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New England ruling favors states over tribes

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BOSTON - Cases now awaiting decision in the federal 1st Circuit Court of
Appeals here could lead to an appeal to the U.S. Supreme Court for review
of an obscure procedural rule that is throwing a darkening shadow over
tribal governments in most of New England and the rest of Indian country.

Thanks to a July 2000 ruling in the federal District Court in Maine, New
England states themselves are increasingly becoming the referee of the
perennial struggle between tribes and states over the extent of sovereign
self-government. This ruling has become a major factor in most of New
England, where tribal sovereignty has already been compromised by
ambiguities in land settlement deals negotiated, some say naively, in the
early 1980s. A current case between the Aroostook Band of Micmac Indians
and Maine's Human Rights Commission squarely confronts a murky doctrine of
federal court procedure, the so-called "well pleaded complaint" rule, that
has denied tribes access to what they consider the less-biased forum of the
federal courts.

The ruling grew out of the emotional resistance of Maine's Penobscot and
Passamaquoddy tribes four years ago to a demand by large paper companies to
see internal tribal documents. The suit, which was based on Maine's Freedom
of Access Law for municipal records, was eventually decided against the
tribes by Maine's highest court.

Along the way, federal District Judge D. Brock Hornby refused to take
jurisdiction, reading the "well-pleaded complaint" rule to say that the
case was a matter of state law, even though the tribes raised the issue of
their inherent sovereignty. Delegations from tribes throughout New England
and as far away as the St. Regis Mohawk Reservation in Upstate New York
attended the appeals argument before a three-judge panel of the 1st
Circuit, thronging the hallway in the brand-new glass-walled federal
courthouse with a dramatic view of Boston harbor. It was a prescient
display of solidarity. Within two years, three of those tribes, the
Narragansett of Rhode Island, the Wampanoags of Gay Head (Aquinnah) in
Massachusetts and Maine's Aroostook Band of Micmac Indians, were fighting
the same rule in their own court cases.

The "well-pleaded complaint" rule, explained Kaighn Smith Jr., attorney for
the Penobscot and Passamaquoddy in the paper company suit, arises from the
different scopes of the lower federal courts and the state courts. The
federal courts, he said, have a limited jurisdiction specified by Congress.
One of their main functions is to judge cases "arising from" the
Constitution, Congressional statutes or treaties. But state courts have a
much broader scope and can decide federal issues. (Hornby observed that the
Constitution only set up a Supreme Court, not the rest of the federal
system.) Murky as it is, this rule, said Smith, helps decide who gets
access to the federal court. "You have to have the keys to the courthouse
door," he said.

Yet much of the current confusion and sharp criticism of the courts comes
from the way they interpret the phrase "arising from."

It's not enough to raise a federal issue, Smith said. Following a Supreme
Court decision by Oliver Wendell Holmes, a case arising from state law can
stay in state courts, even if one of the parties makes a defense based on
federal law. Hence a tribe's claim of sovereign immunity from suit won't
automatically give it a key to federal court, as the Aquinnah Wampanoag
discovered in Massachusetts. The issue, which is riddled with confusing
exceptions, is the difference between basing the core of the suit on
federal law as opposed to using it as a defense.

Although this rule has come up in Indian cases across the country, Hornby
complained that many federal courts ignored it, simply assuming they had
jurisdiction over tribal-state disputes. In fact, said Smith, Congress has
passed a statute seeming to make that point, adding another layer of
complications. (Smith is exploring the rule in detail in an article
scheduled for the next issue of the New Mexico Law Review.)

After Hornby's ruling, however, federal courts in New England have become
highly conscious of the "well-pleaded complaint" rule. In 2003, the
Aroostook Band of Micmac Indians went to federal court for an injunction
against the Maine Human Rights Commission, saying that its investigation of
the firing of tribal employees violated tribal sovereignty. U.S. Magistrate
Judge Margaret Kravchuk said "reluctantly" that the federal court didn't
have jurisdiction, citing Hornby. The Aroostook Band appealed, and a 1st
Circuit panel heard the case Sept. 28 in a session held in the Portland,
Maine federal courthouse for the first time in its history.

Douglas Luckerman, attorney for the Aroostook Band, was delighted with the
hearing, saying the three federal judges subjected Maine's Attorney General
to withering questioning. A decision is expected imminently. But Luckerman
said that no matter the outcome, the issue of the "well-pleaded rule" could
be headed to the Supreme Court. "It's certainly on that trajectory," he
said.