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United States Court of Appeals
For the First Circuit
Nos. 06-1127, 06-1358
AROOSTOOK BAND OF MICMACS,
Plaintiff, Appellee,
v.
PATRICIA E. RYAN, in her official capacity as Executive Director of the Human Rights Commission of the State of Maine; WARREN C. KESSLER, in his official capacity as member of the Human Rights Commission of the State of Maine; PAUL K. VESTAL, JR., in his official capacity as member of the Human Rights Commission of the State of Maine; JAMES VARNER, in his official capacity as member of the Human Rights Commission of the State of Maine; JADINE R. O'BRIEN, in her official capacity as member of the Human Rights Commission of the State of Maine; KRISTEN L. AIELLO, in her official capacity as member of the Human Rights Commission of the State of Maine, LISA GARDINER, TAMMY CONDON,
Defendants, Appellants,
BEVERLY AYOOB,
Defendant.
APPEALS FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MAINE
[Hon. Margaret J. Kravchuk, U.S. Magistrate Judge]
Before
Lynch, Circuit Judge,
Campbell, Senior Circuit Judge,
and Lipez, Circuit Judge.
Christopher C. Taub, Assistant Attorney General, with whom G. Steven Rowe, Attorney General, and Paul Stern, Deputy Attorney General, were on brief, for appellants Ryan, Kessler, Vestal, Varner, O'Brien, and Aiello.
Matthew S. Keegan, with whom Johnson & Webbert, LLP was on brief, for appellants Gardiner and Condon.
Douglas J. Luckerman, with whom Law Office of Douglas J. Luckerman, Gregory P. Dorr, Farrell, Rosenblatt & Russell, and David Kaplan were on brief, for appellee.
Michael A. Duddy and Kelly, Remmel & Zimmerman on brief for Houlton Band of Maliseet Indians, amicus curiae.
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April 17, 2007 |
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LYNCH, Circuit Judge. This case arises from a lawsuit brought by the Aroostook Band of Micmacs ("Aroostook Band"), an Indian tribe based in northern Maine. The tribe seeks to enjoin proceedings before the Maine Human Rights Commission ("the Commission"), a state agency which acted on discrimination complaints it had received from three of the tribe’s former employees.
The Aroostook Band claims that federal law prevents an agency of the state of Maine from enforcing state employment discrimination laws against the Aroostook Band's government. The state disagrees and argues that federal law specifically grants it this power. Both sides discuss a series of federal and state statutes: the state's 1979 Act to Implement the Maine Indian Claims Settlement ("state Settlement Act"), Me. Rev. Stat. Ann. tit. 30, §§ 6201-6214; the federal Maine Indian Claims Settlement Act of 1980 ("MICSA" or "federal Settlement Act"), 25 U.S.C. §§ 1721-1735; the 1989 state Micmac Settlement Act ("state Micmac Act"), Me. Rev. Stat. Ann. tit. 30, §§ 7201-7207; and the 1991 federal Aroostook Band of Micmacs Settlement Act ("ABMSA" or "federal Micmac Act"), Pub. L. No. 102-171, 105 Stat. 1143 (codified at 25 U.S.C. § 1721 note). This case turns on the interpretation of these statutes.
The magistrate judge, presiding with the consent of the parties, see Fed. R. Civ. P. 73(b), concluded that the 1991 ABMSA gives the Aroostook Band the protection it claims.
We reverse. We hold that a provision of the 1980 MICSA, 25 U.S.C. § 1725(a), clearly makes the Aroostook Band "subject to . . . the laws of the State . . . to the same extent as any other person." This abrogates any aspects of tribal immunity which might have prevented application of Maine's employment laws to the dispute here. We also hold that the later-enacted ABMSA is not in conflict with, nor has it implicitly repealed, § 1725(a). We finally hold that the question in this case is resolved by these two federal statutes -- both of which are settlement acts -- and not by Indian common law.
I. BACKGROUND
We start with the history behind the enactment of the state and federal Settlement Acts, and the later state and federal Micmac Acts. We then move to the background and procedural history of the events that led to this appeal. Much of the background, statutory and otherwise, is also recounted in an earlier opinion in this case. See Aroostook Band of Micmacs v. Ryan, 404 F.3d 48, 50-55 (1st Cir. 2005) ("Aroostook II"), overruled in part by Narragansett Indian Tribe v. Rhode Island, 449 F.3d 16, 24-25 (1st Cir. 2006) (en banc).
A. The Statutory Background
In the 1970s, two Maine Indian tribes -- the Penobscot Nation and the Passamaquoddy Tribe -- filed suit and claimed ownership over much of the land in the state of Maine. See id. at 53; Penobscot Nation v. Fellencer, 164 F.3d 706, 707 (1st Cir. 1999). See generally Joint Tribal Council of the Passamaquoddy Tribe v. Morton, 528 F.2d 370 (1st Cir. 1975) (providing additional background on the litigation).
With the assistance of the federal government, the Penobscots and the Passamaquoddy ultimately reached a settlement with the state. Aroostook II, 404 F.3d at 53. The first step in this settlement was Maine's passage of its state Settlement Act in 1979. See 1979 Me. Laws 2393; see also Aroostook II, 404 F.3d at 53. Among other things, that act set out to define the legal relationship between Maine and its Indian tribes. One general provision states that except as otherwise provided by the act, all Indian tribes "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." Me. Rev. Stat. Ann. tit. 30, § 6204. For shorthand, we use the phrase “Maine law” to refer to the provisions invoked by the “subject to” clause.
Another part of the statute deals specifically with the two tribes that had then filed suit; it provides that the Penobscot Nation and the Passamaquoddy Tribe have the powers and limitations of Maine municipalities, and are "subject to the laws of the State," except that the State does not have the power to regulate "internal tribal matters." Id. § 6206(1). By its terms, that exception in the state act does not apply to any other tribe.
The Aroostook Band, which had not filed suit or asserted any claim, is not mentioned anywhere in the state Settlement Act. However, another Maine tribe, the Houlton Band of Maliseet Indians ("Houlton Band"), is mentioned in several places. Although by 1979 the small Houlton Band had not filed suit against the state, it too was asserting that it had valid claims to parts of land in Maine. See id. § 6202. Nevertheless, at that time Maine was "reluctant to accord [the Houlton Band] special status," Aroostook II, 404 F.3d at 54, and the Houlton Band was not originally included in the compromise. Indeed, the state Settlement Act does not by its terms grant the Houlton Band any of the benefits that it grants the Penobscots and Passamaquoddy. In its section on legislative purposes, the state Settlement Act declares that in contrast to the arrangement with the Passamaquoddy and the Penobscots, "[t]he Houlton Band . . . will be wholly subject to the laws of the State." Me. Rev. Stat. Ann. tit. 30, § 6202.
The next step was the 1980 passage of MICSA, the federal Settlement Act. See Pub. L. No. 96-420, 94 Stat. 1785. A stated purpose of the Congress enacting MICSA was to "ratify" the state Settlement Act. 25 U.S.C. § 1721(b)(3). Even so, MICSA differs from its state counterpart in several respects, including the fact that MICSA grants some benefits to the Houlton Band. Like the state act, MICSA does not mention the Aroostook Band by name, but it does address issues relevant to all Maine tribes.
MICSA extinguished the land claims of all Indian tribes in Maine, by express provision. Id. § 1723. In exchange, MICSA gave several benefits to the Passamaquoddy, Penobscots, and Houlton Band, including federal recognition for all three tribes and eligibility for certain federal Indian programs. See id. § 1725(i). MICSA also created a sizable trust fund for the three tribes to use for acquiring land. Id. § 1724(d). Of the money in the fund, $26.8 million was for the Passamoquoddy's benefit, $26.8 million was for the benefit of the Penobscots, and $900,000 was for the benefit of the Houlton Band. Id.
Several MICSA provisions deal with the relationship between all Maine tribes and state law. Here the statute draws distinctions. As does the state Settlement Act, MICSA treats Maine's relationship with the Passamoquoddy and Penobscots differently from Maine's relationship with all other tribes. MICSA states that
all Indian[] . . . tribes or bands of Indians in the State of Maine, other than the Passamaquoddy Tribe [and] the Penobscot Nation, . . . shall be subject to the civil and criminal jurisdiction of the State [and] the laws of the State . . . to the same extent as any other person . . . therein.
Id. § 1725(a) (emphasis added).
A separate subsection of the federal MICSA deals with the applicability of Maine law to the Passamaquoddy and Penobscots; that section expressly references the state Settlement Act and declares that "that Act is hereby approved, ratified, and confirmed." Id. § 1725(b)(1).
In the late 1980s, there was further legislative action. The Aroostook Band, after meeting with counsel, determined that it too might have had a potential land claim before the passage of the 1979 and 1980 state and federal settlement acts. See Aroostook II, 404 F.3d at 54. MICSA's language had, however, extinguished any potential land claim. The Aroostook Band nevertheless opened a dialogue with the state. After negotiations, the Maine legislature passed the state Micmac Act. See 1989 Me. Laws 230.
The terms of the state Micmac Act gave the Aroostook Band a status similar to that accorded the Houlton Band, and different from the status given the Penobscots and Passamaquoddy. Aroostook II, 404 F.3d at 54. The Houlton Band, mentioned explicitly in the two prior settlement acts, had been expressly made "subject to the civil and criminal jurisdiction of the State [and] the laws of the State . . . to the same extent as any other person . . . therein." 25 U.S.C. § 1725(a). As for the Aroostook Band, the state Micmac Act provided that "[e]xcept as otherwise provided in this Act, the Aroostook Band of Micmacs . . . 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. . . therein." Me. Rev. Stat. Ann. tit. 30, § 7203. Another provision stated that, unlike the Passamaquoddy and the Penobscots, "[t]he Aroostook Band of Micmacs shall not exercise nor enjoy the powers, privileges and immunities of a municipality." Id. § 7205.
The parties now dispute whether the state Micmac Act actually took effect as a matter of state law. The Aroostook Band argues that the state Micmac Act is ineffective under state law, so the clauses of that Act, cited above, do not apply and the Aroostook Band is not subject to state law. For reasons we describe later, we think this dispute over state law is not material.
As of the early 1990s, all of the concerned entities apparently treated the state Micmac Act as validly enacted. Accordingly, their next step was to persuade Congress to enact ABMSA, the federal Micmac Act. Congress did so in 1991. See Pub. L. No. 102-171, 105 Stat. 1143. The terms of the federal ABMSA, and the effect that they have on the earlier-enacted federal MICSA, are at the heart of the resolution of this case.
ABMSA declares, in its findings section, that the Aroostook Band was not referred to in MICSA because in 1980 there had been insufficient historical evidence of the tribe's presence in Maine. ABMSA § 2(a)(2). That documentation had become available, id. § 2(a)(3), and so Congress decided that it was "now fair and just" to give the Aroostook Band "the same settlement provided to the Houlton Band" in MICSA, id. § 2(a)(5). ABMSA also states that one of its purposes is to "ratify the [state Micmac Act], which defines the relationship between the State of Maine and the Aroostook Band of Micmacs." Id. § 2(b)(4).
Among other provisions, ABMSA provided the Aroostook Band with a $900,000 land acquisition fund, see id. §§ 4(a), 10, gave the Aroostook Band federal recognition, see id. § 6(a), and authorized the Aroostook Band to "organize for its common welfare and adopt [a governing] instrument," see id. § 7(a). ABMSA applies federal law to the Aroostook Band in the same manner as MICSA applied federal law to the other three Maine tribes. Id. § 6(b). However, as to the application of Maine law, ABMSA does not repeat the language of the state Micmac Act, nor does it repeat the language of MICSA. It has no language directly on this topic at all. See Aroostook II, 404 F.3d at 55. ABMSA does empower the State and the Aroostook Band to reach their own agreement regarding Maine's jurisdiction over tribal lands, see ABMSA § 6(d), but it appears that no agreement has yet been reached that would be relevant to this case.
ABMSA also contains a "conflicts" provision: it states that if there is "a conflict of interpretation between the provisions of the [state Settlement Act, state Micmac Act, or MICSA] and this Act, the provisions of this Act shall govern." Id. § 11.
B. The History of this Litigation: The Maine Law Discrimination Claims Against the Aroostook Band
During 2001 and 2002, the Aroostook Band fired three of its employees: Lisa Gardiner, Tammy Condon, and Beverly Ayoob. Gardiner was the Band's Chief Financial Officer, Condon was its Compliance Officer, and Ayoob was its Housing Director. Aroostook II, 404 F.3d at 50. Gardiner and Condon alleged that they had been the victims of employment discrimination on the basis of their race, color, and national origin, in violation of the Maine Human Rights Act (MHRA), Me. Rev. Stat. Ann. tit. 5, §§ 4551-4634, and that they had been unlawfully retaliated against in violation of the MHRA and the Maine Whistleblowers' Protection Act (MWPA), Me. Rev. Stat. Ann. tit. 26, §§ 831-840. Aroostook II, 404 F.3d at 51. Ayoob also alleged she had been the victim of unlawful discrimination and retaliation under these statutes. Id. All three filed complaints with the Commission, a state agency which investigates discrimination charges, see Me. Rev. Stat. Ann. tit. 5, § 4566. Aroostook II, 404 F.3d at 51. In all three cases, the Commission in turn filed charges with the United States Equal Employment Opportunity Commission. Id. The Aroostook Band asked the Maine Commission to dismiss the complaints, arguing that the Commission had no jurisdiction over the Band. Id. The Commission refused, and it investigated the complaints. Id.
The Aroostook Band then filed suit in U.S. District Court against the Commission's members, and against Condon, Gardiner, and Ayoob. Id. at 51-52. It sought declaratory and injunctive relief, asserting five claims: 1) that ABMSA and/or the Aroostook Band's inherent sovereignty prohibited the Commission from enforcing the state MHRA and MWPA against it, 2) that the Aroostook Band's sovereign immunity achieved the same result, 3) that the Aroostook Band was statutorily exempt from Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e to 2000e-17, 4) that Title VII preempts application of the state MHRA and MWPA against an Indian tribe, and 5) that the Aroostook Band was not an "employer" within the meaning of either the state MHRA or MWPA statutes.
The magistrate judge initially dismissed all claims for lack of federal jurisdiction under Rule 12(h)(3). See Aroostook Band of Micmacs v. Executive Dir. Me. Human Rights Comm'n, 307 F. Supp. 2d 95, 96 (D. Me. 2004) ("Aroostook I"). A panel of this court reversed on the grounds that the first four claims were properly brought in federal court. See Aroostook II, 404 F.3d at 67, 69, 71, 73. The panel remanded all five claims, as there was possible pendent jurisdiction over the final state law claim. See id. at 73; see also 28 U.S.C. § 1367.
Part of the panel's opinion found that there was a distinction between tribal sovereign immunity and inherent tribal authority. See Aroostook II, 404 F.3d at 67-68. That part of the opinion was later overruled by this court's en banc opinion in Narragansett. 449 F.3d at 24-25.
On remand, the magistrate judge considered the merits of both parties' motions for summary judgment. Judgment was entered for the Aroostook Band on its first claim: that ABMSA and/or inherent sovereignty protects the tribe's employment decisions from Maine law. See Aroostook Band of Micmacs v. Ryan, 403 F. Supp. 2d 114, 130 (D. Me. 2005) ("Aroostook III"). The magistrate judge's decision predated the issuance of our en banc opinion in Narragansett.
The magistrate judge's reasoning had two primary parts. First, the magistrate judge concluded that the state Micmac Act, with its language subjecting the Aroostook Band to state law, had never taken effect. Id. at 119-22. This failure to become effective, the judge held, was not cured by ABMSA, even though the federal act stated it was ratifying its state counterpart. Id. at 122-23.
Second, the magistrate judge concluded that while MICSA had subjected the Aroostook Band to Maine law, this aspect of MICSA was effectively and impliedly abrogated by two provisions in ABMSA: the grant of federal recognition to the Aroostook Band in § 6(a), and the authorization in § 7(a) for the Aroostook Band to organize its government. Id. at 124-30. Both provisions of ABMSA, the magistrate judge held, were in conflict with MICSA, and the conflicts were resolved in the Aroostook Band's favor pursuant to ABMSA's § 11. Id. at 124-26.
The magistrate judge permanently enjoined the Commission defendants from applying the MHRA and MWPA to the Aroostook Band, id. at 133, and also issued a declaratory judgment to similar effect against Gardiner, Condon, and Ayoob. The Commission defendants and defendants Gardiner and Condon all appealed. We consolidated the appeals, and we now reverse.
II. AN OVERVIEW
We review de novo the magistrate judge's disposition of the cross-motions for summary judgment. Jalbert Leasing, Inc. v. Mass. Port Auth., 449 F.3d 1, 2 (1st Cir. 2006).
There are several major strands to the Aroostook Band's argument. First, the Aroostook Band argues that MICSA did not subject the tribe's government to state employment law. Second, even if MICSA did have this effect, the tribe contends that this aspect of MICSA was abrogated by and is in conflict with ABMSA. Throughout, the Aroostook Band interprets the relevant statutes in light of its notions of inherent tribal sovereignty, as protected under federal Indian common law.
The precise question we face is whether Maine is precluded from applying its employment statutes when these statutes permit individuals employed by the Aroostook Band's government to file and pursue discrimination complaints with the Commission and through any judicial review thereafter. While the parties have argued in broad terms before us, that is the narrow issue that we decide.
Our conclusion is that this dispute is resolved in Maine's favor based on two federal statutes, MICSA and ABMSA, both of which were statutes designed to settle Indian claims. These settlement acts displaced any federal common law that might otherwise bear on this dispute. MICSA clearly and unequivocally establishes that Maine law applies to the Aroostook Band. And ABMSA does not either explicitly or implicitly conflict with or override MICSA on this point. It instead reinforces this aspect of MICSA.
Whether or not the state Micmac Act ever became effective under state law is not an issue we need to decide. As a federal court, we would be reluctant in any event to decide such a difficult and complex issue of state law without guidance from Maine's Supreme Judicial Court. Our analysis and the resolution of these issues turn entirely on federal law.
III. MICSA'S EFFECT ON THE AROOSTOOK BAND
A. MICSA’s Text
Maine relies on MICSA's language to support its argument that MICSA subjected the Aroostook Band to state employment law. Specifically, MICSA declares that
all Indians, Indian nations, or tribes or bands of Indians in the State of Maine, other than the Passamaquoddy Tribe, the Penobscot Nation, and their members, and any lands or natural resources owned by any such Indian, Indian nation, tribe or band of Indians and any lands or natural resources held in trust by the United States, or by any other person or entity, for any such Indian, Indian nation, tribe, or band of Indians shall be subject to the civil and criminal jurisdiction of the State, the laws of the State, and the civil and criminal jurisdiction of the courts of the State, to the same extent as any other person or land therein.
25 U.S.C. § 1725(a). By its clear terms, § 1725(a) makes all Maine tribes, other than the Passamaquoddy Tribe and the Penobscot Nation, "subject to the civil and criminal jurisdiction of the State, the laws of the State, and the civil and criminal jurisdiction of the courts of the State."
The Aroostook Band argues that even while MICSA made it "subject to . . . the laws of the State," the statute did not go so far as to subject the internal tribal matters of the Aroostook Band to state law. It contends that it retains authority over these matters as part of its inherent tribal sovereignty. We discuss in a later section why Congress’s intent in MICSA to ratify the state Settlement Act, grouped with that state statute’s treatment of “internal tribal matters,” defeats this claim. But in this section we also provide several other reasons to reject the argument.
1. Statutory Clarity and the Abrogation of Sovereignty
The Aroostook Band relies on rules of statutory construction that "obligate us to construe 'acts diminishing the sovereign rights of Indian tribes . . . strictly,' 'with ambiguous provisions interpreted to the [Indians'] benefit.'" Fellencer, 164 F.3d at 709 (ellipsis and alteration in original) (internal citations omitted) (quoting Rhode Island v. Narragansett Indian Tribe, 19 F.3d 685, 702 (1st Cir. 1994); County of Oneida v. Oneida Indian Nation, 470 U.S. 226, 247 (1985)). The Aroostook Band asserts that prior to MICSA's enactment, it had the power to control all of its own employment matters as part of its inherent sovereignty. It contends that, judged against a backdrop of federal common law protecting Indian sovereignty, see Rhode Island, 19 F.3d at 701, MICSA was not clear enough to subjugate this aspect of the tribe's sovereignty to Maine law.
We disagree. Whatever powers are included within "inherent tribal authority," Congress may abrogate those powers by statute. See United States v. Lara, 541 U.S. 193, 200 (2004); Washington v. Confederated Bands & Tribes of the Yakima Indian Nation, 439 U.S. 463, 470-71 (1979). Although Congress must do so clearly, "there is no requirement that talismanic phrases be employed. Thus, an effective limitation . . . need not use magic words." Narragansett, 449 F.3d at 25.
MICSA is clear. In § 1725(a) it not only made Maine Indians "subject to . . . the laws of the State," and "subject to the civil and criminal jurisdiction of the State," but it expressly added the emphasizing phrase "to the same extent as any other person." And § 1725(a) not only applies to "Indians," but also to the "Indian nations, . . . tribes[, and] bands of Indians" themselves. Short of using "magic words," it is hard to imagine how § 1725(a) could have been clearer. There is no “internal tribal matters” exception in the statute.
The Aroostook Band tries to interpret this clear statement by Congress as nevertheless exempting specific units of tribal government. Aided by the Houlton Band as amicus, the Aroostook Band sees significance in the fact that § 1725(a) does not apply state law to governing bodies like the Aroostook Micmac Council or the Houlton Band Council. Cf. 25 U.S.C. § 1722(a) (stating that the Houlton Band is “represented” by the Houlton Band Council); ABMSA § 3(1) (stating that the Aroostook Band is “represented” by the Aroostook Micmac Council). The inference we are asked to draw is that § 1725(a) applies state law to Maine tribes as “polities” but not to their governments.
This argument lacks merit. It is not a natural reading of the language and it creates an artificial distinction merely to suit tribal purposes. Further, MICSA recognizes that a governing Council exists as a representative of a tribe. See 25 U.S.C. § 1722(a). It is the tribe itself, as a legal entity, whose interest in sovereignty is really at issue. See Ninigret Dev. Corp. v. Narragansett Indian Wetuomuck Hous. Auth., 207 F.3d 21, 29 (1st Cir. 2000) (explaining that a tribal housing authority had sovereign immunity because it was "an arm of the [t]ribe"); Fletcher v. United States, 116 F.3d 1315, 1324 (10th Cir. 1997) (holding that the members of a tribal government, sued in their official capacities, were protected by sovereign immunity because any relief would "run against the [t]ribe itself"). Under MICSA, § 1725(a) applies state law to "Indian nations, . . . tribes[,] or bands." That is what matters. See Narragansett, 449 F.3d at 30 (holding that tribal officers have no sovereign immunity when they engage in activities that the tribe itself cannot lawfully authorize).
Amicus presents another argument why § 1725(a) was not clear in its abrogation of either Houlton or Aroostook tribal sovereignty. Under 25 U.S.C. § 1727(a), the Passamaquoddy and the Penobscots have the opportunity to petition for "exclusive jurisdiction" over certain child custody matters. Amicus contends that the use of "exclusive jurisdiction" here, in contrast with the use of the sole word "jurisdiction" in § 1725(a), means that § 1725(a) merely grants the state "nonexclusive authority and concurrent jurisdiction to apply [s]tate law" to tribes like the Houlton Band and Aroostook Band.
But amicus ignores the fact that elsewhere in MICSA, the Passamaquoddy and the Penobscots were "authorized to exercise jurisdiction, separate and distinct from the civil and criminal jurisdiction of the State of Maine, to the extent authorized by the [state Settlement Act]." Id. § 1725(f). No such jurisdictional authorization was provided to the other Maine tribes, and thus we think it would clearly defeat congressional intent to nevertheless imply one. The language about "exclusive jurisdiction" in § 1727(a) is plainly nothing more than a helpful clarification in light of the peculiar jurisdictional status of the Penobscots and Passamaquoddy. It does not turn § 1725(a) into a mere grant of concurrent jurisdiction. The meaning of MICSA's § 1725(a) is clear: Maine law applies to this situation.
2. Statutory Clarity in Context: Indian Statutes in Supreme Court Case Law
The Aroostook Band attempts to undercut the clarity of MICSA by comparing it to statutes -- most notably Public Law 280 and the Menominee Indian Termination Act of 1954 -- examined in several Supreme Court cases.
MICSA stands in stark contrast to Public Law 280, Act of Aug. 15, 1953, ch. 505, 67 Stat. 588 (codified as amended at 18 U.S.C. § 1162 and 28 U.S.C. § 1360). Public Law 280 is the statute discussed in Bryan v. Itasca County, 426 U.S. 373 (1976), a case on which the Aroostook Band relies. Bryan addressed the part of the statute that gave certain states
jurisdiction over civil causes of action between Indians or to which Indians are parties which arise in . . . Indian country . . . to the same extent that such State has jurisdiction over other civil causes of action, and those civil laws of such State that are of general application to private persons or private property shall have the same force and effect within such Indian country as they have elsewhere within the State.
28 U.S.C. § 1360(a). The Court found this statute did not clearly give states civil regulatory jurisdiction over Indians, and it interpreted the ambiguity for the Indians' benefit by precluding the application of a state property tax. See Bryan, 426 U.S. at 392-93.
In finding Public Law 280 ambiguous, the Court relied on reasons that are inapplicable to MICSA's § 1725(a). First, the Court examined Public Law 280's legislative history and concluded that its civil law provisions were primarily designed to address "the lack of adequate Indian forums for resolving private legal disputes." Id. at 383; see also id. at 379-87. Viewed in this light, when Public Law 280 gave force to "the civil laws of [the] State" pertaining to "private persons or private property," 25 U.S.C. § 1360(a), it was merely providing state rules of decision and a state forum for private disputes, and it was not attempting to infringe more deeply on tribal sovereignty. Bryan, 426 U.S. at 383-84. MICSA has no such legislative history, nor does it contain similar language specifically addressed to "private" legal disputes. Cf. Narragansett, 449 F.3d at 28 (noting the narrowness of Public Law 280).
More importantly, the Court in Bryan stressed that Public Law 280 lacked "any conferral of state jurisdiction over the tribes themselves." 426 U.S. at 389. In contrast, § 1725(a) expressly does apply to Indian tribes in addition to their members.
The Aroostook Band also cites to Menominee Tribe of Indians v. United States, 391 U.S. 404 (1968), but Menominee does not assist the tribe. Menominee involved a federal statute, the Menominee Indian Termination Act of 1954, 68 Stat. 250 (repealed 1973), which stated that "the laws of the several States shall apply to the [Menominee] tribe and its members in the same manner as they apply to other citizens or persons within their jurisdiction." 391 U.S. at 410 (internal quotation marks omitted) (quoting 25 U.S.C. § 899 (repealed 1973)). The Supreme Court refused to read this language as abrogating certain hunting and fishing rights that the Menominee Tribe had obtained in an 1854 treaty. Id. at 412-13. The Aroostook Band asks us to reach a comparable result here as it contends that the language in the Termination Act is similar to the language in MICSA.
We disagree and find Menominee not only easily distinguishable, but in fact supportive of our reading of MICSA. Menominee's holding is not that the Termination Act alone was too unclear to abrogate aspects of tribal sovereignty. Instead, Menominee held that the Termination Act needed to be considered in pari materia with Public Law 280, which was contemporaneously passed and which explicitly said it was not interfering with Indian hunting and fishing rights granted by treaty. Id. at 410-11. The combination of these two statutes created enough ambiguity to favor preservation of Indian rights. With MICSA there is no similar federal statute, passed roughly contemporaneously, that could create a comparable ambiguity. To the contrary, the federal statutory scheme is a consistent whole on the issue in question.
Nor is this the sole fact that distinguishes Menominee. For instance, the Termination Act was abrogating a treaty right, which meant that rules of statutory construction favoring Indians were bolstered by the rule that "the intention to abrogate or modify a treaty is not to be lightly imputed to . . . Congress." Id. at 413 (quoting Pigeon River Improvement, Slide & Boom Co. v. Charles W. Cox, Ltd., 291 U.S. 138, 160 (1934)) (internal quotation marks omitted). By contrast, this case does not involve any treaty. Additionally, the Menominee Court drew support from statements by the Termination Act's chief sponsor; he had declared that the act "'in no way violates any treaty obligation with this tribe.'" Id. (quoting 100 Cong. Rec. 8537, 8538 (1954) (statement of Sen. Watkins)). The Aroostook Band has pointed to no legislative history for MICSA that is similarly so on point.
The Supreme Court's decision in South Carolina v. Catawba Indian Tribe, Inc., 476 U.S. 498 (1986), puts Menominee in context and further confirms our reading of MICSA. Catawba interpreted a statute virtually identical to the Termination Act in Menominee. See Catawba Indian Tribe Division of Assets Act, Pub. L. No. 86-622, 73 Stat. 592 (1959) (repealed 1993). That Catawba statute declared: "[T]he [Catawba] tribe and its members shall not be entitled to [certain federal services] . . ., and the laws of the several States shall apply to them in the same manner they apply to other persons or citizens within their jurisdiction." 25 U.S.C. § 935 (repealed 1993); see also Catawba, 476 U.S. at 505. Without a contemporaneously passed statute like Public Law 280 to add ambiguity, the Supreme Court found it "unmistakably clear" that "state laws apply to the Catawba Tribe and its members in precisely the same fashion that they apply to others." Catawba, 476 U.S. at 505-06; see also id. at 509 n.20 (distinguishing Menominee on this basis). MICSA is similarly clear.
3. Statutory Clarity and The Tribal Employment Rule
Despite the statutory clarity, and the Supreme Court case law reinforcing this clarity, the Aroostook Band urges us to apply what it calls the "Tribal Employment Rule." What it means by this is that there are a number of cases, all from other jurisdictions and involving differently situated tribes, holding that general federal employment statutes do not apply to tribal employers despite these statutes' silence on that issue. See, e.g., Snyder v. Navajo Nation, 382 F.3d 892, 894-95 (9th Cir. 2004) (tribal employer exempt from Fair Labor Standards Act); Taylor v. Ala. Intertribal Council Title IV J.T.P.A., 261 F.3d 1032, 1035-36 (11th Cir. 2001) (tribal employer insulated from employment discrimination claim under 42 U.S.C. § 1981); NLRB v. Pueblo of San Juan, 280 F.3d 1278, 1286 (10th Cir. 2000) (tribal employer not covered by National Labor Relations Act); cf. 42 U.S.C. § 2000e(b) (explicitly providing that for purposes of Title VII, the term "employer" does not include an Indian tribe).
These cases are inapposite. The fact that a tribe may be exempt from federal employment laws says little regarding that tribe's status under state employment laws, particularly where Congress has enacted settlement acts. None of these cases say that tribal employment decisions are somehow insulated from state law in the face of a federal statute that specifically applies state laws to tribes. We think the "Tribal Employment Rule" is inapplicable in the face of MICSA's clarity.
B. The State Settlement Act and Its Relationship to MICSA
We have held that as a matter of reading MICSA, § 1725(a) clearly subjects the Aroostook Band to Maine law in this situation. That is enough. But because the Aroostook Band relies heavily on notions of equity, we also consider the terms of the state Settlement Act. The terms of that act reinforce our reading of MICSA's language and intent. Indeed, MICSA purported to ratify that state act. See 25 U.S.C. § 1725(b)(1); see also Akins v. Penobscot Nation, 130 F.3d 482, 485 (1st Cir. 1997) (treating the "internal tribal matters" exception contained in the state Settlement Act as incorporated into federal law).
The state Settlement Act explicitly created an "internal tribal matters" exception for the Passamaquoddy and the Penobscots and not for the Houlton Band, the Aroostook Band, or any other Maine tribe. Compare Me. Rev. Stat. Ann. tit. 30, § 6204 (providing that "[e]xcept as otherwise provided in this Act, all Indians, Indian Nations, and tribes and bands of Indians in [Maine] . . . shall be subject to the laws of the State . . . to the same extent as any other person"), with id. § 6206(1) (providing that "internal tribal matters" of the Passamaquoddy and the Penobscots "shall not be subject to regulation by the state"). MICSA's choice of language echoed the state Settlement Act by providing one legal regime for the Penobscots and Passamaquoddy, and a different regime for other tribes. Compare 25 U.S.C. § 1725(a) (subjecting all Indians in Maine, "other than the Passamaquoddy Tribe, the Penobscot Nation, and their members" to state law to the same extent as any other person), with id. § 1725(b)(1) (discussing Maine's jurisdiction over the Penobscots and Passamaquoddy).
The Aroostook Band takes issue with this understanding of the state law. It argues that while the "internal tribal matters" exception in the state Settlement Act refers only to the Penobscots and the Passamaquoddy, the internal matters of all Maine tribes are free from state regulation. The Aroostook Band contends that the exception in the statute is "actually a savings clause that preserves certain aspects of inherent tribal sovereignty and self-governance rights that generally apply to all Indian tribes." It posits that such a savings clause was needed for the Penobscots and the Passamaquoddy to clarify their retained sovereignty despite their unique status as municipalities under Maine law. Since the other Maine tribes were not given municipal status, the Aroostook Band argues that no "internal tribal matters" exception was needed for them in the state Settlement Act, so little should be inferred from congressional failure to place such an exception in MICSA.
We disagree with this innovative reading of the state Settlement Act. It is not a rational reading of the language. And the reading is also in tension with our precedent. We have held that the "internal tribal matters" exception has its own unique meaning, and that it does not invoke all of Indian common law. See Fellencer, 164 F.3d at 709-13 (treating Indian common law as but one factor in determining whether something is an "internal tribal matter"); Akins, 130 F.3d at 488-90 (same); see also id. at 489 (refusing to read the exception "as invoking all of prior Indian law" because "[t]hat would be inconsistent with the unique nature of the Maine settlement"). This is hardly the effect we would expect from a “savings clause.”
The Aroostook Band's reading of the exception is also undercut by strong evidence of legislative intent. The state Settlement Act clearly intended to give the Penobscots and the Passamaquoddy more independence from state law than it gave the Houlton Band (the only other Maine tribe that asserted a claim at the time that act was passed). In its findings section, the state Settlement Act declares: "[T]he Passamaquoddy Tribe and the Penobscot Nation have agreed to adopt the laws of the State as their own to the extent provided in this Act. The Houlton Band of Maliseet Indians and its lands will be wholly subject to the laws of the State." Me. Rev. Stat. Ann. tit. 30, § 6202. It would be illogical to conclude that the Houlton Band had received the same exemptions from state law that had been granted to the two larger tribes. And if the Houlton Band was not given these exemptions, certainly the Aroostook Band did not receive them either.
IV. THE STATUS OF THE AROOSTOOK BAND UNDER ABMSA
In the previous section, we concluded that MICSA clearly subjected the Aroostook Band to state employment laws -- a conclusion we reached both from MICSA's language and from its context in relation to the state Settlement Act. "[W]hen two statutes are capable of co-existence, it is the duty of the courts, absent a clearly expressed congressional intention to the contrary, to regard each as effective." Morton v. Mancari, 417 U.S. 535, 551 (1974). We think that MICSA and the later-enacted ABMSA are capable of co-existence, and there is no clearly expressed congressional intention that ABMSA makes Maine law inapplicable here despite MICSA's language.
The Aroostook Band's argument to the contrary proffers two ABMSA provisions as conflicting with MICSA: § 6(a), which gives the Aroostook Band federal recognition, and § 7(a), which authorizes the Aroostook Band to adopt a governing instrument and organize for its common welfare. When read alongside ABMSA § 11, the conflicts provision, the Aroostook Band believes that ABMSA codifies the tribe's inherent sovereignty and insulates its employment decisions from state law. In an attempt to reinforce its reading of §§ 6(a) and (7)(a), the Aroostook Band also appears to argue that ABMSA impliedly repeals parts of MICSA. We disagree with these arguments. Additionally, we disagree with the repeal argument that is offered by our dissenting colleague (and that was not advanced by the Aroostook Band).
A. Section 6(a): Federal Recognition
The Aroostook Band contends that when ABMSA gave it federal recognition, it used a “term of art” that entitles the tribe to a variety of privileges and immunities. Cf. 25 C.F.R. § 83.2 (explaining that recognition means that a "tribe is entitled to the immunities and privileges available to other federally acknowledged Indian tribes by virtue of their government-to-government relationship with the United States"). Among those privileges, we are told, is freedom from the application of state law.
We flatly reject the argument. MICSA contains express terms to the contrary. It gave the Penobscots and the Passamaquoddy "federal recognition," see 25 U.S.C. § 1725(i), and yet those tribes are subject to limits that do not apply to other federally recognized tribes. See Akins, 130 F.3d at 485, 489. Compare 25 U.S.C. § 1724(e) (placing restrictions on the authority of the United States to take land into trust on behalf of Maine tribes), with id. § 465 (giving the Secretary of the Interior discretion to take lands into trust on behalf of Indian tribes).