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Micmac-Maliseet sovereignty case headed to Supreme Court

BOSTON - A 1st Circuit Court of Appeals panel ruling in April that effectively terminated the tribal sovereignty of the Aroostook Band of Micmacs and the Houlton Band of Maliseet Indians will be appealed to the U.S. Supreme Court in the fall.

The appeals court denied a request for a full six-member en banc appeal of the panel decision.

If left standing, the ruling could set a precedent for all of Indian country, eroding a nation's sovereign right to self-government and how it conducts day-to-day business on its lands, attorney Douglas Luckerman said.

''We're going to the Supreme Court now. We're filing briefs later this summer of early fall. We think there are some interesting arguments that the members - even the more conservative members - will be interested in,'' Luckerman, who represents both tribal nations, said.

The two cases were ruled on simultaneously April 17 in a 2 - 1 decision. The case emerged from an employment discrimination complaint against the Micmacs that resulted in the tribe suing the state. The majority decision ruled that the federal Maine Indian Claims Settlement Act of 1980 and the Micmacs Settlement Act of 1991 subjected the band to total state jurisdiction, including how tribes handle employment. The two judges then applied their decision to the Maliseets.

The Hon. Kermit Lipez wrote a dissenting opinion.

The decision cited as a precedent to its own controversial ruling that the state of Rhode Island has total civil and criminal jurisdiction over the Narragansett Indian Tribe. A majority decision in that case claimed the Narraganssetts waived their sovereign immunity in a 1978 land claim settlement even though nothing in the act says so. The U.S. Supreme Court declined to hear a petition for appeal of that decision.

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 The Aroostook act superseded the earlier Maine Indian Claims Settlement Act, which included the Passamaquoddy, Penobscot and Houlton Band, but did not include or mention the Micmacs.

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

Throughout the ruling, Lynch used a single provision of the MICSA - Section 1725(a) - to justify her argument that the tribes have no sovereignty or immunity. The section states that Maine tribes will be subject to the civil and criminal jurisdiction of the state.

But that doesn't mean the tribes' sovereignty is eradicated, Luckerman said.

''It limits their powers but it doesn't remove it. Congress didn't need to give the tribes federal recognition just for taxation and benefits. That is ludicrous,'' Luckerman said.

Federal recognition is ''a term of art,'' which means it has particular meaning legally or in common use because of its history of use.

''Why would Congress use a term of art that specifically has been used in almost every other instance to identify sovereignty - not just with a tribe but with every nation that the United States has recognized - if that's not what Congress intended?'' Luckerman said.

Luckerman said the ruling also ignores the ''canons of construction'' - a special set of statutory construction rules that apply only to Indian law and say, in essence, that Congress' intent toward tribes is benevolent and so doubts, interpretation, ambiguities or contradictions in the law should be decided in a manner most favorable to the Indian or tribe. Instead, the ruling gives the benefit of the doubt to the state, Luckerman said.

''I think the Supreme Court will place a jaundiced eye on a decision that says courts can ignore the authority of Congress in Indian affairs and ignore that Congress has the right to supersede state legislation. I think those conservative members of the court who have shown a certain affinity for states rights will be very curious about that part of the decision,'' Luckerman said.

The Micmac and Maliseet chiefs could not be reached for comment by press time.