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SPECIAL REPORT: Settlements of early '80s continue to haunt tribes

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PRESQUE ISLE, Maine - "Indian law is different in New England than anywhere else."

That is the rueful warning from Douglas J. Luckerman, attorney for the Aroostook Band of Micmac Indians here and for other tribes in Massachusetts and Rhode Island who are struggling to affirm tribal sovereignty in an unfriendly legal setting. Luckerman spoke as the Micmac band debated strategy in the aftermath of a U.S. District Court "non-decision" that headed them toward a confrontation with the state of Maine.

But his words apply to a steadily expanding array of lawsuits in which tribes from the Narragansetts of southern Rhode Island to the Micmacs in this remote northern tip of Maine are trying to limit the damage caused by a series of political compromises made two to three decades earlier. The law in the federal courts of the 1st Circuit, which covers all of New England except Connecticut, is increasingly showing the impact of the controversial land claims settlement acts of the early 1980s, even in cases involving tribes which expressly repudiated their erosion of inherent sovereignty.

The most egregious of these acts was the federal Maine Indian Claims Settlement Act (MICSA) of 1980 and an even more problematic state Implementing Act which set the framework for federal recognition of the Penobscot Indian Nation and two reservation governments of the Passamaquoddy people. Leaders of these governments have fought constantly over the past five years to resist state infringement on their internal documents and the pollution controls on the rivers central to their culture.

The Micmac Band argues vehemently that it is not subject to the MICSA and that it never agreed to surrender any part of its inherent sovereignty. The settlement acts for tribes in other states, most enacted several years later, also differ significantly from MICSA. Luckerman has argued, with varying success, that their language is more favorable to sovereignty.

But cases deriving from MICSA have given the federal courts in New England a prejudice against sovereignty claims that is distinctly different from the western circuits covering treaty tribes with large populations and land bases.

The Micmac ruling, or as Luckerman calls it, the "non-decision," is a case in point. On Feb. 24, U.S. Magistrate Judge Margaret J. Kravchuk declined to give the Aroostook Band protection against possible investigations by the Maine Human Rights Commission to enforce the Maine Human Rights Act and the Maine Whistle Blower Protection Act. Citing a series of Penobscot cases, Judge Kravchuk concluded that the federal court did not have jurisdiction.

For Luckerman, her ruling showed how little the federal judges in the 1st Circuit understood the principle of tribal sovereignty. The ruling, he said, "highlights how the judges are not just misinformed. They don't have the internal compass that allows them to point in the right direction when there is an infringement on tribal rights."

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The case started in March 2001 when the Aroostook Band fired its chief financial officer Lisa Gardiner and subsequently terminated two other employees, compliance officer Tammy Condon and Housing Director Beverly Ayoob. The three brought discrimination and retaliation charges to the Maine Human Rights Commission. Even though a staff investigator found "no reasonable basis" to the charges, the Commission voted to pursue the case.

The Aroostook Band went to the U.S. District Court in Maine for an injunction against the Commission. Along with some technical arguments, it played its trump card. Because of a series of apparent oversights, the band had never compromised its inherent sovereignty. Although the 1980 Settlement Act extinguished all Indian land claims in Maine, it never mentioned the Micmacs and it didn't give them any compensation.

At the end of the 1980s, state and federal legislation tried to remedy the oversight. The Maine legislature acted first. In 1989, it passed an Implementing Act for the Micmac Settlement Act. But the U.S. Congress didn't get around to passing the federal Aroostook Band of Micmacs Settlement Act until 1991. This act gave the band federal recognition, set up its tribal government and allowed Interior to take land into trust for it. On the model of the 1980 act, the Implementing measure passed by the state legislature would have subjected the band to further state restrictions. But according to the Aroostook Band argument, a funny thing had happened.

To go into effect, the 1989 state act required approval by the band's tribal council within 60 days of the legislature's adjournment. But for reasons still unclear, the council simply refused to send back a letter accepting the act. Micmac leader William Phillips argues fervently that the state act never became law. The federal act became the sole legal framework for the band, and its inherent tribal sovereignty is in full effect.

Furthermore, argue the Micmac lawyers, the Department of Interior agreed with them. In a memo to the U.S. Office of Management and Budget, Interior said that because the language in the Micmac act "does not precisely track the Maine Settlement Act, the relationship between the state and the Micmacs will be different, arguably, than the state's relationship with the other recognized tribes in Maine."

With these basic arguments in play, the Micmacs were deeply frustrated when Judge Kravchuk refused even to take them into account. Her ruling tracked the refusal of another federal judge, D. Brock Hornby, to take the case of the Penobscot Nation three years earlier when paper companies sued for access to tribal documents. She invoked a popular doctrine in the 1st Circuit, the "well undefined pleaded complaint rule," which left the case in state courts in spite of the tribal sovereignty defense.

Kravchuk quoted the words of Judge Hornby: "The Tribes argue that the consequence of this reasoning is to deprive them of the federal protection of their sovereignty - that it is an affront to that sovereignty to have to appear in state court to assert the defense and even worse if the state courts reject it. The premise of the well-pleaded complaint rule, however, is that federal issues can be handled perfectly well by state courts ?"

This mindset is oblivious to a basic principle of Indian law in the rest of the country, that state governments are the tribes' worst enemies. It shows how big a gap exists between the federal courts of New England and elsewhere when Indian issues are involved.

As Chief Phillips put it, "By sending us back to state court, the judge is feeding us to the tigers."