Micmacs and Maliseets lose sovereignty under recent appeals court panel rulings

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BOSTON - In a 2 - 1 decision, a 1st Circuit Court of Appeals panel issued a ruling in an employment discrimination case that effectively terminates the tribal sovereignty and immunity of the Aroostock Band of Micmacs and the Houlton Band of Maliseet Indians.

The two rulings were issued simultaneously on April 17. Judges Sandra Lynch and Levin Campbell issued the majority ruling, with Lynch writing the decision. The Hon. Kermit Lipez wrote a dissenting decision.

The majority ruled that the federal Maine Indian Claims Settlement Act of 1980 and the Aroostock Band of Micmacs Settlement Act also subjected the band to total state jurisdiction, including how tribes handle employment. The judges then applied their decision to the Houlton Band of Maliseets.

''There is no 'internal tribal matters' exception in the statute,'' Lynch wrote.

Throughout the decision, Lynch used as a precedent the 1st Circuit Court's ruling that the state of Rhode Island has total civil and criminal jurisdiction over the Narragansett Indian Tribe. The majority decision in that case claimed the tribe waived their sovereign immunity in a 1978 land claim settlement act even though there is no language in the act that says so.

The Aroostock ruling has ''cut the heart out of federal Indian law in this circuit court,'' said Douglas Luckerman, the tribes' attorney.

''These decisions are a stunning display of a federal court just trampling federal Indian law and making a mockery of the legal presumption of inherent sovereign rights. I no longer see any value for New England tribes using the court system to protect their rights. With these two decisions, the state of Maine can unilaterally acculturate the Micmac and Maliseet - something that Congress said the state would never have the power to do,'' Luckerman said.

The case began seven years ago, when the Aroostock fired three high-level employees who then filed discrimination complaints against the tribe with the Maine Human Rights Commission.

The complaint kicked off an investigation. The tribe voluntarily provided the investigator with information showing the employees had been fired properly and within established procedures, but also told the commission that it did not have jurisdiction over the employment issue because it was a tribal matter.

The investigator found there had been no violation in dismissing the employees, but stated the tribe does fall under state jurisdiction.

The tribe challenged that assertion in a lawsuit against the commission. A few weeks after filing the lawsuit, the commission reversed the investigator's finding of no violation without any explanation.

The case worked its way through state and federal courts. A magistrate judge ruled that the federal Aroostock Band of Micmac Settlement of 1991, which gave the tribe federal acknowledgement, also gave the tribe the sovereignty and immunity protection it claimed. The Aroostock act superseded the earlier Maine Indian Claims Settlement Act which did not include or mention the Aroostocks.

In reversing the magistrate's decision, Lynch claimed that both settlement acts ''displaced any federal common law that might otherwise bear on this dispute.'' The ruling also refutes the tribe's claim that federal recognition itself grants sovereignty.

''We understand 'recognition,' at least as used in MICSA, to be merely an acknowledgement that the Passamaquoddy, the Penobscots and the Houlton Band are eligible for particular federal tax treatment and benefits,'' Lynch wrote.

Lipez, in his dissenting opinion, said the 1991 act supplanted the MICSA.

''In effect, Congress retrieved the Micmacs from the MICSA catch-all provision that applied to all other tribes or bands of Indians and, in a detailed and comprehensive enactment, defined that Micmacs' new status as the fourth Maine tribe to be recognized and compensated for the loss of their aboriginal holdings,'' Lipez wrote.

Luckerman said there is no language in either MICSA or the Aroostock settlement act that explicitly says the tribes have waived their right to tribal sovereignty and immunity.

''The court, for reasons I don't fathom, minimizes language that protects tribal sovereignty and maximizes language that grants authority to the state. They did it in previous cases and they did it here. They claim the provision that says state laws apply to the tribes like everyone else therefore must eviscerate all tribal sovereignty, but that's not what federal Indian law says. It says you need a twofer: not only do you have to say state law applies, but you also have to say tribal law is gone,'' Luckerman said.

The court has ''made a mockery of the canon of construction'' that says when the language of the law is ambiguous and differing interpretations are possible, courts are supposed to adopt the interpretation that most benefits the tribes, Luckerman said.

The ruling could set a precedent for tribes all over the country.

''Where it can hurt tribes is where the court legislates from the bench and waters down the legal bulwark built up over 200 years to protect tribal sovereignty and ensure that it is not unduly diminished. Federal law has held since the early 1800s that courts have no authority to limit or abrogate tribal powers without the express consent or intent of Congress,'' Luckerman said.

Courts cannot and should not use inference or implications to find intent, Luckerman added.

''But this court does so over and over again. It connects dots where there are no lines and says, 'This is what Congress must have intended.' So their logic can be cited and used against other tribes to dilute or remove tribal sovereign rights even though Congress has not expressed its intent to do so,'' Luckerman said.

The only recourse left for the tribe is an appeal to the full six-member en banc appeals court or a petition to the U.S. Supreme Court.