matter of law that all

employment decisions of the Nation invoke areas of

particular cultural importance. Determining the applicability

of the MHRA to the Nation in this case, according to Judge

Marden, requires an evaluation of “the cultural, historical

and/or societal role the Community Health Nurse plays in the

Penobscot Nation,” which is more appropriately conducted at

trial. Fellencer v. Penobscot Indian Nation, No. CV-95-275,

slip. op. at 5. Following a series of discovery disputes, the

Nation brought suit in this Court seeking declaratory and

injunctive relief and the Superior Court granted a stay of the

state proceedings until disposition of this case.

lil. DISCUSSION

A.

The primary issue of this case is whether the Nation's

employment of a Community Health Nurse is an “internal

tribal matter" for the purposes of the Settlement Act.

SP

te act Sth et

gh aie i aha NA PRD le le Rt ALLA BE tN IN

23a

While defining what constitutes an internal

matter controlled by Indian tribes is hardly

novel in Native American law, it is novel in

this context. The relations between Maine and

the Penobscot Nation are not governed by all

of the usual laws governing such relationships,

but by two unique laws, one Maine and one

federal, approving a settlement.

Akins v. Penobscot Nation, 130 F.3d 482, 483 (Ist Cir.

1997). The Settlement Act established a unique legal

relationship between the Maine tribes and the State of Maine

and subjected the Penobscot Nation and its members "to the

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

manner provided in the Maine Implementing Act. . . a

U.S.C. § 1725(b)(1). nl The Maine Implementing Act, 30

M.R.S.A. §§ 6201-6214 ("Implementing Act"), which was

"approved, ratified, and confirmed" by Congress in the

Settlement Act, 25 U.S.C. § 1725(b)(1), provides:

Except as otherwise provided in this Act, all

Indians, Indian nations, and tribes and bands

of Indians in the State and any lands or natural

resources owned by them, held in trust for

them by the United States or by any other

person or entity 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 or lands or

other natural resources therein.

30 M.R.S.A. § 6204. The Implementing Act clarifies the

powers of the Penobscot Nation as those of a municipality,

with an exception for "internal tribal matters."

24a

Except as otherwise provided in this Act, the Passamaquoddy

Tribe and the Penobscot Nation, within their respective

Indian territories, shall have, exercise and enjoy all the rights,

privileges, powers and immunities, including, but without

limitation, the power to enact ordinances and collect taxes,

and shall be subject to all the duties, obligations, liabilities

and limitations of a municipality of and subject to the laws of

the State, provided, however, that all internal tribal matters,

including membership within the respective tribe or nation,

the right to reside within the respective Indian territories,

tribal organization, tribal government, tribal elections and the

use or disposition of settlement fund income shall not be

subject to regulation by the State.

30 M.R:S.A. § 6206(1) (emphasis added). Therefore, unless

the employment of Fellencer was an "internal tribal matter,"

Plaintiff, like any other municipality in the State of Maine, is

subject to the requirements of the MHRA.

B.

Citing Congress’ general plenary power over Indian tribes and

the congressional role in the adoption of the Settlement Act

and the Implementing Act, Plaintiff first argues that the

interpretation of "internal tribal matter" is governed by

federal law and that its right to be free from regulation in

internal tribal matters is a federal right. Plaintiff then argues

that the language of the Implementing Act, First Circuit

precedent, and general Indian common law compel the

conclusion that tribal government employment decisions are

“internal tribal matters.” The essence of Plaintiff's claim is

that if employment decisions of the tribal government are

made “the subject of scrutiny" under the MHRA, "the very

|

|

|

|

25a

decision-making process of tribal government is laid open to

state authority.” Pl.'s Mot. Summ. J. at 17.

Defendant, on the other hand, argues that the "internal tribal

matters" inquiry should be based on state law and urges the

Court to use the analysis adopted by the Law Court in

Stilphen, or, in the alternative, to use the "five

considerations” of the First Circuit's recent decision in Akins.

Defendant emphasizes the fact that she is not a tribal member

and that this is, therefore, not an intra-tribal dispute, and that

the employment decisions of the Nation implicate an

important state interest in protecting against discrimination.

n2 The Court addresses each of these arguments in turn.

his is not the first time this Court has been called upon to

determine the scope of the "internal tribal matters" exception

to the Implementing Act, nor is it likely to be the last. This

Court, the First Circuit, and the Maine Law Court have

approached this issue at various times with different

emphases, the common strand in this line of cases being the

conclusion that “internal tribal matters" is a case specific

inquiry that does not easily lend itself to simple

generalizations. At the outset the Court notes nat,

Defendant's claim to the contrary, the First Circuit has made

it clear that the "internal tribal matters" inquiry is a matter of

federal law. Akins, 130 F.3d at 485 & n.4. n3

The first of the cases in this area was Stilphen, 461 A.2d 478,

in which the Law Court held that the Nation's operation of

beano games, prohibited by state law in the absence of a

license, was not an "internal tribal matter" and therefore was

subject to state regulation. The court reasoned that although

26a

the list of "internal tribal matters" in section 6206(1) of the

Implementing Act is not exclusive, the general term “internal

tribal matters" followed by a list of illustrations is assumed to

embrace only concepts similar to those illustrations. Id. at

489. The Court concluded that beano was not embraced

within that term because it is not a "concept similar to" the

illustrations provided. Id. As a result, under the Law Court's

approach, the term “internal tribal matters” is to be read as

"embracing only those matters illustratively listed in the

statute and other matters like them," id. at 490, and the sphere

within which the Tribe can operate free of state regulation is

"narrow." Id. at 482.

Although the Law Court could have rested there, it added tnat

beano "played no part in the Penobscot Nation's historical

culture or development. It is not uniquely Indian in character.

It is not a traditional Indian practice and has no particular

cultural importance for the Nation." Id. at 490. This “unique

cultural or historical interest" approach was derived from the

legislative history which suggested to the Law Court that the

State of Maine, Congress, and the Penobscot Nation believed

the purpose of the "internal tribal matters" exception was

primarily to protect cultural interests of the Indians. Id.

In Mitchell v. Passamaquoddy Tribe, No. 89-0073-B (D. Me.

Jan. 9, 1990) (Recommended Disposition of the Magistrate),

aff'd (D. Me. Feb. 1, 1990), the plaintiff, a tribal policeman

who was fired by the Tribe, alleged violations of 42 U.S.C.

§§ 1981 and 1983, as well as state causes of action against

the Passamaquoddy Tribe in federal court. The court held that

the Tribe had not acted "under color of state law" because an

action to terminate an employee was a matter of tribal law

rather than state law. Id. slip op. at 7. The court, relying

heavily on general Indian common law, concluded that "given

an ———

—————— ee aan

a DN? 2 tes

ee ee

27a

the relatively sovereign status of the Passamaquoddy Tribe,

control over the hiring and firing of a member of the tribal

police force is ‘an internal tribal matter,’ or more specifically,

an integral part of tribal government as specified in 30

M.R.S.A. § 6206(1)." Id.

The Mitchell court departed from the Stilphen approach n4,

relying primarily on principles of general Indian common law

to arrive at the conclusion that the Tribe has a "sovereign,

non-municipal status," id. slip op. at 6, despite the fact that

the Implementing Act explicitly grants the Passamaquoddy

and Penobscot Nations the rights and duties of municipalities

subject only to the “internal tribal matters" exception. The

First Circuit has since suggested that, although at times

instructive, general federal Indian common law should not

necessarily be the sole or primary source of guidance in

interpreting the Implementing Act because of the unique

nature of the federal and state relationship with the Maine

tribes. Akins, 130 F.3d 482 at 489. As such, Mitchell, with its

nearly exclusive reliance on general Indian common law, is of

limited assistance to this inquiry and the Court does not

consider it binding precedent.

In the most recent and thorough interpretation of the

Settiement Act and the Implementing Act, the First Circuit

addressed the "internal tribal matters" provision in the context

of the Nation's issuance of stumpage permits. Akins, 130

F.3d 482. The plaintiff in that case sued under 42 U.S.C. §

1983, among other grounds, alleging that he was denied a

permit in violation of due process and equal protection. The

court held that the Nation's stumpage permit policy, limiting

issuance to tribal members who were residents of Maine, was

an "internal tribal matter" and, thus, that federal and state

courts lacked subject matter jurisdiction over the dispute.

28a

Akins, 130 F.3d at 488. The Court looks primarily to the

principles enunciated in Akins for guidance in the present

case.

The Akins court looked first to the language of the

Implementing Act, concluding that the listed categories of

"internal tribal matters" are "exemplars and not exclusive."

Id. at 486. As in Akins, the language of the Implementing Act

provides limited guidance here. Tribal employment of

non-member medical personnel does not fit easily within the

"tribal organization" or "tribal government” categories.

Plaintiff contends that forcing it to "submit to the laws and

procedures of the State of Maine" harms its right to be

"self-governing" and to "control its internal affairs" without

state regulation. Pl.'s Mot. Summ. J. at 8. The language of the

Implementing Act granting the Nation independence in

internal tribal matters, "including . . . tribal organization,

{and] tribal government," however, does not necessarily carry

with it the absolute right to be self-governing or to control all

internal a‘fairs without regard for state law. As the Stilphen

court aptly observed, "one would be rash to equate ["internal

tribal matters") with such terms as ‘internal and social

relations,’ ‘internal affairs,’ or ‘tribal self government,’ merely

because of a partial language overlap.” Stilphen, 461 A.2d at

489 (citations omitted). The fact that some tribal government

matters may be sufficiently "internal" to justify protection

from outside regulation does not mean that all tribal

government actions are shielded from the reach of state law.

"That a tribe attempts to govern a matter does not render it an

internal tribal matter." Akins, 130 F.3d at 486.

Finding the broad language of the Implementing Act

relatively unhelpful, the Akins court then identified five

i a ON a ORR ee NE PF Dt

29a

factors that supported a finding that the Nation's stumpage

policy was an internal tribal matter. Id. First, "and foremost,"

the policy at issue purported to regulate only members of the

Tribe and "the interests of non-members were not at issue."

Id. Second, the policy regulated "the very land that defines

the territory of the Nation.” Id. at 487. Third, the policy

concerned control over the natural resources of that land. id.

Fourth, the policy, at least on its face, did not implicate or

impair any interest of the State of Maine. Id. Finally, the court

concluded that it was "consistent with prior legal

understandings to view the issuance of stumpage permits as

an internal tribal matter,” noting that "it has long been

understood that the power to issue permits is an indirect

method of managing a natural resource." Id. at 487-88. The

court rested its decision primarily on these five factors, noting

that "taken together, [they] resolve the question in favor of

this being a internal tribal matter and do so as a matter of

law." Id. at 488.

As this case does not involve tribal land, the only Akins

considerations relevant to this dispute are the interests of

non-members and the interests of the State. The Court notes

that “of great significance" to the Akins decision was the fact

that the controversy was "an intra-tribal dispute . . . involving

only members of the tribe, and not actions by the Na:on

addressed to non-members." Id. The Akins court concluded

that "the tribe's treatment of its members, particularly as to

commercial interests, is not of central concern to either Maine

or federal law. . .", and, therefore, that "there appear to be no

strong policy reasons not to view this as an area appropriate

for internal tribal regulation." Id. However, when "the issue

involves tribal attempts to regulate non-tribal members, the

Supreme Court has often found that those attempts are not

within the inherent self-governing powers of a tribe." Id. at

30a

490 (citing Montana v. United States, 450 U.S. 544, 564, 67

L. Ed. 2d 493, 101 S. Ct. 1245 (1981)). Unlike Akins, the

tribal action in this case directly implicates the rights of a

non-member.

Moreover, there is little doubt that the Nation's action in this

case potentially impairs an important interest of the State of

Maine. It is the well established policy of the State "to keep

continually in review all practices infringing on the basic

human right to a life with dignity . . . and to prevent

discrimination in employment . . . on account of race, color,

sex, physical or mental disability, religion, ancestry or

national origin . . . ." 5 M.R.S.A. § 4552. "The Fair

Employment provisions of the MHRA specifically declare as

the policy of the State of Maine that every individual has the

civil right to secure employment without discrimination . . . ."

Maine Human Rights Comm'n v. Canadian Pacific Ltd., 458

A.2d 1225, 1230 (Me. 1983). The MHRA "was meant to

have very broad coverage," Maine Human Rights Comm'n v.

Local 1361, United Paperworkers Int'l Union, 383 A.2d 369,

373 (Me. 1978), and explicitly includes the actions of

municipalities within its scope. 5 M.R.S.A. § 4553(4) & (7).

Whereas the subject matter of the Akins suit appeared to have

no impact on Maine's laws or other interests, the Nation's

action here threatens to undermine an extensive state scheme

for protecting citizens of Maine against discrimination. In any

other employment context Defendant would be entitled to

protection against discrimination. To recognize an absolute

tribal immunity from the discrimination laws of the State

would clearly frustrate the important state policies that the

MHRA serves.

Although the two relevant policy considerations enunciated

in Akins strongly suggest that Defendant's employment

31a

relationship with the Nation is not an "internal trioal matter"

free from the regulatory reach of the State, the Court looks

beyond the "five considerations” for further guidance, noting

that the Akins court wrote "cautiously" and "narrowly,"

because "the problems and conflicting interests presented by

[Akins] will not be the same as the problems and interests

presented by the next case.” Akins, 130 F.3d at 487.

|. Legislative History

Plaintiff argues that the legislative history of the Settlement

Act clearly indicates that the Nation has "inherent authority to

be self governing” and that Congress intended "to confirm the

Nation's inherent right as a sovereign Indian tribe to be ‘free

from state interference’ in its internal affairs." Pl.’s Mot.

Summ. J. at 12-14. Therefore, it argues, its employment

decisions cannot be regulated by state law. Although Plaintiff

accurately restates portions of the Settlement Act's legislative

history, its argument begs the question: what are these

"internal affairs" that are protected from state interference?

As the First Circuit has recognized, "the legislative history is

only somewhat helpful because it embodies two conflicting

approaches to resolving the question of what is an internal

tribal matter." Akins, 130 F.3d at 488. On the one hand,

Congress intended an “original, innovative allocation of

authority between the State and tribes.” Id. at 489. On the

other hand, it sought to "recognize the tribe's inherent

self-government authority." Id. As a result, the Settlement Act

embodies a compromise between the Nation and the State of

Maine; "an innovative blend of customary state law

respecting units of local government coupled with a

recognition of the independent source of tribal authority . .

Id. at 489. In light of these competing principles, the

legislative history of the Settlement Act does little to clarify

32a

the broad language of the Implementing Act, adopted by

Congress in the Settlement Act.

Plaintiff contends in the alternative that C ongress’ intention to

protect the Nation from state law discrimination suits can be

gleaned from other sources. First, Plaintiff cites the fact that

Congress has expressly exempted Indian tribes from the

employment discrimination provisions of Title VII of the

1964 Civil Rights Act, and argues that Congress would not

have exempted it from Title VII while leaving it open to

claims under similar state laws. See 42 U.S.C. § 2000e(b).

The Court rejected this argument in Houlton Band of

Maliseet Indians v. Maine Human Rights Comm'n, 960 F.

Supp. 449, 455 (D. Me. 1997). As that case thoroughly

discussed, "the Title VII exemption of Indians from its

definition of ‘employer’ does not apply to Indians residing in

the State of Maine.” Id.

Plaintiff also argues that by citing favorably the case of Santa

Clara Pueblo v. Martinez, 436 U.S. 49, 56 L. Ed. 2d 106, 98

S. Ct. 1679 (1978), in the legislative history of the Settlement

Act, Congress expressed an intent to “protect tribal

governments from the adjudication of civil rights complaints

in non-tribal forums" regardless of the source of the claim.

Pl.'s Mot. Summ. J. at 21-22. Santa Clara Pueblo held that the

Indian Civil Rights Act of 1968, 25 U.S.C. §§ 1301-1303

("ICRA"), neither expressly nor impliedly authorized civil

actions to enforce its substantive provisions against a tribe or

its officers in federal court. Santa Clara Pueblo, 436 U.S. at

51-52. Congress, in citing to Santa Clara Pueblo, made no

reference to the holding of that case or to the immunity of the

Nation from all civil rights actions in non-tribal forums.

Rather, Congress cited to Santa Clara Pueblo for the

proposition: "The treatment of the . . . Penobscot Nation in

33a

the Maine Implementing Act is original. It is an innovative

blend of customary state law respecting units of local

government coupled with a recognition of the independent

source of tribal authority, that is, the inherent authority of a

tribe to be self-governing." S. Rep. No. 96-957, at 29 (1980).

This reference to Santa Clara Pueblo is not to be read as

invoking all of prior Indian law, for "that would be

inconsistent with the unique nature of the Maine settlement

and the specific provisions of the Act limiting the application

of federal Indian law." Akins 130°‘F.3d at 489. Congress

recognized that the post-settlement Nation had aspects of

both an independent sovereign and a local government

subject to state law. It is not without significance that

Congress, immediately after citing Santa Clara Pueblo,

stated:

The Passamaquoddy Tribe and Penobscot Nation shall have

all the powers, immunities, and obligations of any

municipality under state law; [the Implementing Act]

obligates the Tribe and Nation to extend to non-members

residing within the Passamaquoddy Indian Territory or the

Penobscot Indian Territory the services and benefits provided

by them as municipalities; and it extends to the Tribe and

Nation the same protections and exposure that any

municipality or municipal official enjoy with respect to uit

in the courts of the State or the United States.

S. Rep. No. 96-957, at 29.

Nor does it make sense to read Congress’ reference to Santa

Clara Pueblo as insulating the Nation from all civil rights

actions. Santa Clara Pueblo involved nothing more than

statutory interpretation of the Indian Civil Rights Act in light

of the common law immunity from suit traditionally enjoyed

KK IN

34a

by sovereign powers. 436 U.S. at 58-61. Application of all of

the general principles enunciated in Santa Clara Pueblo to the

Penobscots would render many of the subsequently

negotiated provisions of the Implementing Act irrelevant or

without effect. The Court will not impute such an intent to

Congress.

2. Federal Indian Common Law

Although the Settlement Act does not invoke all of prior

federal Indian common law, reference to such law may

sometimes be helpful in defining what is an "internal tribal

matter." Akins, 130 F.3d at 489. The Court is mindful,

however, that federal precedents may be ". . . of little help to

a court faced with a claim of inherent sovereignty by a tribe

that has had little or no historical relationship with the federal

government." Stilphen, 461 A.2d at 484.

Plaintiff argues that "unanimous authority" from other

jurisdictions establishes that challenges to employment

decisions of tribal governments outside of tribal forums

intrude upon "the federally protected right of Indians to be

self-governing and to maintain independent control over

reservation affairs." Pl.'s Mot. Summ. J. at 15-16. First, the

Court notes that, as discussed above, the Settlement Act does

not grant the Penobscot Nation the absolute right to be

"self-governing and to maintain independent control over

reservation affairs." Moreover, any general principles of

Indian common law must be considered in light of the unique

status of the Penobscot Nation. To support its claim Plaintiff

cites three cases without discussion or explanation. Two of

the cases cited, Wardle v. Ute Indian Tribe, 623 F.2d 670,

673 (10th Cir. 1980), and Stroud v. Seminole Tribe of

Florida, 606 F. Supp. 678, 680 (S.D. Fla. 1985), stand for the

ao

ERNE

titedisci (a lceotd Runt

35a

proposition that Indian tribes are subject to federal civil rights

laws only when Congress expressly so declares and that

Congress has not expressly or impliedly extended several

federal discrimination statutes, including 42 U.S.C. §§ 1981,

1983. 1988, 2000d, and the ICRA, to the employment

practices of the Indian tribes. Congress has in this case,

however, recognized the Penobscot Nation as a municipality

generally subject to the laws of the State so long as those

laws do not infringe on internal tribal affairs. Unlike Wardle

and Stroud, Congress here has expressly authorized all suits

against the Nation that could be asserted against a

municipality, subject only to the internal tribal matters

limitation.

The Court is persuaded that its conclusion is consistent with

general principles of federal Indian caselaw, to the extent they

are applicable here. ""When on-reservation conduct involving

only Indians is at issue, state law is generally inapplicable, for

the State's regulatory interest is likely to be minimal and the

federal interest in encouraging tribal self government is at its

strongest." Akins, 130 F.3d at 490 (quoting White Mountain

Apache Tribe v. Bracker, 448 U.S. 136, 144, 65 L. Ed. 2d

665, 100 S. Ct. 2578 (1980)). The case for application of state

law is much stronger, however, where the tribal conduct

affects the rights of non-members. In Montana v. United

States, 450 U.S. 544, 67 L. Ed. 2d 493, 101 S. Ct. 1245

(1981), the Supreme Court held that the Crow Indians did not

have the power to regulate hunting and fishing by

non-Indians on reservation lands owned by non-Indians. The

Court noted that in matters involving the relations between

an Indian tribe and nonmembers of the tribe. . ."" there has

been an “implicit divestiture of sovereignty.” Id. at 565

(quoting United States v. Wheeler, 435 U.S. 313, 326, 55 L.

Ed. 2d 303, 98 S. Ct. 1079 (1978)). The tribal "powers of

36a

self-government . . . involve only the relations among

members of a tribe." Id. (quoting Wheeler, 435 US. at 326).

Likewise, in Strate v. A-1 Contractors, 520 U.S. 438. 117 S.

Ct. 1404, 1409, 137 L. Ed. 2d 661 (1997), the Court

reaffirmed Montana's holding that, in general, the inherent

sovereign powers of a tribe "'do not extend to the activities of

nonmembers of the tribe." (quoting Montana, 450 U.S. at

565). The Akins holding found support in general Indian

common law because that case involved a dispute between

Tribe members. In contrast, where, as here, "the issue

involves tribal attempts to regulate non-tribal members, the

Supreme Court has often found that those attempts are not

within the inherent self-governing powers of a tribe." Akins,

130 F.3d at 490.

3. Historical and Cultural Importance

Defendant, arguing that interpretation of the "internal tribal

matters" provision of the Implementing Act is an issue of

state. rather than federal law, asks that the Maine Superior

Court be allowed to proceed with an analysis of the historical

and cultural importance of employment decisions to the

Nation. As noted above, this issue is governed by federal law

and the Court is therefore not bound by the approach taken in

Stilphen. Akins, while stopping short of discarding Stilphen's

historical and cultural importance analysis altogether,

certainly left its integrity in doubt. The First Circuit noted that

"such broad themes do not help to define the rules of decision

in these cases.” and warned against making generalizations

about historical and cultural importance. Id. at 487. While the

historical and cultural importance approach may remain

appropriate in some, albeit limited, circumstances, see id. at

488. the Court is persuaded that it is not helpful here where

a

37a

other considerations are relevant and where the subject matter

of the suit does not appear on its face to be "uniquely Indian.”

4. Attorney General's Opinion

Finally, Plaintiff notes that in 1984 the Maine Attorney

General issued an opinion concluding that "subjecting

employment decisions of the Penobscot Nation to the

jurisdiction of the Maine Human Rights Commission would

create a serious potential of State interference with the

internal affairs of the tribal government, a result clearly not

intended by the Maine Indian Settlement Act." Op. Att'y Gen.

84-22 (July 25, 1984). This Court, like the Maine Superior

Court which also considered this issue, is not persuaded by

the Attorney General's decision.

This does not mean, however, that all employment decisions

of the Nation are necessarily subject to state regulation. There

clearly are certain tribal government employment decisions

that cannot be regulated by the State because they are

inherent to independent organization or governance. Here,

however, the Tribal Council has hired an non-member in a

non-policymaking capacity for a position traditionally not

associated with governance. The hiring and firing of a

community nurse does not implicate the Nation's basic .ght

to organize or govern itself. Under these particular

circumstances, the Court concludes that the Nation's decision

to fire Defendant is not an "internal tribal matter" and is

therefore subject to the MHRA.

Plaintiff argues that subjecting its employment decisions to

the MHRA will permit the State to "probe the inner-workings

of the Penobscot Nation tribal government and its decision

making processes." Pl.'s Mot. Summ. J. at 6. Plaintiff objects

so cs

38a

particularly to discovery requests that may require disclosure

of Tribal Council rules and organization and to the fact that

members of the Council may be subject to the subpoena

power of the State. The complaint in this case does not call

into question what form of government the Nation chooses,

nor does it require that the court resolve the legitimacy of a

tribal election or other such “political dispute.” See Houlton

Band, 960 F. Supp. at 453-54. Rather, the court is called upon

solely to decide if the Nation unlawfully discriminated

against Defendant in her employment in violation of the

MHRA. See id. Any incidental effect of such an inquiry that

the Nation finds objectionable, such as disclosure of tribal

government structure, does not render the Nation immune

from the laws of the State where the conduct at issue does not

involve an internal tribal matter. Id. at 454; see also Houlton

Band of Maliseet Indians v. Boyce, 1997 Me. 4, 688 A.2d

908, 911 (Me. 1997). Plaintiff's "judicial intrusion” argument,

taken to its logical conclusion, would effectively preclude

enforcement of all state laws whenever the Tribal Council is

peripherally involved in a suit in a non-tribal forum,

regardless of whether the subject matter of such suit

implicates internal tribal matters. The Court is persuaded that

this is not what Congress or the parties to the settlement

intended when the Settlement Act was adopted.

"As to state law, the Penobscot Nation and Maine expressly

agreed that, with very limited exceptions, the Nation is

subject to the laws of Maine.” Akins, 130 F.3d at 484-85

(emphasis added). Included in these exceptions are the basic

rights of “tribal organization,” and "tribal government.”

Therefore, the Nation has the right to select its form of

government and its form of organization, without regard to

state influence. However, as Akins recently concluded, this

does not mean that anything and everything related to “tribal

39a

government" or "tribal organization" is absolutely protected.

In the absence of infringement on the basic mghts of

independent government and organization, the Nation is

subject to the responsibilities of a municipality and, therefore,

to the requirements of the MHRA.

IV. CONCLUSION

The Penobscot Nation's employment of Defendant is not an

"internal tribal matter” and is, therefore, subject te state law

and the requirements of the Maine Human Rights Act.

Plaintiff's request for injunctive relief and its Motion for

Summary Judgment are DENIED. Defendant's Motion for

Summary Judgment is GRANTED.

SO ORDERED.

MORTON A. BRODY

United States District Judge

Dated this 13th day of March, 1998.

Footnotes

nl For a more thorough discussion of the nature and genesis

of the Settlement Act and the Implementing Act, see Akins,

130 F.3d at 484; Passamaquoddy Tribe v. Maine, 75 F.3d

784, 787 (ist Cir. 1996); Penobscot Nation v. Stilphen, 461

A.2d 478, 487-88 (Me. 1983).

n2 In addition to arguing against Plaintiff's motion on the

merits, Defendant asks the Court to abstain from asserting

40a

jurisdiction and argues that Plaintiffs request for a

declaratory judgment is not ripe. Defendant claims that

abstention is appropriate because the Superior Court

proceeding has thoroughly addressed the same issues raised

here, because the Settlement and Implementing Acts require a

federal court to defer to the judgment of the state court, and

because Defendant's claims involve a_ substantial state

interest. Had the Superior Court not agreed to stay its

proceedings Defendant might have a strong abstention

argument. However, the fact that the state court has deferred

to the judgment of this Court suggests that this is not an

"exceptional circumstance" warranting abstention. See

DeNovellis v. Shalala, 124 F.3d 298, 313 (1st Cir. 1997).

Mindful that “a litigant ‘does not have to await the

consummation of threatened injury to obtain preventative

relief" in the declaratory judgment context, the Court is

satisfied that this controversy is sufficiently adverse to satisfy

the ripeness requirement and that a declaratory judgment

would serve a useful purpose. Rhode Island v. Narragansett

Indian Tribe, 19 F.3d 685, 692-93 (Ist Cir. 1994) (quoting

Pacific Gas & Elec. Co. v. State Energy Resources Conserv.

& Dev't Comm'n, 461 U.S. 190, 201, 75 L. Ed. 2d 752, 103

S. Ct. 1713 (1983)).

n3 Defendant asks the Court to disregard the First Circuit's

statement "under the Settlement Act, we consider [this] to be

a question of federal law. . ." as dictum because in Akins the

parties agreed that the case was to be governed by federal

law. Akins, 130 F.3d at 485. Contrary to Defendant's

assertion, the First Circuit did not apply exclusively federal

law in Akins because the parties so agreed. Rather, it did so

after concluding that the language of the Settlement Act and

the intent of Congress indicated that the matter was to be

governed by federal law. Akins, 130 F.3d at 485 n.4.

4la

n4 Stilphen concluded that "internal tribal matters" must be

interpreted not in light of federal Indian common law, but

according to the Implementing Act and its legislative history.

Stilphen, 461 A.2d at 482.

42a

STATE OF MAINE

SUPERIOR COURT

PENOBSCOT, SS

CIVIL ACTION

DOCKET NO CV-95-275

CYNTHIA FELLENCER

Plaintiff

v.

PENOBSCOT INDIAN NATION

Defendant

DECISION AND ORDER

[his matter is before the court on defendant Penobscot

Nation’s (Nation) motion to dismiss.

Plaintiff Cynthia Fellencer, alleges that she was employed by

the Nation, the Community Health Nurse, stationed at Indian

Island. Maine. Amended Complaint § 4. Plaintiff claims she

was terminated from her employment on September 30, 1994

due to her race and national origin. Id.. at 98.9. Plaintiff

also contends that defendant gave plaintiff a vote “no

confidence”, and demanded her resignation without cause and

‘n a manner that afforded her no procedural rights. Id. at § 7.

43a

Plaintiff alleges that her termination was in violation of the

Maine Human Rights Act, 5 M.R.S.A. § 4552 et seq..

Plaintiff further alleges that defendant's Personnel Policies

and Procedures Manual created a contractual limitation on

defendant’s ability to fire her a will. Plaintiff contends that

the Nation breached its employment contract with her

because it discharged her without cause did not allowed her

to grieve her discharge. Id. at { 15-17. Finally, plaintiff

contends that defendant’s action were taken with malice and

justify an award of punitive damages. Id. at 4 20.

A motion to dismiss made pursuant to MR.. Civ. P. 12(b)(6)

test the sufficiency of the complaint. Marines v. Board of

Directors, M.S.A.D. #5, 591 A.2d 867, 869 (Me. 1991). The

motion does not test the sufficiency of the evidence a plaintiff

may be able to present at trial. Barnes v. McGough, 623

A.2d 144, 145 (Me. 1993). A motion to dismiss “should be

denied if the pleading alleges facts that would entitle the

plaintiff to relief upon some theory, or if it avers every

essential element of recovery.” Id. (quotation omitted).

Dismissal is “ appropriate only if it appears beyond doubt tht

plaintiff is entit!ed to no relief under any set of facts which he

might prove in support of his claim. MacKerron v. Madura,

445 A.2d 680, 682 (Me. 1982).

The crux defendant’s argument is that the Maine Human

Rights Act does not apply to it. Defendant asserts that the

Maine Implementing Act, 30 M.R.S.A. §§ 6201 et seq., did

not abrogate the unique sovereign status bestowed on Indian

tribes under federal law. Accordingly, defendant argues that

Indian tribes are beyond the scope of the Maine Human

Rights Act because its federal equivalent, Title VII,

specifically excludes Indian tribes from its purview. See 42

U.S.C. § 2000e(b). In support of this position, defendant

44a

relies on decisions of the Maine Human Rights Commission,

the opinion of the Attorney General and a United States

Magistrate recommendation adopted by the United States

District Court. Plaintiff contends however that defendant is

subject to the Maine Human Rights Act as a Municipal

employer and that employment decisions are not protected as

* internal tribal matters”.

The court concludes that it was not the intent of either the

federal or state statutes to define the Nation’s relationship

with the respective governments in such a way as to

prepetuate the traditional immunities established under

federal precedent. Rather, relations between the Nation, the

State of Maine, and the federal government are controlled by

the Maine Implementing Act as ratified by the Maine Indian

Claims Settlement Act, 25 U.S.C. §§ 1721 et seq. Penobscot

Nation v. Stilphen, 461 A.2d 478, 482 (Me. 1983). The two

acts created a relationship between the tribes, the state and

the federal government that is unlike any other in the country.

Id at 489; Transcript of March 28, 1980. Thus, the court

must look to the relationship created by these tow statues in

order to determine whether defendant is subject to the Maine

Human Rights Act. Stilton, 461 A.2d at 487.

The Indian Claims Settlement Act provides that the Nation

“shall be subject to the jurisdiction of the State of Maine to

the extent and in the manner provided in the Maine

Implementing Act and that Act is hereby approved, ratified

and confirmed.” 25 U.S.C. § 1725(b)(1). The Maine

Implementing Act in turn provides in part:

30 M.R.S.A. § 6206(1) (1996) (emphasis added). The

Jegislative history of both the state and federal statues

confirm that the Nation is to be treated as a municipality. See

45a

Report of Joint Select Committee on Indian Land Claims,

Appendix (April 2, 1980) (“The Indian Territories will be

unique legal entitles. Although they will not be called

muncipalities.”); H.R.Rep.No 96-1353, 96th Cong., 2d Sess.

19 (1980) reprinted in 1980 U.S.C.A.A.N. 3786, 3795

(“Essentially, the Maine Implementing Act accords

the...Penobscot Nation the status of [a] municipalit[y] under

State law....”"). Municipalities are subject to liability under the

Maine Human Rights Act. 5 M.R.S.A §§ 4553(4), 4553(7).

Accordingly, as a municipality, the court concludes that the

Nation is subject to the requirement of the Maine Human

Rights Act.

The question remains whether defendant’s conduct is an

“internal tribal matter” thus excluding it from the Maine

Implementing Act and concomitantly the Maine Human

Rights Act. One court has concluded that “control over the

hiring and firing of a member of the tribal police force, is ‘an

internal tribal matter’, or more specifically, an integral part of

tribal government as specified in 30 M.R.S.A. § 6206(1).”

Mitchell v. Passamaquoddy Tribe, No. 89-0073-B, slip op. at

(Recommended Disposition of the Magistrate) atf'd (D.Me.

February 1,1990,Carter, employment decisions of the Nation

to the jurisdiction of the Maine Human Rights act poses the

serious potential of interfering with the internal affairs of the

Nation. Op. Me. Att’y Gen. (July 25, 1984).

The court is not persuaded by these decisions. The Law

Court has instructed that the term “ :nternai tribal matters” is

illustrated by the list following it that inccludes “tribal

government” and “tribal organization.” Stilpen, 461 A.2d at

489. Relying on legislature history, the law Court concluded

that “internal tribal matters” referred o those matters that

46a

were historically and culturally significant or unique to the

Nation. Id. at 490. This court can not conclude, as a matter of

law. that all decisions of employment by the Nation invoke

“areas of particular cultural importance” that must be

protected as ~ internal tribal matters.” Based on the record

before it, the court can not evaluate the cultural, historical and

/ or societal role the Community Health Nurse plays in the

Penobscot Nation. Absent such an evaluation, the court will

not conclude the defendant is not subject to the Maine

Human Rights Act.4

in Count Il of her amended complaint, plaintiff alleges that

defendant’s Personnel Policies and Procedures Manual

(Manual) created a contractual obligation that limited

defendant’s ability to discharge plaintiff only for cause.

Amended Complaint at § 14. Plaintiff additionally contends

that the Manual mandates that plaintiff be able to grieve her

discharge. Id. Plaintiff contends that the Nation breached

these conditions of its Employment contract. Id at §§ 16,17,

Defendant has moved to dismiss Count ll of plaintiff's

amended complaint.5

There is no evidence in the record that enables the court to

conclude that a genuine dispute exists as to whether plaintiff

could be terminated for cause only. It is well established that

a contract of employment for an indefinite period is

terminable at will. Libby v. Calais Regional Hospital, 554

A2d 1181, 1182 (Me. 1989) ( citations omitted). An

employee handbook can change he terms of employment

thereby limiting an employer's right to discharge an

employee. Id at 1183. The handbook, however, must clearly

state an intent to impose restrictions on the employers right to

47a

discharge an employee. Id; The handbook, however, must

clearly state an intent to impose restrictions on the employer's

right to discharge an employee. Id.; Larrabee v Penobscot

Frozen Foods,466 A.2d 97, 99-100 (Me. 1984).

The Manual does not “clearly state an intent” to limit

the Nation’s right to terminate employees at will. The Manual

does contain a list of activities that may result in disciplinary

action. The introductory statement to that list specifically

states however that “[dlisciplinary action, including

suspension and termination, may result from but not be

limited to any of the following... .“* Manual at 26 (emphasis

added). . The court does not construe this open ended

language as explicitly limiting the Nation’s ability to

discharge employees. Similarly, the fact that the Manual

provides a grievance procedure for terminated employees

does not clearly state an intent to limit the Nation’s right to

discharge at will. “Written or oral language merely implying

that discharge is for cause only is not sufficient to bind an

employer.” Bard v Bath Iron Works Corporation 590 A.2d

152, 155 (Me. 1991) (quotation omitted).

Plaintiff must establish that the Manual was part of

the employment contract In order to claim that defendant’s

alleged breach of the grievance procedure constitutes a breach

of contract. Plaintiff has not generated an issue as to whether

the Manual constituted at least in part a portion of the

employment contract. The Introduction to the Manual

provides in part

These Tribal Personnel Policies and Procedures are

intended as a guide for employees regarding their

Tights and responsibilities as employees of the

Penobscot Nation. These policies and procedures are

not intended to and do not treat contractual

obligations on the part of the Penobscot Nation and

48a

they do not constitute guarantees of employment for

any length of time.

manual at 3. This court recognizes that other courts are split

as to the effectiveness of such disclaimers in preventing the

terms of the policies from becoming terms of employment.

See George L. Blum, Annotation, Effectiveness of

Employer's Disclaimer or Representations in Personnel

Manual or Employee Handbook Altering At-Will

Employment Relationship, 17 A.L.R. Sth 1 (1994).

Notwithstanding the fact that plaintiff recognized defendant's

motion on this count as one for summary judgment, plaintiff

did not submit any evidence that the pates believed that the

Manual constituted the terms of the employment contact. See

Roy v. Danes, 553 A.2d 663, 664 (Me. 1989) (“[t]o establish

a legally binding agreement the parties must have mutually

assented to be bound by all of its material terms . . . ,”).

Plaintiff has brought forward no evidence controverting the

explicit declarations of the Manual or that those declarations

do not represent the intent of the parties. Absent such

evidence, the court can not conclude that the Manual

constituted the terms of the employment contract between the

pates.

Finally, the court concludes that plaintiff is not

entitled to punitive damages for her claim made pursuant to

the Maine Human Rights Act. LaPlante v United Parcel

Service. Inc., 810 F. Supp. 19, 22 (D. Me. 1993); Harris v.

International Paper Company 765 F. Supp. 1509, 1525 (D.

Me. 1991).

The entry is

Defendant’s Motion to Dismiss Count I is DENIED.

49a

Defendant’s Motion to Dismiss/Motion for Summary

Judgment on Count II is GRANTED.

Defendant’s Motion to Dismiss Count lll is

GRANTED.

Date: July 25, 1996

Donald H. Marden

Justice, Superior Court

Footnotes

1 See footnote 5 infra.

2 Apparently the Nation had such little contact with the

federal government before 1980 that there was even doubt

that it was a “bona fide tribe[]” under federal Indian law.

Penobscot Nation v. Stilpen, 461 A.2d 478 (Me. 1983).

Rather it had a “long and intricate historical relationship with

the State of Maine Id.

3 The court recognizes that in cases involving the Maine

Human Rights Act “decisions by federal courts interpreting

the federal statutory equivalent of the Maine Act provide

significant guidance in the construction of our statute.”

Maine Human Rights Commission v. Local 1361 United

Paper workers International Union, 383 A.2d 369, 375 (Me.

1978) (emphasis added). Title VII specifically excludes

Indians. 42 U.S.C. § 2000e(b). The Maine Act contains no

such “ equivalent” exclusions. This court can not create such

an exclusion when the legislature has declined to do so, The

Law Court has sought “guidance” from the federal case law

in such matters’as establishing an appropriate burden shifting

mechanism. Maine Human Rights Commission v. City of

50a

Auburn, 408 A.2d 1253, 1261-1263 (Me.1979). The court

has not. on the other hand, rewritten the statute so as to move

closely reflect its federal counterpart. That is the duty of the

legislature.

4 The court is influenced by the fact that not all the

operational decisionsof the Nation constitute “internal tribal

matters” as part of the tribal government. The legislature

history specifies that the selection of the school committee is

an internal tribal matter but the standards for operating the

school, including teacher certification, curriculum, hours,

records and other operational requirements are governed by

state law. Report of Joint Select C ommittee on Indian land

Claims at 3. This suggests to the court that not all decisions

of the Nations regarding the operation and performances of

the tribal government are beyond state law jurisdiction.

5 In support of its motion, defendant has submitted a copy of

the Manual and the affidavit of Carl G. Mitchell, which states

that the Manual was in effect during the course of plaintiff's

employment. Both parties rely on the terms of the Manual to

support their respective positions. In her opposition, Plaintiff

specifically states that “the evidence is sufficient to survive

either a motion to dismiss or 4 motion for summary

judgement”. Plaintiff's Memorandum of Law in Opposition

to Defendant’s Motion to Dismiss at 13. Because the court

will consider the Manual, defendant's motion as it pertains to

Count II will be considered as one for summary judgment

M.R. Civ.P. 12(b).

Sla

STATE OF MAINE

SUPERIOR COURT

SUPERIOR COURT

CIVIL ACTION

PFNOBSCOT, SS.

PENOBSCOT COUNTY

DOCKET NO. CV-95-275

FILED AND ENTERED NOV 19 1995

CYNTHIA FELLENCER

Plaintiff

Ve

PENOBSCOT NDIAN NATION,

Defendant

This matter comes before the court upon defendant's

motion for reconsideration on and to dismiss for lack of

subject matter jurisdiction. The Penobscot Indian Nation

previously moved to dismiss the plaintiff Fellencer’s

complaint under M.R. Civ. P. 12(b)(6) (Motion I). In Motion

I, the Indian Nation argued that it was not subject to the

employment provisions of the Maine Human Rights Ad, from

which plaintiff Cynthia Fellencer’s (Eellencer) claim under

Count I of her complaint derived. Count II of Fellencer’s

complaint was a breach of contract claim, and Count Ili was a

claim for punitive damages. The court denied the Nation's

motion regarding Count L but allowed its motion as to

Counts II and Il

52a

The Nation has brought a motion for relief from

judgment or order pursuant to MR. Civ. P. 60(b)(6) (Motion

I), asking the court to reconsider its refusal to dismiss Count

| of the plaintiffs complaint The Nation characterizes Motion

iI as a motion to dismiss for lack of subject matter

jurisdiction under Rule 12(b)(1). In Motion I, the Nation

argued that federal law should govern in this instance since

federally-recognized Indian tribes have a unique status. The

Nation argued that since Title VII exempts Indian tribes from

the definition of employer, then the Penobscot Indian Nation

should not be an employer under the Maine Human Fights

Act.

The Nation argued in Motion I that the Maine Indian

Claims Settlement Act, 25 U.S.C. §§ 1721-1735 and the

Maine Implementing Act, 30 M.RS.A. §§ 62014214 (the

Settlement Acts) did not abrogate the unique sovereign status

bestowed on Indian tribes under federal law. The Nation

argued further that its firing of the plaintiff Fellencer

constituted internal tribal matters of tribal government and

tribal organization and as such, were not governed by the

Settlement Acts.

In Motion U, the Nation asserts that the court lacks

subject matter jurisdiction of the plaintiff Fellencer’s

remaining claim. The Nation argues that the plaintiff's claim

imposes state regulation upon the tribe’s internal tribal

matters, including tribal government and tribal organization,

in violation of the Settlement Acts. C entral to its argument in

Motion II, is the Nation’s assertion that the plain language of

30 M.RS.A. 6206(1) prohibits the imposition of state law

upon tribal government and tribal organization. The Nation

argues that the plaintiffs claim indisputably implicates both

tribal government and tribal organization, and therefore, the

court lacks subject matter jurisdicdon over the plaintiffs

claim The Nation states. “[a]s soon as an employment

53a

decision of the tribal government is made the subject of

scrutiny under the Maine Human Rights Act in this court or

at the administrative level of the Maine Human Rights

Commission, the very decision-making process of tribal

government is laid open to state authority.”

The Penobscot Indian Nation is reiterating in Motion

Il the very same arguments it made in Motion | Motion I!

states over and over again that the plain language of 30

M.R.S.A. 6206(1) makes it obvious that the particular

employment decision at issue in this case is an act of tribal

government and/or tribal organization This is precisely the

issue this court examined in its order regarding Motion I.

This court decided that it could not determine whether the

Community Health Nurse’s role, and her firing by the tribe,

would fall under the exception enumerated in 30 M.R.S.A.

Sec. 6206(1) because the court has no way to determine the

“cultural, historical and/or societal role the Community

Health Nurse plays in the Penobscot Nation.” In Motion II,

the Nation downplays or ignores language in Penobscot

Nation v. Stilphen, 461 A.2d 478 (Me. 1983) which indicates

that the Indian tribes in Maine have a unique relationship to

this state. The Maine Indian Claims Settlement Act affirmed

and ratified the Maine Implementing Act, which Act is at

least partially analyzed in Stilphen. These issues were ra sed

and dispensed with when this court made its decision and

order on Motion |. After reading all the motions in the case

carefully, this court fails to find any new or Convincing

arguments presented to the court by the Indian Nation in

Motion II.

Subject matter jurisdiction is “the court’s power to

hear and determine cases of the general class or category to

which proceedings in question belong.” BLACK’S LAW

DICTIONARY 1425 (6th ed. 1990). “An Indians tribe

54a

inherent powers cannot be judged in a vacuum, but must be

weighed against the interest of the state in applying its law

and regulations to the tribe.” Stilphen at 483.

The entry will be:

Defendant’s motion for reconsideration and to

dismiss for lack of subject matter jurisdiction is

DENIED.

DATED: November 18 1996

Justice, Superior Court

55a

January 30,1995

Cynthia A. Fellencer

One Riverdale Place

Orono, ME 04473

RE: E94-0730: Fellencer v. Penobscot Tribal Nation

Dear Ms. Fellencer

This letter is to inform you that the above referenced charge

of discrimination has been administravely dismissed.

( ) pursuant to Section 202(F) of the Commission's

Procedural Rules due to your request for withdrawal filed

with this office.

(xxx) pursuant to Section 202(G) of the Commission's

Procedural rules because of this Agency lack of jurisdiction

in maters involving employment by the Tribal government.

No further action is contemplated by the Commission at this

time. If you have any questions, please do not hesitate to

contact this office.

Sincerely,

Patricia E Ryan

Executive Director

S6a

ce: Gail Dana-Sockabasin

Michael \ Duddy, } Sq

Kaign Smith Esq

F-2 (11/93)

57a

STATE OF MAINE

Inter-Departmental Memorandum

Date January 19,1995

Patricia E. Ryan Executive Dft.

Dept. Maine Human Rights Commission

Pau! D. Pierce, Chief Investigator

Dept. Maine Rights Commission

ct Administration Dismissal: E94-0730 Fellencer’§ vs

Penobscot Iribal Nation

|. Ms. Cynthia Fellencer, health care, Penobscot Nation,

alleges race and color discrimination against Respondent,

contending that her race, caucasian, was a factor in the

dismissal decision

2. Through its attorney, Kaighn Smith, Respondent states

that the Tribe acting in its governmental capacity, employed

complainan, and is not subject to the Maine Human Rights

Act or Title VII of the Civil Rights Act

3. Ms. Fellencer acknowledge the she was an employee of the

lribe, received her pay from the Tribe, and was subject to

tribal personnel policies and procedures

4. The applicable attorney general’s opinion reads, in part, ad

follows

58a

“It i¢ now established that the relationship between the State

of Maine and the Penobscot Nation is governed by the

provisions of the Maine Indian Claims Settlement Act (30

M.R.S.A., § 6201-6214) which has been “ approved ratified,

and confirmed” by the United States Congress. 25 USC. §

1721(b) (1). See Penobscot Nation v. Stilphen, 461 A.2d

478. 487 (Me.1983), app. dis. 104 S. Ct. 323 (1983)

For the reasons discussed below, the conclusions reached in

this opinion are equally applicable to the Passamaquoddy

Tribe.

With specific reference to the Powers and duties of the

Penobscot Nation, 30 M.R.S.A., § 6206(1) provides, in

pertinent part:

Except as otherwise provided in this Act, the Passamaquoddy

Tribe and the Penobsco Nation, within their respective Indian

Territories, shall have exercise and enjoy all the rights,

privileges powers and immunities, including, but without

limitation, the power to enact ordinances and collect taxes,

and shall be subject to all the duties, obligations, liabilities

and limitations of a municipality of and subject to the laws of

the State, Provi wever_ the i

includi ip i iV

right to resi ithi i

shall not be subject to regulation by t State. (emphasis

added).

In view of the foregoing, it seems apparent that a resolution

of the question of whether the Maine Human Rights

Commission has Jurisdiction to investigate an allegation of

59a

unlawful employment discrimination against the Penobscot

Nation turns on whether the employment decisions of the

Nation, when acting as a tribal governmental employer, are

"internal tribal matters" within the meaning of 30 M.R.S.A.S

6202(1). It is the opinion of this Department that such

decisions are “internal tribal matters" and are, therefore, not

subject to regulation by the State of Maine.

Subjecting employment decisions of the Penobscot Nation to

the Jurisdiction of the Maine Human Rights Commission

would create a serious potential of State interference with the

internal affairs of the tribal government, a resu!t clearly not

intended by the Maine Indian Settlement Act. Accordingly, it

is the opinion of this Department that decisions of the

Penobscot Nation, as to who will be employed by the tribal

government, are “internal tribal matters” not subject to

regulation by the State and, therefore, not within the

jurisdiction of the Maine Human Rights Commission."

5. Based on the above, administrative dismissal is requested

in keeping with 2.02 of our agency's procedural rules, lack of

jurisdiction

60a

AFFIDAVIT OF CYNTHIA A. FELLENCER

Cynthia A. Fellencer, of Orono, County of Penobscot,

State of Maine, upon oath, do hereby depose and state as

follows:

|. My name is Cynthia A. Fellencer. | am a resident of Orono,

Maine.

2. Lam not a tribal member of the Penobscot Nation.

3. By letter dated December 10, 1992 from the Penobscot

Nation office of Tribal Administration | was notified that |

had been selected for employment with the Penobscot Nation

as a Community Health Nurse/Diabetes Program

Coordinator. A true and accurate copy of the letter I received

is attached to my affidavit as Defendant's Exhibit | .

4. The minimum qualifications to work as a Community

Health Nurse/Diabetes Program Coordinator included being a

registered nurse with a valid State of Maine license, as well

as possessing a valid State of Maine Drivers License. The

qualifications for the position are stated on the job description

that I received when | started working for the Penobscot

Nation. A true and accurate copy of the job description ts

attached to my affidavit as Defendant's Exhibit 2.

5. My duties as Community Health Nurse/Diabetes

Program Coordinator were extensive, and included much

more than treating sick and elderly members of the Tribe. For

instance, | filed reports with Indian Health Services relating

to communicable diseases; served as Coordinator of the

Diabetes Interdisciplinary Team; and functioned as the AIDS

Prevention Coordinator. My job duties are described in the

job description attached to my affidavit as Exhibit 2.

6la

6. In order to perform my myriad job duties, | frequently

traveled off the reservation to attend seminars, training, and

meetings. | also had frequent professional contact with

individuals who worked for a variety of State of Maine health

agencies.

7. As a Community Health Nurse/Diabetes Program

Coordinator, | reported to the Medical Director of the

Penobscot Nation Health Clinic, During most of the time of

any employment at the Health Clinic, the Medical Director

was Dr. Kathy Bourgoin. Dr. Bourgoin is not a tribal member

of the Penobscot Nation.

8. . The Medical Director reports to the Director of the

Penobscot Nation Health Department Throughout my time of

employment at the Health Clinic, the Director of the Health

Department was Gail Sockabasin Ms. Sockabasin is not a

tribal member of the Penobscot Nation.

9. Throughout my employment with the Penobscot

Nation as Community Health Nurse/Diabetes Program

Coordinator, a large equal employment opportunity poster

was displayed in the employees’ lunch room at the Health

Department. I was in the empioyees’ lunch room hundreds of

times during my employment, and am familiar with how the

poster was displayed. The photograph attached to my

affidavit as Defendant's Exhibit 3 fairly and accurately

represents how the poster was displayed in the employee's

lunch room during the time of my employment.

10. A great number of the people whom I have met or of

whom | have personal knowledge, who work for the

Penobscot Nation, are not tribal members of the Penobscot

Nation.

62a

11. By letter dated September 27, 1994, | was notified by

the Governor of the Penobscot Nation that the Tribal Council

had requested my termination but that there were no

procedural or substantive grounds for the Council's actions.

A true and accurate copy of the letter I received is attached to

my affidavit as Defendant's Exhibit 4.

12. In October, 1994, I filed an administrative complaint

against the Penobscot Nation with the Office of Federal

Contract Compliance Programs (“OFCCP”), asserting that

the Nation discharged me for discriminatory reasons in

violation of the federal contract between the Penobscot

Nation and IHS used to fund my position at the Health

Department.

13. By letter dated November 14, 1994, | was notified by

the Regional Director for OFCCP that the agency had

established jurisdiction over the Penobscot Nation for the

purpose of conducting an investigation into my termination A

true and accurate copy of the letter I received is attached to

my affidavit as Defendant's Exhibit 5.

Dated this 12th day of December, 1997

STATE OF MAINE

COUNTY OF PENOBSCOT

Then personally appeared the above-named Cynthia

A. Fellencer and declared the foregoing statements by her to

be true and correct and based upon his own personal

knowledge.

Sworn to before me and subscribed in my presence

63a

Notary Public Attorney at Law

Nathanel S. Putnam

Print/Type Name

PENOBSCOT NATION

COMMUNITY BUILDING

INDIAN ISLAND MAINE 04468

TRIBAL ADMINISTRATION

PERSONNEL

TEL: 207/827.7776

64a

December 10, 1992

Cynthia Fellencer One Alverdale Place Orono, ME 04481

Congratulations on being selected for employment with the

Penobcot Indian Nation as a Community — Health

Nurse/Diabetes Program Coordinator with the Department of

Indian Health Services. We hope that you find your period of

employment with our Tribal organization to be a positive and

rewarding career experience

Prior to beginning employment, you will need a complete

physical evaluation. Tribal members will have to be

scheduled for a physical with the Indian Health Services

Clinic on Indian Island, by calling 827-6101. Non-tribal

members may have one done with their own physician or this

office can set up an appointment for you.. The Penobscot

Indian Nation will be responsible for this expense.

Please be advised that you are on a ninety (90) day

probationary period which will begin on December 9, 1992

and end an March 9, 1993.

There is Paperwork that needs to he filled out prior to

December 10, 1992. Please stop by the Personnel Office at

your convenience to have these forms completed.

If you have any questions or concerns, please feel free to

contact the Personnel Office at 827-7776, ext 232 or stop by

the office, located in the Log Cabin buildig on Indian Island.

Again, congratulations!

65a

Job Description

POSITION: Community Health Nurse/Diabetes Program

Coordiantor

ACCOUNTABILITY: Medical Director

RESPONSIBILITY: Provide health care and education in the

members of the community

DUTIES:

1. Supervision of the Home Aide in the coordination and

provision of home of home, health care to members of the

Pensbscot community

2. Provide followup home health care as presented by a

treatment plan designated by the client’s physician

3. Collaborate with the Community Health Educator/RD and

the SAS Program Director in the development and

implementation of specific health promotion, prevention and

education activities for identified at-risk groups

4. Collaborated with the school authorities in the schedu:.ag

of the annual school physicians for all grade levels

5. Complete all required reports to the Maine Department of

Human Services and Indian Health Services relating to

communicable disease

6. Work with the Environmental Health Technician/Local

Health Officer to respond to observed or reported

environmental health hazards in the community

66a

7 Cover the clinic, when necessary, during the absences of

the Clinical Registered Nurse

& Coordinate the Diabetes Control and Prevention Program

9. Insure followup to the clients screened for diabetes

10. Be a member of the Maternal & Child Health Team

11. Coordinator of he Diabetes Interdisciplinary Team

12. Cooperator with other staff in the development of health

promotion initiatives targeting the risk factor adolescents

13. Functions as the AIDS Prevention Coordinator

14. Safeguard all information of a confidential nature

15. Report quarterly on the progress in achieving program

goals and objectives

16. Be a member of the Substances Abuse Protective Team

17. Be amember of he Substance Abuse Assessment Team

18. Coordinator diabetes education-blood sugar, insulin, foot

care, etc.

19. Arrange and coordinate annual IHS site visits for the

Diabetes Project

40. Attend Intertribal Diabetes meetings twice a year

67a

21. Collect information for diabetes community health, and

AID reporting as required

22. Other duties as assigned by supervisor

MINIMUM QUALIFICATIONS: Registered Nurse with

valid State of Maine License, 3 Years clinical experience, 3

years public health nursing experience in dealing with elders,

valid State of Maine driver’s license, Native American

Preference

Position Type: Full-time

Career Field: Medical

Category: A-S

Pay Ranger:

Revised: December 1992

September 27, 1994

68a

Cynthia Fellencer, R.N.

Community Health Nurse

Penobscot Nation Health Department

5 River Road

Indian Island, ME 04468

Dear Cynthia

It is with regret that I must act upon the Tribal Council's

motion of September 6, 1994 in which your registration was

requested. During our meetings these past two days, I have

expressed my concerns regarding that motion. It is my

opinion, based on 16 years involvement in Penobscot

administration and having held the elective offices of Tribal

Council, Lt. Governor and Governor, that the Personnel

Committee and the Council have taken the action for political

reasons. There is no existent procedural basis for requesting

your resignation, and; further, it is not based on an objective

evaluation of your work performance.

The Council’s was provided information at the Sept 6, 1994

meeting about a grievance which was heard by the Personnel

Committee that involved an employee whom you supervised.

The Personnel Committee’s findings and considerations were

given as the justification for your requested resignation. |

have been informed that the Personnel Committee also used

that grievance hearing to entertain complaints made by

persons who were not involved in the grievance nor were

their complaints relevant to the issues under grievance. The

Personnel Committee over-stepped its authority and received

those complaints. The written complaints were provided to

the Council at its meeting on Sept. 6, 1994. (Copies of these

complaints have since been provided to you.) There was no

opportunity for you to respond to those complaints nor was

69a

there an effort for an administrative complaint hearing

process to be invoked to address them. Your immediate

supervisor was not seeking any disciplinary action towards

you and was not asserting you were deficient in performing

your duties as the community health nurse. Nonetheless, the

Council composed of the same Personnel Committee

members took action to subvert the Personnel Policies and

sought to force your resignation.

While there is no procedural basis for the actions taken by the

Personnel Committee and the Tribal Council, I have come to

the realization that there are formidable barriers to a fair

appeal process for you. In essence, the body to whom you

would address an appeal has aiready made its decision. I am

most certain there is no chance for reversal of the motion

seeking your resignation in the wanting days of my

administration or in the next one. Under these circumstances,

I sense the inevitable and therefore, reluctantly must ask for

your resignation. I am aware that you are preparing to resign

and I hope this letter will serve to document the conditions

which have precipitated it. Should you need a letter of

reference, | would be pleased to prepare one.

Regretfully,

Jerry Pardilla